[Federal Register Volume 64, Number 235 (Wednesday, December 8, 1999)]
[Rules and Regulations]
[Pages 68722-68851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29181]
[[Page 68721]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 9, 122, 123, and 124
National Pollutant Discharge Elimination System--Regulations for
Revision of the Water Pollution Control Program Addressing Storm Water
Discharges; Final Rule
Report to Congress on the Phase II Storm Water Regulations; Notice
Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 /
Rules and Regulations
[[Page 68722]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 122 , 123, and 124
[FRL--6470-8]
RIN 2040-AC82
National Pollutant Discharge Elimination System--Regulations for
Revision of the Water Pollution Control Program Addressing Storm Water
Discharges
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Today's regulations (Phase II) expand the existing National
Pollutant Discharge Elimination System (NPDES) storm water program
(Phase I) to address storm water discharges from small municipal
separate storm sewer systems (MS4s) (those serving less than 100,000
persons) and construction sites that disturb one to five acres.
Although these sources are automatically designated by today's rule,
the rule allows for the exclusion of certain sources from the national
program based on a demonstration of the lack of impact on water
quality, as well as the inclusion of others based on a higher
likelihood of localized adverse impact on water quality. Today's
regulations also exclude from the NPDES program storm water discharges
from industrial facilities that have ``no exposure'' of industrial
activities or materials to storm water. Finally, today's rule extends
from August 7, 2001 until March 10, 2003 the deadline by which certain
industrial facilities owned by small MS4s must obtain coverage under an
NPDES permit. This rule establishes a cost-effective, flexible approach
for reducing environmental harm by storm water discharges from many
point sources of storm water that are currently unregulated.
EPA believes that the implementation of the six minimum measures
identified for small MS4s should significantly reduce pollutants in
urban storm water compared to existing levels in a cost-effective
manner. Similarly, EPA believes that implementation of Best Management
Practices (BMP) controls at small construction sites will also result
in a significant reduction in pollutant discharges and an improvement
in surface water quality. EPA believes this rule will result in
monetized financial, recreational and health benefits, as well as
benefits that EPA has been unable to monetize. Expected benefits
include reduced scouring and erosion of streambeds, improved aesthetic
quality of waters, reduced eutrophication of aquatic systems, benefit
to wildlife and endangered and threatened species, tourism benefits,
biodiversity benefits and reduced costs for siting reservoirs. In
addition, the costs of industrial storm water controls will decrease
due to the exclusion of storm water discharges from facilities where
there is ``no exposure'' of storm water to industrial activities and
materials.
DATES: This regulation is effective on February 7, 2000. The
incorporation by reference of the rainfall erosivity factor publication
listed in the rule is approved by the Director of the Federal Register
as of February 7, 2000. For judicial review purposes, this final rule
is promulgated as of 1:00 p.m. Eastern Standard Time, on December 22,
1999 as provided in 40 CFR 23.2.
ADDRESSES: The complete administrative record for the final rule and
the ICR have been established under docket numbers W-97-12 (rule) and
W-97-15 (ICR), and includes supporting documentation as well as
printed, paper versions of electronic comments. Copies of information
in the record are available upon request. A reasonable fee may be
charged for copying. The record is available for inspection and copying
from 9 a.m. to 4 p.m., Monday through Friday, excluding legal holidays,
at the Water Docket, EPA, East Tower Basement, 401 M Street, SW,
Washington, DC. For access to docket materials, please call 202/260-
3027 to schedule an appointment.
FOR FURTHER INFORMATION CONTACT: George Utting, Office of Wastewater
Management, Environmental Protection Agency, Mail Code 4203, 401 M
Street, SW, Washington, DC 20460; (202) 260-5816; sw2@epa.gov.
SUPPLEMENTARY INFORMATION: Entities potentially regulated by this
action include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Federal, State, Tribal, and Local Operators of small separate
Governments. storm sewer systems,
industrial facilities that
discharge storm water
associated with industrial
activity or construction
activity disturbing 1 to 5
acres.
Industry............................... Operators of industrial
facilities that discharge
storm water associated with
industrial activity.
Construction Activity.................. Operators of construction
activity disturbing 1 to 5
acres.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility or company is regulated by this action, you should
carefully examine the applicability criteria in Secs. 122.26(b),
122.31, 122.32, and 123.35 of the final rule. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
Table of Contents:
I. Background
A. Proposed Rule and Pre-proposal Outreach
B. Water Quality Concerns/Environmental Impact Studies and
Assessments
1. Urban Development
a. Large-Scale Studies and Assessments
b. Local and Watershed-Based Studies
c. Beach Closings/Advisories
2. Non-storm Water Discharges Through Municipal Storm Sewers
3. Construction Site Runoff
C. Statutory Background
D. EPA's Reports to Congress
E. Industrial Facilities Owned or Operated by Small
Municipalities
F. Related Nonpoint Source Programs
II. Description of Program
A. Overview
1. Objectives EPA Seeks to Achieve in Today's Rule
2. General Requirements for Regulated Entities Under Today's
Rule
3. Integration of Today's Rule With the Existing Storm Water
Program
4. General Permits
5. Tool Box
6. Deadlines Established in Today's Action
B. Readable Regulations
C. Program Framework: NPDES Approach
D. Federal Role
1. Develop Overall Framework of the Program
2. Encourage Consideration of ``Smart Growth'' Approaches
3. Provide Financial Assistance
4. Implement the Program in Jurisdictions not Authorized to
Administer the NPDES Program
5. Oversee State and Tribal Programs
6. Comply with Applicable Requirements as a Discharger
E. State Role
1. Develop the Program
2. Comply With Applicable Requirements as a Discharger
3. Communicate with EPA
F. Tribal Role
G. NPDES Permitting Authority's Role for the NPDES Storm Water
Small MS4 Program
1. Comply With Implementation Requirements
2. Designate Sources
a. Develop Designation Criteria
b. Apply Designation Criteria
[[Page 68723]]
c. Designate Physically Interconnected Small MS4s
d. Respond to Public Petitions for Designation
3. Provide Waivers
4. Issue Permits
5. Support and Oversee the Local Programs
H. Municipal Role
1. Scope of Today's Rule
2. Municipal Definitions
a. Municipal Separate Storm Sewer Systems (MS4s)
b. Small Municipal Separate Storm Sewer Systems
i. Combined Sewer Systems (CSS)
ii. Owners/Operators
c. Regulated Small MS4s
i. Urbanized Area Description
ii. Rationale for Using Urbanized Areas
d. Municipal Designation by the Permitting Authority
e. Waiving the Requirements for Small MS4s
3. Municipal Permit Requirements
a. Overview
i. Summary of Permitting Options
ii. Water Quality-Based Requirements
iii. Maximum Extent Practicable
b. Program Requirements--Minimum Control Measures
i. Public Education and Outreach on Storm Water Impacts
ii. Public Involvement/Participation
iii. Illicit Discharge Detection and Elimination
iv. Construction Site Storm Water Runoff Control
v. Post-Construction Storm Water Management in New Development
and Redevelopment
vi. Pollution Prevention/Good Housekeeping for Municipal
Operations
c. Application Requirements
i. Best Management Practices and Measurable Goals
ii. Individual Permit Application for a Sec. 122.34(b) Program
iii. Alternative Permit Option/ Tenth Amendment
iv. Satisfaction of Minimum Measure Obligations by Another
Entity
v. Joint Permit Programs
d. Evaluation and Assessment
i. Recordkeeping
ii. Reporting
iii. Permit-As-A-Shield
e. Other Applicable NPDES Requirements
f. Enforceability
g. Deadlines
h. Reevaluation of Rule
I. Other Designated Storm Water Discharges
1. Discharges Associated with Small Construction Activity
a. Scope
b. Waivers
i. Rainfall-Erosivity Waiver
ii. Water Quality Waiver
c. Permit Process and Administration
d. Cross-Referencing State, Tribal, or Local Erosion and
Sediment Control Programs
e. Alternative Approaches
2. Other Sources
3. ISTEA Sources
4. Residual Designation Authority
J. Conditional Exclusion for ``No Exposure'' of Industrial
Activities and Materials to Storm Water
1. Background
2. Today's Rule
3. Definition of ``No Exposure''
K. Public Involvement/Public Role
L. Water Quality Issues
1. Water Quality Based Effluent Limits
2. Total Maximum Daily Loads and Analysis to Determine the Need
for Water Quality-Based Limitations
3. Anti-Backsliding
4. Water Quality-Based Waivers and Designations
III. Cost-Benefit Analysis
A. Costs
1. Municipal Costs
2. Construction Costs
B. Quantitative Benefits
1. National Water Quality Model
2. National Water Quality Assessment
a. Municipal Measures
i. Fresh Waters Benefits
ii. Marine Waters Benefits
b. Construction Benefits
c. Summary of Benefits From the National Water Quality
Assessment
C. Qualitative Benefits
D. National Economic Impact
IV. Regulatory Requirements
A. Paperwork Reduction Act
B. Executive Order 12866
C. Unfunded Mandates Reform Act
1. Summary of UMRA Section 202 Written Statement
2. Selection of the Least Costly, Most Cost-Effective or Least
Burdensome Alternative That Achieves the Objectives of the Statute
3. Effects on Small Governments
D. Executive Order 13132
E. Regulatory Flexibility Act
F. National Technology Transfer And Advancement Act
G. Executive Order 13045
H. Executive Order 13084
I. Congressional Review Act
I. Background
A. Proposed Rule and Pre-Proposal Outreach
On January 9, 1998 (63 FR 1536), EPA proposed to expand the
National Pollutant Discharge Elimination System (NPDES) storm water
program to include storm water discharges from municipal separate storm
sewer systems (MS4s) and construction sites that were smaller than
those previously included in the program. The proposal also addressed
industrial sources that have ``no exposure'' of industrial activities
and materials to storm water. Today, EPA is promulgating a final rule
to implement most of the proposed revisions with minor changes based on
public comments received on the proposal. Today's final rule also
extends the deadline by which certain industrial facilities operated by
municipalities of less than 100,000 population must be covered by a
NPDES permit; the deadline is changed from August 7, 2001 until March
10, 2003.
In 1972, Congress amended the Federal Water Pollution Control Act
(commonly referred to as the Clean Water Act (CWA)) to prohibit the
discharge of any pollutant to waters of the United States from a point
source unless the discharge is authorized by an NPDES permit. The NPDES
program is a program designed to track point sources and require the
implementation of the controls necessary to minimize the discharge of
pollutants. Initial efforts to improve water quality under the NPDES
program primarily focused on reducing pollutants in industrial process
wastewater and municipal sewage. These discharge sources were easily
identified as responsible for poor, often drastically degraded, water
quality conditions.
As pollution control measures for industrial process wastewater and
municipal sewage were implemented and refined, it became increasingly
evident that more diffuse sources of water pollution were also
significant causes of water quality impairment. Specifically, storm
water runoff draining large surface areas, such as agricultural and
urban land, was found to be a major cause of water quality impairment,
including the nonattainment of designated beneficial uses.
In 1987, Congress amended the CWA to require implementation, in two
phases, of a comprehensive national program for addressing storm water
discharges. The first phase of the program, commonly referred to as
``Phase I,'' was promulgated on November 16, 1990 (55 FR 47990). Phase
I requires NPDES permits for storm water discharge from a large number
of priority sources including municipal separate storm sewer systems
(``MS4s'') generally serving populations of 100,000 or more and several
categories of industrial activity, including construction sites that
disturb five or more acres of land.
Today's rule, which is the second phase of the storm water program,
expands the existing program to include discharges of storm water from
smaller municipalities in urbanized areas and from construction sites
that disturb between one and five acres of land. Today's rule allows
certain sources to be excluded from the national program based on a
demonstrable lack of impact on water quality. The rule also allows
other sources not automatically regulated on a national basis to be
designated for inclusion based on increased likelihood for localized
adverse impact on water quality.
[[Page 68724]]
Today's rule also conditionally excludes storm water discharges from
industrial facilities that have ``no exposure'' of industrial
activities or materials to storm water. Today's rule and the effort
that led to its development are commonly referred to as ``Phase II.''
On August 7, 1995, EPA promulgated a final rule that required
facilities to be regulated under Phase II to apply for a NPDES permit
by August 7, 2001, unless the NPDES permitting authority designates
them as requiring a permit by an earlier date. (60 FR 40230). That rule
is referred to as ``the Interim Phase II Rule.'' Today's rule replaces
the Interim Phase II rule.
EPA performed extensive outreach and worked with a variety of
stakeholders prior to proposing today's rule. On September 9, 1992, EPA
published a notice requesting information and public comment on how to
prepare regulations under CWA section 402(p)(6) (see 57 FR 41344). The
notice identified three sets of issues associated with developing new
NPDES storm water regulations: (1) How should EPA identify unregulated
sources of storm water to protect water quality, (2) what types of
control strategies should EPA develop for these sources, and (3) what
are appropriate deadlines for implementing new requirements. The notice
recognized that potential sources for coverage under the section
402(p)(6) regulations would fall into two main categories: municipal
separate storm sewer systems and individual (commercial and
residential) sources. EPA received more than 130 comments on the
September 9, 1992, notice. For further discussion of the comments
received, see Storm Water Discharges Potentially Addressed by Phase II
of the National Pollutant Discharge Elimination System: Report to
Congress (EPA, 1995a), pp. 1-21 to 1-22, and Appendix J (which provides
a detailed summary of the comments received as they relate to the
specific issues raised in the notice).
In early 1993, the Rensselaerville Institute and EPA held public
and expert meetings to assist in developing and analyzing options for
identifying unregulated sources and possible controls. The report on
the 1993 meetings identified two options that were favored by the
various groups that participated. One option was a program that allowed
States to select sources to be controlled in a manner consistent with
criteria developed by EPA. A second option was a tiered approach under
which EPA would select high priority sources for control by NPDES
permits and States would select other sources for control under a State
water quality program other than the NPDES program. For additional
details see the ``Report on the EPA Storm Water Management Program
(Rensselaerville Study),'' Appendix I of Storm Water Discharges
Potentially Addressed by Phase II of the National Pollutant Discharge
Elimination System: Report to Congress (EPA, 1995a).
EPA also conducted outreach with representatives of small entities
in conjunction with the convening of a Small Business Advocacy Review
Panel under the Small Business Regulatory Enforcement Fairness Act
(SBREFA). This process is discussed in section IV.E of today's
preamble. For additional background see the discussion in the preamble
to the proposal for today's rule.
To assist EPA by providing advice and recommendations regarding the
urban municipal wet weather water pollution control program, EPA
established the Urban Wet Weather Flows Federal Advisory Committee
(hereinafter, ``FACA Committee'') under the Federal Advisory Committee
Act (FACA). The Office of Management and Budget approved the charter
for the FACA Committee on March 10, 1995. The FACA Committee provided a
forum for identifying and addressing issues associated with water
quality impacts from storm water sources.
The FACA Committee established two subcommittees: the Storm Water
Phase II FACA Subcommittee and the Sanitary Sewer Overflows (SSOs) FACA
Subcommittee. Consistent with the requirements of FACA, the membership
of both the FACA Committee and the subcommittees was balanced among
EPA's various outside stakeholder interests, including representatives
from municipalities, States, Indian Tribes, EPA, industrial and
commercial sectors, agriculture, and environmental and public interest
groups.
The Storm Water Phase II FACA Subcommittee (``Subcommittee'') met
fourteen times between September 1995 and June 1998. The 32
Subcommittee members discussed possible regulatory frameworks at these
meetings as well as during numerous other meetings and conference
calls. Members of the FACA Committee provided views regarding the
development of the ``no exposure'' provision and other provisions in
drafts of the Phase II rule. EPA provided Subcommittee members with
four successive drafts of the proposed rule and preamble, outlines of
the rule, summaries of the written comments received on each draft, and
documents identifying the changes made to each draft. In the course of
providing input to the Committee, individual Subcommittee members
provided significant input and advice that EPA considered in the
context of public comments received. Ultimately, the Subcommittee did
not provide a written report back to the FACA Committee, and the FACA
Committee did not provide written advice and recommendations to EPA.
The Agency, therefore, did not rely on group recommendations in
developing today's rule, but does consider the process to have resulted
in important public outreach.
B. Water Quality Concerns/Environmental Impact Studies and Assessments
Storm water runoff from lands modified by human activities can harm
surface water resources and, in turn, cause or contribute to an
exceedance of water quality standards by changing natural hydrologic
patterns, accelerating stream flows, destroying aquatic habitat, and
elevating pollutant concentrations and loadings. Such runoff may
contain or mobilize high levels of contaminants, such as sediment,
suspended solids, nutrients (phosphorous and nitrogen), heavy metals
and other toxic pollutants, pathogens, toxins, oxygen-demanding
substances (organic material), and floatables (U.S. EPA. 1992.
Environmental Impacts of Storm Water Discharges: A National Profile.
EPA 841-R-92-001. Office of Water. Washington, DC). After a rain, storm
water runoff carries these pollutants into nearby streams, rivers,
lakes, estuaries, wetlands, and oceans. The highest concentrations of
these contaminants often are contained in ``first flush'' discharges,
which occur during the first major storm after an extended dry period
(Schueler, T.R. 1994. ``First Flush of Stormwater Pollutants
Investigated in Texas.'' Note 28. Watershed Protection Techniques
1(2)). Individually and combined, these pollutants impair water
quality, threatening designated beneficial uses and causing habitat
alteration or destruction.
Uncontrolled storm water discharges from areas of urban development
and construction activity negatively impact receiving waters by
changing the physical, biological, and chemical composition of the
water, resulting in an unhealthy environment for aquatic organisms,
wildlife, and humans. The following sections discuss the studies and
data that address and support this finding.
Although water quality problems also can occur from agricultural
storm water discharges and return flows from irrigated agriculture,
this area of
[[Page 68725]]
concern is statutorily exempted from regulation as a point source under
the Clean Water Act and is not discussed here. (See CWA section
502(14)). Other storm water sources not specifically identified in the
regulations may be of concern in certain areas and can be addressed on
a case-by-case (or category-by-category) basis through the NPDES
designation authority preserved by CWA section 402(p)(2)(6), as well as
today's rule.
1. Urban Development
Urbanization alters the natural infiltration capability of the land
and generates a host of pollutants that are associated with the
activities of dense populations, thus causing an increase in storm
water runoff volumes and pollutant loadings in storm water discharged
to receiving waterbodies (U.S. EPA, 1992). Urban development increases
the amount of impervious surface in a watershed as farmland, forests,
and meadowlands with natural infiltration characteristics are converted
into buildings with rooftops, driveways, sidewalks, roads, and parking
lots with virtually no ability to absorb storm water. Storm water and
snow-melt runoff wash over these impervious areas, picking up
pollutants along the way while gaining speed and volume because of
their inability to disperse and filter into the ground. What results
are storm water flows that are higher in volume, pollutants, and
temperature than the flows in less impervious areas, which have more
natural vegetation and soil to filter the runoff (U.S. EPA, 1997.
Urbanization and Streams: Studies of Hydrologic Impacts. EPA 841-R-97-
009. Office of Water. Washington, DC).
Studies reveal that the level of imperviousness in an area strongly
correlates with the quality of the nearby receiving waters. For
example, a study in the Puget Sound lowland ecoregion found that when
the level of basin development exceeded 5 percent of the total
impervious area, the biological integrity and physical habitat
conditions that are necessary to support natural biological diversity
and complexity declined precipitously (May, C.W., E.B. Welch, R.R.
Horner, J.R. Karr, and B.W. May. 1997. Quality Indices for Urbanization
Effects in Puget Sound Lowland Streams, Technical Report No. 154.
University of Washington Water Resources Series). Research conducted in
numerous geographical areas, concentrating on various variables and
employing widely different methods, has revealed a similar conclusion:
stream degradation occurs at relatively low levels of imperviousness,
such as 10 to 20 percent (even as low as 5 to 10 percent according to
the findings of the Washington study referenced above) (Schueler, T.R.
1994. ``The Importance of Imperviousness.'' Watershed Protection
Techniques 1(3); May, C., R.R. Horner, J.R. Karr, B.W. Mar, and E.B.
Welch. 1997. ``Effects Of Urbanization On Small Streams In The Puget
Sound Lowland Ecoregion.'' Watershed Protection Techniques 2(4); Yoder,
C.O., R.J. Miltner, and D. White. 1999. ``Assessing the Status of
Aquatic Life Designated Uses in Urban and Suburban Watersheds.'' In
Proceedings: National Conference on Retrofits Opportunities in Urban
Environments. EPA 625-R-99-002, Washington, DC; Yoder, C.O and R.J.
Miltner. 1999. ``Assessing Biological Quality and Limitations to
Biological Potential in Urban and Suburban Watersheds in Ohio.'' In
Comprehensive Stormwater & Aquatic Ecosystem Management Conference
Papers, Auckland, New Zealand). Furthermore, research has indicated
that few, if any, urban streams can support diverse benthic communities
at imperviousness levels of 25 percent or more. An area of medium
density single family homes can be anywhere from 25 percent to nearly
60 percent impervious, depending on the design of the streets and
parking (Schueler, 1994).
In addition to impervious areas, urban development creates new
pollution sources as population density increases and brings with it
proportionately higher levels of car emissions, car maintenance wastes,
pet waste, litter, pesticides, and household hazardous wastes, which
may be washed into receiving waters by storm water or dumped directly
into storm drains designed to discharge to receiving waters. More
people in less space results in a greater concentration of pollutants
that can be mobilized by, or disposed into, storm water discharges from
municipal separate storm sewer systems. A modeling system developed for
the Chesapeake Bay indicated that contamination of the Bay and its
tributaries from runoff is comparable to, if not greater than,
contamination from industrial and sewage sources (Cohn-Lee, R. and D.
Cameron. 1992. ``Urban Stormwater Runoff Contamination of the
Chesapeake Bay: Sources and Mitigation.'' The Environmental
Professional, Vol. 14).
a. Large-Scale Studies and Assessments
In support of today's regulatory designation of MS4s in urbanized
areas, the Agency relied on broad-based assessments of urban storm
water runoff and related water quality impacts, as well as more site-
specific studies. The first national assessment of urban runoff
characteristics was completed for the Nationwide Urban Runoff Program
(NURP) study (U.S. EPA. 1983. Results of the Nationwide Urban Runoff
Program, Volume 1--Final Report. Office of Water. Washington, D.C.).
The NURP study is the largest nationwide evaluation of storm water
discharges, which includes adverse impacts and sources, undertaken to
date.
EPA conducted the NURP study to facilitate understanding of the
nature of urban runoff from residential, commercial, and industrial
areas. One objective of the study was to characterize the water quality
of discharges from separate storm sewer systems that drain residential,
commercial, and light industrial (industrial parks) sites. Storm water
samples from 81 residential and commercial properties in 22 urban/
suburban areas nationwide were collected and analyzed during the 5-year
period between 1978 and 1983. The majority of samples collected in the
study were analyzed for eight conventional pollutants and three heavy
metals.
Data collected under the NURP study indicated that discharges from
separate storm sewer systems draining runoff from residential,
commercial, and light industrial areas carried more than 10 times the
annual loadings of total suspended solids (TSS) than discharges from
municipal sewage treatment plants that provide secondary treatment. The
NURP study also indicated that runoff from residential and commercial
areas carried somewhat higher annual loadings of chemical oxygen demand
(COD), total lead, and total copper than effluent from secondary
treatment plants. Study findings showed that fecal coliform counts in
urban runoff typically range from tens to hundreds of thousands per
hundred milliliters of runoff during warm weather conditions, with the
median for all sites being around 21,000/100 ml. This is generally
consistent with studies that found that fecal coliform mean values
range from 1,600 coliform fecal units (CFU)/100 ml to 250,000 cfu/100
ml (Makepeace, D.K., D.W. Smith, and S.J. Stanley. 1995. ``Urban Storm
Water Quality: Summary of Contaminant Data.'' Critical Reviews in
Environmental Science and Technology 25(2):93-139). Makepeace, et al.,
summarized ranges of contaminants from storm water, including physical
contaminants such as total solids (76--36,200 mg/L) and copper (up to
1.41 mg/L); organic chemicals; organic compounds, such as oil and
grease (up to 110 mg/L); and microorganisms.
[[Page 68726]]
Monitoring data summarized in the NURP study provided important
information about urban runoff from residential, commercial, and light
industrial areas. The study concluded that the quality of urban runoff
can be affected adversely by several sources of pollution that were not
directly evaluated in the study, including illicit discharges,
construction site runoff, and illegal dumping. Data from the NURP study
were analyzed further in the U.S. Geological Survey (USGS) Urban Storm
Water Data Base for 22 Metropolitan Areas Throughout the United States
study (Driver, N.E., M.H. Mustard, R.B. Rhinesmith, and R.F.
Middleburg. 1985. U.S. Geological Survey Urban Storm Water Data Base
for 22 Metropolitan Areas Throughout the United States. Report No. 85-
337 USGS. Lakewood, CO). The USGS report summarized additional
monitoring data compiled during the mid-1980s, covering 717 storm
events at 99 sites in 22 metropolitan areas and documented problems
associated with metals and sediment concentrations in urban storm water
runoff. More recent reports have confirmed the pollutant concentration
data collected in the NURP study (Marsalek, J. 1990. ``Evaluation of
Pollutant Loads from Urban Nonpoint Sources.'' Wat. Sci. Tech. 22(10/
11):23-30; Makepeace, et al., 1995).
Commenters argued that the NURP study does not support EPA's
contention that urban activities significantly jeopardize attainment of
water quality standards. One commenter argued that the NURP study and
the 1985 USGS study are seriously out of date. Because they were issued
10 years or more before the implementation of the current storm water
permit program, the data in those reports do not reflect conditions
that exist after implementation of permits issued by authorized States
and EPA for storm water from construction sites, large municipalities,
and industrial activities.
In response, EPA notes that it is not relying solely on the NURP
study to describe current water quality impairment. Rather, EPA is
citing NURP as a source of data on typical pollutant concentrations in
urban runoff. Recent studies have not found significantly different
pollutant concentrations in urban runoff when compared to the original
NURP data (see Makepeace, et al., 1995; Marsalek, 1990; and Pitt, et
al., 1995).
America's Clean Water--the States' Nonpoint Source Assessment
(Association of State and Interstate Water Pollution Control
Administrators (ASIWPCA). 1985. America's Clean Water--The States'
Nonpoint Source Assessment. Prepared in cooperation with the U.S. EPA,
Office of Water, Washington, DC), a comprehensive study of diffuse
pollution sources conducted under the sponsorship of the Association of
State and Interstate Water Pollution Control Administrators (ASIWPCA)
and EPA revealed that 38 States reported urban runoff as a major cause
of designated beneficial use impairment and 21 States reported storm
water runoff from construction sites as a major cause of beneficial use
impairment. In addition, the 1996 305(b) Report (U.S. EPA. 1998. The
National Water Quality Inventory, 1996 Report to Congress. EPA 841-R-
97-008. Office of Water. Washington, DC), provides a national
assessment of water quality based on biennial reports submitted by the
States as required under CWA section 305(b) of the CWA. In the CWA
305(b) reports, States, Tribes, and Territories assess their individual
water quality control programs by examining the attainment or
nonattainment of the designated uses assigned to their rivers, lakes,
estuaries, wetlands, and ocean shores. A designated use is the legally
applicable use specified in a water quality standard for a watershed,
waterbody, or segment of a waterbody. The designated use is the
desirable use that the water quality should support. Examples of
designated uses include drinking water supply, primary contact
recreation (swimming), and aquatic life support. Each CWA 305(b) report
indicates the assessed fraction of a State's waters that are fully
supporting, partially supporting, or not supporting designated
beneficial uses.
In their reports, States, Tribes, and Territories first identified
and then assigned the sources of water quality impairment for each
impaired waterbody using the following categories: industrial,
municipal sewage, combined sewer overflows, urban runoff/storm sewers,
agricultural, silvicultural, construction, resource extraction, land
disposal, hydrologic modification, and habitat modification. The 1996
Inventory, based on a compilation of 60 individual 305(b) reports
submitted by States, Tribes, and Territories, assessed the following
percentages of total waters nationwide: 19 percent of river and stream
miles; 40 percent of lake, pond, and reservoir acres; 72 percent of
estuary square miles; and 6 percent of ocean shoreline waters. The 1996
Inventory indicated that approximately 40 percent of the Nation's
assessed rivers, lakes, and estuaries are impaired. Waterbodies deemed
as ``impaired'' are either partially supporting designated uses or not
supporting designated uses.
The 1996 Inventory also found urban runoff/discharges from storm
sewers to be a major source of water quality impairment nationwide.
Urban runoff/storm sewers were found to be a source of pollution in 13
percent of impaired rivers; 21 percent of impaired lakes, ponds, and
reservoirs; and 45 percent of impaired estuaries (second only to
industrial discharges). In addition, urban runoff was found to be the
leading cause of ocean impairment for those ocean miles surveyed.
In addition, a recent USGS study of urban watersheds across the
United States has revealed a link between urban development and
contamination of local waterbodies. The study found the highest levels
of organic contaminants, known as polycyclic aromatic hydrocarbons
(PAHs) (products of combustion of wood, grass, and fossil fuels), in
the reservoirs of urbanized watersheds (U.S. Geological Survey (USGS).
1998. Research Reveals Link Between Development and Contamination in
Urban Watersheds. USGS news release. USGS National Water-Quality
Assessment Program).
Urban storm water also can contribute significant amounts of
toxicants to receiving waters. Pitt, et. al. (1993), found heavy metal
concentrations in the majority of samples analyzed. Industrial or
commercial areas were likely to be the most significant pollutant
source areas (Pitt, R., R. Field, M. Lalor, M. Brown 1993. ``Urban
stormwater toxic pollutants: assessment, sources, and treatability''
Water Environment Research, 67(3):260-75).
b. Local and Watershed-Based Studies
In addition to the large-scale nationwide studies and assessments,
a number of local and watershed-based studies from across the country
have documented the detrimental effects of urban storm water runoff on
water quality. A study of urban streams in Milwaukee County, Wisconsin,
found local streams to be highly degraded due primarily to urban
runoff, while three studies in the Atlanta, Georgia, region were
characterized as being ``the first documentation in the Southeast of
the strong negative relationship between urbanization and stream
quality that has been observed in other ecoregions'' (Masterson, J. and
R. Bannerman. 1994. ``Impacts of Storm Water Runoff on Urban Streams in
Milwaukee County, Wisconsin.'' Paper presented at National Symposium on
Water Quality: American Water Resources Association; Schueler, T.R.
1997. ``Fish Dynamics in Urban Streams Near Atlanta, Georgia.''
[[Page 68727]]
Technical Note 94. Watershed Protection Techniques 2(4)). Several other
studies, including those performed in Arizona (Maricopa County),
California (San Jose's Coyote Creek), Massachusetts (Green River),
Virginia (Tuckahoe Creek), and Washington (Puget Sound lowland
ecoregion), all had the same finding: runoff from urban areas greatly
impair stream ecology and the health of aquatic life; the more heavily
developed the area, the more detrimental the effects (Lopes, T. and K.
Fossum. 1995. ``Selected Chemical Characteristics and Acute Toxicity of
Urban Stormwater, Streamflow, and Bed Material, Maricopa County,
Arizona.'' Water Resources Investigations Report 95-4074. USGS; Pitt,
R. 1995. ``Effects of Urban Runoff on Aquatic Biota.'' In Handbook of
Ecotoxicology; Pratt, J. and R. Coler. 1979. ``Ecological Effects of
Urban Stormwater Runoff on Benthic Macroinvertebrates Inhabiting the
Green River, Massachusetts.'' Completion Report Project No. A-094.
Water Resources Research Center. University of Massachusetts at
Amherst.; Schueler, T.R. 1997. ``Historical Change in a Warmwater Fish
Community in an Urbanizing Watershed.'' Technical Note 93. Watershed
Protection Techniques 2(4); May, C., R. Horner, J. Karr, B. Mar, and E.
Welch. 1997. ``Effects Of Urbanization On Small Streams In The Puget
Sound Lowland Ecoregion.'' Watershed Protection Techniques 2(4)).
Pitt and others also described the receiving water effects on
aquatic organisms associated with urban runoff (Pitt, R.E. 1995.
``Biological Effects of Urban Runoff Discharges'' In Stormwater Runoff
and Receiving Systems: Impact, Monitoring, and Assessment, ed. E.E
Herricks, Lewis Publishers; Crunkilton, R., J. Kleist, D. Bierman, J.
Ramcheck, and W. DeVita. 1999. ``Importance of Toxicity as a Factor
Controlling the Distribution of Aquatic Organisms in an Urban Stream.''
In Comprehensive Stormwater & Aquatic Ecosystem Management Conference
Papers. Auckland, New Zealand).
In Wisconsin, runoff samples were collected from streets, parking
lots, roofs, driveways, and lawns. Source areas were broken up into
residential, commercial, and industrial. Geometric mean concentration
data for residential areas included total solids of about 500-800 mg/L
from streets and 600 mg/L from lawns. Fecal coliform data from
residential areas ranged from 34,000 to 92,000 cfu/100 mL for streets
and driveways. Contaminant concentration data from commercial and
industrial source areas were lower for total solids and fecal coliform,
but higher for total zinc (Bannerman, R.T., D.W. Owens, R.B. Dods, and
N.J. Hornewer. 1993. ``Sources of Pollutants in Wisconsin Stormwater.''
Wat. Sci. Tech. 28(3-5):241-59).
Bannerman, et al. also found that streets contribute higher loads
of pollutants to urban storm water than any other residential
development source. Two small urban residential watersheds were
evaluated to determine that lawns and streets are the largest sources
of total and dissolved phosphorus in the basins (Waschbusch, R.J., W.R.
Selbig, and R.T. Bannerman. 1999. ``Sources of Phosphorus in Stormwater
and Street Dirt from Two Urban Residential Basins In Madison,
Wisconsin, 1994-95.'' Water Resources Investigations Report 99-4021.
U.S. Geological Survey). A number of other studies have indicated that
urban roadways often contain significant quantities of metal elements
and solids (Sansalone, J.J. and S.G. Buchberger. 1997. ``Partitioning
and First Flush of Metals in Urban Roadway Storm Water.'' ASCE Journal
of Environmental Engineering 123(2); Sansalone, J.J., J.M. Koran, J.A.
Smithson, and S.G. Buchberger. 1998. ``Physical Characteristics of
Urban Roadway Solids Transported During Rain Events'' ASCE Journal of
Environmental Engineering 124(5); Klein, L.A., M. Lang, N. Nash, and
S.L. Kirschner. 1974. ``Sources of Metals in New York City Wastewater''
J. Water Pollution Control Federation 46(12):2653-62; Barrett, M.E,
R.D. Zuber, E.R. Collins, J.F. Malina, R.J. Charbeneau, and G.H Ward.,
1993. ``A Review and Evaluation of Literature Pertaining to the
Quantity and Control of Pollution from Highway Runoff and
Construction.'' Research Report 1943-1. Center for Transportation
Research, University of Texas, Austin).
c. Beach Closings/Advisories
Urban wet weather flows have been recognized as the primary sources
of estuarine pollution in coastal communities. Urban storm water
runoff, sanitary sewer overflows, and combined sewer overflows have
become the largest causes of beach closings in the United States in the
past three years. Storm water discharges from urban areas not only pose
a threat to the ecological environment, they also can substantially
affect human health. A survey of coastal and Great Lakes communities
reports that in 1998, more than 1,500 beach closings and advisories
were associated with storm water runoff (Natural Resources Defense
Council. 1999. ``A Guide to Water Quality at Vacation Beaches'' New
York, NY). Other reports also document public health, shellfish bed,
and habitat impacts from storm water runoff, including more than 823
beach closings/advisories issued in 1995 and more than 407 beach
closing/advisories issued in 1996 due to urban runoff (Natural
Resources Defense Council. 1996. Testing the Waters Volume VI: Who
Knows What You're Getting Into. New York, NY; NRDC. 1997. Testing the
Waters Volume VII: How Does Your Vacation Beach Rate. New York, NY;
Morton, T. 1997. Draining to the Ocean: The Effects of Stormwater
Pollution on Coastal Waters. American Oceans Campaign, Santa Monica,
CA). The Epidemiological Study of Possible Adverse Health Effects of
Swimming in Santa Monica Bay (Haile, R.W., et. al. 1996. ``An
Epidemiological Study of Possible Adverse Health Effects of Swimming in
Santa Monica Bay.'' Final Report prepared for the Santa Monica Bay
Restoration Project) concluded that there is a 57 percent higher rate
of illness in swimmers who swim adjacent to storm drains than in
swimmers who swim more than 400 yards away from storm drains. This and
other studies document a relationship between gastrointestinal illness
in swimmers and water quality, the latter of which can be heavily
compromised by polluted storm water discharges.
2. Non-Storm Water Discharges Through Municipal Storm Sewers
Studies have shown that discharges from MS4s often include wastes
and wastewater from non-storm water sources. Federal regulations
(Sec. 122.26(b)(2)) define an illicit discharge as ``* * * any
discharge to an MS4 that is not composed entirely of storm water * *
*,'' with some exceptions. These discharges are ``illicit'' because
municipal storm sewer systems are not designed to accept, process, or
discharge such wastes. Sources of illicit discharges include, but are
not limited to: sanitary wastewater; effluent from septic tanks; car
wash, laundry, and other industrial wastewaters; improper disposal of
auto and household toxics, such as used motor oil and pesticides; and
spills from roadway and other accidents.
Illicit discharges enter the system through either direct
connections (e.g., wastewater piping either mistakenly or deliberately
connected to the storm drains) or indirect connections (e.g.,
infiltration into the MS4 from cracked sanitary systems, spills
collected by drain outlets, and paint or used oil dumped directly into
a drain). The result is untreated discharges that contribute high
levels of pollutants,
[[Page 68728]]
including heavy metals, toxics, oil and grease, solvents, nutrients,
viruses and bacteria into receiving waterbodies. The NURP study,
discussed earlier, found that pollutant levels from illicit discharges
were high enough to significantly degrade receiving water quality and
threaten aquatic, wildlife, and human health. The study noted
particular problems with illicit discharges of sanitary wastes, which
can be directly linked to high bacterial counts in receiving waters and
can be dangerous to public health.
Because illicit discharges to MS4s can create severe widespread
contamination and water quality problems, several municipalities and
urban counties performed studies to identify and eliminate such
discharges. In Michigan, the Ann Arbor and Ypsilanti water quality
projects inspected 660 businesses, homes, and other buildings and
identified 14 percent of the buildings as having improper storm sewer
drain connections. The program assessment revealed that, on average, 60
percent of automobile-related businesses, including service stations,
automobile dealerships, car washes, body shops, and light industrial
facilities, had illicit connections to storm sewer drains. The program
assessment also showed that a majority of the illicit discharges to the
storm sewer system resulted from improper plumbing and connections,
which had been approved by the municipality when installed (Washtenaw
County Statutory Drainage Board. 1987. Huron River Pollution Abatement
Program).
In addition, an inspection of urban storm water outfalls draining
into Inner Grays, Washington, indicated that 32 percent of these
outfalls had dry weather flows. Of these flows, 21 percent were
determined to have pollutant levels higher than the pollutant levels
expected in typical urban storm water runoff characterized in the NURP
study (U.S. EPA. 1993. Investigation of Inappropriate Pollutant Entries
Into Storm Drainage Systems--A User's Guide. EPA 600/R-92/238. Office
of Research and Development. Washington, DC). That same document
reports a study in Toronto, Canada, that found that 59 percent of
outfalls from the MS4 had dry-weather flows. Chemical tests revealed
that 14 percent of these dry-weather flows were determined to be
grossly polluted.
Inflows from aging sanitary sewer collection systems are one of the
most serious illicit discharge-related problems. Sanitary sewer systems
frequently develop leaks and cracks, resulting in discharges of
pollutants to receiving waters through separate storm sewers. These
pollutants include sanitary waste and materials from sewer main
construction (e.g., asbestos cement, brick, cast iron, vitrified clay).
Municipalities have long recognized the reverse problem of storm water
infiltration into sanitary sewer collection systems; this type of
infiltration often disrupts the operation of the municipal sewage
treatment plant.
The improper disposal of materials is another illicit discharge-
related problem that can result in contaminated discharges from
separate storm sewer systems in two ways. First, materials may be
disposed of directly in a catch basin or other storm water conveyance.
Second, materials disposed of on the ground may either drain directly
to a storm sewer or be washed into a storm sewer during a storm event.
Improper disposal of materials to street catch basins and other storm
sewer inlets often occurs when people mistakenly believe that disposal
to such areas is an environmentally sound practice. Part of the
confusion may occur because some areas are served by combined sewer
systems, which are part of the sanitary sewer collection system, and
people assume that materials discharged to a catch basin will reach a
municipal sewage treatment plant. Materials that are commonly disposed
of improperly include used motor oil; household toxic materials;
radiator fluids; and litter, such as disposable cups, cans, and fast-
food packages. EPA believes that there has been increasing success in
addressing these problems through initiatives such as storm drain
stenciling and recycling programs, including household hazardous waste
special collection days.
Programs that reduce illicit discharges to separate storm sewers
have improved water quality in several municipalities. For example,
Michigan's Huron River Pollution Abatement Program found the
elimination of illicit connections caused a measurable improvement in
the water quality of the Washtenaw County storm sewers and the Huron
River (Washtenaw County Statutory Drainage Board, 1987). In addition,
an illicit detection and remediation program in Houston, Texas, has
significantly improved the water quality of Buffalo Bayou. Houston
estimated that illicit flows from 132 sources had a flow rate as high
as 500 gal/min. Sources of the illicit discharges included broken and
plugged sanitary sewer lines, illicit connections from sanitary lines
to storm sewer lines, and floor drain connections (Glanton, T., M.T.
Garrett, and B. Goloby. 1992. The Illicit Connection: Is It the
Problem? Wat. Env. Tech. 4(9):63-8).
3. Construction Site Runoff
Storm water discharges generated during construction activities can
cause an array of physical, chemical, and biological water quality
impacts. Specifically, the biological, chemical, and physical integrity
of the waters may become severely compromised. Water quality impairment
results, in part, because a number of pollutants are preferentially
absorbed onto mineral or organic particles found in fine sediment. The
interconnected process of erosion (detachment of the soil particles),
sediment transport, and delivery is the primary pathway for introducing
key pollutants, such as nutrients (particularly phosphorus), metals,
and organic compounds into aquatic systems (Novotny, V. and G.
Chesters. 1989. ``Delivery of Sediment and Pollutants from Nonpoint
Sources: A Water Quality Perspective.'' Journal of Soil and Water
Conservation, 44(6):568-76). Estimates indicate that 80 percent of the
phosphorus and 73 percent of the Kjeldahl nitrogen in streams is
associated with eroded sediment (U.S. Department of Agriculture. 1989.
``The Second RCA Appraisal, Soil, Water and Related Resources on
Nonfederal Land in the United States, Analysis of Condition and
Trends.'' Cited in Fennessey, L.A.J., and A.R. Jarrett. 1994. ``The
Dirt in a Hole: a Review of Sedimentation Basins for Urban Areas and
Construction Sites.'' Journal of Soil and Water Conservation,
49(4):317-23).
In watersheds experiencing intensive construction activity, the
localized impacts of water quality may be severe because of high
pollutant loads, primarily sediments. Siltation is the largest cause of
impaired water quality in rivers and the third largest cause of
impaired water quality in lakes (U.S. EPA, 1998). The 1996 305(b)
report also found that construction site discharges were a source of
pollution in: 6 percent of impaired rivers; 11 percent of impaired
lakes, ponds, and reservoirs; and 11 percent of impaired estuaries.
Introduction of coarse sediment (coarse sand or larger) or a large
amount of fine sediment is also a concern because of the potential of
filling lakes and reservoirs (along with the associated remediation
costs for dredging), as well as clogging stream channels (e.g.,
Paterson, R.G., M.I. Luger, E.J. Burby, E.J. Kaiser, H.R. Malcolm, and
A.C. Beard. 1993. ``Costs and Benefits of Urban Erosion and Sediment
Control: North Carolina Experience.'' Environmental Management
17(2):167-78). Large inputs of coarse sediment into
[[Page 68729]]
stream channels initially will reduce stream depth and minimize habitat
complexity by filling in pools (U.S. EPA. 1991. Monitoring Guidelines
to Evaluate Effects of Forestry Activities on Streams in the Pacific
Northwest and Alaska. EPA 910/9-91-001. Seattle, WA). In addition,
studies have shown that stream reaches affected by construction
activities often extend well downstream of the construction site. For
example, between 4.8 and 5.6 kilometers of stream below construction
sites in the Patuxent River watershed were observed to be impacted by
sediment inputs (Fox, H.L. 1974. ``Effects of Urbanization on the
Patuxent River, with Special Emphasis on Sediment Transport, Storage,
and Migration.'' Ph.D. dissertation. Johns Hopkins University,
Baltimore, MD. As Cited in Klein, R.D. 1979. ``Urbanization and Stream
Quality Impairment.'' Water Resources Bulletin 15(4): 948-63).
A primary concern at most construction sites is the erosion and
transport process related to fine sediment because rain splash, rills
(i.e., a channel small enough to be removed by normal agricultural
practices and typically less than 1-foot deep), and sheetwash encourage
the detachment and transport of this material to waterbodies (Storm
Water Quality Task Force. 1993. California Storm Water Best Management
Practice Handbooks--Construction Activity. Oakland, CA: Blue Print
Service). Construction sites also can generate other pollutants
associated with onsite wastes, such as sanitary wastes or concrete
truck washout.
Although streams and rivers naturally carry sediment loads, erosion
from construction sites and runoff from developed areas can elevate
these loads to levels well above those in undisturbed watersheds. It is
generally acknowledged that erosion rates from construction sites are
much greater than from almost any other land use (Novotny, V. and H.
Olem. 1994. Water Quality: Prevention, Identification, and Management
of Diffuse Pollution. New York: Van Nostrand Reinhold). Results from
both field studies and erosion models indicate that erosion rates from
construction sites are typically an order of magnitude larger than row
crops and several orders of magnitude greater than rates from well-
vegetated areas, such as forests or pastures (USDA. 1970. ``Controlling
Erosion on Construction Sites.'' Agriculture Information Bulletin,
Washington, DC; Meyer, L.D., W.H. Wischmeier, and W.H. Daniel. 1971.
``Erosion, Runoff and Revegetation of Denuded Construction Sites.''
Transactions of the ASAE 14(1):138-41; Owen, O.S. 1975. Natural
Resource Conservation. New York: MacMillan. As cited in Paterson, et
al., 1993).
A recent review of the efficiency of sediment basins indicated that
inflows from 12 construction sites had a mean TSS concentration of
about 4,500 mg/L (Brown, W.E. 1997. ``The Limits of Settling.''
Technical Note No. 83. Watershed Protection Techniques 2(3)). In
Virginia, suspended sediment concentrations from housing construction
sites were measured at 500-3,000 mg/L, or about 40 times larger than
the concentrations from already-developed urban areas (Kuo, C.Y. 1976.
``Evaluation of Sediment Yields Due to Urban Development.'' Bulletin
No. 98. Virginia Water Resources Research Center, Virginia Polytechnic
Institute and State University, Blacksburg, VA).
Similar impacts from storm water runoff have been reported in a
number of other studies. For example, Daniel, et al., monitored three
residential construction sites in southeastern Wisconsin and determined
that annual sediment yields were more than 19 times the yields from
agricultural areas (Daniel, T.C., D. McGuire, D. Stoffel, and B.
Miller. 1979. ``Sediment and Nutrient Yield from Residential
Construction Sites'' Journal of Environmental Quality 8(3):304-08).
Daniel, et al., identified total storm runoff, followed by peak storm
runoff, as the most influential factors controlling the sediment
loadings from residential construction sites. Daniel, et al., also
found that suspended sediment concentrations were 15,000-20,000 mg/L in
moderate events and up to 60,000 mg/L in larger events.
Wolman and Schick (Wolman, M.G. and A.P. Schick. 1967. ``Effects of
Construction on Fluvial Sediment, Urban and Suburban Areas of
Maryland.'' Water Resources Research 3(2): 451-64) studied the impacts
of development on fluvial systems in Maryland and determined that
sediment yields in areas undergoing construction were 1.5 to 75 times
greater than detected in natural or agricultural catchments. The
authors summarize the potential impacts of construction on sediment
yields by stating that ``the equivalent of many decades of natural or
even agricultural erosion may take place during a single year from
areas cleared for construction'' (Wolman and Schick, 1967).
A number of studies have examined the effects of road construction
on erosion rates and sediment yields. A highway construction project in
West Virginia disturbed only 4.2 percent of a 4.72-square-mile basin,
but resulted in a three-fold increase in suspended sediment yields
(Downs, S.C. and D.H. Appel. 1986. Progress Report on the Effects of
Highway Construction on Suspended-Sediment Discharge in the Coal River
and Trace Fork, West Virginia, 1975-81. USGS Water Resources
Investigations Report 84-4275. Charlestown, WV). During the largest
storm event, it was estimated that 80 percent of the sediment in the
stream originated from the construction site. As is often the case, the
increase in suspended sediment load could not be detected further
downstream, where the drainage area was more than 50 times larger (269
square miles).
Another study evaluated the effect of 290 acres of highway
construction on watersheds ranging in size from 5 to 38 square miles.
Suspended sediment loads in the smallest watershed increased by 250
percent, and the estimated sediment yield from the construction area
was 37 tons/acre during a 2-year period (Hainly, R.A. 1980. The Effects
of Highway Construction on Sediment Discharge into Blockhouse Creek and
Stream Valley Run, Pennsylvania. USGS Water Resources Investigations
Report 80-68. Harrisburg, PA). A more recent study in Hawaii showed
that highway construction increased suspended sediment loads by 56 to
76 percent in three small (1 to 4 square mile) basins (Hill, B.R. 1996.
Streamflow and Suspended-Sediment Loads Before and During Highway
Construction, North Halawa, Haiku, and Kamooalii Drainage Basins, Oahu,
Hawaii, 1983-91. USGS Water Resources Investigations Report 96-4259.
Honolulu, HI). A 1970 study determined that sediment yields from
construction areas can be as much as 500 times the levels detected in
rural areas (National Association of Counties Research Foundation.
1970. Urban Soil Erosion and Sediment Control. Water Pollution Control
Research Series, Program #15030 DTL. Federal Water Quality
Administration, U.S. Department of Interior. Washington, DC)
Yorke and Herb (Yorke, T.H., and W.J. Herb. 1978. Effects of
Urbanization on Streamflow and Sediment Transport in the Rock Creek and
Anacostia River Basins, Montgomery County, Maryland, 1962-74. USGS
Professional Paper 1003, Washington, DC) evaluated nine subbasins in
the Maryland portion of the Anacostia watershed for more than a decade
in an effort to define the impacts of changing land use/land cover on
sediment in runoff. Average annual suspended sediment yields for
construction sites ranged from 7 to 100 tons/acre. Storm water
discharges from construction sites that occur when the land area is
disturbed (and prior to
[[Page 68730]]
surface stabilization) can significantly impact designated uses.
Examples of designated uses include public water supply, recreation,
and propagation of fish and wildlife. The siltation process described
previously can threaten all three designated uses by (1) depositing
high concentrations of pollutants in public water supplies; (2)
decreasing the depth of a waterbody, which can reduce the volume of a
reservoir or result in limited use of a water body by boaters,
swimmers, and other recreational enthusiasts; and (3) directly
impairing the habitat of fish and other aquatic species, which can
limit their ability to reproduce.
Excess sediment can cause a number of other problems for
waterbodies. It is associated with increased turbidity and reduced
light penetration in the water column, as well as more long-term
effects associated with habitat destruction and increased difficulty in
filtering drinking water. Numerous studies have examined the effect
that excess sediment has on aquatic ecosystems. For example, sediment
from road construction activity in Northern Virginia reduced aquatic
insect and fish communities by up to 85 percent and 40 percent,
respectively (Reed, J.R. 1997. ``Stream Community Responses to Road
Construction Sediments.'' Bulletin No. 97. Virginia Water Resources
Research Center, Virginia Polytechnic Institute, Blacksburg, VA. As
cited in Klein, R.D. 1990. A Survey of Quality of Erosion and Sediment
Control and Storm Water Management in the Chesapeake Bay Watershed.
Annapolis, MD: Chesapeake Bay Foundation). Other studies have shown
that fine sediment (fine sand or smaller) adversely affects aquatic
ecosystems by reducing light penetration, impeding sight-feeding,
smothering benthic organisms, abrading gills and other sensitive
structures, reducing habitat by clogging interstitial spaces within a
streambed, and reducing the intergravel dissolved oxygen by reducing
the permeability of the bed material (Everest, F.H., J.C. Beschta, K.V.
Scrivener, J.R. Koski, J.R. Sedell, and C.J. Cederholm. 1987. ``Fine
Sediment and Salmonid Production: A Paradox.'' Streamside Management:
Forestry and Fishery Interactions, Contract No. 57, Institute of Forest
Resources, University of Washington, Seattle, WA). For example, 4.8 and
5.6 kilometers of stream below construction sites in the Patuxent River
watershed in Maryland were found to have fine sediment amounts 15 times
greater than normal (Fox, 1974. As cited in Klein, 1979). Benthic
organisms in the streambed can be smothered by sediment deposits,
causing changes in aquatic flora and fauna, such as fish species
composition (Wolman and Schick, 1967). In addition, the primary cause
of coral reef degradation in coastal areas is attributed to land
disturbances and dredging activities due to urban development (Rogers,
C.S. 1990. ``Responses of Coral Reefs and Reef Organizations to
Sedimentation.'' Marine Ecology Progress Series, 62:185-202).
EPA believes that the water quality impact from small construction
sites is as high as or higher than the impact from larger sites on a
per acre basis. The concentration of pollutants in the runoff from
smaller sites is similar to the concentrations in the runoff from
larger sites. The proportion of sediment that makes it from the
construction site to surface waters is likely the same for larger and
smaller construction sites in urban areas because the runoff from
either site is usually delivered directly to the storm drain network
where there is no opportunity for the sediment to be filtered out.
The expected contribution of total sediment yields from small sites
depends, in part, on the extent to which erosion and sedimentation
controls are being applied. Because current storm water regulations are
more likely to require erosion and sedimentation controls on larger
sites in urban areas, smaller construction sites that lack such
programs are likely to contribute a disproportionate amount of the
total sediment from construction activities (MacDonald, L.H. 1997.
Technical Justification for Regulating Construction Sites 1-5 Acres in
Size. Unpublished report submitted to U.S. EPA, Washington, DC).
Smaller construction sites are less likely to have an effective plan to
control erosion and sedimentation, are less likely to properly
implement and maintain their plans, and are less likely to be inspected
(Brown, W. and D. Caraco. 1997. Controlling Storm Water Runoff
Discharges from Small Construction Sites: A National Review. Submitted
to Office of Wastewater Management, U.S. EPA, Washington, DC., by the
Center for Watershed Protection, Silver Spring, MD). The proportion of
sediment that makes it from the construction site to surface waters is
likely the same for larger and smaller construction sites in urban
areas because the runoff from either site is usually delivered directly
to the storm drain network, where there is no opportunity for the
sediment to be filtered out.
To confirm its belief that sediment yields from small sites are as
high as or higher than the 20 to 150 tons/acre/year measured from
larger sites, EPA gave a grant to the Dane County, Wisconsin Land
Conservation Department, in cooperation with the USGS, to evaluate
sediment runoff from two small construction sites. The first was a 0.34
acre residential lot and the second was a 1.72 acre commercial office
development. Runoff from the sites was channeled to a single discharge
point for monitoring. Each site was monitored before, during, and after
construction.
The Dane County study found that total solids concentrations from
these small sites are similar to total solids concentrations from
larger construction sites. Results show that for both of the study
sites, total solids and suspended solids concentrations were
significantly higher during construction than either before or after
construction. For example, preconstruction total solids concentrations
averaged 642 mg/L during the period when ryegrass was established,
active construction total solids concentrations averaged 2,788 mg/L,
and post-construction total solids concentrations averaged 132 mg/L (on
a pollutant load basis, this equaled 7.4 lbs preconstruction, 35 lbs
during construction, and 0.6 lbs post-construction for total solids).
While this site was not properly stabilized before construction, after
construction was complete and the site was stabilized, post-
construction concentrations were more than 20 times less than during
construction. The results were even more dramatic for the commercial
site. The commercial site had one preconstruction event, which resulted
in total solids concentrations of 138 mg/L, while active construction
averaged more than 15,000 mg/L and post-construction averaged only 200
mg/L (on a pollutant load basis, this equaled 0.3 lbs preconstruction,
490 lbs during construction, and 13.4 lbs post-construction for total
solids). The active construction period resulted in more than 75 times
more sediment than either before or after construction (Owens, D.W., P.
Jopke, D.W. Hall, J. Balousek and A. Roa. 1999. ``Soil Erosion from
Small Construction Sites.'' Draft USGS Fact Sheet. USGS and Dane County
Land Conservation Department, WI). The total solids concentrations from
these small sites in Wisconsin are similar to total solids
concentrations from larger construction sites. For example, a study
evaluating the effects of highway construction in West Virginia found
that a small storm produced a sediment concentration of 7,520 mg/L
(Downs and Appel, 1986).
One important aspect of small construction sites is the number of
small sites relative to larger construction sites
[[Page 68731]]
and total land area within the watershed. Brown and Caraco surveyed 219
local jurisdictions to assess erosion and sediment control (ESC)
programs. Seventy respondents provided data on the number of ESC
permits for construction sites smaller than 5 acres. In 27 cases (38
percent of the respondents), more than three-quarters of the permits
were for sites smaller than 5 acres; in another 18 cases (26 percent),
more than half of the permits were for sites smaller than 5 acres.
In addition, data on the total acreage disturbed by smaller
construction sites have been collected recently in two States
(MacDonald, 1997). The most recent and complete data set is the listing
of the disturbed area for each of the 3,831 construction sites
permitted in North Carolina for 1994-1995 and 1995-1996. Nearly 61
percent of the sites that were 1 acre or larger were between 1.0 and
4.9 acres in size. This proportion was consistent between years. Data
showed that this range of sites accounted for 18 percent of the total
area disturbed by construction. The values showed very little variation
between the 2 years of data. The total disturbed area for all sites
over this 2-year period was nearly 33,000 acres, or about 0.1 percent
of the total area of North Carolina.
EPA estimates that construction sites disturbing greater than 5
acres disturb 2.1-million acres of land (78.1 percent of the total)
while sites disturbing between 1 and 5 acres of land disturb 0.5-
million acres of land (19.4 percent). The remaining sites on less than
1 acres of land disturb 0.07-million acres of land (only 2.5 percent of
the total). Given the high erosion rates associated with most
construction sites, small construction sites can be a significant
source of water quality impairment, particularly in small watersheds
that are undergoing rapid development. Exempting sites under 1 acre
will exclude only about 2.5 percent of acreage from program coverage,
but will exclude a far higher number of sites, approximately 25
percent.
Several studies have determined that the most effective
construction runoff control programs rely on local plan review and
field enforcement (Paterson, R. G. 1994. ``Construction Practices: the
Good, the Bad, and the Ugly.'' Watershed Protection Techniques 1(3)).
In his review, Paterson suggests that, given the critical importance of
field implementation of erosion and sediment control programs and the
apparent shortcomings that exist, much more focus should be given to
plan implementation.
Several commenters disputed the data presented in the proposed rule
for storm water discharges from smaller construction sites. One
commenter stated that EPA has not adequately explained the basis for
permitting construction activity down to 1 disturbed acre. Another
commenter stated that EPA did not present sufficient data on water
quality impacts from construction sites disturbing less than 5 acres.
EPA believes that the data presented above sufficiently support
nationwide designation of storm water discharges from construction
activity disturbing more than 1 acre. Based on total disturbed land
area within a watershed, the cumulative effects of numerous small
construction sites can have impacts similar to those of larger sites in
a particular area. In addition, waivers for storm water discharges from
smaller construction activity will exclude sites not expected to impair
water quality. EPA will continue to collect water quality data on
construction site storm water runoff.
C. Statutory Background
In 1972, Congress enacted the CWA to prohibit the discharge of any
pollutant to waters of the United States from a point source unless the
discharge is authorized by an NPDES permit. Congress added CWA section
402(p) in 1987 to require implementation of a comprehensive program for
addressing storm water discharges. Section 402(p)(1) required EPA or
NPDES-authorized States or Tribes to issue NPDES permits for the
following five classes of storm water discharges composed entirely of
storm water (``storm water discharges'') specifically listed under
section 402(p)(2):
(A) a discharge subject to an NPDES permit before February 4, 1987
(B) a discharge associated with industrial activity
(C) a discharge from a municipal separate storm sewer system
serving a population of 250,000 or more
(D) a discharge from a municipal separate storm sewer system
serving a population of 100,000 or more but less than 250,000
(E) a discharge that an NPDES permitting authority determines to be
contributing to a violation of a water quality standard or a
significant contributor of pollutants to the waters of the United
States.
Section 402(p)(3)(A) requires storm water discharges associated
with industrial activity to meet all applicable provisions of section
402 and section 301 of the CWA, including technology-based requirements
and any more stringent requirements necessary to meet water quality
standards. Section 402(p)(3)(B) establishes NPDES permit standards for
discharges from municipal separate storm sewer systems, or MS4s. NPDES
permits for discharges from MS4s (1) may be issued on a system or
jurisdiction-wide basis, (2) must include a requirement to effectively
prohibit non-storm water discharges into the storm sewers, and (3) must
require controls to reduce pollutant discharges to the maximum extent
practicable, including best management practices, and other provisions
as the Administrator or the States determine to be appropriate for the
control of such pollutants. At this time, EPA determines that water
quality-based controls, implemented through the iterative processes
described today are appropriate for the control of such pollutants and
will result in reasonable further progress towards attainment of water
quality standards. See sections II.L and II.H.3 of the preamble.
In CWA section 402(p)(4), Congress established statutory deadlines
for the initial steps in implementing the NPDES program for storm water
discharges. This section required development of NPDES permit
application regulations, submission of NPDES permit applications,
issuance of NPDES permits for sources identified in section 402(p)(2),
and compliance with NPDES permit conditions. In addition, this section
required industrial facilities and large MS4s to submit NPDES permit
applications for storm water discharges by February 4, 1990. Medium
MS4s were to submit NPDES permit applications by February 4, 1992. EPA
and authorized NPDES States were prohibited from requiring an NPDES
permit for any other storm water discharges until October 1, 1994.
Section 402(p)(5) required EPA to conduct certain studies and
submit a report to Congress. This requirement is discussed in the
following section.
Section 402(p)(6) requires EPA, in consultation with States and
local officials, to issue regulations for the designation of additional
storm water discharges to be regulated to protect water quality. It
also requires EPA to extend the existing storm water program to
regulate newly designated sources. At a minimum, the extension must
establish (1) priorities, (2) requirements for State storm water
management programs, and (3) expeditious deadlines. Section 402(p)(6)
specifies that the program may include performance standards,
guidelines, guidance, and management practices and treatment
requirements, as
[[Page 68732]]
appropriate. Today's rule implements this section.
D. EPA's Reports to Congress
Under CWA section 402(p)(5), EPA, in consultation with the States,
was required to conduct a study. The study was to identify unregulated
sources of storm water discharges, determine the nature and extent of
pollutants in such discharges, and establish procedures and methods to
mitigate the impacts of such discharges on water quality. Section
402(p)(5) also required EPA to report the results of the first two
components of that study to Congress by October 1, 1988, and the final
report by October 1, 1989.
In March 1995, EPA submitted to Congress a report that reviewed and
analyzed the nature of storm water discharges from municipal and
industrialacilities that were not already regulated under the initial
NPDES regulations for storm water (U.S. Environmental Protection
Agency, Office of Water. 1995. Storm Water Discharges Potentially
Addressed by Phase II of the National Pollutant Discharge Elimination
System Storm Water Program: Report to Congress. Washington, D.C. EPA
833-K-94-002) (``Report''). The Report also analyzed associated
pollutant loadings and water quality impacts from these unregulated
sources. Based on identification of unregulated municipal sources and
analysis of information on impacts of storm water discharges from
municipal sources, the Report recommended that the NPDES program for
storm water focus on the 405 ``urbanized areas'' identified by the
Bureau of the Census. The Report further found that a number of
discharges from unregulated industrial facilities warranted further
investigation to determine the need for regulation. It classified these
unregulated industrial discharges in two groups: Group A and Group B.
Group A comprised sources that may be considered a high priority for
inclusion in the NPDES program for storm water because discharges from
these sources are similar or identical to already regulated sources.
These ``look alike'' storm water discharge sources were not covered in
the initial NPDES regulations for storm water due to the language used
to define ``associated with industrial activity.'' In the initial
regulations for storm water, ``industrial activity'' is identified
using Standard Industrial Classification (SIC) codes. The use of SIC
codes led to incomplete categorization of industrial activities with
discharges that needed to be regulated to protect water quality. Group
B consisted of 18 industrial sectors, which included sources that EPA
expected to contribute to storm water contamination due to the
activities conducted and pollutants anticipated onsite (e.g., vehicle
maintenance, machinery and electrical repair, and intensive
agricultural activities).
EPA reported on the latter component of the section 402(p)(5) study
via President Clinton's Clean Water Initiative, which was released on
February 1, 1994 (U.S. Environmental Protection Agency, Office of
Water. 1994. President Clinton's Clean Water Initiative. Washington,
D.C. EPA 800-R-94-001) (``Initiative''). The Initiative addressed a
number of issues associated with NPDES requirements for storm water
discharges and proposed (1) establishing a phased compliance with a
water quality standards approach for discharges from municipal separate
storm sewer systems with priority on controlling discharges from
municipal growth and development areas, (2) clarifying that the maximum
extent practicable standard should be applied in a site-specific,
flexible manner, taking into account cost considerations as well as
water quality effects, (3) providing an exemption from the NPDES
program for storm water discharges from industrial facilities with no
activities or significant materials exposed to storm water, (4)
providing extensions to the statutory deadlines to complete
implementation of the NPDES program for the storm water program, (5)
targeting urbanized areas for the requirements in the NPDES program for
storm water, and (6) providing control of discharges from inactive and
abandoned mines located on Federal lands in a more targeted, flexible
manner. Additionally, prior to promulgation of today's rule, section
431 of the Agency's Appropriation Act for FY 2000 (Departments of
Veterans Affairs and Housing and Urban Development and Independent
Agencies Appropriations Act of 2000, Public Law 106-74, section 432
(1999)) directed EPA to report on certain matters to be covered in
today's rule. That report supplements the study required by CWA Section
402(p)(5). EPA is publishing the availability of that report elsewhere
in this issue of the Federal Register.
Several commenters asserted that the Report to Congress is an
inadequate basis for the designation and regulation of sources covered
under today's final rule, specifically the nationwide designation of
small municipal separate storm sewer systems within urbanized areas and
construction activities disturbing between one and five acres.
EPA believes that it has developed an adequate record for today's
regulation both through the Report to Congress and the Clean Water
Initiative and through more recent activities, including the FACA
Subcommittee process, regulatory notices and evaluation of comments,
and recent research and analysis. EPA does not interpret the
congressional reporting requirements of CWA section 402(p)(5) to be the
sole basis for determining sources to be regulated under today's final
rule.
EPA's decision to designate on a national basis small MS4s in
urbanized areas is supported by studies that clearly show a direct
correlation between urbanization and adverse water quality impacts from
storm water discharges. (Schueler, T. 1987. Controlling Urban Runoff: A
Practical Manual for Planning & Designing Urban BMPs. Metropolitan
Washington Council of Governments). ``Urbanized areas''--within which
all small MS4s would be covered--represent the most intensely developed
and dense areas of the Nation. They constitute only two percent of the
land area but 63 percent of the total population. See section I.B.1,
Urban Development, above, for studies and assessments of the link
between urban development and storm water impacts on water resources.
Commenters argued that the Report to Congress does not address
storm water discharges from construction sites. They further argued
that the designation of small construction sites per today's final rule
goes beyond the President's 1994 Initiative because the Initiative only
recommends requiring municipalities to implement a storm water
management program to control unregulated storm water sources,
``including discharges from construction of less than 5 acres, which
are part of growth, development and significant redevelopment
activities.'' They point out that the Initiative provides that
unregulated storm water discharges not addressed through a municipal
program would not be covered by the NPDES program. Commenters assert
that EPA has not developed a record independent of its section
402(p)(5) studies that demonstrates the necessity of regulating under a
separate NPDES permit storm water discharges from smaller construction
sites ``to protect water quality.'' EPA disagrees.
EPA evaluated the nature and extent of pollutants from construction
site sources in a process that was separate and distinct from the
development of the Report to Congress. Today's decision to regulate
certain storm water discharges from construction sites disturbing less
than 5 acres arose in part
[[Page 68733]]
out of the 9th Circuit remand in NRDC v. EPA, 966 F.2d 1292 (9th Cir.
1992). In that case, the court remanded portions of the Phase I storm
water regulations related to discharges from construction sites. Those
regulations define ``storm water discharges associated with industrial
activity'' to include only those storm water discharges from
construction sites disturbing 5 acres or more of total land area (see
40 CFR 122.26(b)(14)(x)). In its decision, the court concluded that the
5-acre threshold was improper because the Agency had failed to identify
information ``to support its perception that construction activities on
less than 5 acres are non-industrial in nature'' (966 F.2d at 1306).
The court remanded the below 5 acre exemption to EPA for further
proceedings (966 F.2d at 1310).
In a Federal Register notice issued on December 18, 1992, EPA noted
that it did not believe that the Court's decision had the effect of
automatically subjecting small construction sites to the existing
application requirements and deadlines. EPA believed that additional
notice and comment were necessary to clarify the status of these sites.
The information received during the notice and comment process and
additional research, as discussed in section I.B.3 Construction Site
Runoff, formed the basis for the designation of construction activity
disturbing between one and five acres on a nationwide basis. EPA's
objectives in today's proposal include an effort to (1) address the 9th
Circuit remand, (2) address water quality concerns associated with
construction activities that disturb less than 5 acres of land, and (3)
balance conflicting recommendations and concerns of stakeholders.
One commenter noted that EPA's proposal would fail to regulate
industrial facilities identified as Group A and Group B in the March
1995 Report to Congress. EPA is relying on the analysis in the Report,
which provided that the recommendation for coverage was meant as
guidance and was not intended to be an identification of specific
categories that must be regulated under Section 402(p)(6). Report to
Congress, p. 4-1. The Report recognized the existence of limited data
on which to base loadings estimates to support the nationwide
designation of individual or categories of sources. Report to Congress,
p. 4-44. Furthermore, during FACA Subcommittee discussion, EPA
continued to urge stakeholders to provide further data relating to
industrial and commercial storm water sources, which EPA did not
receive. EPA concluded that, due to insufficient data, these sources
were not appropriate for nationwide designation at this time.
E. Industrial Facilities Owned or Operated by Small Municipalities
Congress granted extensions to the NPDES permit application process
for selected classes of storm water discharges associated with
industrial activity. On December 18, 1991, Congress enacted the
Intermodal Surface Transportation Efficiency Act (ISTEA), which
postponed NPDES permit application deadlines for most storm water
discharges associated with industrial activity at facilities that are
owned or operated by small municipalities. EPA and States authorized to
administer the NPDES program could not require any municipality with a
population of less than 100,000 to apply for or obtain an NPDES permit
for any storm water discharge associated with industrial activity prior
to October 1, 1992, except for storm water discharges from airports,
power plants, or uncontrolled sanitary landfills. See 40 CFR
122.26(e)(1); 57 FR 11524, April 2, 1992 (reservation of NPDES
application deadlines for ISTEA facilities).
The facilities exempted by ISTEA discharge storm water in the same
manner (and are expected to use identical processes and materials) as
the industrial facilities regulated under the 1990 Phase I regulations.
Accordingly, these facilities pose similar water quality problems. The
extended moratorium for these facilities was necessary to allow
municipalities additional time to comply with NPDES requirements. The
proposal for today's rule would have maintained the existing deadline
for seeking coverage under an NPDES permit (August 7, 2001).
Today's rule changes the permit application deadline for such
municipally owned or operated facilities discharging industrial storm
water to make it consistent with the application date for small
regulated MS4s. Because EPA missed its March 1999 deadline for
promulgating today's rule, and the deadline for MS4s to submit permit
applications has been extended to three years and 90 days from the date
of this notice, the deadline for permitting ISTEA sources has been
similarly extended. The permitting of these sources is discussed below
in section ``II.I.3. ISTEA Sources.''
F. Related Nonpoint Source Programs
Today's rule addresses point source discharges of storm water
runoff and non-storm water discharges into MS4s. Many of these sources
have been addressed by nonpoint source control programs, which are
described briefly below.
In 1987, section 319 was added to the CWA to provide a framework
for funding State and local efforts to address pollutants from nonpoint
sources not addressed by the NPDES program. To obtain funding, States
are required to submit Nonpoint Source Assessment Reports identifying
State waters that, without additional control of nonpoint sources of
pollution, could not reasonably be expected to attain or maintain
applicable water quality standards or other goals and requirements of
the CWA. States are also required to prepare and submit for EPA
approval a statewide Nonpoint Source Management Program for controlling
nonpoint source water pollution to navigable waters within the State
and improving the quality of such waters. State program submittals must
identify specific best management practices (BMPs) and measures that
the State proposes to implement in the first four years after program
submission to reduce pollutant loadings from identified nonpoint
sources to levels required to achieve the stated water quality
objectives.
State nonpoint source programs funded under section 319 can include
both regulatory and nonregulatory State and local approaches. Section
319(b)(2)(B) specifies that a combination of ``nonregulatory or
regulatory programs for enforcement, technical assistance, financial
assistance, education, training, technology transfer, and demonstration
projects' may be used, as necessary, to achieve implementation of the
BMPs or measures identified in the section 319 submittals.
Section 6217 of the Coastal Zone Act Reauthorization Amendments
(CZARA) of 1990 provides that States with approved coastal zone
management programs must develop coastal nonpoint pollution control
programs and submit them to EPA and the National Oceanic and
Atmospheric Administration (NOAA) for approval. Failure to submit an
approvable program will result in a reduction of Federal grants under
both the Coastal Zone Management Act and section 319 of the CWA.
State coastal nonpoint pollution control programs under CZARA must
include enforceable policies and mechanisms that ensure implementation
of the management measures throughout the coastal management area. EPA
issued Guidance Specifying Management Measures for Sources of Nonpoint
Pollution in Coastal Waters under section 6217(g) in
[[Page 68734]]
January 1993. The guidance identifies management measures for five
major categories of nonpoint source pollution. The management measures
reflect the greatest degree of pollutant reduction that is economically
achievable for each of the listed sources. These management measures
provide reference standards for the States to use in developing or
refining their coastal nonpoint programs. A few management measures,
however, contain quantitative standards that specify pollutant loading
reductions. For example, the New Development Management Measure, which
is applicable to construction in urban areas, requires (1) that by
design or performance the average annual total suspended solid loadings
be reduced by 80 percent and (2) to the extent practicable, that the
pre-development peak runoff rate and average volume be maintained.
EPA and NOAA published Coastal Nonpoint Pollution Control Program:
Program Development and Approval Guidance (1993). The document
clarifies that States generally must implement management measures for
each source category identified in the EPA guidance developed under
section 6217(g). Coastal Nonpoint Pollution Control Programs are not
required to address sources that are clearly regulated under the NPDES
program as point source discharges. Specifically, such programs would
not need to address small MS4s and construction sites covered under
NPDES storm water permits (both general and individual).
II. Description of Program
A. Overview
1. Objectives EPA Seeks To Achieve in Today's Rule
EPA seeks to achieve several objectives in today's final rule.
First, EPA is implementing the requirement under CWA section 402(p)(6)
to provide a comprehensive storm water program that designates and
controls additional sources of storm water discharges to protect water
quality. Second, EPA is addressing storm water discharges from the
activities exempted under the 1990 storm water permit application
regulations that were remanded by the Ninth Circuit Court of Appeals in
NRDC v. EPA, 966 F.2d 1292 (9th Circuit, 1992). These are construction
activities disturbing less than 5 acres and so-called ``light''
industrial activities not exposed to storm water (see discussion of
``no exposure'' below). Third, EPA is providing coverage for the so-
called ``donut holes'' created by the existing NPDES storm water
program. Donut holes are geographic gaps in the NPDES storm water
program's regulatory scheme. They are MS4s located within areas covered
by the existing NPDES storm water program, but not currently addressed
by the storm water program because it is based on political
jurisdictions. Finally, EPA also is trying to promote watershed
planning as a framework for implementing water quality programs where
possible.
Although EPA had options for different approaches (see alternatives
discussed in the January 9, 1998, proposed regulation), EPA believes it
can best achieve its objectives through flexible innovations within the
framework of the NPDES program. Unlike the interim section 402(p)(6)
storm water regulations EPA promulgated in 1995, EPA no longer
designates all of the unregulated storm water discharges for nationwide
coverage under the NPDES program for storm water. The framework for
today's final rule is one that balances automatic designation on a
nationwide basis and locally-based designation and waivers. Nationwide
designation applies to those classes or categories of storm water
discharges that EPA believes present a high likelihood of having
adverse water quality impacts, regardless of location. Specifically,
today's rule designates discharges from small MS4s located in urbanized
areas and storm water discharges from construction activities that
result in land disturbance equal to or greater than one and less than
five acres. As noted under Section I.B., Water Quality Concerns/
Environmental Impact Studies and Assessments, these two categories of
storm water sources, when unregulated, tend to cause significant
adverse water quality impacts. Additional sources are not covered on a
nationwide basis either because EPA currently lacks information
indicating a consistent potential for adverse water quality impact or
because EPA believes that the likelihood of adverse impacts on water
quality is low, with some localized exceptions. Additional individual
sources or categories of storm water discharges could, however, be
covered under the program through a local designation process. A
permitting authority may designate additional small MS4s after
developing designation criteria and applying those criteria to small
MS4s located outside of an urbanized area, in particular those with a
population of 10,000 or more and a population density of at least
1,000. Exhibit 1 illustrates the designation framework for today's
final rule.
BILLING CODE 6560-50-P
[[Page 68735]]
[GRAPHIC] [TIFF OMITTED] TR08DE99.000
BILLING CODE 6560-50-C
[[Page 68736]]
The designation framework for today's final rule provides a
significant degree of flexibility. The proposed provisions for
nationwide designation of storm water discharges from construction and
from small MS4s in urbanized areas allowed for a waiver of applicable
requirements based on appropriate water quality conditions. Today's
final rule expands and simplifies those waivers.
The permitting authority may waive the requirement for a permit for
any small MS4 serving a jurisdiction with a population of less than
1,000 unless storm water controls are needed because the MS4 is
contributing to a water quality impairment. The permitting authority
may also waive permit coverage for MS4s serving a jurisdiction with a
population of less than 10,000 if all waters that receive a discharge
from the MS4 have been evaluated and discharges from the MS4 do not
significantly contribute to a water quality impairment or have the
potential to cause an impairment. Today's rule also allows States with
a watershed permitting approach to phase in coverage for MS4s in
jurisdictions with populations under 10,000.
Water quality conditions are also the basis for a waiver of
requirements for storm water discharges from construction activities
disturbing between one and five acres. For these small construction
sources, the rule provides significant flexibility for waiving
otherwise applicable regulatory requirements where a permitting
authority determines, based on water quality and watershed
considerations, that storm water discharge controls are not needed.
Coverage can be extended to municipal and construction sources
outside the nationwide designated classes or categories based on
watershed and case-by-case assessments. For the municipal storm water
program, today's rule provides broad discretion to NPDES permitting
authorities to develop and implement criteria for designating storm
water discharges from small MS4s outside of urbanized areas. Other
storm water discharges from unregulated industrial, commercial, and
residential sources will not be subject to the NPDES permit
requirements unless a permitting authority determines on a case-by-case
basis (or on a categorical basis within identified geographic areas
such as a State or watershed) that regulatory controls are needed to
protect water quality. EPA believes that the flexibility provided in
today's rule facilitates watershed planning.
2. General Requirements for Regulated Entities Under Today's Rule
As previously noted, today's final rule defines additional classes
and categories of storm water discharges for coverage under the NPDES
program. These designated dischargers are required to seek coverage
under an NPDES permit. Furthermore, all NPDES-authorized States and
Tribes are required to implement these provisions and make any
necessary amendments to current State and Tribal NPDES regulations to
ensure consistency with today's final rule. EPA remains the NPDES
permitting authority for jurisdictions without NPDES authorization.
Today's final rule includes some new requirements for NPDES
permitting authorities implementing the CWA section 402(p)(6) program.
EPA has made a significant effort to build flexibility into the program
while attempting to maintain an appropriate level of national
consistency. Permitting authorities must ensure that NPDES permits
issued to MS4s include the minimum control measures established under
the program. Permitting authorities also have the ability to make
numerous decisions including who is regulated under the program, i.e.,
case-by-case designations and waivers, and how responsibilities should
be allocated between regulated entities.
Today's final rule extends the NPDES program to include discharges
from the following: small MS4s within urbanized areas (with the
exception of systems waived from the requirements by the NPDES
permitting authority); other small MS4s meeting designation criteria to
be established by the permitting authority; and any remaining MS4 that
contributes substantially to the storm water pollutant loadings of a
physically interconnected MS4 already subject to regulation under the
NPDES program. Small MS4s include urban storm sewer systems owned by
Tribes, States, political subdivisions of States, as well as the United
States, and other systems located within an urbanized area that fall
within the definition of an MS4. These include, for example, State
departments of transportation (DOTs), public universities, and federal
military bases.
Today's final rule requires all regulated small MS4s to develop and
implement a storm water management program. Program components include,
at a minimum, 6 minimum measures to address: public education and
outreach; public involvement; illicit discharge detection and
elimination; construction site runoff control; post-construction storm
water management in new development and redevelopment; and pollution
prevention and good housekeeping of municipal operations. These program
components will be implemented through NPDES permits. A regulated small
MS4 is required to submit to the NPDES permitting authority, either in
its notice of intent (NOI) or individual permit application, the BMPs
to be implemented and the measurable goals for each of the minimum
control measures listed above.
The rule addresses all storm water discharges from construction
site activities involving clearing, grading and excavating land equal
to or greater than 1 acre and less than 5 acres, unless requirements
are otherwise waived by the NPDES permitting authority. Discharges from
such sites, as well as construction sites disturbing less than 1 acre
of land that are designated by the permitting authority, are required
to implement requirements set forth in the NPDES permit, which may
reference the requirements of a qualifying local program issued to
cover such discharges.
The rule also addresses certain other sources regulated under the
existing NPDES program for storm water. For municipally-owned
industrial sources required to be regulated under the existing NPDES
storm water program but exempted from immediate compliance by the
Intermodal Surface Transportation Act of 1991 (ISTEA), the rule revises
the existing deadline for seeking coverage under an NPDES permit
(August 7, 2001) to make it consistent with the application date for
small regulated MS4s. (See section I.3. below.) The rule also provides
relief from NPDES storm water permitting requirements for industrial
sources with no exposure of industrial materials and activities to
storm water.
3. Integration of Today's Rule With the Existing Storm Water Program
In developing an approach for today's final rule, numerous early
interested stakeholders encouraged EPA to seek opportunities to
integrate, where possible, the proposed Phase II requirements with
existing Phase I requirements, thus facilitating a unified storm water
discharge control program. EPA believes that this objective is met by
using the NPDES framework. This framework is already applied to
regulated storm water discharge sources and is extended to those
sources designated under today's rule. This approach facilitates
program consistency, public access to information, and program
oversight.
[[Page 68737]]
EPA believes that today's final rule provides consistency in terms
of program coverage and requirements for existing and newly designated
sources. For example, the rule includes most of the municipal donut
holes, those MS4s located in incorporated places, townships or towns
with a population under 100,000 that are within Phase I counties. These
MS4s are not addressed by the existing NPDES storm water program while
MS4s in the surrounding county are currently addressed. In addition,
the minimum control measures required in today's rule for regulated
small MS4s are very similar to a number of the permit requirements for
medium and large MS4s under the existing storm water program. Following
today's rule, permit requirements for all regulated MS4s (both those
under the existing program and those under today's rule) will require
implementation of BMPs. Furthermore, with regard to the development of
NPDES permits to protect water quality, EPA intends to apply the August
1, 1996, Interim Permitting Approach for Water Quality-Based Effluent
Limitations in Storm Water Permits (hereinafter, ``Interim Permitting
Approach'') (see Section II.L.1. for further description) to all MS4s
covered by the NPDES program.
EPA is applying NPDES permit requirements to construction sites
below 5 acres that are similar to the existing requirements for those
above 5 acres and above. In addition, today's rule allows compliance
with qualifying local, Tribal, or State erosion and sediment controls
to meet the erosion and sediment control requirements of the general
permits for storm water discharges associated with construction, both
above and below 5 acres.
4. General Permits
EPA recommends using general permits for all newly regulated storm
water sources under today's rule. The use of general permits, instead
of individual permits, reduces the administrative burden on permitting
authorities, while also limiting the paperwork burden on regulated
parties seeking permit authorization. Permitting authorities may, of
course, require individual permits in some cases to address specific
concerns, including permit non-compliance.
EPA recommends that general permits for MS4s, in particular, be
issued on a watershed basis, but recognizes that each permitting
authority must decide how to develop its general permit(s). Permit
conditions developed to address concerns and conditions of a specific
watershed could reflect a watershed plan; such permit conditions must
provide for attainment of applicable water quality standards (including
designated uses), allocations of pollutant loads established by a TMDL,
and timing requirements for implementation of a TMDL. If the permitting
authority issues a State-wide general permit, the permitting authority
may include separate conditions tailored to individual watersheds or
urbanized areas. Of course, for a newly regulated MS4, modification of
an existing individual MS4 permit to include the newly regulated MS4 as
a ``limited co-permittee'' also remains an option.
5. Tool Box
During the FACA process, many Storm Water Phase II FACA
Subcommittee representatives expressed an interest, which was endorsed
by the full Committee, in having EPA develop a ``tool box'' to assist
States, Tribes, municipalities, and other parties involved in the Phase
II program. EPA made a commitment to work with Storm Water Phase II
FACA Subcommittee representatives in developing such a tool box, with
the expectation that a tool box would facilitate implementation of the
storm water program in an effective and cost-efficient manner. EPA has
developed a preliminary working tool box (available on EPA's web page
at www.epa.gov/owm/sw/toolbox). EPA intends to have the tool box fully
developed by the time of the first general permits. EPA also intends to
update the tool box as resources and data become available. The tool
box will include the following eight main components: fact sheets;
guidances; a menu of BMPs for the six MS4 minimum measures; an
information clearinghouse; training and outreach efforts; technical
research; support for demonstration projects; and compliance
monitoring/assistance tools. EPA intends to issue the menu of BMPs,
both structural and non-structural, by October 2000. In addition, EPA
will issue by October 2000 a ``model'' permit and will issue by October
2001 guidance materials on the development of measurable goals for
municipal programs.
In an attempt to avoid duplication, the Agency has undertaken an
effort to identify and coordinate sources of information that relate to
the storm water discharge control program from both inside and outside
the Agency. Such information includes research and demonstration
projects, grants, storm water management-related programs, and
compendiums of available documents, including guidances, related
directly or indirectly to the comprehensive NPDES storm water program.
Based on this effort, EPA is developing a tool box containing fact
sheets and guidance documents pertaining to the overall program and
rule requirements (e.g., guidance on municipal and construction
programs, and permitting authority guidance on designation and waiver
criteria); models of current programs aimed at assisting States,
Tribes, municipalities, and others in establishing programs; a
comprehensive list of reference documents organized according to
subject area (e.g., illicit discharges, watersheds, water quality
standards attainment, funding sources, and similar types of
references); educational materials; technical research data; and
demonstration project results. The information collected by EPA will
not only provide the background for tool box materials, but will also
be made available through an information clearinghouse on the world
wide web.
With assistance from EPA, the American Public Works Association
(APWA) developed a workbook and series of workshops on the proposed
Phase II rule. Ten workshops were held from September 1998 through May
1999. Depending on available funding, these workshops may continue
after publication of today's final rule. EPA also intends to provide
training to enable regional offices to educate States, Tribes, and
municipalities about the storm water program and the availability of
the tool box materials.
The CWA currently provides funding mechanisms to support activities
related to storm water. These mechanisms will be described in the tool
box. Activities funded under grant and loan programs, which could be
used to assist in storm water program development, include programs in
the nonpoint source area, storm water demonstration projects, source
water protection and wastewater construction projects. EPA has already
provided funding for numerous research efforts in these areas,
including a database of BMP effectiveness studies (described below), an
assessment of technologies for storm water management, a study of the
effectiveness of storm water BMPs for controlling the impacts of
watershed imperviousness, protocols for wet weather monitoring,
development of a dynamic model for wet weather flows, and numerous
outreach projects.
EPA has entered into a cooperative agreement with the Urban Water
Resources Research Council of the American Society of Civil Engineers
(ASCE) to develop a scientifically-based management tool for the
information
[[Page 68738]]
needed to evaluate the effectiveness of urban storm water runoff BMPs
nationwide. The long-term goal of the National Stormwater BMP Database
project is to promote technical design improvements for BMPs and to
better match their selection and design to the local storm water
problems being addressed. The project team has collected and evaluated
hundreds of existing published BMP performance studies and created a
database covering about 75 test sites. The database includes detailed
information on the design of each BMP and its watershed
characteristics, as well as its performance. Eventually the database
will include the nationwide collection of information on the
characteristics of structural and non-structural BMPs, data collection
efforts (e.g., sampling and flow gaging equipment), climatological
characteristics, watershed characteristics, hydrologic data, and
constituent data. The database will continue to grow as new BMP data
become available. The initial release of the database, which includes
data entry and retrieval software, is available on CD-ROM and operates
on Windows-compatible personal computers. The ASCE project
team envisions that periodic updates to the database will be
distributed through the Internet. The team is currently developing a
system for Internet retrieval of selected database records, and this
system is expected to be available in early 2000.
EPA and ASCE invite BMP designers, owners and operators to
participate in the continuing database development effort. To make this
effort successful, a large database is essential. Interested persons
are encouraged to submit their BMP performance evaluation data and
associated BMP watershed characteristics for potential entry into the
database. The software included in the CD-ROM allows data providers to
enter their BMP data locally, retain and edit the data as needed, and
submit them to the ASCE Database Clearinghouse when ready.
To obtain a copy of the database, please contact Jane Clary,
Database Clearinghouse Manager, Wright Water Engineers, Inc., 2490 W.
26th Ave., Suite 100A, Denver, CO 80211; Phone 303-480-1700; E-mail
clary@wrightwater.com.
In addition, EPA requests that researchers planning to conduct BMP
performance evaluations compile and collect BMP reporting information
according to the standard format developed by ASCE. The format is
provided with the database software and is also available on the ASCE
website at www.asce.org/peta/tech/nsbd01.html.
6. Deadlines Established in Today's Action
Exhibit 2 outlines the various deadlines established under today's
final rule. EPA believes that the dates allow sufficient time for
completion of both the NPDES permitting authority's and the permittee's
program responsibilities.
Exhibit 2-Storm Water Phase II Actions Deadlines
------------------------------------------------------------------------
Activity Deadline date
------------------------------------------------------------------------
NPDES-authorized States modify NPDES 1 year from date of publication
program if no statutory change is of today's rule in the Federal
required. Register.
NPDES-authorized States modify NPDES 2 years from date of
program if statutory change is publication of today's rule in
required. the Federal Register.
EPA issues a menu of BMPs for regulated October 27, 2000
small MS4s.
ISTEA sources submit permit application 3 years and 90 days from date
of publication of today's rule
in the Federal Register.
Permitting authority issues general 3 years from date of
permit(s) (if this type of permit publication of today's rule in
coverage is selected). the Federal Register.
Regulated small MS4s submit permit
application:
a. If designated under Sec. a. 3 years and 90 days from
122.32(a)(1) unless the permitting date of publication of today's
authority has established a rule in the Federal Register.
phasing schedule under Sec.
123.35(d)(3).
b. If designated under Sec. b. Within 180 days of notice.
122.32(a)(2) or Secs.
122.26(a)(9)(i) (C) or (D).
Storm water discharges associated with
small construction activity submit
permit application:
a. If designated under Sec. a. 3 years and 90 days from
122.26(b)(15)(i). date of publication of today's
rule in the Federal Register
b. If designated under Sec. b. Within 180 days of notice.
122.26(b)(15)(ii).
Permitting authority designates small 3 years from date of
MS4s under Sec. 123.35(b)(2). publication of today's rule in
the Federal Register or 5
years from date of publication
of today's rule in the Federal
Register if a watershed plan
is in place
Regulated small MS4s' program fully Up to 5 years from date of
developed and implemented. permit issuance.
Reevaluation of the municipal storm 13 years from date of
water rules by EPA. publication of today's rule in
the Federal Register
Permitting authority determination on a Within 180 days of receipt.
petition.
Non-municipal sources designated under Within 180 days of notice.
Sec. 122.26(a)(9)(i) (C) or (D)
submit permit application.
Submission of No Exposure Certification Every 5 years.
------------------------------------------------------------------------
B. Readable Regulations
Today, EPA is finalizing new regulations in a ``readable
regulation'' format. This reader-friendly, plain language approach is a
departure from traditional regulatory language and should enhance the
rule's readability. These plain language regulations use questions and
answers, ``you'' to identify the person who must comply, and terms like
``must'' rather than ``shall'' to identify a mandate. This new format,
which minimizes layers of subparagraphs, should also allow the reader
to easily locate specific provisions of the regulation.
Some sections of today's final rule are presented in the
traditional language and format because these sections amend existing
regulations. The readable regulation format was not used in these
existing provisions in an attempt to avoid confusion or disruption
[[Page 68739]]
of the readability of the existing regulations.
Most commenters supported EPA's use of plain language and agreed
with EPA that the question and answer format makes the rule easier to
understand. Three commenters thought that EPA should retain the
traditional rule format. The June 1, 1998, Presidential memorandum
directs all government agencies to write documents in plain language.
Based on the majority of the comments, EPA has retained the plain
language format used in the January 9, 1998, proposal in today's final
rule.
The proposal to today's final rule included guidance as well as
legal requirements. The word ``must'' indicates a requirement. Words
like ``should,'' ``could,'' or ``encourage'' indicate a recommendation
or guidance. In addition, the guidance was set off in parentheses to
distinguish it from requirements.
EPA received numerous comments supporting the inclusion of guidance
in the text of the Code of Federal Regulations (CFR), as well as
comments opposing inclusion of guidance. Supporters stated that
preambles and guidance documents are often not accessible when rules
are implemented. Any language not included in the CFR is therefore not
available when it may be most needed. Commenters that opposed including
guidance in the CFR expressed the concern that any language in the rule
might be interpreted as a requirement, in spite of any clarifying
language. They suggested that guidance be presented in the preamble and
additional guidance documents.
The majority of commenters on this issue thought that the guidance
should be retained but the distinction between requirements and
guidance should be better clarified. Suggestions included clarifying
text, symbols, and a change from use of the word ``should'' to ``EPA
recommends'' or ``EPA suggests''. EPA believes that it is important to
include the guidance in the rule and agrees that the distinction
between requirements and EPA recommendations must be very clear. In
today's final rule, EPA has put the guidance in paragraphs entitled
``Guidance'' and replaced the word ``should'' with ``EPA recommends.''
This is intended to clarify that the recommendations contained in the
guidance paragraphs are not legally binding.
C. Program Framework: NPDES Approach
Today's rule regulates Phase II sources using the NPDES permit
program. EPA interprets Clean Water Act section 402(p)(6) as
authorizing the Agency to develop a storm water program for Phase II
sources either as part of the existing NPDES permit program or as a
stand alone non-NPDES program such as a self-implementing rule. Under
either approach, EPA interprets section 402(p)(6) as directing EPA to
publish regulations that ``regulate'' the remaining unregulated
sources, specifically to establish requirements that are federally
enforceable under the CWA. Although EPA believes that it has the
discretion to not require sources regulated under CWA section 402(p)(6)
to be covered by NPDES permits, the Agency has determined, for the
reasons discussed below, that it is most appropriate to use NPDES
permits in implementing the program to address the sources designated
for regulation in today's rule.
As discussed in Section II.A, Overview, EPA sought to achieve
certain goals in today's final rule. EPA believes that the NPDES
program best achieves EPA's goals for today's final rule for the
reasons discussed below.
Requiring Phase II sources to be covered by NPDES permits helps
address the consistency problems currently caused by municipal ``donut
holes.'' Donut holes are gaps in program coverage where a small
unregulated MS4 is located next to or within a regulated larger MS4
that is subject to an NPDES permit under the Phase I NPDES storm water
program. The existence of such ``donut holes'' creates an equity
problem because similar discharges may remain unregulated even though
they cause or contribute to the same adverse water quality impacts.
Using NPDES permits to regulate the unregulated discharges in these
areas is intended to facilitate the development of a seamless
regulatory program for the mitigation and control of contaminated storm
water discharges in an urbanized area. For example, today's rule allows
a newly regulated MS4 to join as a ``limited'' co-permittee with a
regulated MS4 by referencing a common storm water management program.
Such cooperation should be further encouraged by the fact that the
minimum control measures required in today's rule for regulated small
MS4s are very similar to a number of the permit requirements for medium
and large MS4s under the Phase I storm water program. The minimum
control measures applicable to discharges from smaller MS4s are
described with slightly more generality than under the Phase I permit
application regulations for larger MS4s, thus enabling maximum
flexibility for operators of smaller MS4s to optimize efforts to
protect water quality.
Today's rule also applies NPDES permit requirements to construction
sites below 5 acres that are similar to the existing requirements for
those 5 acres and above. In addition, the rule would allow compliance
with qualifying local, Tribal, or State erosion and sediment controls
to meet the erosion and sediment control requirements of the general
permits for storm water discharges associated with construction, both
above and below 5 acres.
Incorporating the CWA section 402(p)(6) program into the NPDES
program capitalizes upon the existing governmental infrastructure for
administration of the NPDES program. Moreover, much of the regulated
community already understands the NPDES program and the way it works.
Another goal of the NPDES program approach is to provide
flexibility in order to facilitate and promote watershed planning and
sensitivity to local conditions. NPDES permits promote those goals in
several ways. NPDES general permits may be used to cover a category of
regulated sources on a watershed basis or within political boundaries.
The NPDES permitting process provides a mechanism for storm water
controls tailored on a case-by-case basis, where necessary. In
addition, the NPDES permit requirements of a permittee may be satisfied
by another cooperating entity. Finally, NPDES permits may incorporate
the requirements of existing State, Tribal and local programs, thereby
accommodating State and Tribes seeking to coordinate the storm water
program with other programs, including those that focus on watershed-
based nonpoint source regulation.
In promoting the watershed approach to program administration, EPA
believes NPDES general permits can cover a category of dischargers
within a defined geographic area. Areas can be defined very broadly to
include political boundaries (e.g., county), watershed boundaries, or
State or Tribal land.
NPDES permits generally require an application or a notice of
intent(NOI) to trigger coverage. This information exchange assures
communication between the permitting authority and the regulated
community. This communication is critical in ensuring that the
regulated community is aware of the requirements and the permitting
authority is aware of the potential for adverse impacts to water
quality from identifiable locations. The NPDES permitting process
includes the public as a valuable stakeholder and ensures
[[Page 68740]]
that the public is included and information is made publicly available.
Another concern for EPA and several stakeholders was that the
program ensure citizen participation. The NPDES approach ensures
opportunities for citizen participation throughout the permit issuance
process, as well as in enforcement actions. NPDES permits are also
federally enforceable under the CWA.
EPA believes that the use of NPDES permits makes a significant
difference in the degree of compliance with regulations in the storm
water program. The NPDES program provides for public participation in
the development, enforcement and revision of storm water management
programs. Citizen suit enforcement has assisted in focusing attention
on adverse water quality impacts on a localized, public priority basis.
Citizens frequently rely on the NPDES permitting process and the
availability of NOIs to track program implementation and help them
enforce regulatory requirements.
NPDES permits are also advantageous to the permittee. The NPDES
permit informs the permittee about the scope of what it is expected do
to be in compliance with the Clean Water Act. As explained more fully
in EPA's April 1995 guidance, Policy Statement on Scope of Discharge
Authorization and Shield Associated with NPDES Permits, compliance with
an NPDES permit constitutes compliance with the Clean Water Act (see
CWA section 402(k)). In addition, NPDES permittees are excluded from
duplicative regulatory regimes under the Resource Conservation and
Recovery Act and the Comprehensive Emergency Response, Compensation and
Liability Act under RCRA's exclusions to the definition of ``solid
waste'' and CERCLA's exemption for ``federally permitted releases.''
EPA considered suggestions that the Agency authorize today's rule
to be implemented as a self-implementing rule. This would be a
regulation promulgated at the Federal, State, or Tribal level to
control some or all of the storm water dischargers regulated under
today's rule. Under this approach, a rule would spell out the specific
requirements for dischargers and impose the restrictions and conditions
that would otherwise be contained in an NPDES permit. It would be
effective until modified by EPA, a State, or a Tribe, unlike an NPDES
permit which cannot exceed a duration of five years. Some stakeholders
believed that this approach would reduce the burden on the regulated
community (e.g., by not requiring permit applications), and
considerably reduce the amount of additional paperwork, staff time and
accounting required to administer the proposed permit requirements.
EPA is sensitive to the interest of some stakeholders in having a
streamlined program that minimizes the burden associated with permit
administration and maximizes opportunities for field time spent by
regulatory authorities. Key provisions in today's rule address some of
these concerns by promoting a streamlined approach to permit issuance
by, for example, using general permits and allowing the incorporation
of existing programs. By adopting the NPDES approach rather than a
self-implementing rule, today's rule also allows for consistent
regulation between larger MS4s and construction sites regulated under
the existing storm water management rule and smaller sources regulated
under today's rule.
EPA believes that it is most appropriate to use NPDES permits to
implement a program to address the sources regulated by today's rule.
In addition to the reasons discussed above, NPDES permits provide a
better mechanism than would a self-implementing rule for tailoring
storm water controls on a case-by-case basis, where necessary. One
commenter reasoned this concern could be addressed by including
provisions in the regulation that allow site-specific BMPs (i.e., case-
by-case permits), suggesting storm water discharges that might require
site-specific BMPs can be identified during the designation process of
the regulatory authority. EPA believes that, in addition to its
complexity, the commenter's approach lacks the other advantages of the
NPDES permitting process.
A self-implementing rule would not ensure the degree of public
participation that the NPDES permit process provides for the
development, enforcement and revision of the storm water management
program. A self-implementing rule also might not have provided the
regulated community the ``permit shield'' under CWA section 402(k) that
is provided by an NPDES permit. Based on all these considerations, EPA
declined to adopt a self-implementing rule approach and adopted the
NPDES approach.
Some State representatives sought alternative approaches for State
implementation of the storm water program for Phase II sources. These
State representatives asserted that a non-NPDES alternative approach
best facilitated watershed management and avoided duplication and
overlapping regulations. These representatives believed the NPDES
approach would undercut State programs that had developed storm water
controls tailored to local watershed concerns. Finally, a number of
commenters expressed the view that States implement a variety of
programs not based on the CWA that are effective in controlling storm
water, and that EPA should provide incentives for their implementation
and improvement in performance.
Throughout the development of the rule, State representatives
sought alternatives to the NPDES approach for State implementation of
the storm water program for Phase II sources. Discussions focused on an
approach whereby States could develop an alternative program that EPA
would approve or disapprove based on identified criteria, including
that the alternative non-NPDES program would result in ``equivalent or
better protection of water quality.'' The State representatives,
however, were unable to propose or recommend criteria for gauging
whether a program would provide equivalent protection. EPA also did not
receive any suggestions for objective, workable criteria in response to
the Agency's explicit request for specific criteria (by which EPA could
objectively judge such programs) in the preamble to the proposed rule.
EPA evaluated several existing State initiatives to address storm
water and found many cases where standards under State programs may be
coordinated with the Federal storm water program. Where the NPDES
permit is developed in coordination with State standards, there are
opportunities to avoid duplication and overlapping requirements. Under
today's rule, an NPDES permitting authority may include conditions in
the NPDES permit that direct an MS4 to follow the requirements imposed
under State standards, rather than the requirements of Sec. 122.34(b).
This is allowed as long as the State program at a minimum imposes the
relevant requirements of Sec. 122.34(b). Additional opportunities
follow from other provisions in today's rule.
Seeking to further explore the feasibility of a non-NPDES approach,
the Agency, after the proposal, had extensive discussions with
representatives of a number of States. Discussions related specifically
to possible alternatives for regulations of urban storm water
discharges and MS4s specifically. The Agency also sought input on these
issues from other stakeholders.
As a result of these discussions, many of the commenters provided
input on issues such as: whether or not the Agency should require NPDES
permits; whether location of MS4s in urbanized
[[Page 68741]]
areas should be the basis for designation or whether designation should
be based on other determinations relating to water quality; whether
States should be allowed to satisfy the conditions of the rule through
the use of existing State programs; and issues concerning timing and
resources for program implementation.
In response, today's rule still follows the regulatory scheme of
the proposed rule, but incorporates additional flexibility to address
some of the concerns raised by commenters.
In order to facilitate implementation by States that utilize a
watershed permitting approach or similar approach (i.e., based on a
State's unified watershed assessments), today's rule allows States to
phase in coverage for MS4s in jurisdictions with a population less than
10,000. Under such an approach, States could focus their resources on a
rolling basis to assist smaller MS4s in developing storm water
programs.
In addition, in response to concerns that the rule should not
require permit coverage for MS4s that do not significantly contribute
to water quality impairments, today's rule provides options for two
waivers for small MS4s. The rule allows permitting authorities to
exempt from the requirement for a permit any MS4 serving a jurisdiction
with a population less than 1,000, unless the State determines that the
MS4 must implement storm water controls because it is significantly
contributing to a water quality impairment. A second waiver option
applies to MS4s serving a jurisdiction with a population less than
10,000. For those MS4s, the State must determine that discharges from
the MS4 do not significantly contribute to a water quality impairment,
or have the potential for such an impairment, in order to provide the
exemption. The State must review this waiver on a periodic basis no
less frequently than once every five years.
Throughout the development of today's rule, commenters questioned
whether the Clean Water Act authorized the use of the NPDES permit
program, pointing out that the text of CWA 402(p)(6) does not use the
word ``permit.'' Based on the absence of the word ``permit'' and the
express mention of State storm water management programs, the
commenters asserted that Congress did not intend for Phase II sources
to be regulated using NPDES permits.
EPA disagrees with the commenters' interpretation of section
402(p)(6). Section 402(p)(6) does not preclude use of permits as part
of the ``comprehensive program'' to regulate designated sources. The
language provides EPA with broad discretion in the establishment of the
``comprehensive program.'' Absence of the word ``permit'' (a term that
the statute does not otherwise define) does not preclude use of a
permit, which is a familiar and reasonably well understood regulatory
implementation vehicle. First, section 402(p)(6) says that EPA must
establish a comprehensive program that ``shall, at a minimum, establish
priorities, establish requirements for State stormwater management
programs, and establish expeditious deadlines.'' The ``at a minimum''
language suggests that the Agency may, and perhaps should, develop a
comprehensive program that does more than merely attend to these
minimum criteria. Use of the term ``at a minimum'' preserves for the
Agency broad discretion to establish a comprehensive program that
includes use of NPDES permits.
Further, in the final sentence of the section, Congress included
additional language to affirm the Agency's discretion. The final
sentence clarifies that the Phase II program ``may include performance
standards, guidelines, guidance, and management practices and treatment
requirements, as appropriate.'' Under existing CWA programs,
performance standards, (effluent limitations) guidelines, management
practices, and treatment requirements are typically implemented through
NPDES or dredge and fill permits.
Although EPA believes that it had the discretion to not require
permits, the Agency has determined that it is reasonable to interpret
section 402(p)(6) to authorize permits. Moreover, for the reasons
discussed above, the Agency believes that it is appropriate to use
NPDES permits in implementing today's rule.
D. Federal Role
Today's final rule describes EPA's approach to expand the existing
storm water program under CWA section 402(p)(6). As in all other
Federal programs, the Federal government plays an integral role in
complying with, developing, implementing, overseeing, and enforcing the
program. This section describes EPA's role in the revised storm water
program.
1. Develop Overall Framework of the Program
The storm water discharge control program under CWA section
402(p)(6) consists of the rule, tool box, and permits. EPA's primary
role is to ensure timely development and implementation of all
components. Today's rule is a refinement of the first step in
developing the program. EPA is fully committed to continuing to work
with involved stakeholders on developing the tool box and issuing
permits. As noted in today's rule, EPA will assess the municipal storm
water program based on (1) evaluations of data from the NPDES municipal
storm water program, (2) research concerning water quality impacts on
receiving waters from storm water, and (3) research on BMP
effectiveness. (Section II.H, Municipal Role, provides a more detailed
discussion of this provision.)
EPA is planning to standardize minimum requirements for
construction and post-construction BMPs in a new rulemaking under Title
III of the CWA. While larger construction sites are already subject to
NPDES permits (and smaller sites will be subject to permits pursuant to
today's rule), the permits generally do not contain specific
requirements for BMP design or performance. The permits require the
preparation of storm water pollution prevention plans, but actual BMP
selection and design is at the discretion of permittees, in conformance
with applicable State and local requirements. Where there are existing
State and local requirements specific to BMPs, they vary widely, and
many jurisdictions do not have such requirements.
In developing these regulations, EPA intends to evaluate the
inclusion of design and maintenance criteria as minimum requirements
for a variety of BMPs used for erosion and sediment control at
construction sites, as well as for permanent BMPs used to manage post-
construction storm water discharges. The Agency plans to consider the
merits and performance of all appropriate management practices (both
structural and non-structural) that can be used to reduce adverse water
quality impacts. EPA does not intend to require the use of particular
BMPs at specific sites, but plans to assist builders and developers in
BMP selection by publishing data on the performance to be expected by
various BMP types. EPA would like to build upon the successes of some
of the effective State and local storm water programs currently in
place around the country, and to establish nation-wide criteria to
support builders and local jurisdictions in appropriate BMP selection.
2. Encourage Consideration of Smart Growth Approaches
In the proposal, EPA invited comment on possible approaches for
providing
[[Page 68742]]
incentives for local decision making that would limit the adverse
impacts of growth and development on water quality. EPA asked for
comments on this ``smart growth'' approach.
EPA received comments on all sides of this issue. A number of
commenters supported the idea of ``smart growth'' incentives but did
not present concrete ideas. Several commenters suggested ``smart
growth'' criteria. States that have adopted ``smart growth'' laws were
worried that EPA's focus on urbanized areas for municipal requirements
could encourage development outside of designated growth areas. Today's
final rule clearly allows States to expand coverage of their municipal
storm water program outside of urbanized areas. In addition, the
flexibility of the six municipal minimum measures should avoid
encouragement of development into rural rather than urban areas. For
example, as part of the post-construction minimum measure, EPA
recommends that municipalities consider policies and ordinances that
encourage infill development in higher density urban areas, and areas
with existing infrastructure, in order to meet the measure's intent.
EPA also received several comments expressing concern that
incorporating ``smart growth'' incentives threatened the autonomy of
local governments. One commenter was worried that ``incentives'' could
become more onerous than the minimum measures. EPA is very aware of
municipal concerns about possible federal interference with local land
use planning. EPA is also cognizant of the difficulty surrounding
incentives for ``smart growth'' activities due to these concerns.
However, the Agency believes it has addressed these concerns by
proposing a flexible approach and will continue to support the concept
of ``smart growth'' by encouraging policies that limit the adverse
impacts of growth and development on water quality.
3. Provide Financial Assistance
Although Congress has not established a fund to fully finance
implementation of the proposed extension of the existing NPDES storm
water program under CWA section 402(p)(6), numerous federal financing
programs (administered by EPA and other federal agencies) can provide
some financial assistance. The primary funding mechanism is the Clean
Water State Revolving Fund (SRF) program, which provides sources of
low-cost financing for a range of water quality infrastructure
projects, including storm water. In addition to the SRF, federal
financial assistance programs include the Water Quality Cooperative
Agreements under CWA section 104(b)(3), Water Pollution Control Program
grants to States under CWA section 106, and the Transportation Equity
Act for the 21st Century (TEA-21) among others. In addition, Section
319 funds may be used to fund any urban storm water activities that are
not specifically required by a draft or final NPDES permit. EPA will
develop a list of potential funding sources as part of the tool box
implementation effort. EPA anticipates that some of these programs will
provide funds to help develop and, in limited circumstances, implement
the CWA section 402(p)(6) storm water discharge control program.
EPA received numerous comments that requested additional funding.
Congress provided one substantial new source of potential funding for
transportation related storm water projects--TEA-21. The Department of
Transportation has included a number of water-related provisions in its
TEA-21 planning. These include Transportation Enhancements,
Environmental Restoration and Pollution Abatement, and Environmental
Streamlining. More information on TEA-21 is available at the following
internet sites: www.fhwa.dot.gov/tea21/outreach.htm and www.tea21.org.
4. Implement the Program in Jurisdictions Not Authorized To Administer
the NPDES Program
Because today's final rule uses the NPDES framework, EPA will be
the NPDES permitting authority in several States, Tribal jurisdictions,
and Territories. As such, EPA will have the same responsibilities as
any other NPDES permitting authority--issuing permits, designating
additional sources, and taking appropriate enforcement actions--and
will seek to tailor the storm water discharge control program to the
specific needs in that State, Tribal jurisdiction, or Territory. EPA
also plans to provide support and oversight, including outreach,
training, and technical assistance to the regulated communities.
Section II.G. of today's preamble provides a separate discussion
related to the NPDES permitting authority's responsibilities for
today's final rule.
5. Oversee State and Tribal Programs
Under the NPDES program, EPA plays an oversight role for NPDES-
approved States and Tribes. In this role, EPA and the State or Tribe
work together to implement, enforce, and improve the NPDES program.
Part of this oversight role includes working with States and Tribes to
modify their programs where programmatic or implementation concerns
impede program effectiveness. This role will be vitally important when
States and Tribes make adjustments to develop, implement, and enforce
today's extension of the existing NPDES storm water discharge control
program. In addition, States maintain a continuing planning process
(CPP) under CWA section 303(e), which EPA periodically reviews to
assess the program's achievements.
In its oversight role, EPA takes action to address States and
Tribes who have obtained NPDES authorization but are not fulfilling
their obligations under the NPDES program. If an NPDES-authorized State
or Tribe fails to implement an adequate NPDES storm water program, for
example, EPA typically enters into extensive discussions to resolve
outstanding issues. EPA has the authority to withdraw the entire NPDES
program when resolution cannot be reached. Partial program withdrawal
is not provided for under the CWA except for partial approvals.
EPA is also working with the States and Tribes to improve nonpoint
source management programs and assessments to incorporate key program
elements. Key nonpoint source program elements include setting short
and long term goals and objectives; establishing public and private
partnerships; using a balanced approach incorporating Statewide and
watershed-wide abatement of existing impairments; preventing future
impairments; developing processes to address both impaired and
threatened waters; reviewing and upgrading all program components,
including program revisions on a 5-year cycle; addressing federal land
management and activities inconsistent with State programs; and
managing State nonpoint source management programs effectively.
In particular, EPA works with the States and Tribes to strengthen
their nonpoint source pollution programs to address all significant
nonpoint sources, including agricultural sources, through the CWA
section 319 program. EPA is working with other government agencies, as
well as with community groups, to effect voluntary changes regarding
watershed protection and reduced nonpoint source pollution.
In addition, EPA and NOAA have published programmatic and technical
guidance to address coastal nonpoint source pollution. Under Section
6217 of the CZARA, States are developing and implementing coastal
nonpoint pollution control programs approved by EPA and NOAA.
[[Page 68743]]
6. Comply With Applicable Requirements as a Discharger
Today's final rule covers federally operated facilities in a
variety of ways. These facilities are generally areas where people
reside, such as a federal prison, hospital, or military base. It also
includes federal parkways and road systems with separate storm sewer
systems. Today's rule requires federal MS4s to comply with the same
application deadlines that apply to regulated small MS4s generally. EPA
believes that all federal MS4s serve populations of less than 100,000.
EPA received several comments that asked if individual buildings
like post offices are considered to be small MS4s and thereby regulated
in today's rule if they are in an urbanized area. Most of these
buildings have at most a parking lot with runoff or a storm sewer that
connects with a municipality's MS4. EPA does not intend that individual
federal buildings be considered to be small MS4s. This is discussed in
section II.H.2.b. of today's preamble.
Federal facilities can also be included under requirements
addressing storm water discharges associated with small construction
activities. In any case, discharges from these facilities will need to
comply with all applicable NPDES requirements and any additional water
quality-related requirements imposed by a State, Tribal, or local
government. Failure to comply can result in enforcement actions.
Federal facilities can act as models for municipal and private sector
facilities and implement or test state-of-the-art management practices
and control measures.
E. State Role
Today's final rule sets forth an NPDES approach for implementing
the extension of the existing storm water discharge control program
under CWA section 402(p)(6). State assumption of the NPDES program is
voluntary, consistent with the principles of federalism. Because most
States are approved to implement the NPDES program, they will tailor
their storm water discharge control programs to address their water
quality needs and objectives. While today's rule establishes the basic
framework for the section 402(p)(6) program, States as well as Tribes
(see discussion in section II.F) have an important role in fine-tuning
the program to address the water quality issues within their
jurisdictions. The basic framework allows for adjustments based on
factors that vary geographically, including climate patterns and
terrain.
Where States do not have NPDES authority, they are not required to
implement the storm water discharge control program, but they may still
participate in water quality protection through participation in the
CWA section 401 certification process (for any permits) and through
development of water quality standards and TMDLs.
1. Develop the Program
In expanding the existing NPDES program for storm water discharges,
States must evaluate whether revisions to their NPDES programs are
necessary. If so, modifications must be made in accordance with
Sec. 123.62. Under Sec. 123.62, States must revise their NPDES programs
within 1 year, or within 2 years if statutory changes are necessary.
Some States and departments of transportation (DOTs) commented that
this timeframe is too short, anticipating that the State legislative
process and the modification of regulations combined would take beyond
2 years. The deadline language in Sec. 123.62 is not new language for
the storm water discharge control program; it applies to all NPDES
programs. EPA believes the vast majority of States will meet the
deadline and will work with States in those cases where there may be
difficulty meeting this deadline due to the timing of legislative
sessions and the regulatory development process.
An authorized State NPDES program must meet the requirements of CWA
section 402(b) and conform to the guidelines issued under CWA section
304(i)(2). Today's final rule under Sec. 123.25 adds specific cross
references to the storm water discharge control program components to
ensure that States adequately address these requirements.
2. Comply With Applicable Requirements as a Discharger
Today's final rule covers State operated separate storm sewer
systems in a variety of ways. These systems generally drain areas where
people reside, such as a prison, hospital, or other populated facility.
These systems are included under the definition of a regulated small
MS4, which specifically identifies systems operated by State
departments of transportation. Alternatively, storm water discharges
from State activities may be regulated under the section addressing
storm water discharges associated with small construction activities.
In any case, discharges from these facilities must comply with all
applicable NPDES requirements. Failure to comply can result in
enforcement actions. State facilities can act as models for municipal
and private sector facilities and implement or test state-of-the-art
management practices and control measures.
3. Communicate With EPA
Under approved NPDES programs, States have an ongoing obligation to
share information with EPA. This dialogue is particularly important in
the CWA section 402(p)(6) storm water program where these governments
continue to develop a great deal of the guidance and outreach related
to water quality.
F. Tribal Role
The proposal to today's final rule provides background information
on EPA's 1984 Indian Policy and the criteria for treatment of an Indian
Tribe in the same manner as a State. Today's final rule extends the
existing NPDES program for storm water discharges to two types of
dischargers located in Indian country. First, the final rule designates
storm water discharges from any regulated small MS4, including Tribal
systems. Second, the final rule regulates discharges associated with
construction activity disturbing between one and five acres of land,
including sites located in Indian country. Operators in each of these
categories of regulated activity must apply for coverage under an NPDES
permit by 3 years and 90 days from the date of publication of today's
final rule. Under existing regulations, however, EPA or an authorized
NPDES Tribe may require a specified storm water discharger to apply for
NPDES permit coverage before this deadline based on a determination
that the discharge is contributing to a violation of a water quality
standard (including designated uses) or is a significant contributor of
pollutants.
Under today's rule, a Tribal governmental entity may regulate storm
water discharges on its reservation in two ways--as either an NPDES-
authorized Tribe or as a regulated MS4. If a Tribe is authorized to
operate the NPDES program, the Tribe must implement today's final rule
for the NPDES program for storm water for covered dischargers located
within the EPA recognized boundaries. Otherwise, EPA is generally the
permitting/program authority within Indian country. Discussions about
the State Role in the preceding section also apply to NPDES authorized
Tribes. For additional information on the role and responsibilities of
the permitting authority in the NPDES storm water program, see
Sec. 123.35 (and Section II.G. of today's preamble) and Sec. 123.25(a).
[[Page 68744]]
Under today's final rule, if the Indian reservation is located
entirely or partially within an ``urbanized area,'' as defined in
Sec. 122.32(a)(1), the Tribe must obtain an NPDES permit if it operates
a small MS4 within the urbanized area portion. Tribal MS4s located
outside an urbanized area are not automatically covered, but may be
designated by EPA pursuant to Sec. 122.32(a)(2) of today's rule or may
request designation as a regulated small MS4 from EPA. A Tribe that is
a regulated MS4 for NPDES program purposes is required to implement the
six minimum control measures to the extent allowable under Federal law.
The Tribal representative on the Storm Water Phase II FACA
Subcommittee asked EPA to provide a list of the Tribes located in
urbanized areas that would fall within the NPDES storm water program
under today's final rule. In December 1996, EPA developed a list of
federally recognized American Indian Areas located wholly or partially
in Bureau of the Census-designated urbanized areas (see Appendix 1).
Appendix 1 not only provides a listing of reservations and individual
Tribes, but also the name of the particular urbanized area in which the
reservation is located and an indication of whether the urbanized area
contains a medium or large MS4 that is already covered by the existing
Phase I regulations.
Some of the Tribes listed in Appendix 1 are only partially located
in an urbanized area. If the Tribe's MS4 serves less than 1,000 people
within an urbanized area, the permitting authority may waive the
Tribe's MS4 storm water requirements if it meets the conditions of
Sec. 122.32(c). EPA does not have information on the Tribal populations
within the urbanized areas, so it can not identify the Tribes that are
eligible for a waiver. Therefore, a Tribe that believes it qualifies
for a waiver should contact its permitting authority.
G. NPDES Permitting Authority's Role for the NPDES Storm Water Small
MS4 Program
As noted previously, the NPDES permitting authority can be EPA or
an authorized State or an authorized Tribe. The following discussion
describes the role of the NPDES permitting authority under today's
final rule.
1. Comply With Implementation Requirements
NPDES permitting authorities must perform certain duties to
implement the NPDES storm water municipal program. Section 123.35(a) of
today's final rule emphasizes that permitting authorities have existing
obligations under the NPDES program. Section 123.35 focuses on specific
issues related to the role of the NPDES authority to support
administration and implementation of the municipal storm water program
under CWA section 402(p)(6).
2. Designate Sources
Section 123.35(b) of today's final rule addresses the requirements
for the NPDES permitting authority to designate sources of storm water
discharges to be regulated under Secs. 122.32 through 122.36. NPDES
permitting authorities must develop a process, as well as criteria, to
designate small MS4s. They must also have the authority to designate a
small MS4 if and when circumstances that support a waiver under
Sec. 122.32(c) change. EPA may make designations if an NPDES-approved
State or Tribe fails to do so.
NPDES permitting authorities must examine geographic jurisdictions
that they believe should be included in the storm water discharge
control program but are not located in an ``urbanized area''. Small
MS4s in these areas are not designated automatically. Discharges from
such areas should be brought into the program if found to have actual
or potential exceedances of water quality standards, including
impairment of designated uses, or other adverse impacts on water
quality, as determined by local conditions or watershed and TMDL
assessments. EPA's aim is to address discharges to impaired waters and
to protect waters with the potential for problems. EPA encourages NPDES
permitting authorities, local governments, and the interested public to
work together in the context of a watershed plan to address water
quality issues, including those associated with municipal storm water
runoff.
EPA received comments stating that the process of developing
criteria and applying it to all MS4s outside an urbanized area serving
a population of 10,000 or greater and with a density of 1,000 people
per square mile is too time-consuming and resource-intensive. These
commenters believe that the permitting authority should decide which
MS4s must be brought into the storm water discharge control program and
that population and density should not be an overriding criteria. One
suggested way of doing so was to only designate MS4s with demonstrated
contributions to the impairment of water quality uses as shown by a
TMDL. EPA disagrees with this suggestion. The TMDL process is time-
consuming. MS4s outside of urbanized areas may cause water quality
problems long before a TMDL is completed.
EPA believes that permitting authorities should consider the
potential water quality impacts of storm water from all jurisdictions
with a population of 10,000 or greater and a density of 1,000 people
per square mile. EPA is using data summarized in the NURP study and in
the CWA section 305(b) reports to support this approach for targeted
designation outside of urbanized areas. EPA is not mandating which
criteria are to be used, but has provided examples of criteria that may
be useful in evaluating potential water quality impacts. EPA believes
that the flexibility provided in this section of today's final rule
allows the permitting authority to develop criteria and a designation
process that is easy to use and protects water quality. Therefore, the
provisions of Sec. 123.35(b) remain as proposed.
a. Develop Designation Criteria
Under Sec. 123.35(b), the NPDES permitting authority must establish
designation criteria to evaluate whether a storm water discharge
results in or has the potential to result in exceedances of water
quality standards, including impairment of designated uses, or other
significant water quality impacts, including adverse habitat and
biological impacts.
EPA recommends that NPDES permitting authorities consider, in a
balanced manner, certain locally-focused criteria for designating any
MS4 located outside of an urbanized area on the basis of significant
water quality impacts. EPA recommends consideration of criteria such as
discharge to sensitive waters, high growth or growth potential, high
population density, contiguity to an urbanized area, significant
contribution of pollutants to waters of the United States, and
ineffective control of water quality concerns by other programs. These
suggested designation criteria are intended to help encourage the
permitting authority to use an objective method for identifying and
designating, on a local basis, sources that adversely impact water
quality. More information about these criteria and the reasons why they
are suggested by EPA is included in the January 9, 1998, proposal (63
FR 1561) for today's final rule.
The suggested criteria are meant to be taken in the aggregate, with
a great deal of flexibility as to how each should be weighed in order
to best account for watershed and other local conditions and to allow
for a more tailored case-by-case analysis. The application of criteria
is meant to be geographically specific. Furthermore, each criterion
does not have to be met in order for a small MS4
[[Page 68745]]
to qualify for designation, nor should an MS4 necessarily be designated
on the basis of one or two criteria alone.
EPA believes that the application of the recommended designation
criteria provides an objective indicator of real and potential water
quality impacts from urban runoff on both the local and watershed
levels. EPA encourages the application of the recommended criteria in a
watershed context, thereby allowing for the evaluation of the water
quality impacts of the portions of a watershed outside of an urbanized
area. For example, situations exist where the urbanized area represents
a small portion of a degraded watershed, and the adjacent nonurbanized
areas of the watershed have significant cumulative effects on the
quality of the receiving waters.
EPA received numerous suggestions of additional criteria that
should be added and reasons why some of the criteria in the proposal to
today's final rule were not appropriate. EPA developed its suggested
designation criteria based on findings of the NURP study and other
studies that indicate pollutants of concern, including total suspended
solids, chemical oxygen demand, and temperature. These criteria were
the subject of considerable discussion by the Storm Water Phase II FACA
Subcommittee. EPA developed them in response to recommendations from
the subcommittee during development of the proposed rule. The listed
criteria are only suggestions. Permitting authorities are required to
develop their own criteria. EPA has not found any reason to change its
suggested list of criteria and the suggestions remain as proposed.
b. Apply Designation Criteria
After customizing the designation criteria for local conditions,
the permitting authority must apply such criteria, at a minimum, to any
MS4 located outside of an urbanized area serving a jurisdiction with a
population of at least 10,000 and a population density of 1,000 people
per square mile or greater (see Sec. 123.35(b)(2)). If the NPDES
permitting authority determines that an MS4 meets the criteria, the
permitting authority must designate it as a regulated small MS4. This
designation must occur within 3 years of publication of today's final
rule. Alternatively, the NPDES authority can designate within 5 years
from the date of final regulation if the designation criteria are
applied on a watershed basis where a comprehensive watershed plan
exists (a comprehensive watershed plan is one that includes the
equivalents of TMDLs) (see Sec. 123.35(b)(3)). The extended 5 year
deadline is intended to provide incentives for watershed-based
designations. If an NPDES-authorized State or Tribe does not develop
and apply designation criteria within this timeframe, then EPA has the
opportunity to do so in lieu of the authorized State or Tribe.
NPDES permitting authorities can designate any small MS4, including
one below 10,000 in population and 1,000 in density. EPA established
the 10,000/1,000 threshold based on the likelihood of adverse water
quality impacts at these population and density levels. In addition,
the 1,000 persons per square mile threshold is consistent with both the
Bureau of the Census definition of an ``urbanized area'' (see Section
II.H.2. below) and stakeholder discussions concerning the definition of
a regulated small MS4.
One commenter requested that EPA develop interim deadlines for
development of designation criteria. EPA believes that the designation
deadline identified in today's final rule at Sec. 123.35(b)(3) provides
States and Tribes with a flexibility that allows them to develop and
apply the criteria locally in a timely fashion, while at the same time
establishing an expeditious deadline.
c. Designate Physically Interconnected Small MS4s
In addition to applying criteria on a local basis for potential
designation, the NPDES permitting authority must designate any MS4 that
contributes substantially to the pollutant loadings of a physically
interconnected municipal separate storm sewer that is regulated by the
NPDES program for storm water discharges (see Sec. 123.35(b)(4)). To be
``physically interconnected,'' the MS4 of one entity, including roads
with drainage systems and municipal streets, is physically connected
directly to the municipal separate storm sewer of another entity. This
provision applies to all MS4s located outside of an urbanized area. EPA
added this section in recognition of the concerns of local government
stakeholders that a local government should not have to shoulder total
responsibility for a storm water program when storm water discharges
from another MS4 are also contributing pollutants or adversely
affecting water quality. This provision also helps to provide some
consistency among MS4 programs and to facilitate watershed planning in
the implementation of the NPDES storm water program. EPA recommended
physical interconnectedness in the existing NPDES storm water
regulations as a factor for consideration in the designation of
additional sources.
Today's final rule does not include interim deadlines for
identifying physically interconnected MS4s. However, consistent with
the deadlines identified in Sec. 123.35(b)(3) of today's final rule,
EPA encourages the permitting authority to make these determinations
within 3 years from the date of publication of the final rule or within
5 years if the permitting authority is implementing a comprehensive
watershed plan. Alternatively, the affected jurisdiction could use the
petition process under 40 CFR 122.26(f) in seeking to have the
permitting authority designate the contributing jurisdiction.
Several commenters expressed concerns about who could be designated
under this provision (Sec. 123.35(b)(4)). One commenter requested that
the word ``substantially'' be deleted from the rule because they
believe any MS4 that contributes at all to a physically interconnected
municipal separate storm sewer should be regulated. EPA believes that
the word ``substantially'' provides necessary flexibility to the
permitting authorities. The permitting authority can decide if an MS4
is contributing discharges to another municipal separate storm sewer in
a manner that requires regulation. If the operator of a regulated
municipal separate storm sewer believes that some of its pollutant
loadings are coming from an unregulated MS4, it can petition the
permitting authority to designate the unregulated MS4 for regulation.
d. Respond to Public Petitions for Designation
Today's final rule reiterates the existing opportunity for the
public to petition the permitting authority for designation of a point
source to be regulated to protect water quality. The petition
opportunity also appears in existing NPDES regulations at 40 CFR
122.26(f). Any person may petition the permitting authority to require
an NPDES permit for a discharge composed entirely of storm water that
contributes to a violation of a water quality standard or is a
significant contributor of pollutants to the waters of the United
States (see Sec. 123.32(b)). The NPDES permitting authority must make a
final determination on any petition within 180 days after receiving the
petition (see Sec. 123.35(c)). EPA believes that a 180 day limit
balances the public's need for a timely final determination with the
NPDES permitting authority's need to prioritize its workload. If an
NPDES-approved State or Tribe fails to act
[[Page 68746]]
within the 180-day timeframe, EPA may make a determination on the
petition. EPA believes that public involvement is an important
component of the NPDES program for storm water and feels that this
provision encourages public participation. Section II.K, Public
Involvement/Public Role, further discusses this topic.
3. Provide Waivers
Today's rule provides two opportunities for the NPDES permitting
authority to exempt certain small MS4s from the need for a permit based
on water quality considerations. See Secs. 122.32(d) and (e). The two
waiver opportunities have different size thresholds and take different
approaches to considering the water quality impacts of discharges from
the MS4.
In the proposal, EPA requested comment on the option of waiving
coverage for all MS4s with less than 1,000 people unless the permitting
authority determined that the small MS4 should be regulated based on
significant adverse water quality impacts. A number of commenters
supported this option. They expressed concern that compliance with the
rule requirements and certification of one of the waiver provisions
were both costly for very small communities. They stated that the
permitting authority should identify a water quality problem before
requiring compliance. Today's rule essentially adopts this alternative
approach for MS4s serving a population under 1,000.
The final rule has expanded the waiver provision that EPA proposed
for small MS4s with a population less than 1,000. The proposed rule
would have required a small MS4 operator to certify that storm water
controls are not needed based on either wasteload allocations that are
part of TMDLs that address the pollutants of concern, or a
comprehensive watershed plan implemented for the waterbody that
includes the equivalents of TMDLs and addresses the pollutant(s) of
concern. Commenters noted that the proposed waivers would be
unattainable if a TMDL or equivalent analysis was required for every
pollutant that could possibly be present in any amount in discharges
from an MS4 regardless of whether the pollutant is causing water
quality impairment. Commenters asked that EPA identify what constitutes
the ``pollutant(s) of concern'' for which a TMDL or its equivalent must
be developed. For example, Sec. 122.30(c) indicates that the MS4
program is intended to control ``sediment, suspended solids, nutrients,
heavy metals, pathogens, toxins, oxygen-demanding substances, and
floatables.'' Commenters asked whether TMDLs or equivalent analyses
have to address all of these.
EPA has revised the proposed waiver in response to these concerns.
Under today's rule, NPDES permitting authorities may waive the
requirements of today's rule for any small MS4 with a population less
than 1,000 that does not contribute substantially to the pollutant
loadings of a physically interconnected MS4, unless the small MS4
discharges pollutants that have been identified as a cause of
impairment of the waters to which the small MS4 discharges. If the
small MS4 does discharge pollutants that have been identified as
impairing the water body into which the small MS4 discharges, the NPDES
permitting authority may grant a waiver only if it determines that
storm water controls are not needed based on an EPA approved or
established TMDL that addresses the pollutant(s) of concern.
Unlike the proposed rule, Sec. 122.32(d) does not allow the waiver
for MS4s serving a population under 1,000 to be based on ``the
equivalent of a TMDL.'' Because Sec. 122.32(d) requires a pollutant
specific analysis only for a pollutant that has been identified as a
cause of impairment, a TMDL is required for such pollutant before the
waiver may be granted. Once a pollutant has been identified as the
cause of impairment of a water body, the State should develop a TMDL
for that pollutant for that water body. Thus, Sec. 122.32(d) takes a
different approach than that taken for the waiver in Sec. 122.32(e) for
MS4s serving a population under 10,000, which can be based upon an
analysis that is ``the equivalent of a TMDL.'' This is because
Sec. 122.32(d) requires an analysis to support the waiver for MS4s
under 1,000 only if a waterbody to which the MS4 discharges has been
identified as impaired. The Sec. 122.32(e) waiver, on the other hand,
would be available for larger MS4s but only after the State
affirmatively establishes lack of impairment based upon a comprehensive
analysis of smaller urban waters that might not otherwise be evaluated
for the purposes of CWA section 303. Since Sec. 122.32(e) requires the
analysis of waters that have not been identified as impaired, an actual
TMDL is not required and an analysis that is the equivalent of a TMDL
can suffice to support the waiver.
Where a State is the NPDES permitting authority, the permitting
authority is responsible for the development of the TMDLs as well as
the assessment of the extent to which a small MS4's discharge
contributes pollutants to a neighboring regulated system. In States
where EPA is the permitting authority, EPA will use a State's TMDLs to
determine whether storm water controls are required for the small MS4s.
The proposed rule would have required the operator of the small MS4
serving a population under 1,000 to certify that its discharge was
covered under a TMDL that indicated that discharges from its particular
system were not having an adverse impact on water quality (i.e., it was
either not assigned wasteload allocations under TMDLs or its discharge
is within an assigned allocation). Many commenters expressed concerns
that MS4 operators serving less than 1,000 persons may lack the
technical capacity to certify that their discharges are not
contributing to adverse water quality impacts. These commenters thought
that the permitting authority should make such a certification. Today's
rule provides flexibility as to how the waiver is administered.
Permitting authorities are ultimately responsible for granting the
waiver, but are free to determine whether or not to require small MS4
operators that are seeking waivers to submit information or a written
certification.
Under Sec. 122.32(e) a State may grant a waiver to an MS4 serving a
population between 1,000 and 10,000 only if the State has made a
comprehensive effort to ensure that the MS4 will not cause or
contribute to water quality impairment. To grant a Sec. 122.32(e)
waiver, the NPDES permitting authority must evaluate all waters of the
U.S. that receive a discharge from the MS4 and determine that storm
water controls are not needed. The permitting authority's evaluation
must be based on wasteload allocations that are part of an EPA approved
or established TMDL or, if a TMDL has not been developed or approved,
an equivalent analysis that determines sources and allocations for the
pollutant(s) of concern. The pollutants of concern that the permitting
authority must evaluate include biochemical oxygen demand (BOD),
sediment or a parameter that addresses sediment (such as total
suspended solids, turbidity or siltation), pathogens, oil and grease,
and any other pollutant that has been identified as a cause of
impairment of any water body that will receive a discharge from the
MS4. Finally, the permitting authority must have determined that future
discharges from the MS4 do not have the potential to result in
exceedances of water quality standards, including impairment of
designated uses, or other significant
[[Page 68747]]
water quality impacts, including habitat and biological impacts.
Although EPA did not propose this specific approach, the Agency did
request comment on whether to increase the proposed 1,000 population
threshold for a waiver. The Sec. 122.32(e) waiver was developed in
response to comments, including States' concerns that they needed
greater flexibility to focus their efforts on MS4s that were causing
water quality impairment. Several commenters thought that the threshold
should be increased from 1,000 to 5,000 or 10,000. Others suggested
additional ways of qualifying for a waiver for MS4s that discharge to
waters that are not covered by a TMDL or watershed plan. EPA carefully
considered all the options for expanding the waiver provisions and has
decided to expand the waiver only in the very narrow circumstances
described above where a comprehensive analysis has been undertaken to
demonstrate that the MS4 is not causing water quality impairment.
The NPDES permitting authority can, at any time, mandate compliance
with program requirements from a previously waived small MS4 if
circumstances change. For example, a waiver can be withdrawn in
circumstances where the permitting authority later determines that a
waived small MS4's storm water discharge to a small stream will cause
adverse impacts to water quality or significantly interfere with
attainment of water quality standards. A ``change in circumstances''
could involve receipt of new information. Changed circumstances can
also allow a regulated small MS4 operator to request a waiver at any
time.
Some commenters expressed concerns about allowing any small MS4
waivers. One commenter stated that storm water pollution prevention
plans are necessary to control storm water pollution and should be
required from all regulated small MS4s. For the reasons stated in the
Background section above, EPA agrees that the discharges from most MS4s
in urbanized areas should be addressed by a storm water management
program outlined in today's rule. For MS4s serving very small areas,
however, the TMDL development process provides an opportunity to
determine whether an MS4 serving a population less than 1,000 is having
a negative impact on any receiving water that is impaired by a
pollutant that the MS4 discharges. MS4s serving populations up to
10,000 may receive a waiver only if a comprehensive analysis of its
impact on receiving water has been performed.
Other commenters said that waivers should not be allowed for small
MS4s that discharge into another regulated MS4. These commenters stated
that the word ``substantially'' should be removed from
Sec. 122.32(d)(i) so that a waiver would not be allowed for any system
``contributing to the storm water pollutant loadings of a physically
interconnected regulated MS4.'' As previously mentioned under the
designation discussion of section II.G.2.c, EPA believes that the word
``substantially'' provides needed flexibility to the permitting
authorities. It is important to note that this is only one aspect that
the permitting authority must consider when deciding on the
appropriateness of a waiver.
4. Issue Permits
NPDES permitting authorities have a number of responsibilities
regarding the permit process. Sections 123.35(d) through (g) ensure a
certain level of consistency for permits, yet provide numerous
opportunities for flexibility. NPDES permitting authorities must issue
NPDES permits to cover municipal sources to be regulated under
Sec. 122.32, unless waived under Sec. 122.32(c). EPA encourages
permitting authorities to use general permits as the vehicle for
permitting and regulating small MS4s. The Agency notes, however, that
some operators may wish to take advantage of the option to join as a
co-permittee with an MS4 regulated under the existing NPDES storm water
program.
Today's final rule includes a provision, Sec. 123.35(f), that
requires NPDES permitting authorities to either include the
requirements in Sec. 122.34 for NPDES permits issued for regulated
small MS4s or to develop permit limits based on a permit application
submitted by a small MS4. See Section II.H.3.a, Minimum Control
Measures, for more details on the actual Sec. 122.34 requirements. See
Section II.H.3.c for alternative and joint permitting options.
In an attempt to avoid duplication of effort, Sec. 122.34(c) allows
NPDES permitting authorities to include permit conditions that direct
an MS4 to meet the requirements of a qualifying local, Tribal, or State
municipal storm water management program. For a local, Tribal, or State
program to ``qualify,'' it must impose, at a minimum, the relevant
requirements of Sec. 122.34(b). A regulated small MS4 must still follow
the procedural requirements for an NPDES permit (i.e., submit an
application, either an individual application or an NOI under a general
permit) but will instead follow the substantive pollutant control
requirements of the qualifying local, Tribal, or State program.
Under Sec. 122.35(b), NPDES permitting authorities may also
recognize existing responsibilities among governmental entities for the
minimum control measures in an NPDES small MS4 storm water permit. For
example, the permit might acknowledge the existence of a State
administered program that addresses construction site runoff and
require that the municipalities only develop substantive controls for
the remaining minimum control measures. By acknowledging existing
programs, this provision is meant to reduce the duplication of efforts
and to increase the flexibility of the NPDES storm water program.
Section 123.35(e) of today's final rule requires permitting
authorities to specify a time period of up to 5 years from the issuance
date of an NPDES permit for regulated small MS4 operators to fully
develop and implement their storm water programs. As discussed more
fully below, permitting authorities should be providing extensive
support to the local governments to assist them in developing and
implementing their programs.
In the proposed rule, EPA stated that the permitting authority
would develop the menu of BMPs and if they failed to do so, EPA would
develop the menu. Commenters felt that EPA should develop a menu of
BMPs, rather than just providing guidance. In the settlement agreement
for seeking an extension to the deadline for issuing today's rule, EPA
committed to developing a menu of BMPs by October 27, 2000. Permitting
authorities can adopt EPA's menu or develop their own. The menu itself
is not intended to replace more comprehensive BMP guidance materials.
As part of the tool box efforts, EPA will provide separate guidance
documents that discuss the results from EPA-sponsored nationwide
studies on the design, operation and maintenance of BMPs. Additionally,
EPA expects that the new rulemaking on construction BMPs may provide
more specific design, operation and maintenance criteria.
5. Support and Oversee the Local Programs
NPDES permitting authorities are responsible for supporting and
overseeing the local municipal programs. Section 123.35(h) of today's
final rule highlights issues associated with these responsibilities.
To the extent possible, NPDES permitting authorities should provide
financial assistance to MS4s, which
[[Page 68748]]
often have limited resources, for the development and implementation of
local programs. EPA recognizes that funding for programs at the State
and Tribal levels may also be limited, but strongly encourages States
and Tribes to provide whatever assistance is possible. In lieu of
actual dollars, NPDES permitting authorities can provide cost-cutting
assistance in a number of ways. For example, NPDES permitting
authorities can develop outreach materials for MS4s to distribute or
the NPDES permitting authority can actually distribute the materials.
Another option is to implement an erosion and sediment control program
across an entire State (or Tribal land), thus alleviating the need for
the MS4 to implement its own program. The NPDES permitting authority
must balance the need for site-specific controls, which are best
handled by a local MS4, with its ability to offer financial assistance.
EPA, States, Tribes, and MS4s should work as a team in making these
kinds of decisions.
NPDES permitting authorities are responsible for overseeing the
local programs. Permitting authorities should work with the regulated
community and other stakeholders to assist in local program development
and implementation. This might include sharing information, analyzing
reports, and taking enforcement actions, as necessary. NPDES permitting
authorities play a vital role in supporting local programs by providing
technical and programmatic assistance, conducting research projects,
and monitoring watersheds. The NPDES permitting authority can also
assist the MS4 permittee in obtaining adequate legal authority at the
local level in order to implement the local component of the CWA
section 402(p)(6) program.
NPDES permitting authorities are encouraged to coordinate and
utilize the data collected under several programs. States and Tribes
address point and nonpoint source storm water discharges through a
variety of programs. In developing programs to carry out CWA section
402(p)(6), EPA recommends that States and Tribes coordinate all of
their water pollution evaluation and control programs, including the
continuing planning process under CWA section 303(e), the existing
NPDES program, the CZARA program, and nonpoint source pollution control
programs.
In addition, NPDES permitting authorities are encouraged to provide
a brief (e.g., two-page) reporting format to facilitate compilation and
analysis of data from reports submitted under Sec. 122.34(g)(3). EPA
intends to develop a model form for this purpose.
H. Municipal Role
1. Scope of Today's Rule
Today's final rule attempts to establish an equitable and
comprehensive four-pronged approach for the designation of municipal
sources. First, the approach defines for automatic coverage the
municipal systems believed to be of highest threat to water quality.
Second, the approach designates municipal systems that meet a set of
objective criteria used to measure the potential for water quality
impacts. Third, the approach designates on a case-by-case basis
municipal systems that ``contribute substantially to the pollutant
loadings of a physically-interconnected [regulated] MS4.'' Finally, the
approach designates on a case-by-case basis, upon petition, municipal
systems that ``contribute to a violation of a water quality standard or
are a significant contributor of pollutants.''
Today's final rule automatically designates for regulation small
MS4s located in urbanized areas, and requires that NPDES permitting
authorities examine for potential designation, at a minimum, a
particular subset of small MS4s located outside of urbanized areas.
Today's rule also includes provisions that allow for waivers from the
otherwise applicable requirements for the smallest MS4s that are not
causing impairment of a receiving water body. Qualifications for the
waivers vary depending on whether the MS4 serves a population under
1,000 or a population under 10,000. See Secs. 122.32(d) and (e). These
waivers are discussed further in section II.G.3. Any small MS4
automatically designated by the final rule or designated by the
permitting authority under today's final rule is defined as a
``regulated'' small MS4 unless it receives a waiver.
In today's final rule, all regulated small MS4s must establish a
storm water discharge control program that meets the requirements of
six minimum control measures. These minimum control measures are public
education and outreach on storm water impacts, public involvement
participation, illicit discharge detection and elimination,
construction site storm water runoff control, post-construction storm
water management in new development and redevelopment, and pollution
prevention/good housekeeping for municipal operations.
Today's rule allows for a great deal of flexibility in how an
operator of a regulated small MS4 is authorized to discharge under an
NPDES permit, by providing various options for obtaining permit
coverage and satisfying the required minimum control measures. For
example, the NPDES permitting authority can incorporate by reference
qualifying State, Tribal, or local programs in an NPDES general permit
and can recognize existing responsibilities among different
governmental entities for the implementation of minimum control
measures. In addition, a regulated small MS4 can participate in the
storm water management program of an adjoining regulated MS4 and can
arrange to have another governmental entity implement a minimum control
measure on their behalf.
2. Municipal Definitions
a. Municipal Separate Storm Sewer Systems (MS4s)
The CWA does not define the term ``municipal separate storm
sewer.'' EPA defined municipal separate storm sewer in the existing
storm water permit application regulations to mean, in part, a
conveyance or system of conveyances (including roads with drainage
systems and municipal streets) that is ``owned or operated by a State,
city, town borough, county, parish, district, association, or other
public body * * * designed or used for collecting or conveying storm
water which is not a combined sewer and which is not part of a Publicly
Owned Treatment Works as defined at 40 CFR 122.2'' (see
Sec. 122.26(b)(8)(i)). Section 122.26 contains definitions of medium
and large municipal separate storm sewer systems but no definition of a
municipal separate storm sewer system, even though the term MS4 is
commonly used. In today's rule, EPA is adding a definition of municipal
separate storm sewer system and small municipal separate storm sewer
system along with the abbreviations MS4 and small MS4.
The existing municipal permit application regulations define
``medium'' and ``large'' MS4s as those located in an incorporated place
or county with a population of at least 100,000 (medium) or 250,000
(large) as determined by the latest Decennial Census (see
Secs. 122.26(b)(4) and 122.26(b)(7)). In today's final rule, these
regulations have been revised to define all medium and large MS4s as
those meeting the above population thresholds according to the 1990
Decennial Census.
Today's rule also corrects the titles and contents of Appendices F,
G, H,& I to Part 122. EPA is adding those incorporated places and
counties whose 1990 population caused them to be defined as a
``medium'' or ``large'' MS4. All of these MS4s have applied for
[[Page 68749]]
permit coverage so the effect of this change to the appendices is
simply to make them more accurate. They will not need to be revised
again because today's rule ``freezes'' the definition of ``medium'' and
``large'' MS4s at those that qualify based on the 1990 census.
EPA received several comments supporting and opposing the proposal
to ``freeze'' the definitions based on the 1990 census. Commenters who
disagreed with EPA's position cited the unfairness of municipalities
that reach the medium or large threshold at a later date having fewer
permitting requirements compared to those that were already at the
population thresholds when the existing storm water regulations took
effect. EPA recognizes this disparity but does not believe it is
unfair, as explained in the proposed rule. The decision was based on
the fact that the deadlines from the existing regulations have lapsed,
and because the permitting authority can always require more from
operators of MS4s serving ``newly over 100,000'' populations.
b. Small Municipal Separate Storm Sewer Systems
The proposal to today's final rule added ``the United States'' as a
potential owner or operator of a municipal separate storm sewer. This
addition was intended to address an omission from existing regulations
and to clarify that federal facilities are, in fact, covered by the
NPDES program for municipal storm water discharges when the federal
facility is like other regulated MS4s. EPA received a comment that this
change would cause federal facilities located in Phase 1 areas to be
considered Phase 1 dischargers due to the definition of medium and
large MS4s. All MS4s located in Phase 1 cities or counties are defined
as Phase 1 medium or large MS4s. EPA believes that all federal
facilities serve a population of under 100,000 and should be regulated
as small MS4s. Therefore, in Sec. 122.26(a)(16) of today's final rule,
EPA is adding federal facilities to the NPDES storm water discharge
control program by changing the proposed definition of small municipal
separate storm sewer system. Paragraph (i) of this section restates the
definition of municipal separate storm sewer with the addition of ``the
United States'' as a owner or operator of a small municipal separate
storm sewer. Paragraph (ii) repeats the proposed language that states
that a small MS4 is a municipal separate storm sewer that is not medium
or large.
Most commenters agreed that federal facilities should be covered in
the same way as other similar MS4s. However, EPA received several
comments asking whether individual federal buildings such as post
offices or urban offices of the U.S. Park Service must apply for
coverage as regulated small MS4s. Most of these buildings have, at
most, a parking lot with runoff or a storm sewer that connects with a
municipality's MS4. In Sec. 122.26(a)(16)(iii), EPA clarifies that the
definition of small MS4 does not include individual buildings. These
buildings may have a municipal separate storm sewer but they do not
have a ``system'' of conveyances. The minimum measures for small MS4s
were written to apply to storm sewer ``systems'' providing storm water
drainage service to human populations and not to individual buildings.
This is true of municipal separate storm sewers from State buildings as
well as from federal buildings.
There will likely be situations where the permitting authority must
decide if a federal or State complex should be regulated as a small
MS4. A federal complex of two or three buildings could be treated as a
single building and not be required to apply for coverage. In these
situations, permitting authorities will have to use their best judgment
as to the nature of the complex and its storm water conveyance system.
Permitting authorities should also consider whether the federal or
State complex cooperates with its municipality's efforts to implement
their storm water management program.
Along with the questions about individual buildings, EPA received
many questions about how various provisions of the rule should be
interpreted for federal and State facilities. EPA acknowledges that
federal and State facilities are different from municipalities. EPA
believes, however, that the minimum measures are flexible enough that
they can be implemented by these facilities. As an example, DOD
commenters asked about how to interpret the term ``public'' for
military installations when implementing the public education measure.
EPA agrees with the suggested interpretation of ``public'' for DOD
facilities as ``the resident and employee population within the fence
line of the facility.''
EPA also received many comments from State departments of
transportation (DOTs) that suggested the ways in which they are
different from municipalities and should therefore be regulated
differently. Storm water discharges from State DOTs in Phase 1 areas
should already be regulated under Phase I. The preamble to Phase 1
clearly states that ``all systems within a geographical area including
highways and flood control districts will be covered.'' Many permitting
authorities regulated State DOTs as co-permittees with the Phase 1
municipality in which the highway is located. State DOTs that are
already regulated under Phase I are not required to comply with Phase
II. State DOTs that are not already regulated have various options for
meeting the requirements of today's rule. These options are discussed
in Section II.H.3.c.iv below. Several DOTs commented that some of the
minimum measures are outside the scope of their mission or that they do
not have the legal authority required for implementation. EPA believes
that the flexibility of the minimum measures allows them to be
implemented by most MS4s, including DOTs. When a DOT does not have the
necessary legal authority, EPA encourages the DOT to coordinate their
storm water management efforts with the surrounding municipalities and
other State agencies. Under today's rule, DOTs can use any of the
options of Sec. 122.35 to share their storm water management
responsibilities. DOTs may also want to work with their permitting
authority to develop a State-wide DOT storm water permit.
There are many storm water discharges from State DOTs and other
State MS4s located in Phase 1 areas that were not regulated under Phase
1. Today's rule adds many more State facilities as well as all federal
facilities located in urbanized areas. All of these State and federal
facilities that fit the definition of a small MS4 must be covered by a
storm water management program. The individual permitting authorities
must decide what type of permit is most applicable.
The existing NPDES storm water program already regulates storm
water from federally or State-operated industrial sources. Federal or
State facilities that are currently regulated due to their industrial
discharges may already be implementing some of today's rule
requirements.
EPA received comments that questioned the apparent inconsistency
between regulating a federal facility such as a hospital and not
regulating a similar private facility. Normally, this type of private
facility is regulated by the MS4. EPA believes that federal facilities
are subject to local water quality regulations, including storm water
requirements, by virtue of the waiver of sovereign immunity in CWA
section 313. However, there are special problems faced by MS4s in their
efforts to regulate federal facilities that have not been encountered
in regulating
[[Page 68750]]
similar private facilities. To ensure comprehensive coverage, today's
rule merely clarifies the need for permit coverage for these federal
facilities.
i. Combined Sewer Systems (CSS). The definition of small MS4s does
not include combined sewer systems. A combined sewer system is a
wastewater collection system that conveys sanitary wastewater and storm
water through a single set of pipes to a publicly-owned treatment works
(POTW) for treatment before discharging to a receiving waterbody.
During wet weather events when the capacity of the combined sewer
system is exceeded, the system is designed to discharge prior to the
POTW treatment plant directly into a receiving waterbody. Such an
overflow is a combined sewer overflow or CSO. Combined sewer systems
are not subject to existing regulations for municipal storm water
discharges, nor will they be subject to today's regulations. EPA
addresses combined sewer systems and CSOs in the National Combined
Sewer Overflow (CSO) Control Policy issued on April 19, 1994 (59 FR
18688). The CSO Control Policy contains provisions for developing
appropriate, site-specific NPDES permit requirements for combined sewer
systems. CSO discharges are subject to limitations based on the best
available technology economically achievable for toxic pollutants and
based on the best conventional pollutant control technology for
conventional pollutants. MS4s are subject to a different technology
standard for all pollutants, specifically to reduce pollutants to the
maximum extent practicable.
Some municipalities are served by both separate storm sewer systems
and combined sewer systems. If such a municipality is located within an
urbanized area, only the separate storm sewer systems within that
municipality is included in the NPDES storm water program and subject
to today's final rule. If the municipality is not located in an
urbanized area, then the NPDES permitting authority has discretion as
to whether the discharges from the separate storm sewer system is
subject to today's final rule. The NPDES permitting authority will use
the same process to designate discharges from portions of an MS4 for
permit coverage where the municipality is also served by a combined
sewer system.
EPA recognizes that municipalities that have both combined and
separate storm sewer systems may wish to find ways to develop a unified
program to meet all wet weather water pollution control requirements
more efficiently. In the proposal to today's final rule, EPA sought
comment on ways to achieve such a unified program. Many municipalities
that are served by CSSs and MS4s commented that it is inequitable to
force them to comply with Phase II at this time because implementation
of the CSO Control Policy through their NPDES permits already imposes a
significant financial burden. They requested an extension of the
implementation time frame. They did not provide ideas on how to unify
the two programs. EPA encourages permitting authorities to work with
these municipalities as they develop and begin implementation of their
CSO and storm water management programs. If both sets of requirements
are carefully coordinated early, a cost-effective wet weather program
can be developed that will address both CSO and storm water
requirements.
ii. Owners/Operators. Several commenters mentioned the difference
between the existing storm water application requirement for municipal
operators and the proposed municipal requirement for owners or
operators to apply. They felt that this inconsistency is confusing. The
preamble to the existing regulations makes numerous references to
owner/operator so there was no intent to make a clear distinction
between Phase I and Phase II. Section 122.21(b) states that when the
owner and operator are different, the operator must obtain the permit.
MS4s often have several operators. The owner may be responsible for one
part of the system and a regional authority may be responsible for
other aspects. EPA proposed the ``owner or operator'' language to
convey this dual responsibility. However, when the owner is responsible
for some part of a storm water management plan, it is also an operator.
EPA has revised the regulation language to clarify that ``an
operator'' must apply for a permit. When responsibilities for the MS4
are shared, all operators must apply.
c. Regulated Small MS4s
In today's final rule, all small MS4s located in an urbanized area
are automatically designated as ``regulated'' small MS4s provided that
they were not previously designated into the existing storm water
program. Unlike medium and large MS4s under the existing storm water
regulations, not all small MS4s are designated under today's final
rule. Therefore, today's rule distinguishes between ``small'' MS4s and
``regulated small'' MS4s.
EPA's definition of ``regulated small MS4s'' in the proposal to
today's rule included mention of incorporated places and counties.
Along with the definition, EPA included Appendices 6 and 7 to assist in
the identification of areas that would probably require coverage as
``automatically designated'' (Appendix 6) or ``potentially designated''
(Appendix 7). The definition and the appendices raised many questions
about exactly who was required to comply with the proposed
requirements. Commenters raised issues about the definition of
``incorporated place'' and the status of towns, townships, and other
places that are not considered incorporated by the Census Bureau. They
also asked about special districts, regional authorities, MS4s already
regulated, and other questions in order to clarify the rule's coverage.
EPA has revised Sec. 122.32(a) to clarify that discharges are
regulated under today's rule if they are from a small MS4 that is in an
urbanized area and has not received a waiver or they are designated by
the permitting authority. Today's rule does not regulate the county,
city, or town. Today's rule regulates the MS4. Therefore, even though a
county may be listed in Appendix 6, if that county does not own or
operate the municipal storm sewer systems, the county does not have to
submit an application or develop a storm water management program. If
another entity does own or operate an MS4 within the county, for
example, a regional utility district, that other entity needs to submit
the application and develop the program.
Some commenters suggested that EPA should change the rule language
to specifically allow regional authorities to be the permitted entity
and to allow small MS4s to apply as co-permittees. EPA believes that
the best way to clarify that regional authorities can be the primary
permitted entity is the change to Sec. 122.32(a) and the explanation
above. Because EPA assumes that today's regulation will be implemented
through general permits, MS4s will not be co-permittees under a general
permit in the same manner as under individual permits. EPA has added
Sec. 122.33(a)(4) and made a minor change to Sec. 122.35(a) to clarify
that small MS4s can work together to share the responsibilities of a
storm water management program. This is discussed further in Section
II.H.3.c.iv below.
The proposed rule stated that when a county or Federal Indian
reservation is only partially included in an urbanized area, only MS4s
in the urbanized portion of the county or Federal Indian reservation
would be regulated. In the rare cases when an incorporated place is
only partially included in the urbanized area, the entire incorporated
place would be regulated. EPA received comments asking about towns and
[[Page 68751]]
townships, because they were not considered to be incorporated areas
according to the Census Bureau's definition. Would the whole town/
township be covered or only the part of the town/township in the
urbanized area? States use many different types of systems in their
geographical divisions. Some towns are similar to incorporated cities
and others are large areas that are more similar to counties. Some
commenters thought that the urbanized area boundary was arbitrary, and
if part of a town or county was covered, it all should be covered.
Other commenters noted that some townships and counties encompass very
large areas of which only a small portion is urbanized. Due to the
great variety of situations, EPA has decided that for all geographical
entities, only MS4s in the urbanized area are automatically designated.
The population densities associated with the Census Bureau's
designation of urbanized areas provide the basis for designation of
these areas to protect water quality. This focused designation provides
for consistency and allows for flexibility on the part of the MS4 and
the permitting authority. In those situations where an incorporated
place or a town is not all in an ``urbanized area'', there is a good
possibility that it is served by more than one MS4. In those cases
where the area is served by the same MS4, it makes sense to develop a
storm water program for the whole area. Permitting authorities may also
decide to designate all MS4s within a county or township, if they
believe it is necessary to protect water quality.
Most operators of MS4s will not need to independently determine the
status of coverage under today's rule. EPA has revised the proposed
Appendices 6 and 7 to include towns and townships. Therefore, these
appendices will alert most MS4s as to whether they are likely to be
covered under today's rule. However, each permitting authority must
make the decision as to who requires coverage. Most likely, an
illustrative list of the regulated areas will be published with the
general permit. If not, the operator can contact its permitting
authority or the Bureau of the Census to find out if their separate
storm sewer systems are within an urbanized area.
i. Urbanized Area Description. Under the Bureau of the Census
definition of ``urbanized area,'' adopted by EPA for the purposes of
today's final rule, ``an urbanized area (UA) comprises a place and the
adjacent densely settled surrounding territory that together have a
minimum population of 50,000 people.'' The proposal to today's rule
provided the full definition and case studies to help explain the
census category of ``urbanized area.'' Appendix 2 is a simplified
urbanized area illustration to help demonstrate the concept of
urbanized areas in relation to today's final rule. The ``urbanized
area'' is the shaded area that includes within its boundaries
incorporated places, a portion of a Federal Indian reservation,
portions of two counties, an entire town, and portions of another town.
All small MS4s located in the shaded area are covered by the rule,
unless and until waived by the permitting authority. Any small MS4s
located outside of the shaded area are subject to potential designation
by the permitting authority.
There are 405 urbanized areas in the United States that cover 2
percent of total U.S. land area and contain approximately 63 percent of
the nation's population (see Appendix 3 for a listing of urbanized
areas of the United States and Puerto Rico). These numbers include U.S.
Territories, although Puerto Rico is the only territory to have Census-
designated urbanized areas. Urbanized areas constitute the largest and
most dense areas of settlement. The purpose of determining an
``urbanized area'' is to delineate the boundaries of development and
map the actual built-up urban area. The Bureau of the Census
geographers liken it to flying over an urban area and drawing a line
around the boundary of the built-up area as seen from the air.
Using data from the latest decennial census, the Census Bureau
applies the urbanized area definition nationwide (including U.S. Tribes
and Territories) and determines which places and counties are included
within each urbanized area. For each urbanized area, the Bureau
provides full listings of who is included, as well as detailed maps and
special CD-ROM files for use with computerized mapping systems (such as
GIS). Each State's data center receives a copy of the list, and some
maps, automatically. The States also have the CD-ROM files and a
variety of publications available to them for reference from the Bureau
of the Census. In addition, local or regional planning agencies may
have urbanized area files already. New listings for urbanized areas
based on the 2000 Census will be available by July/August 2001, but the
more comprehensive computer files will not be available until late
2001/early 2002.
Additional designations based on subsequent census years will be
governed by the Bureau of the Census' definition of an urbanized area
in effect for that year. Based on historical trends, EPA expects that
any area determined by the Bureau of the Census to be included within
an urbanized area as of the 1990 Census will not later be excluded from
the urbanized area as of the 2000 Census. However, it is important to
note that even if this situation were to occur, for example, due to a
possible change in the Bureau of the Census' urbanized area definition,
a small MS4 that is automatically designated into the NPDES program for
storm water under an urbanized area calculation for any given Census
year will remain regulated regardless of the results of subsequent
urbanized area calculations.
ii. Rationale for Using Urbanized Areas. EPA is using urbanized
areas to automatically designate regulated small MS4s on a nationwide
basis for several reasons: (1) studies and data show a high correlation
between degree of development/ urbanization and adverse impacts on
receiving waters due to storm water (U.S. EPA, 1983; Driver et al.,
1985; Pitt, R.E. 1991. ``Biological Effects of Urban Runoff
Discharges.'' Presented at the Engineering Foundation Conference: Urban
Runoff and Receiving Systems; An Interdisciplinary Analysis of Impact,
Monitoring and Management, August 1991. Mt. Crested Butte, CO. American
Society of Civil Engineers, New York. 1992.; Pitt, R.E. 1995.
``Biological Effects of Urban Runoff Discharges,'' in Storm water
Runoff and Receiving Systems: Impact, Monitoring, and Assessment. Lewis
Publishers, New York.; Galli, J. 1990. Thermal Impacts Associated with
Urbanization and Storm water Management Best Management Practices.
Prepared for the Sediment and Storm water Administration of the
Maryland Department of the Environment.; Klein, 1979), (2) the blanket
coverage within the urbanized area encourages the watershed approach
and addresses the problem of ``donut-holes,'' where unregulated areas
are surrounded by areas currently regulated (storm water discharges
from donut hole areas present a problem due to their contributing
uncontrolled adverse impacts on local waters, as well as by frustrating
the attainment of water quality goals of neighboring regulated
communities), (3) this approach targets present and future growth areas
as a preventative measure to help ensure water quality protection, and
(4) the determination of urbanized areas by the Bureau of the Census
allows operators of small MS4s to quickly determine whether they are
included in the NPDES storm water program as a regulated small MS4.
Urbanized areas have experienced significant growth over the past
50 years. According to EPA calculations
[[Page 68752]]
based on Census data from 1980 to 1990, the national average rate of
growth in the United States during that 10-year period was more than 4
percent. For the same period, the average growth within urbanized areas
was 15.7 percent and the average for outside of urbanized areas was
just more than 1 percent. The new development occurring in these
growing areas can provide some of the best opportunities for
implementing cost-effective storm water management controls.
EPA received many comments on the proposal to designate discharges
based on location within urbanized areas. EPA considered numerous other
approaches, several of which are discussed in the proposal to today's
final rule. Several commenters wanted designation to be based on proven
water quality problems rather than inclusion in an urbanized area. One
commenter proposed an approach based on the CWA 303(d) listing of
impaired waters and the wasteload allocation conducted under the TMDL
process. (See section II.L. on the section 303(d) and TMDL process).
The commenter's proposal would designate small MS4s on a case-by-case
basis, covering only those discharges where receiving streams are shown
to have water quality problems, particularly a failure to meet water
quality standards, including designated uses. The commenter further
described a non-NPDES approach where a State would require cost-
effective measures based on a proportionate share under a waste load
allocation, equitably allocated among all pollutant contributors. These
waste load allocations would be developed with input from all
stakeholders, and remedial measures would be implemented in a phased
manner based on the probability of results and/or economic feasibility.
The States would then periodically reassess the receiving streams to
determine whether the remedial measures are working, and if not,
require additional control measures using the same procedure used to
establish the initial measures. What the commenter describes is almost
a TMDL.
EPA considered a remedial approach based on water quality
impairment and rejected it for failure to prevent almost certain
degradation caused by urban storm water. EPA's main concern in opting
not to take a case-by-case approach to designation was that this
approach would not provide controls for storm water discharges in
receiving streams until after a site-specific demonstration of adverse
water quality impact. The commenter's suggestion would do nothing to
prevent pollution in waters that may be meeting water quality
standards, including supporting designated uses. The approach would
also rely on identifying storm water management programs following
comprehensive watershed plans and TMDL development. In most States,
water quality assessments have traditionally been conducted for
principal mainstream rivers and their major tributaries, not all
surface waters. The establishment of TMDLs nationwide will take many
years, and many States will conduct additional monitoring to determine
water quality conditions prior to establishing TMDLs. In addition, a
case-by-case approach would not address the problem of ``donut holes''
within urbanized areas and a lack of consistency among similarly
situated municipal systems would remain commonplace. After careful
consideration of all comments, EPA still believes that the approach in
today's rule is the most appropriate to protect water quality.
Protection includes prevention as well as remediation.
d. Municipal Designation by the Permitting Authority
Today's final rule also allows NPDES permitting authorities to
designate MS4s that should be included in the storm water program as
regulated small MS4s but are not located within urbanized areas. The
final rule requires, at a minimum, that a set of designation criteria
be applied to all small MS4s within a jurisdiction that serves a
population of at least 10,000 and has a population density of at least
1,000. Appendix 7 to this preamble provides an illustrative list of
places that the Agency anticipates meet this criteria. In addition, any
small MS4 may be the subject of a petition to the NPDES permitting
authority for designation. See Section II.G, NPDES Permitting
Authority's Role for more details on the designation and petition
processes. EPA believes that the approach of combining nationwide and
local designation to determine municipal coverage balances the
potential for significant adverse impacts on water quality with local
watershed protection and planning efforts.
e. Waiving the Requirements for Small MS4s
Today's final rule includes some flexibility in the nationwide
coverage of all small MS4s located in urbanized areas by providing the
NPDES permitting authority with the discretion to waive the otherwise
applicable requirements of the smallest MS4s that are not causing the
impairment of a receiving water body. Qualifications for the waiver
vary depending on whether the MS4 serves a population under 1,000 or a
population between 1,000 and 10,000. Note that even if a small MS4 has
requirements waived, it can subsequently be brought back into the
program if circumstances change. See Section II.G, NPDES Permitting
Authority's Role, for more details on this process.
3. Municipal Permit Requirements
a. Overview
i. Summary of Permitting Options. Today's rule outlines six minimum
control measures that constitute the framework for a storm water
discharge control program for regulated small MS4s that, when properly
implemented, will reduce pollutants to the maximum extent practicable
(MEP). These six minimum control measures are specified in
Sec. 122.34(b) and are discussed below in section ``II.H.3.b, Program
Requirements-Minimum Control Measures.'' All operators of regulated
small MS4s are required to obtain coverage under an NPDES permit,
unless the requirement is waived by the permitting authority in
accordance with today's rule. Implementation of Sec. 122.34(b) may be
required either through an individual permit or, if the State or EPA
makes one available to the facility, through a general permit. The
process for issuing and obtaining these permits is discussed below in
section ``II.H.3.c, Application Requirements.''
As an alternative to implementing a program that complies with the
requirements of Sec. 122.34, today's rule provides operators of
regulated small MS4s with the option of applying for an individual
permit under Sec. 122.26(d). The permit application requirements in
Sec. 122.26 were originally drafted to apply to medium and large MS4s.
Although EPA believes that the requirements of Sec. 122.34 provide a
regulatory option that is appropriate for most small MS4s, the
operators of some small MS4s may prefer more individualized
requirements. This alternative permitting option for regulated small
MS4s that wish to develop their own program is discussed below in
section ``II.H.3.c.iii. Alternative Permit Option.'' The second
alternative permitting option for regulated small MS4s is to become co-
permittees with a medium or large MS4 regulated under Sec. 122.26(d),
as discussed below in section ``II.H.3.c.v. Joint Permit Programs.''
ii. Water Quality-Based Requirements. Any NPDES permit issued under
today's rule must, at a minimum, require the operator to develop,
implement, and
[[Page 68753]]
enforce a storm water management program designed to reduce the
discharge of pollutants from a regulated system to the MEP, to protect
water quality, and satisfy the appropriate water quality requirements
of the Clean Water Act (see MEP discussion in the following section).
Absent evidence to the contrary, EPA presumes that a small MS4 program
that implements the six minimum measures in today's rule does not
require more stringent limitations to meet water quality standards.
Proper implementation of the measures will significantly improve water
quality. As discussed further below, however, small MS4 permittees
should modify their programs if and when available information
indicates that water quality considerations warrant greater attention
or prescriptiveness in specific components of the municipal program. If
the program is inadequate to protect water quality, including water
quality standards, then the permit will need to be modified to include
any more stringent limitations necessary to protect water quality.
Regardless of the basis for the development of the effluent
limitations (whether designed to implement the six minimum measures or
more stringent or prescriptive limitations to protect water quality),
EPA considers narrative effluent limitations requiring implementation
of BMPs to be the most appropriate form of effluent limitations for
MS4s. CWA section 402(p)(3)(b)(iii) expresses a preference for
narrative rather than numeric effluent limits, for example, by
reference to ``management practices, control techniques and system,
design and engineering methods, and such other provisions as the
Administrator or the State determines appropriate for the control of
such pollutants.'' 33 U.S.C. 1342(p)(3)(B)(iii). EPA determines that
pollutants from wet weather discharges are most appropriately
controlled through management measures rather than end-of-pipe numeric
effluent limitations. As explained in the Interim Permitting Policy for
Water Quality-Based Effluent Limitations in Storm Water Permits, issued
on August 1, 1996 [61 FR 43761 (November 26, 1996), EPA believes that
the currently available methodology for derivation of numeric water
quality-based effluent limitations is significantly complicated when
applied to wet weather discharges from MS4s (compared to continuous or
periodic batch discharges from most other types of discharge). Wet
weather discharges from MS4s introduce a high degree of variability in
the inputs to the models currently available for derivation of water
quality based effluent limitations, including assumptions about
instream and discharge flow rates, as well as effluent
characterization. In addition, EPA anticipates that determining
compliance with any such numeric limitations may be confounded by
practical limitations in sample collection.
In the first two to three rounds of permit issuance, EPA envisions
that a BMP-based storm water management program that implements the six
minimum measures will be the extent of the NPDES permit requirements
for the large majority of regulated small MS4s. Because the six
measures represent a significant level of control if properly
implemented, EPA anticipates that a permit for a regulated small MS4
operator implementing BMPs to satisfy the six minimum control measures
will be sufficiently stringent to protect water quality, including
water quality standards, so that additional, more stringent and/or more
prescriptive water quality based effluent limitations will be
unnecessary.
If a small MS4 operator implements the six minimum control measures
in Sec. 122.34(b) and the discharges are determined to cause or
contribute to non-attainment of an applicable water quality standard,
the operator needs to expand or better tailor its BMPs within the scope
of the six minimum control measures. EPA envisions that this process
will occur during the first two to three permit terms. After that
period, EPA will revisit today's regulations for the municipal separate
storm sewer program.
If the permitting authority (rather than the regulated small MS4
operator) needs to impose additional or more specific measures to
protect water quality, then that action will most likely be the result
of an assessment based on a TMDL or equivalent analysis that determines
sources and allocations of pollutant(s) of concern. EPA believes that
the small MS4's additional requirements, if any, should be guided by
its equitable share based on a variety of considerations, such as cost
effectiveness, proportionate contribution of pollutants, and ability to
reasonably achieve wasteload reductions. Narrative effluent limitations
in the form of BMPs may still be the best means of achieving those
reductions.
See Section II.L, Water Quality Issues, for further discussion of
this approach to permitting, consistent with EPA's interim permitting
guidance. Pursuant to CWA section 510, States implementing their own
NPDES programs may develop more stringent or more prescriptive
requirements than those in today's rule.
EPA's interpretation of CWA section 402(p)(3)(B)(iii) was recently
reviewed by the Ninth Circuit in Defenders of Wildlife, et al v.
Browner, No. 98-71080 (September 15, 1999). The Court upheld the
Agency's action in issuing five MS4 permits that included water
quality-based effluent limitations. The Court did, however, disagree
with EPA's interpretation of the relationship between CWA sections 301
and 402(p). The Court reasoned that MS4s are not compelled by section
301(b)(1)(C) to meet all State water quality standards, but rather that
the Administrator or the State may rely on section 402(p)(3)(B)(iii) to
require such controls. Accordingly, the Defenders of Wildlife decision
is consistent with the Agency's 1996 ``Interim Permitting Policy for
Water Quality-Based Effluent Limitations in Storm Water Permits.''
As noted, the 1996 Policy describes how permits would implement an
iterative process using BMPs, assessment, and refocused BMPs, leading
toward attainment of water quality standards. The ultimate goal of the
iteration would be for water bodies to support their designated uses.
EPA believes this iterative approach is consistent with and implements
section 301(b)(1)(C), notwithstanding the Ninth Circuit's
interpretation. As an alternative to basing these water quality-based
requirements on section 301(b)(1)(C), however, EPA also believes the
iterative approach toward attainment of water quality standards
represents a reasonable interpretation of CWA section
402(p)(3)(B)(iii). For this reason, today's rule specifies that the
``compliance target'' for the design and implementation of municipal
storm water control programs is ``to reduce pollutants to the maximum
extent practicable (MEP), to protect water quality, and to satisfy the
appropriate water quality requirements of the CWA.'' The first
component, reductions to the MEP, would be realized through
implementation of the six minimum measures. The second component, to
protect water quality, reflects the overall design objective for
municipal programs based on CWA section 402(p)(6). The third component,
to implement other applicable water quality requirements of the CWA,
recognizes the Agency's specific determination under CWA section
402(p)(3)(B)(iii) of the need to achieve reasonable further progress
toward attainment of water quality standards according to the iterative
BMP process, as well as the determination that State or EPA officials
who establish TMDLs could allocate waste loads to
[[Page 68754]]
MS4s, as they would to other point sources.
EPA does not presume that water quality will be protected if a
small MS4 elects not to implement all of the six minimum measures and
instead applies for alternative permit limits under Sec. 122.26(d).
Operators of such small MS4s that apply for alternative permit limits
under Sec. 122.26(d) must supply additional information through
individual permit applications so that the permit writer can determine
whether the proposed program reduces pollutants to the MEP and whether
any other provisions are appropriate to protect water quality and
satisfy the appropriate water quality requirements of the Clean Water
Act.
iii. Maximum Extent Practicable. Maximum extent practicable (MEP)
is the statutory standard that establishes the level of pollutant
reductions that operators of regulated MS4s must achieve. The CWA
requires that NPDES permits for discharges from MS4s ``shall require
controls to reduce the discharge of pollutants to the maximum extent
practicable, including management practices, control techniques and
system, design and engineering methods.'' CWA Section
402(p)(3)(B)(iii). This section also calls for ``such other provisions
as the [EPA] Administrator or the State determines appropriate for the
control of such pollutants.'' EPA interprets this standard to apply to
all MS4s, including both existing regulated (large and medium) MS4s, as
well as the small MS4s regulated under today's rule.
For regulated small MS4s under today's rule, authorization to
discharge may be under either a general permit or individual permit,
but EPA anticipates and expects that general permits will be the most
common permit mechanism. The general permit will explain the steps
necessary to obtain permit authorization. Compliance with the
conditions of the general permit and the series of steps associated
with identification and implementation of the minimum control measures
will satisfy the MEP standard. Implementation of the MEP standard under
today's rule will typically require the permittee to develop and
implement appropriate BMPs to satisfy each of the required six minimum
control measures.
In issuing the general permit, the NPDES permitting authority will
establish requirements for each of the minimum control measures.
Permits typically will require small MS4 permittees to identify in
their NOI the BMPs to be performed and to develop the measurable goals
by which implementation of the BMPs can be assessed. Upon receipt of
the NOI from a small MS4 operator, the NPDES permitting authority will
have the opportunity to review the NOI to verify that the identified
BMPs and measurable goals are consistent with the requirement to reduce
pollutants under the MEP standard, to protect water quality, and to
satisfy the appropriate water quality requirements of the Clean Water
Act. If necessary, the NPDES permitting authority may ask the permittee
to revise their mix of BMPs, for example, to better reflect the MEP
pollution reduction requirement. Where the NPDES permit is not written
to implement the minimum control measures specified under
Sec. 122.34(b), for example in the case of an individual permit under
Sec. 122.33(b)(2)(ii), the MEP standard will be applied based on the
best professional judgment of the permit writer.
Commenters argued that MEP is, as yet, an undefined term and that
EPA needs to further clarify the MEP standards by providing a
regulatory definition that includes recognition of cost considerations
and technical feasibility. Commenters argued that, without a
definition, the regulatory community is not adequately on notice
regarding the standard with which they need to comply. EPA disagrees
that affected MS4 permittees will lack notice of the applicable
standard. The framework for the small MS4 permits described in this
notice provides EPA's interpretation of the standard and how it should
be applied.
EPA has intentionally not provided a precise definition of MEP to
allow maximum flexibility in MS4 permitting. MS4s need the flexibility
to optimize reductions in storm water pollutants on a location-by-
location basis. EPA envisions that this evaluative process will
consider such factors as conditions of receiving waters, specific local
concerns, and other aspects included in a comprehensive watershed plan.
Other factors may include MS4 size, climate, implementation schedules,
current ability to finance the program, beneficial uses of receiving
water, hydrology, geology, and capacity to perform operation and
maintenance.
The pollutant reductions that represent MEP may be different for
each small MS4, given the unique local hydrologic and geologic concerns
that may exist and the differing possible pollutant control strategies.
Therefore, each permittee will determine appropriate BMPs to satisfy
each of the six minimum control measures through an evaluative process.
Permit writers may evaluate small MS4 operator's proposed storm water
management controls to determine whether reduction of pollutants to the
MEP can be achieved with the identified BMPs.
EPA envisions application of the MEP standard as an iterative
process. MEP should continually adapt to current conditions and BMP
effectiveness and should strive to attain water quality standards.
Successive iterations of the mix of BMPs and measurable goals will be
driven by the objective of assuring maintenance of water quality
standards. If, after implementing the six minimum control measures
there is still water quality impairment associated with discharges from
the MS4, after successive permit terms the permittee will need to
expand or better tailor its BMPs within the scope of the six minimum
control measures for each subsequent permit. EPA envisions that this
process may take two to three permit terms.
One commenter observed that MEP is not static and that if the six
minimum control measures are not achieving the necessary water quality
improvements, then an MS4 should be expected to revise and, if
necessary, expand its program. This concept, it is argued, must be
clearly part of the definition of MEP and thus incorporated into the
binding and operative aspects of the rule. As is explained above, EPA
believes that it is. The iterative process described above is intended
to be sensitive to water quality concerns. EPA believes that today's
rule contains provisions to implement an approach that is consistent
with this comment.
b. Program Requirements'Minimum Control Measures
A regulated small MS4 operator must develop and implement a storm
water management program designed to reduce the discharge of pollutants
from their MS4 to protect water quality. The storm water management
program must include the following six minimum measures.
i. Public Education and Outreach on Storm Water Impacts. Under
today's final rule, operators of small MS4s must implement a public
education program to distribute educational materials to the community
or conduct equivalent outreach activities about the impacts of storm
water discharges on water bodies and the steps to reduce storm water
pollution. The public education program should inform individuals and
households about the problem and the steps they can take to reduce or
prevent storm water pollution.
EPA believes that as the public gains a greater understanding of
the storm water program, the MS4 is likely to gain
[[Page 68755]]
more support for the program (including funding initiatives). In
addition, compliance with the program will probably be greater if the
public understands the personal responsibilities expected of them.
Well-informed citizens can act as formal or informal educators to
further disseminate information and gather support for the program,
thus easing the burden on the municipalities to perform all educational
activities.
MS4s are encouraged to enter into partnerships with their States in
fulfilling the public education requirement. It may be more cost-
effective to utilize a State education program instead of numerous MS4s
developing their own programs. MS4 operators are also encouraged to
work with other organizations (e.g., environmental, nonprofit and
industry organizations) that might be able to assist in fulfilling this
requirement.
The public education program should be tailored, using a mix of
locally appropriate strategies, to target specific audiences and
communities (particularly minority and disadvantaged communities).
Examples of strategies include distributing brochures or fact sheets,
sponsoring speaking engagements before community groups, providing
public service announcements, implementing educational programs
targeted at school age children, and conducting community-based
projects such as storm drain stenciling, and watershed and beach
cleanups. Operators of MS4s may use storm water educational information
provided by the State, Tribe, EPA, or environmental, public interest,
trade organizations, or other MS4s. Examples of successful public
education efforts concerning polluted runoff can be found in many State
nonpoint source pollution control programs under CWA section 319.
The public education program should inform individuals and
households about steps they can take to reduce storm water pollution,
such as ensuring proper septic system maintenance, ensuring the use and
disposal of landscape and garden chemicals including fertilizers and
pesticides, protecting and restoring riparian vegetation, and properly
disposing of used motor oil or household hazardous wastes.
Additionally, the program could inform individuals and groups on how to
become involved in local stream and beach restoration activities as
well as activities coordinated by youth service and conservation corps
and other citizen groups. Finally, materials or outreach programs
should be directed toward targeted groups of commercial, industrial,
and institutional entities likely to have significant storm water
impacts. For example, MS4 operators should provide information to
restaurants on the impact of grease clogging storm drains and to auto
garages on the impacts of used oil discharges.
EPA received comments from representatives of State DOTs and U.S.
Department of Defense (DOD) installations seeking exemption from the
public education requirement. While today's rule does not exempt DOTs
and military bases from the user education requirement, the Agency
believes the flexibility inherent in the Rule addresses many of the
concerns expressed by these commenters.
Certain DOT representatives commented that if their agencies were
not exempt from the user education measure's requirements, they should
at least be allowed to count DOT employee education as an adequate
substitute. EPA supports the use of existing materials and programs,
granted such materials and programs meet the rule's requirement that
the MS4 user community (i.e., the public) is also educated concerning
the impacts of storm water discharges on water bodies and the steps to
reduce storm water pollution.
Finally, certain DOD representatives requested that ``public,'' as
applied to their installations, be defined as the resident and employee
populations within the fence line of the facility. EPA agrees that the
education effort should be directed toward those individuals who
frequent the federally owned land (i.e., residents and individuals who
come there to work and use the MS4 facilities).
EPA also received a number of comments from municipalities stating
that education would be more thorough and cost effective if
accomplished by EPA on the national level. EPA believes that a
collaborative State and local approach, in conjunction with significant
EPA technical support, will best meet the goal of targeting, and
reaching, specific local audiences. EPA technical support will include
a tool box which will contain fact sheets, guidance documents, an
information clearinghouse, and training and outreach efforts.
Finally, EPA received comments expressing concern that the public
education program simply encourages the distribution of printed
material. EPA is sensitive to this concern. Upon evaluation, the Agency
made changes to the proposal's language for today's rule. The language
has been changed to reflect EPA's belief that a successful program is
one that includes a variety of strategies locally designed to reach
specific audiences.
ii. Public Involvement/Participation. Public involvement is an
integral part of the small MS4 storm water program. Accordingly,
today's final rule requires that the municipal storm water management
program must comply with applicable State and local public notice
requirements. Section 122.34(b)(2) recommends a public participation
process with efforts to reach out and engage all economic and ethnic
groups. EPA believes there are two important reasons why the public
should be allowed and encouraged to provide valuable input and
assistance to the MS4's program.
First, early and frequent public involvement can shorten
implementation schedules and broaden public support for a program.
Opportunities for members of the public to participate in program
development and implementation could include serving as citizen
representatives on a local storm water management panel, attending
public hearings, working as citizen volunteers to educate other
individuals about the program, assisting in program coordination with
other pre-existing programs, or participating in volunteer monitoring
efforts. Moreover, members of the public may be less likely to raise
legal challenges to a MS4's storm water program if they have been
involved in the decision making process and program development and,
therefore, internalize personal responsibility for the program
themselves.
Second, public participation is likely to ensure a more successful
storm water program by providing valuable expertise and a conduit to
other programs and governments. This is particularly important if the
MS4's storm water program is to be implemented on a watershed basis.
Interested stakeholders may offer to volunteer in the implementation of
all aspects of the program, thus conserving limited municipal
resources.
EPA recognizes that there are a number of challenges associated
with public involvement. One challenge is in engaging people in the
public meeting and program design process. Another challenge is
addressing conflicting viewpoints. Nevertheless, EPA strongly believes
that these challenges can be addressed by use of an aggressive and
inclusive program. Section II.K. provides further discussion on public
involvement.
A number of municipalities sought clarification from EPA concerning
what the public participation program must
[[Page 68756]]
actually include. In response, the actual requirements are minimal, but
the Agency's recommendations are more comprehensive. The public
participation program must only comply with applicable State and local
public notice requirements. The remainder of the preamble, as well as
the Explanatory Note accompanying the regulatory text, provide guidance
to the MS4s concerning what elements a successful and inclusive program
should include. EPA will provide technical support as part of the tool
box (i.e., providing model public involvement programs, conducting
public workshops, etc.) to assist MS4 operators meet the intent of this
measure.
Finally, the Agency encourages MS4s to seek public participation
prior to submitting an NOI. For example, public participation at this
stage will allow the MS4 to involve the public in developing the BMPs
and measurable goals for their NOI.
iii. Illicit Discharge Detection and Elimination. Discharges from
small MS4s often include wastes and wastewater from non-storm water
``illicit'' discharges. Illicit discharge is defined at 40 CFR
122.26(b)(2) as any discharge to a municipal separate storm sewer that
is not composed entirely of storm water, except discharges pursuant to
an NPDES permit and discharges resulting from fire fighting activities.
As detailed below, other sources of non-storm water, that would
otherwise be considered illicit discharges, do not need to be addressed
unless the operator of the MS4 identifies one or more of them as a
significant source of pollutants into the system. EPA's Nationwide
Urban Runoff Program (NURP) indicated that many storm water outfalls
still discharge during substantial dry periods. Pollutant levels in
these dry weather flows were shown to be high enough to significantly
degrade receiving water quality. Results from a 1987 study conducted in
Sacramento, California, revealed that slightly less than one-half of
the water discharged from a municipal separate storm sewer system was
not directly attributable to precipitation runoff (U.S. Environmental
Protection Agency, Office of Research and Development. 1993.
Investigation of Inappropriate Pollutant Entries Into Storm Drainage
Systems--A User's Guide. Washington, DC EPA 600/R-92/238.) A
significant portion of these dry weather flows results from illicit
and/or inappropriate discharges and connections to the municipal
separate storm sewer system. Illicit discharges enter the system
through either direct connections (e.g., wastewater piping either
mistakenly or deliberately connected to the storm drains) or indirect
connections (e.g., infiltration into the storm drain system or spills
collected by drain inlets).
Under the existing NPDES program for storm water, permit
applications for large and medium MS4s are to include a program
description for effective prohibition against non-storm water
discharges into their storm sewers (see 40 CFR 122.26 (d)(1)(v)(B) and
(d)(1)(iv)(B)). Further, EPA believes that in implementing municipal
storm water management plans under these permits, large and medium MS4
operators generally found their illicit discharge detection and
elimination programs to be cost-effective. Properly implemented
programs also significantly improved water quality.
In today's rule, any NPDES permit issued to an operator of a
regulated small MS4 must, at a minimum, require the operator to
develop, implement and enforce an illicit discharge detection and
elimination program. Inclusion of this measure for regulated small MS4s
is consistent with the ``effective prohibition'' requirement for large
and medium MS4s. Under today's rule, the NPDES permit will require the
operator of a regulated small MS4 to: (1) Develop (if not already
completed) a storm sewer system map showing the location of all
outfalls, and names and location of all waters of the United States
that receive discharges from those outfalls; (2) to the extent
allowable under State, Tribal, or local law, effectively prohibit
through ordinance, or other regulatory mechanism, illicit discharges
into the separate storm sewer system and implement appropriate
enforcement procedures and actions as needed; (3) develop and implement
a plan to detect and address illicit discharges, including illegal
dumping, to the system; and (4) inform public employees, businesses,
and the general public of hazards associated with illegal discharges
and improper disposal of waste.
The illicit discharge and elimination program need only address the
following categories of non-storm water discharges if the operator of
the small MS4 identifies them as significant contributors of pollutants
to its small MS4: water line flushing, landscape irrigation, diverted
stream flows, rising ground waters, uncontaminated ground water
infiltration (as defined at 40 CFR 35.2005(20)), uncontaminated pumped
ground water, discharges from potable water sources, foundation drains,
air conditioning condensation, irrigation water, springs, water from
crawl space pumps, footing drains, lawn watering, individual
residential car washing, flows from riparian habitats and wetlands,
dechlorinated swimming pool discharges, and street wash water
(discharges or flows from fire fighting activities are excluded from
the definition of illicit discharge and only need to be addressed where
they are identified as significant sources of pollutants to waters of
the United States). If the operator of the MS4 identifies one or more
of these categories of sources to be a significant contributor of
pollutants to the system, it could require specific controls for that
category of discharge or prohibit the discharges completely.
Several comments were received on the mapping requirements of the
proposal. Most comments said that more flexibility should be given to
the MS4s to determine their mapping needs, and that resources could be
better spent in addressing problems once the illicit discharges are
detected. EPA reviewed the mapping requirements in the proposed rule
and agrees that some of the information is not necessary in order to
begin an illicit discharge detection and elimination program. Today's
rule requires a map or set of maps that show the locations of all
outfalls and names and locations of receiving waters. Knowing the
locations of outfalls and receiving waters are necessary to be able to
conduct dry weather field screening for non-storm water flows and to
respond to illicit discharge reports from the public. EPA recommends
that the operator collect any existing information on outfall locations
(e.g., review city records, drainage maps, storm drain maps), and then
conduct field surveys to verify the locations. It will probably be
necessary to ``walk'' (i.e. wade small receiving waters or use a boat
for larger receiving waters) the streambanks and shorelines, and it may
take more than one trip to locate all outfalls. A coding system should
be used to mark and identify each outfall. MS4 operators have the
flexibility to determine the type (e.g. topographic, GIS, hand or
computer drafted) and size of maps which best meet their needs. The map
scale should be such that the outfalls can be accurately located. Once
an illicit discharge is detected at an outfall, it may be necessary to
map that portion of the storm sewer system leading to the outfall in
order to locate the source of the discharge.
Several comments requested clarification of the requirement to
develop and implement a plan to detect and eliminate illicit
discharges. EPA recommends that plans include procedures for the
following: locating priority areas; tracing the source of an illicit
discharge; removing the source of the discharge; and program evaluation
[[Page 68757]]
and assessment. EPA recommends that MS4 operators identify priority
areas (i.e., problems areas) for more detailed screening of their
system based on higher likelihood of illicit connections (e.g., areas
with older sanitary sewer lines), or by conducting ambient sampling to
locate impacted reaches. Once priority areas are identified, EPA
recommends visually screening outfalls during dry weather and
conducting field tests, where flow is occurring, of selected chemical
parameters as indicators of the discharge source. EPA's manual for
investigation of inappropriate pollutant entries into the storm
drainage system (EPA, 1993) suggests the following parameter list:
specific conductivity, fluoride and/or hardness concentration, ammonia
and/or potassium concentration, surfactant and/or fluorescence
concentration, chlorine concentration, pH and other chemicals
indicative of industrial sources. The manual explains why each
parameter is a good indicator and how the information can be used to
determine the type of source flow. The Agency is not recommending that
fluoride and chlorine, generally used to locate potable water
discharges, be addressed under this program, therefore a short list of
parameters may include conductivity, ammonia, surfactant and pH. Some
MS4s have found it useful to measure for fecal coliform or E. coli in
their testing program. Observations of physical characteristics of the
discharge are also helpful such as flow rate, temperature, odor, color,
turbidity, floatable matter, deposits and stains, and vegetation.
The implementation plan should also include procedures for tracing
the source of an illicit discharge. Once an illicit discharge is
detected and field tests provide source characteristics, the next step
is to determine the actual location of the source. Techniques for
tracing the discharge to its place of origin may include: following the
flow up the storm drainage system via observations and/or chemical
testing in manholes or in open channels; televising storm sewers; using
infrared and thermal photography; conducting smoke or dye tests.
The implementation plan should also include procedures for removing
the source of the illicit discharge. The first step may be to notify
the property owner and specify a length of time for eliminating the
discharge. Additional notifications and escalating legal actions should
also be described in this part of the plan.
Finally, the implementation plan should include procedures for
program evaluation and assessment. Procedures could include
documentation of actions taken to locate and eliminate illicit
discharges such as: number of outfalls screened, complaints received
and corrected, feet of storm sewers televised, numbers of discharges
and quantities of flow eliminated, number of dye or smoke tests
conducted. Appropriate records of such actions should be kept and
should be submitted as part of the annual reports for the first permit
term, as specified by the permitting authority (reports only need to be
submitted in years 2 and 4 in later permits). For more on reporting
requirements, see Sec. 122.34(g).
EPA received comments regarding an MS4's legal authority beyond its
jurisdictional boundaries to inspect or take enforcement against
illicit discharges. EPA recognizes that illicit flows may originate in
one jurisdiction and cross into one or more jurisdictions before being
discharged at an outfall. In such instances, EPA expects the MS4 that
detects the illicit flow to trace it to the point where it leaves their
jurisdiction and notify the adjoining MS4 of the flow, and any other
physical or chemical information. The adjoining MS4 should then trace
it to the source or to the location where it enters their jurisdiction.
The process of notifying the adjoining MS4 should continue until the
source is located and eliminated. In addition, because any non-storm
water discharge to waters of the U.S. through an MS4 is subject to the
prohibition against unpermitted discharges pursuant to CWA section 301
(a), remedies are available under the federal enforcement provisions of
CWA sections 309 and 505.
EPA requested and received comments regarding the prohibition and
enforcement provision for this minimum measure. Commenters specifically
questioned the proposal that the operator only has to implement the
appropriate prohibition and enforcement procedures ``to the extent
allowable under State or Tribal law.'' They raised concerns that by
qualifying prohibition and enforcement procedures in this manner, the
operator could altogether ignore this minimum measure where affirmative
legal authority did not exist. Comments suggested that EPA require
States to grant authority to those municipalities where it did not
exist. Other comments, however, stated that municipalities cannot
exercise legal authority not granted to them under State law, which
varies considerably from one State to another. EPA has no intention of
directing State legislatures on how to allocate authority and
responsibility under State law. As noted above, there is at least one
remedy (the federal CWA) to control non-storm water discharges through
MS4s. If State law prevents political subdivisions from controlling
discharges through storm sewers, EPA anticipates common sense will
prevail to provide those MS4 operators with the ability to meet the
requirements applicable for their discharges.
One comment reinforced the importance of public information and
education to the success of this measure. EPA agrees and suggests that
MS4 operators consider a variety of ways to inform and educate the
public which could include storm drain stenciling; a program to
promote, publicize, and facilitate public reporting of illicit
connections or discharges; and distribution of visual and/or printed
outreach materials. Recycling and other public outreach programs could
be developed to address potential sources of illicit discharges,
including used motor oil, antifreeze, pesticides, herbicides, and
fertilizers.
EPA received comments that State DOT's lack authority to implement
this measure. EPA believes that most DOTs can implement most parts of
this measure. If a DOT does not have the necessary legal authority to
implement any part of this measure, EPA encourages them to coordinate
their storm water management efforts with the surrounding MS4s and
other State agencies. Many DOTs that are regulated under Phase I of
this program are co-permittees with the local regulated MS4. Under
today's rule, DOTs can use any of the options of Sec. 122.35 to share
their storm water management responsibilities.
EPA received comments requesting clarification of various terms
such as ``outfall'' and ``illicit discharge.'' One comment asked EPA to
reinforce the point that a ``ditch'' could be considered an outfall.
The term ``outfall'' is defined at 40 CFR 122.26(b)(9) as ``a point
source at the point where a municipal separate storm sewer discharges
to waters of the United States * * *''. The term municipal separate
storm sewer is defined at 40 CFR Sec. 122.26(b)(8) as ``a conveyance or
system of conveyances (including roads with drainage systems, municipal
streets, catch basins, curbs, gutters, ditches, man-made channels, or
storm drains) * * *''. Following the logic of these definitions, a
``ditch'' may be part of the municipal separate storm sewer, and at the
point where the ditch discharges to waters of the United States, it
would be an outfall. As with any determination about jurisdictional
provisions of the CWA, however, final decisions require case specific
evaluations of fact.
[[Page 68758]]
One commenter specifically requested clarification on the
relationship between the term ``illicit discharge'' and non-storm water
discharges from fire fighting. The comment suggested that it would be
impractical to attempt to determine whether the flow from a specific
fire (i.e., during a fire) is a significant source of pollution. EPA
intends that MS4s will address all allowable non-storm water flows
categorically rather than individually. If an MS4 is concerned that
flows from fire fighting are, as a category, contributing substantial
amounts of pollutants to their system, they could develop a program to
address those flows prospectively. The program may include an analysis
of the flow from several sources, steps to minimize the pollutant
contribution, and a plan to work with the sources of the discharge to
minimize any adverse impact on water quality. During the development of
such a program, the MS4 may determine that only certain types of flows
within a particular category are a concern, for example, fire fighting
flows at industrial sites where large quantities of chemicals are
present. In this example, a review of existing procedures with the fire
department and/or hazardous materials team may reveal weaknesses or
strengths previously unknown to the MS4 operator.
EPA received comments requesting modifications to the rule to
include on-site sewage disposal systems (i.e., septic systems) in the
scope of the illicit discharge program. On-site sewage disposal systems
that flow into storm drainage systems are within the definition of
illicit discharge as defined by the regulations. Where they are found
to be the source of an illicit discharge, they need to be eliminated
similar to any other illicit discharge source. Today's rule was not
modified to include discharges from on-site sewage disposal systems
specifically because those sources are already within the scope of the
existing definition of illicit discharge.
iv. Construction Site Storm Water Runoff Control. Over a short
period of time, storm water runoff from construction site activity can
contribute more pollutants, including sediment, to a receiving stream
than had been deposited over several decades (see section I.B.3). Storm
water runoff from construction sites can include pollutants other than
sediment, such as phosphorus and nitrogen, pesticides, petroleum
derivatives, construction chemicals, and solid wastes that may become
mobilized when land surfaces are disturbed. Generally, properly
implemented and enforced construction site ordinances effectively
reduce these pollutants. In many areas, however, the effectiveness of
ordinances in reducing pollutants is limited due to inadequate
enforcement or incomplete compliance with such local ordinances by
construction site operators (Paterson, R.G. 1994. ``Construction
Practices: The Good, the Bad, and the Ugly.'' Watershed Protection
Techniques 1(2)).
Today's rule requires operators of regulated small MS4s to develop,
implement, and enforce a pollutant control program to reduce pollutants
in any storm water runoff from construction activities that result in
land disturbance of 1 or more acres (see Sec. 122.34(b)(4)).
Construction activity on sites disturbing less than one acre must be
included in the program if the construction activity is part of a
larger common plan of development or sale that would disturb one acre
or more.
The construction runoff control program of the regulated small MS4
must include an ordinance or other regulatory mechanism to require
erosion and sediment controls to the extent practicable and allowable
under State, Tribal or local law. The program also must include
sanctions to ensure compliance (for example, non-monetary penalties,
fines, bonding requirements, and/or permit denials for non-compliance).
The program must also include, at a minimum: requirements for
construction site operators to implement appropriate erosion and
sediment control BMPS, such as silt fences, temporary detention ponds
and diversions; procedures for site plan review by the small MS4 which
incorporate consideration of potential water quality impacts;
requirements to control other waste such as discarded building
materials, concrete truck washout, chemicals, litter, and sanitary
waste at the construction site that may adversely impact water quality;
procedures for receipt and consideration of information submitted by
the public to the MS4; and procedures for site inspection and
enforcement of control measures by the small MS4.
Today's rule provides flexibility for regulated small MS4s by
allowing them to exclude from their construction pollutant control
program runoff from those construction sites for which the NPDES
permitting authority has waived NPDES storm water small construction
permit requirements. For example, if the NPDES permitting authority
waives permit coverage for storm water discharges from construction
sites less than 5 acres in areas where the rainfall erosivity factor is
less than 5, then the regulated small MS4 does not have to include
these sites in its storm water management program. Even if requirements
for a discharge from a given construction site are waived by the NPDES
permitting authority, however, the regulated small MS4 may still chose
to control those discharges under the MS4's construction pollutant
control program, particularly where such discharges may cause siltation
problems in storm sewers. See Section II.I.1.b for more information on
construction waivers by the permitting authority.
Some commenters suggested that the proposed construction minimum
measure requirements went beyond the permit application requirements
concerning construction for medium and large MS4s. In response, EPA has
made changes to the proposed measure so that it more closely resembles
the MS4 permit application requirements in existing regulations. For
example, as described below, the Agency revised the proposed
requirements for ``pre-construction review of site management plans''
to require ``procedures for site plan review.''
One commenter expressed concerns that addressing runoff from
construction sites within urbanized areas (through the small MS4
program) differently from construction sites outside urbanized areas
(which will not be covered by the small MS4 program) will encourage
urban sprawl. Today's rule, together with the existing requirements,
requires all construction greater than or equal to 1 acre, unless
waived, to be covered by an NPDES permit whether it is located inside
or outside of an urbanized area (see Sec. 122.26(b)(15)). Today's rule
does not require small MS4s to control runoff from construction sites
more stringently or prescriptively than is required for construction
site runoff outside urbanized areas. Therefore, today's rule imposes no
substantively different onsite controls on runoff of storm water from
construction sites in urbanized areas than from construction sites
outside of urbanized areas.
One commenter recommended that the small MS4 construction site
storm water runoff control program address all storm water runoff from
construction sites, not just the runoff into the MS4. The commenter
also believed that MS4s should provide clear, objective standards for
all construction sites. EPA agrees. Because today's rule only regulates
discharges from the MS4, the construction pollutant control measure
only requires small MS4 operators to control runoff into its system. As
a practical matter, however, EPA anticipates that MS4 operators will
find that regulation of all construction site
[[Page 68759]]
runoff, whether they runoff into the MS4 or not, will prove to be the
most simple and efficient program. The Agency may provide more specific
criteria for construction site BMPs in the forthcoming rule being
developed under CWA section 402(m). See section II.D.1 of today's rule.
One commenter stated that there is no need for penalties at the
local level by the small MS4 because the CWA already imposes sufficient
penalties to ensure compliance. EPA disagrees and believes that
enforcement and compliance at the local level is both necessary and
preferable. Examples of sanctions, some not available under the CWA,
include non-monetary penalties, monetary fines, bonding requirements,
and denial of future or other local permits.
One commenter recommended that EPA should not include the
requirement to control pollutants other than sediment from construction
sites in this measure. EPA disagrees with this comment. The requirement
is to control waste that ``may cause adverse impacts on water
quality.'' Such wastes may include discarded building materials,
concrete truck washout, chemicals, pesticides, herbicides, litter, and
sanitary waste. These wastes, when exposed to and mobilized by storm
water, can contribute to water quality impairment.
The proposed rule required ``procedures for pre-construction review
of site management plans.'' EPA requested comment on expanding this
provision to require both review and approval of construction site
storm water plans. Many commenters expressed the concern that review
and approval of site plans is not only costly and time intensive, but
may unnecessarily delay construction projects and unduly burden staff
who administer the local program. In addition, some commenters
expressed confusion whether EPA proposed pre-construction review for
all site management plans or only higher priority sites. To address
these comments, and be consistent with the permit application
requirements for larger MS4s, EPA changed ``procedures for pre-
construction review of site management plans'' to ``procedures for site
plan review.'' Today's rule requires the small MS4 to develop
procedures for site plan review so as to incorporate consideration of
adverse potential water quality impacts. Procedures should include
review of site erosion and sediment control plans, preferably before
construction activity begins on a site. The objective is for the small
MS4 operator and the construction site operator to address storm water
runoff from construction activity early in the project design process
so that potential consequences to the aquatic environment can be
assessed and adverse water quality impacts can be minimized or
eliminated.
One commenter requested that EPA delete the requirement for
``procedures for receipt and consideration of information submitted by
the public'' because it went beyond existing storm water requirements.
Another commenter stated that establishing a separate process to
respond to public inquiries on a project is a burden to small
communities, especially if the project has gone through an
environmental review. One commenter requested clarification of this
provision. EPA has retained this requirement in today's final rule to
require some formality in the process for addressing public inquiries
regarding storm water runoff from construction activities. EPA does not
intend that small MS4s develop a separate, burdensome process to
respond to every public inquiry. A small MS4 could, for example, simply
log public complaints on existing storm water runoff problems from
construction sites and pass that information on to local inspectors.
The inspectors could then investigate complaints based on the severity
of the violation and/or priority area.
One commenter believed that the proposed requirement of ``regular
inspections during construction'' would require every construction
project to be inspected more than once by the small MS4 during the term
of a construction project. EPA has deleted the reference to ``regular
inspections.'' Instead, the small MS4 will be required to ``develop
procedures for site inspection and enforcement of control measures.''
Procedures could include steps to identify priority sites for
inspection and enforcement based on the nature and extent of the
construction activity, topography, and the characteristics of soils and
receiving water quality.
In order to avoid duplication of small MS4 construction
requirements with NPDES construction permit requirements, today's rule
adds Sec. 122.44(s) to recognize that the NPDES permitting authority
can incorporate qualifying State, Tribal, or local erosion and sediment
control requirements in NPDES permits for construction site discharges.
For example, a construction site operator who complies with MS4
construction pollutant control programs that are referenced in the
NPDES construction permit would satisfy the requirements of the NPDES
permit. See section II.I.1.d for more information on incorporating
qualifying programs by reference into NPDES construction permits. This
provision has no impact on, or direct relation to, the small MS4
operator's responsibilities under the construction site storm water
runoff control minimum measure. Conversely, under Sec. 122.35(b), the
permitting authority may recognize in the MS4's permit that another
governmental entity, or the permitting authority itself, is responsible
for implementing one or more of the minimum measures (including
construction site storm water runoff control), and not include this
measure in the small MS4's permit. In this case, the other governmental
entity's program must satisfy all of the requirements of the omitted
measure.
v. Post-Construction Storm Water Management in New Development and
Redevelopment. The NURP study and more recent investigations indicate
that prior planning and designing for the minimization of pollutants in
storm water discharges is the most cost-effective approach to storm
water quality management. Reducing pollutant concentrations in storm
water after the discharge enters a storm sewer system is often more
expensive and less efficient than preventing or reducing pollutants at
the source. Increased human activity associated with development often
results in increased pollutant loading from storm water discharges. If
potential adverse water quality impacts are considered from the
beginning stages of a project, new development and redevelopment
provides more opportunities for water quality protection. For example,
minimization of impervious areas, maintenance or restoration of natural
infiltration, wetland protection, use of vegetated drainage ways, and
use of riparian buffers have been shown to reduce pollutant loadings in
storm water runoff from developed areas. EPA encourages operators of
regulated small MS4s to identify specific problem areas within their
jurisdictions and initiate innovative solutions and designs to focus
attention on those areas through local planning.
In today's rule at Sec. 122.34(b)(5), NPDES permits issued to an
operator of a regulated small MS4 will require the operator to develop,
implement, and enforce a program to address storm water runoff from new
development and redevelopment projects that result in land disturbance
of greater than or equal to one acre, including projects less than one
acre that are part of a larger common plan of development or sale, that
discharge into the MS4. Specifically, the NPDES permit will require the
operator of a regulated small MS4 to: (1) Develop and implement
[[Page 68760]]
strategies which include a combination of structural and/or non-
structural best management practices (BMPs) appropriate for the
community; (2) use an ordinance, or other regulatory mechanism to
address post-construction runoff from new development and redevelopment
projects to the extent allowable under State, Tribal or local law; (3)
ensure adequate long-term operation and maintenance of BMPs; and (4)
ensure that controls are in place that would minimize water quality
impacts. EPA intends the term ``redevelopment'' to refer to alterations
of a property that change the ``footprint'' of a site or building in
such a way that results in the disturbance of equal to or greater than
1 acre of land. The term is not intended to include such activities as
exterior remodeling, which would not be expected to cause adverse storm
water quality impacts and offer no new opportunity for storm water
controls.
EPA received comments requesting guidance and clarification of the
rule requirements. The scope of the comments ranged from general
requests for more details on how MS4 operators should accomplish the
four requirements listed above, to specific requests for information
regarding transfer of ownership for structural controls, as well as
ongoing responsibility for operation and maintenance. By the term
``combination'' of BMPs, EPA intends a combination of structural and/or
non-structural BMPs. For this requirement, the term ``combination'' is
meant to emphasize that multiple BMPs should be considered and adopted
for use in the community. A single BMP generally cannot significantly
reduce pollutant loads because pollutants come from many sources within
a community. The BMPs chosen should: (1) Be appropriate for the local
community; (2) minimize water quality impacts; and (3) attempt to
maintain pre-development runoff conditions. In choosing appropriate
BMPs, EPA encourages small MS4 operators to participate in locally-
based watershed planning efforts which attempt to involve a diverse
group of stakeholders. Each new development and redevelopment project
should have a BMP component. If an approach is chosen that primarily
focuses on regional or non-structural BMPs, however, then the BMPs may
be located away from the actual development site (e.g., a regional
water quality pond).
Non-structural BMPs are preventative actions that involve
management and source controls such as: (1) Policies and ordinances
that provide requirements and standards to direct growth to identified
areas, protect sensitive areas such as wetlands and riparian areas,
maintain and/or increase open space (including a dedicated funding
source for open space acquisition), provide buffers along sensitive
water bodies, minimize impervious surfaces, and minimize disturbance of
soils and vegetation; (2) policies or ordinances that encourage infill
development in higher density urban areas, and areas with existing
storm sewer infrastructure; (3) education programs for developers and
the public about project designs that minimize water quality impacts;
and (4) other measures such as minimization of the percentage of
impervious area after development, use of measures to minimize directly
connected impervious areas, and source control measures often thought
of as good housekeeping, preventive maintenance and spill prevention.
Detailed examples of non-structural BMPs follow.
Preserving open space may help to protect water quality as well as
provide other benefits such as recharging groundwater supplies,
detaining storm water, supporting wildlife and providing recreational
opportunities. Although securing funding for open space acquisition may
be difficult, various funding mechanisms have been used. New Jersey
uses a portion of their State sales tax (voter approved for a ten year
period) as a stable source of funding to finance the preservation of
historic sites, open space and farmland. Colorado uses part of the
proceeds from the State lottery to acquire and manage open space. Some
local municipalities use a percentage of the local sales tax revenue to
pay for open space acquisition (e.g., Jefferson County, CO has had an
open space program in place since 1977 funded by a 0.50 percent sales
tax). Open space can be acquired in the form of: fee simple purchase;
easements; development rights; purchase and sellback or leaseback
arrangements; purchase options; private land trusts; impact fees; and
land dedication requirements. Generally, fee simple purchases provide
the highest level of development control and certainty of preservation,
whereas the other forms of acquisition may provide less control, though
they would also generally be less costly.
Cluster development, while allowing housing densities comparable to
conventional zoning practice, concentrates housing units in a portion
of the total site area which provides for greater open space,
recreation, stream protection and storm water control. This type of
development, by reducing lot sizes, can protect sensitive areas and
result in less impervious surface, as well as reduce the cost for roads
and other infrastructure.
Minimizing directly connected impervious areas (DCIAs) is a
drainage strategy that seeks to reduce paved areas and directs storm
water runoff to landscaped areas or to structural controls such as
grass swales or buffer strips. This strategy can slow the rate of
runoff, reduce runoff volumes, attenuate peak flows, and encourage
filtering and infiltration of storm water. It can be made an integral
part of drainage planning for any development (Urban Drainage and Flood
Control District, Denver, CO. 1992. Urban Storm Drainage Criteria
Manual, Volume 3--Best Management Practices). The Urban Drainage and
Flood Control District manual describes three levels for minimizing
DCIAs. At Level 1 all impervious surfaces are made to drain over grass-
covered areas before reaching a storm water conveyance system. Level 2
adds to Level 1 and replaces street curb and gutter systems with low-
velocity grass-lined swales and pervious street shoulders. In addition
to Levels 1 and 2, Level 3 over-sizes swales and configures driveway
and street crossing culverts to use grass-lined swales as elongated
detention basins.
Structural BMPs include: (1) Storage practices such as wet ponds
and extended-detention outlet structures; (2) filtration practices such
as grassed swales, sand filters and filter strips; and (3) infiltration
practices such as infiltration basins and infiltration trenches.
EPA recommends that small MS4 operators ensure the appropriate
implementation of the structural BMPs by considering some or all of the
following: (1) Pre-construction review of BMP designs; (2) inspections
during construction to verify BMPs are built as designed; (3) post-
construction inspection and maintenance of BMPs; and (4) sanctions to
ensure compliance with design, construction or operation and
maintenance (O&M) requirements of the program.
EPA cautions that certain infiltration systems such as dry wells,
bored wells or tile drainage fields may be subject to Underground
Injection Control (UIC) program requirements (see 40 CFR Part 144.12.).
To find out more about these requirements, contact your state UIC
Program, or call EPA's Safe Drinking Water Hotline at 1-800-426-4791.
In order to meet the third post-construction requirement (ensuring
adequate long-term O&M of BMPs), EPA recommends that small MS4
operators evaluate various O&M management agreement options. The most
common options are agreements between the
[[Page 68761]]
MS4 operator and another party such as post-development landowners
(e.g., homeowners' associations, office park owners, other government
departments or entities), or regional authorities (e.g., flood control
districts, councils of government). These agreements typically require
the post-construction property owner to be responsible for the O&M and
may include conditions which: allow the MS4 operator to be reimbursed
for O&M performed by the MS4 operator that is the responsibility of the
property owner but is not performed; allow the MS4 operator to enter
the property for inspection purposes; and in some cases specify that
the property owner submit periodic reports.
In providing the guidance above, EPA intends the requirements in
today's rule to be consistent with the permit application requirements
for large MS4s for post-construction controls for new development and
redevelopment. MS4 operators have significant flexibility both to
develop this measure as appropriate to address local concerns, and to
apply new control technologies as they become available. Storm water
pollution control technologies are constantly being improved. EPA
recommends that MS4s be responsive to these changes, developments or
improvements in control technologies. EPA will provide more detailed
guidance addressing the responsibility for long-term O&M of storm water
controls in guidance materials. The guidance will also provide
information on appropriate planning considerations, structural controls
and non-structural controls. EPA also intends to develop a broad menu
of BMPs as guidance to ensure flexibility to accommodate local
conditions.
EPA received comments suggesting that requirements for new
development be treated separately from redevelopment in the rule. The
comment stressed that new development on raw land presents fewer
obstacles and more opportunities to incorporate elements for preventing
water quality impacts, whereas redevelopment projects are constrained
by space limitations and existing infrastructure. Another comment
suggested allowing waivers from the redevelopment requirements if the
redevelopment does not result in additional adverse water quality
impacts, and where BMPs are not technologically or economically
feasible. EPA recognizes that redevelopment projects may have more site
constraints which narrow the range of appropriate BMPs. Today's rule
provides small MS4 operators with the flexibility to develop
requirements that may be different for redevelopment projects, and may
also include allowances for alternate or off-site BMPs at certain
redevelopment projects. Non-structural BMPs may be the most appropriate
approach for smaller redevelopment projects.
EPA received comments requesting clarification on what is meant by
``pre-development'' conditions within the context of redevelopment.
Pre-development refers to runoff conditions that exist onsite
immediately before the planned development activities occur. Pre-
development is not intended to be interpreted as that period before any
human-induced land disturbance activity has occurred.
EPA received comments on the guidance language in the proposed rule
and preamble which suggest that implementation of this measure should
``attempt to maintain pre-development runoff conditions'' and that
``post-development conditions should not be different than pre-
development conditions in a way that adversely affects water quality.''
Many comments expressed concern that maintaining pre-development runoff
conditions is impossible and cost-prohibitive, and objected to any
reference to ``flow'' or increase in volume of runoff. Other comments
support the inclusion of this language in the final rule. Similar
references in today's rule relating to pre-development runoff
conditions are intended as recommendations to attempt to maintain pre-
development runoff conditions. With these recommendations, EPA intends
to prevent water quality impacts resulting from increased discharges of
pollutants, which may result from increased volume of runoff. In many
cases, consideration of the increased flow rate, velocity and energy of
storm water discharges following development unavoidably must be taken
into consideration in order to reduce the discharge of pollutants, to
meet water quality standards and to prevent degradation of receiving
streams. EPA recommends that municipalities consider these factors when
developing their post-construction storm water management program.
Some comments said that the quoted phrases in the paragraph above
are directives that imply federal land use control, which they argue is
beyond the authority of the CWA. EPA recognizes that land use planning
is within the authority of local governments.
EPA disagrees, however, with the implication that today's rule
dictates any such land use decisions. The requirement for small MS4
operators to develop a program to address discharges resulting from new
development and redevelopment is essentially a pollution prevention
measure. The Rule provides the MS4 operator with flexibility to
determine the appropriate BMPs to address local water quality concerns.
EPA recognizes that these program goals may not be applied to every
site, and expects that MS4s will develop an appropriate combination of
BMPs to be applied on a site-by-site, regional or watershed basis.
vi. Pollution Prevention/Good Housekeeping for Municipal
Operations. Under today's final rule, operators of MS4s must develop
and implement an operation and maintenance program (``program'') that
includes a training component and has the ultimate goal of preventing
or reducing storm water from municipal operations (in addition to those
that constitute storm water discharges associated with industrial
activity). This measure's emphasis on proper O&M of MS4s and employee
training, as opposed to requiring the MS4 to undertake major new
activities, is meant to ensure that municipal activities are performed
in the most efficient way to minimize contamination of storm water
discharges.
The program must include government employee training that
addresses prevention measures pertaining to municipal operations such
as: parks, golf courses and open space maintenance; fleet maintenance;
new construction or land disturbance; building oversight; planning; and
storm water system maintenance. The program can use existing storm
water pollution prevention training materials provided by the State,
Tribe, EPA, or environmental, public interest, or trade organizations.
EPA also encourages operators of MS4s to consider the following in
developing a program: (1) Implement maintenance activities, maintenance
schedules, and long-term inspection procedures for structural and non-
structural storm water controls to reduce floatables and other
pollutants discharged from the separate storm sewers; (2) implement
controls for reducing or eliminating the discharge of pollutants from
streets, roads, highways, municipal parking lots, maintenance and
storage yards, waste transfer stations, fleet or maintenance shops with
outdoor storage areas, and salt/sand storage locations and snow
disposal areas operated by the MS4; (3) adopt procedures for the proper
disposal of waste removed from the separate storm sewer systems and
areas listed above in (2), including dredge
[[Page 68762]]
spoil, accumulated sediments, floatables, and other debris; and (4)
adopt procedures to ensure that new flood management projects are
assessed for impacts on water quality and existing projects are
assessed for incorporation of additional water quality protection
devices or practices. Ultimately, the effective performance of the
program measure depends on the proper maintenance of the BMPs, both
structural and non-structural. Without proper maintenance, BMP
performance declines significantly over time. Additionally, BMP neglect
may produce health and safety threats, such as structural failure
leading to flooding, undesirable animal and insect breeding, and odors.
Maintenance of structural BMPs could include: replacing upper levels of
gravel; dredging of detention ponds; and repairing of retention basin
outlet structure integrity. Maintenance of non-structural BMPs could
include updating educational materials periodically.
EPA emphasizes that programs should identify and incorporate
existing storm water practices and training, as well as non-storm water
practices or programs that have storm water pollution prevention
benefits, as a means to avoid duplication of efforts and reduce overall
costs. EPA recommends that MS4s incorporate these new obligations into
their existing programs to the greatest extent feasible and urges
States to evaluate MS4 programs with programmatic efficiency in mind.
EPA designed this minimum control measure as a modified version of the
permit application requirements for medium and large MS4s described at
40 CFR 122.26(d)(2)(iv), in order to provide more flexibility for these
smaller MS4s. Today's requirements provide for a consistent approach to
control pollutants from O&M among medium, large, and regulated small
MS4s.
By properly implementing a program, operators of MS4s serve as a
model for the rest of the regulated community. Furthermore, the
establishment of a long-term program could result in cost savings by
minimizing possible damage to the system from floatables and other
debris and, consequently, reducing the need for repairs.
EPA received comments requesting clarification of what this measure
requires. Certain municipalities expressed concern that the measure has
the potential to impose significant costs associated with EPA's
requirement that operators of MS4s consider implementing controls for
reducing or eliminating the discharge of pollutants from streets,
roads, highways, municipal parking lots, and salt/sand storage
locations and snow disposal areas operated by the municipality. EPA
disagrees that a requirement to consider such controls will impose
considerable costs.
One commenter objected to the preamble language from the proposal
suggesting that EPA does not expect the MS4 to undertake new activity.
While it remains the Agency's expectation that major new activity will
not be required, the MEP process should drive MS4s to incorporate the
measure's obligations into their existing programs to achieve the
pollutant reductions to the maximum extent practicable.
Certain commenters requested a definition for ``municipal
operations.'' EPA has revised the language to more clearly define
municipal operations. Questions may remain concerning whether
discharges from specific municipal activities constitute discharges
associated with industrial activities (requiring NPDES permit
authorization according to the requirements for industrial storm water
that apply in that State) or from municipal operations (subject only to
the controls developed in the MS4 control program). Even though there
may be different substantive requirements that apply depending on the
source of the discharge, EPA has modified the deadlines for permit
coverage so that all the regulated municipally owned and operated
sources become subject to permit requirements on the same date. The
deadline is the same for permit coverage for this minimum measure as
for permit coverage for municipally owned/operated industrial sources.
c. Application Requirements
An NPDES permit that authorizes the discharge from a regulated
small MS4 may take the form of either an individual permit issued to
one or more facilities as co-permittees or a general permit that
applies to a group of MS4s. For reasons of administrative efficiency
and to reduce the paperwork burden on permittees, EPA expects that most
discharges from regulated small MS4s will be authorized under general
permits. These NPDES general permits will provide specific instructions
on how to obtain coverage, including application requirements.
Typically, such application requirements will be satisfied by the
submission of a Notice of Intent (NOI) to be covered by the general
permit. In this section, EPA explains the small MS4 operator's
application requirements for obtaining coverage under a NPDES permit
for storm water.
i. Best Management Practices and Measurable Goals, Section
122.34(d) of today's rule requires the operator of a regulated small
MS4 that wishes to implement a program under Sec. 122.34 to identify
and submit to the NPDES permitting authority a list of the best
management practices (``BMPs'') that will be implemented for each
minimum control measure in their storm water management program. They
also must submit measurable goals for the development and
implementation of each BMP. The BMPs and the measurable goals must be
included either in an NOI to be covered under a general permit or in an
individual permit application.
The operator's submission must identify, as appropriate, the months
and years in which the operator will undertake actions required to
implement each of the minimum control measures, including interim
milestones and the frequency of periodic actions. The Agency revised
references to ``starting and completing'' actions from the proposed
rule because many actions will be repetitive or ongoing. The submission
also must identify the person or persons responsible for implementing
or coordinating the small MS4 storm water program. See Sec. 122.34(d).
The submitted BMPs and measurable goals become enforceable according to
the terms of the permit. The first permit can allow the permittee up to
five years to fully implement the storm water management program.
Several commenters opposed making the measurable goals enforceable
permit conditions. Some suggested that a permittee should be able to
change its goals so that BMPs that are not functioning as intended can
be replaced. EPA agrees that a permittee should be free to switch its
BMPs and corresponding goals to others that accomplish the minimum
measure or measures. The permittee is required to implement BMPs that
address the minimum measures in Sec. 122.34(b). If the permittee
determines that its original combination of BMPs are not adequate to
achieve the objectives of the municipal program, the MS4 should revise
its program to implement BMPs that are adequate and submit to the
permitting authority a revised list of BMPs and measurable goals. EPA
suggests that permits describe the process for revising BMPs and
measurable goals, such as whether the permittee should follow the same
procedures as were required for the submission of the original NOI and
whether the permitting authority's approval is necessary prior to the
permittee implementing the revised
[[Page 68763]]
BMPs. The permittee should indicate on its periodic report whether any
BMPs and measurable goals have been revised since the last periodic
report.
Some commenters expressed concern that making the measurable goals
enforceable would encourage the development of easily attained goals
and, conversely, discourage the setting of ambitious goals. Others
noted that it is often difficult to determine the pollutant reduction
that can be achieved by BMPs until several years after implementation.
Much of the opposition to the enforceability of measurable goals
appears to have been based on a mistaken understanding that measurable
goals must consist of pollutant reduction targets to be achieved by the
corresponding BMPs.
Today's rule requires the operator to submit either measurable
goals that serve as BMP design objectives or goals that quantify the
progress of implementation of the actions or performance of the
permittee's BMPs. At a minimum, the required measurable goals should
describe specific actions taken by the permittee to implement each BMP
and the frequency and the dates for such actions. Although the operator
may choose to do so, it is not required to submit goals that measure
whether a BMP or combination of BMPs is effective in achieving a
specific result in terms of storm water discharge quality. For example,
a measurable goal might involve a commitment to inspect a given number
of drainage areas of the collection system for illicit connections by a
certain date. The measurable goal need not commit to achieving a
specific amount of pollutant reduction through the elimination of
illicit connections. Other measurable goals could include the date by
which public education materials would be developed, a certain
percentage of the community participating in a clean-up campaign, the
development of a mechanism to address construction site runoff, and a
reduction in the percentage of imperviousness associated with new
development projects.
To reduce the risk that permittees will develop inadequate BMPs,
EPA intends to develop a menu of BMPs to assist the operators of
regulated small MS4s with the development of municipal programs. States
may also develop a menu of BMPs. Today's rule provides that the
measurable goals that demonstrate compliance with the minimum control
measures in Secs. 122.34 (b)(3) through (b)(6) do not have to be met if
the State or EPA has not issued a menu of BMPs at the time the MS4
submits its NOI. Commenters pointed out that the proposed rule would
have made the measurable goals unenforceable if the menu of BMPs was
not available, but the proposal was silent as to the enforceability of
the implementation of BMPs. Today's rule clarifies that the operators
are not free to do nothing prior to the issuance of a menu of BMPs;
they still must make a good faith effort to implement the BMPs designed
to comply with each measure. See Sec. 122.34(d)(2). The operators would
not, however, be liable for failure to meet its measurable goals if a
menu of BMPs was not available at the time they submit their NOI.
The proposed rule provision in Sec. 123.35 stated that the
``[f]ailure to issue the menu of BMPs would not affect the legal status
of the general permit.'' This concept is included in the final rule in
Sec. 122.34(d)(2)'s clarification that the permittee still must comply
with other requirements of the general permit.
Unlike the proposed rule, today's rule does not require that each
BMP in the menu developed by the State or EPA be regionally
appropriate, cost-effective and field-tested. Various commenters
criticized those criteria as unworkable, and one described them as
``ripe for ambiguity and abuse.'' Other commenters feared that the
operators of regulated small MS4s would never be required to achieve
their goals until menus were developed that were cost-effective, field-
tested and appropriate for every conceivable subregion.
While some municipal commenters supported the requirement that a
menu of BMPs be made available that included BMPs that had been
determined to be regionally appropriate, field-tested and cost-
effective, others raised concerns that they would be restricted to a
limited menu. Some commenters supported such a detailed menu because
they thought they would only be able to select BMPs that were on the
menu, while others thought that it was the permitting authority's
responsibility to develop BMPs narrowly tailored to their situation. In
response, EPA notes that the operators will not be restricted to
implementing only, or all of, the BMPs included on the menu. Since the
menu does not require permittees to implement the BMPs included on the
menu, it is also not necessary to apply the public notice and other
procedures that some commenters thought should be applied to the
development of the menu of BMPs.
The purpose of the BMP menu is to provide guidance to assist the
operators of regulated small MS4s with the development and refinement
of their local program, not to limit their options. Permittees may
implement BMPs other than those on the menu unless a State restricts
its permittees to specific BMPs. To the extent possible, EPA will
develop a menu of BMPs that describes the appropriateness of BMPs to
specific regions, whether the BMPs have been field-tested, and their
approximate costs. The menu, however, is not intended to relieve
permittees of the need to implement BMPs that are appropriate for their
specific circumstances.
If there are no known relevant BMPs for a specific circumstance, a
permittee has the option of developing and implementing pilot BMPs that
may be better suited to their circumstances. Where BMPs are
experimental, the permittee should consider committing to measurable
goals that address its schedule for implementing its selected BMPs
rather than goals of achieving specific pollutant reductions. If the
BMPs implemented by the permittee do not achieve the desired objective,
the permittee may be required to commit to different or revised BMPs.
As stated in Sec. 123.35(g), EPA is committed to issuing a menu of
BMPs prior to the deadline for the issuance of permits. This menu would
serve as guidance for all operators of regulated small MS4s nationwide.
After developing the initial menu of BMPs, EPA intends to periodically
modify, update, and supplement the menu of BMPs based on the
assessments of the MS4 storm water program and research. States may
rely on EPA's menu of BMPs or issue their own. If States develop their
own menus, they would constitute additional guidance (or perhaps
requirements in some States) for the operators to follow. Several
commenters were confused by the proposed rule language that stated that
States must provide or issue a menu of BMPs and, if they fail to do so,
EPA ``may'' do so. Some read this language as not requiring either EPA
or the State to develop the menu. EPA had intended that it would
develop a menu and that States could either provide the EPA developed
menu or one developed by the State.
EPA has dropped the proposed language that States ``must'' develop
the menu of BMPs. Some commenters thought that it was inappropriate to
require States to issue guidance. A menu of BMPs issued by either EPA
or a permittee's State will satisfy the condition in Sec. 122.34(d)
that a regulatory authority provide a menu of BMPs. A State could
require its permittees to follow its menu of BMPs provided that they
are adequate to implement Sec. 122.34(b).
Several commenters raised concerns that operators of small MS4s
could be
[[Page 68764]]
required to submit their BMPs and measurable goals before EPA or the
State has issued a menu of BMPs. EPA has assumed primary responsibility
for developing a menu of BMPs to minimize the possibility of this
occurring. Should a general permit be issued before a menu of BMPs is
available, the permit writer would have the option of delaying the date
by which the identification of the BMPs and measurable goals must be
submitted to the permitting authority until some time after a menu of
BMPs is available.
Several municipal commenters raised concerns that they would begin
to develop a program only to be later told by the permitting authority
or challenged in a citizen suit that their BMPs were inadequate. They
expressed a need for certainty regarding what their permit required.
Several commenters suggested that EPA require permitting authorities to
approve or disapprove the submitted BMPs and measurable goals. EPA
disagrees that formal approval or disapproval by the permitting
authority is needed.
EPA acknowledges that the lack of a formal approval process does
place on the permittee some responsibility for designing and
determining the adequacy of its BMPs. Once the permittee has submitted
its BMPs to the permitting authority as part of its NOI, it must
implement them in order to achieve the corresponding measurable goals.
EPA does not believe that this results in the uncertainty to the extent
expressed by some commenters or unduly expose the permittee to the risk
of citizen suit. If the permit is very specific regarding what the
permittee must do, then the uncertainty is eliminated. If the permit is
less prescriptive, the permittee has greater latitude in determining
for itself what constitutes an adequate program. A citizen suit could
impose liability on the permittee only if the program that it develops
and implements clearly does not satisfy the requirements of the general
permit. EPA believes today's approach strikes a balance between the
competing goals of providing certainty as to what constitutes an
adequate program and providing flexibility to the permittees.
Commenters were divided on whether five years was a reasonable and
expeditious schedule for a MS4 to implement its program. Some thought
that it was an appropriate amount of time to allow for the development
and implementation of adequate programs. One questioned whether the
permittee had to be implementing all of its program within that time,
and suggested that there may be cases where a permitting authority
would need flexibility to allow more time. One commenter suggested that
five years is too long and would amount to a relaxation of
implementation in their area. EPA believes it will take considerable
time to complete the tasks of initially developing a program,
commencing to implement it, and achieving results. EPA notes, however,
that full implementation of an appropriate program must occur as
expeditiously as possible, and not later than five years.
EPA solicited comment on how an NOI form might best be formatted to
allow for measurable goal information (e.g., through the use of check
boxes or narrative descriptions) while taking into account the Agency's
intention to facilitate computer tracking. All commenters supported the
development of a checklist NOI, but most noted that there would need to
be room for additional information to cover unusual situations. One
noted that, while a summary of measurable goals might be reduced to one
sheet, attachments that more fully described the program and the
planned BMPs would be necessary. EPA agrees that in most cases a
``checklist'' will not be able to capture the information on what BMPs
a permittee intends to implement and its measurable goals for their
implementation. EPA will continue to consider whether to develop a
model NOI form and make it available for permitting authorities that
choose to use it. What will be required on an MS4's NOI, however, is
more extensive than what is usually required on an NOI, so a ``form''
NOI for MS4s may be impractical.
ii. Individual Permit Application for a Sec. 122.34(b) program. In
some cases, an operator of a regulated small MS4s may seek coverage
under an individual NPDES permit, either because it chooses to do so or
because the NPDES permitting authority has not made the general permit
option available to that source. For small MS4s that are to implement a
Sec. 122.34(b) program in today's rule, EPA is promulgating simplified
individual permit application requirements at Sec. 122.33(b)(2)(i).
Under the simplified individual permit application requirements, the
operator submits an application to the NPDES permitting authority that
includes the information required under Sec. 122.21(f) and an estimate
of square mileage served by the small MS4. They are also required to
supply the BMP and measurable goal information required under
Sec. 122.34(d). Consistent with CWA section 308 and analogous State
law, the permitting authority could request any additional information
to gain a better understanding of the system and the areas draining
into the system.
Commenters suggested that the requirements of Sec. 122.21(f) are
not necessarily applicable to a small MS4. One suggested that it was
not appropriate to require the following information: a description of
the activities conducted by the applicant which require it to obtain an
NPDES permit; the name, mailing address, and location of the facility;
and up to four Standard Industrial Classification (``SIC'') codes which
best reflect the principal products or services provided by the
facility. In response, EPA notes that the requirements in
Sec. 122.21(f) are generic application requirements applicable to NPDES
applicants. With the exception of the SIC code requirement, EPA
believes that they are applicable to MS4s. In the SIC code portion of
the standard application, the applicant may simply put ``not
applicable.''
One commenter asked that EPA clarify whether Sec. 122.21(f)(5)'s
requirement to indicate ``whether the facility is located on Indian
lands,'' referred to tribal lands, Indian country, or Indian
reservations. For some local governments this is a complex issue with
no easy ``yes'' or ``no'' answer. See the discussion in the Section
II.F in the proposal to today's rule regarding what tribal lands are
subject to the federal trust responsibility for purposes of the NPDES
program.
One commenter suggested that the application should not have to
list the permits and approvals required under Sec. 122.21(f)(6). EPA
notes that the applicant must only list the environmental permits that
the applicant has received that cover the small MS4. The applicant is
not required to list permits for other operations conducted by the
small MS4 operator (e.g., for an operation of an airport or landfill).
Again, in most cases the applicant could respond ``not applicable'' to
this portion of the application.
One commenter suggested that the topographic map requirement of
Sec. 122.21(f)(7) was completely different from, and significantly more
onerous than, the mapping requirement outlined in the proposed rule at
Sec. 122.34(b)(3)(i). EPA agrees and has modified the final rule to
clarify that a map that satisfies the requirements of
Sec. 122.34(b)(3)(i) also satisfies the map requirements for MS4
applicants seeking individual permits under Sec. 122.33(b)(2)(i).
EPA is adding a new paragraph to Sec. 122.44(k) to clarify that
requirements to implement BMPs developed pursuant to CWA 402(p) are
appropriate permit
[[Page 68765]]
conditions. While such conditions could be included under the existing
provision in Sec. 122.44(k)(3) for ``practices reasonably necessary to
achieve effluent limitations and standards or to carry out the purposes
and intent of the CWA,'' EPA believes it is clearer to specifically
list in Sec. 122.44(k) BMPs that implement storm water programs in
light of the frequency with which they are used as effluent
limitations.
iii. Alternative Permit Options/Tenth Amendment. As an alternative
to implementing a program that addresses each of the six minimum
measures according to the requirements of Sec. 122.34(b), today's rule
provides the operators of regulated small MS4s with the option of
applying for an individual permit under existing Sec. 122.26(d). See
Sec. 122.33(b)(2)(ii). If a system operator does not want to be held
accountable for implementation of each of the minimum measures, an
individual permit option under Sec. 122.33(b)(2)(ii) remains available.
(As explained in the next section of this preamble, Sec. 122.35(b) also
provides an opportunity for relief from permit obligations for some of
the minimum measures, but that relief exists within the framework of
the minimum measures.)
EPA originally drafted the individual permit application
requirements in Sec. 122.26(d) to apply to medium and large MS4s.
Today's rule abbreviates the individual permit application requirements
for small MS4s. Although EPA believes that the storm water management
program requirements of Sec. 122.34, including the minimum measures,
provide the most appropriate means to control pollutants from most
small MS4s, the Agency does recognize that the operators of some small
MS4s may prefer more individualized permit requirements. Among other
possible reasons, an operator may seek to avoid having to ``regulate''
third parties discharging into the separate storm sewer system.
Alternatively, an operator may determine that structural controls, such
as constructed wetlands, are more appropriate or effective to address
the discharges that would otherwise be addressed under the construction
and/or development/redevelopment measures.
Some MS4s commenters alleged that an absolute requirement to
implement the minimum measures violates the Tenth Amendment to the U.S.
Constitution. While EPA disagrees that requiring MS4s to implement the
minimum measures would violate the Constitution, today's rule does
provide small MS4s with the option of developing more individualized
measures to reduce the pollutants and pollution associated with urban
storm water that will be regulated under today's rule.
Some commenters specifically objected that Sec. 122.34's minimum
measures for small MS4s violate the Tenth Amendment insofar as they
require the operators of MS4s to regulate third parties. The minimum
measures include requirements for small MS4 operators to prohibit
certain non-storm water discharges, control storm water discharges from
construction greater than one acre, and take other actions to control
third party sources of storm water discharges into their MS4s.
Commenters also argued that it was inappropriate for EPA to require
local governments to enact ordinances that will consume local revenues
and put local governments in the position of bearing the political
responsibility for implementing the program. One commenter argued that
EPA was prohibited from conditioning the issuance of an NPDES permit
upon the small MS4 operators waiving their constitutional right to be
free from such requirements to regulate third parties. The Agency
replies to each comment in turn.
Because the rule does rely on local governments--who operate
municipal separate storm sewer systems--to regulate discharges from
third parties into storm sewers, EPA acknowledges that the rule
implicates the Tenth Amendment and constitutional principles of
federalism. EPA disagrees, however, that today's rule is inconsistent
with federalism principles. [As political subdivisions of States,
municipalities enjoy the same protections as States under the Tenth
Amendment.]
The Supreme Court has interpreted the Tenth Amendment to preclude
federal actions that compel States or their political subdivisions to
enact or administer a federal regulatory program. See New York v.
United States, 505 U.S. 144 (1992); Printz v. United States, 117 S.Ct.
2365 (1997). The Printz case, however, did acknowledge that the
restriction does not apply when federal requirements of general
applicability--requirements that regulate all parties engaging in a
particular activity--do not excessively interfere with the functioning
of State governments when those requirements are applied to States (or
their political subdivisions). See Printz, 117 S.Ct. at 2383.
Today's rule imposes a federal requirement of general
applicability, namely, the requirement to obtain and comply with an
NPDES permit, on municipalities that operate a municipal separate storm
sewer system. By virtue of this rule, the permit will require the
municipality/storm sewer operator to develop a storm water control
program. The rule specifies the components of the control program,
which are primarily ``management'-type controls, for example, municipal
regulation of third party storm water discharges associated with
construction, as well as development and redevelopment, when those
discharges would enter the municipal system.
Unlike the circumstances reviewed in the New York and Printz cases,
today's rule merely applies a generally applicable requirement (the CWA
permit requirement) to municipal point sources. The CWA establishes a
generally applicable requirement to obtain an NPDES permit to authorize
point source discharge to waters of the United States. Because
municipalities own and operate separate storm sewers, including storm
sewers into which third parties may discharge pollutants, NPDES permits
may require municipalities to control the discharge of pollutants into
the storm sewers in the first instance. Because NPDES permits can
impose end-of-pipe numeric effluent limits, narrative effluent limits
in the form of ``management'' program requirements are also within the
scope of Clean Water Act authority. As noted above, however, EPA
believes that such narrative limitations are the most appropriate form
of effluent limitation for these types of permits. For municipal
separate storm sewer permits, CWA section 402(p)(3)(B)(iii)
specifically authorizes ``controls to reduce pollutants to the maximum
extent practicable, including management practices, control techniques
and system, design and engineering methods, and such other provisions
as the Administrator or the State determines appropriate for the
control of such pollutants.''
The Agency did not design the minimum measures in Sec. 122.34 to
``commandeer'' state regulatory mechanisms, but rather to reduce
pollutant discharges from small MS4s. The permit requirement in CWA
section 402 is a requirement of general applicability. The operator of
a small MS4 that does not prohibit and/or control discharges into its
system essentially accepts ``title'' for those discharges. At a
minimum, by providing free and open access to the MS4s that convey
discharges to the waters of the United States, the municipal storm
sewer system enables water quality impairment by third parties. Section
122.34 requires the operator of a regulated small MS4 to control a
third
[[Page 68766]]
party only to the extent that the MS4 collection system receives
pollutants from that third party and discharges it to the waters of the
United States. The operators of regulated small MS4s cannot passively
receive and discharge pollutants from third parties. The Agency
concedes that administration of a municipal program will consume
limited local revenues for implementation; but those consequences stem
from the municipal operator's identity as a permitted sewer system
operator. The Tenth Amendment does not create a blanket municipal
immunity from generally applicable requirements. Development of a
program based on the minimum measures and implementation of that
program should not ``excessively interfere'' with the functioning of
municipal government, especially given the ``practicability'' threshold
under CWA section 402(p)(3)(B)(iii).
As noted above, today's rule also allows regulated small MS4s to
opt out of the minimum measures approach. The individual permit option
provides for greater flexibility in program implementation and also
responds to the comment about requiring a municipal permit applicant's
waiver of any arguable constitutional rights. The individual permit
option responds to questions about the rule's alleged
unconstitutionality by more specifically focusing on the pollutants
discharged from municipal point sources. Today's rule gives operators
of MS4s the option to seek an individual permit that varies from the
minimum measures/management approach that is otherwise specified in
today's rule. Even if the minimum measures approach was
constitutionally suspect, a requirement that standing alone would
violate constitutional principles of federalism does not raise concerns
if the entity subject to the requirement may opt for an alternative
action that does not raise a federalism issue.
For municipal system operators who seek to avoid third party
regulation according to all or some of the minimum measures,
Sec. 122.26(d) requires the operator to submit a narrative description
of its storm water sewer system and any existing storm water control
program, as well as the monitoring data to enable the permit writer to
develop appropriate permit conditions. The permit writer can then
develop permit conditions and limitations that vary from the six
minimum measures prescribed in today's rule. The information will
enable the permit writer to develop an NPDES permit that will result in
pollutant reduction to the maximum extent practicable. See NRDC v. EPA,
966 F.2d at 1308, n17. If determined appropriate under CWA section
402(p)(3)(B)(iii), for example BMPs to meet water quality standards,
the permit could also incorporate any more stringent or prescriptive
effluent limits based on the individual permit application information.
For small MS4 operators seeking an individual permit, both Part 1
and Part 2 of the application requirements in Sec. 122.26(d)(1) and (2)
are required to be submitted within 3 years and 90 days of the date of
publication of this Federal Register notice. Some of the information
required in Part 1 will necessarily have to be developed by the permit
applicant prior to the development of Part 2 of the application. The
permit applicant should coordinate with its permitting authority
regarding the timing of review of the information.
The operators of regulated small MS4s that apply under
Sec. 122.26(d) may apply to implement certain of the Sec. 122.34(b)
minimum control measures, and thereby focus the necessary evaluation
for additional limitations on alternative controls to the
Sec. 122.34(b) measures that the small MS4 will not implement. The
permit writer may determine ``equivalency'' for some or all of the
minimum measures by developing a rough estimate of the pollutant
reduction that would be achieved if the MS4 implemented the Sec. 122.34
minimum measure and to incorporate that pollutant reduction estimate in
the small MS4's individual permit as an effluent limitation. The Agency
recognizes that, based on current information, any such estimates will
probably have a wide range. Anticipation of this wide range is one of
the reasons EPA believes MS4 operators need flexibility in determining
the mix of BMPs (under the minimum measures) to achieve water quality
objectives. Therefore, for example, if a system operator seeks to
employ an alternative that involves structural controls, wide ranges
will probably be associated with gross pollutant reduction estimates.
Permit writers will undoubtedly develop other ways to ensure that
permit limits ensure reduction of pollutants to the maximum extent
practicable.
Small MS4 operators that pursue this individual permit option do
not need to submit details about their future program requirements
(e.g., the MS4's future plans to obtain legal authority required by
Secs. 122.26(d)(1)(ii) and (d)(2)). A small MS4 operator might elect to
supply such information if it intends for the permit writer to take
those plans into account when developing the small MS4's permit
conditions.
Several operators of small MS4s commented that they currently
lacked the authority they would need to implement one or more of the
minimum measures in Sec. 122.34(b). Today's rule recognizes that the
operators of some small MS4s might not have the authority under State
law to implement one or more of the measures using, for example, an
ordinance or other regulatory mechanism. To address these situations,
each minimum measure in Sec. 122.34(b) that would require the small MS4
operator to develop an ordinance or other regulatory mechanism states
that the operator is only required to implement that requirement to
``the extent allowable under State, Tribal or local law.'' See
Sec. 122.34(b)(3)(ii) (illicit discharge elimination),
Sec. 122.34(b)(4)(ii) (construction runoff control) and
Sec. 122.34(b)(5)(ii) (post-construction storm water management). This
regulatory language does not mean that a operator of a small MS4 with
ordinance making authority can simply fail to pass an ordinance
necessary for a Sec. 122.34(b) program. The reference to ``the extent
allowable under * * * local law'' refers to the local laws of other
political subdivisions to which the MS4 operator is subject. Rather, a
small MS4 operator that seeks to implement a program under section
Sec. 122.34(b) may omit a requirement to develop an ordinance or other
regulatory mechanism only to the extent its municipal charter, State
constitution or other legal authority prevents the operator from
exercising the necessary authority. Where the operator cannot obtain
the authority to implement any activity that is only required to ``the
extent allowable under State, Tribal or local law,'' the operator may
satisfy today's rule by administering the remaining Sec. 122.34(b)
requirements.
Finally, although today's rule provides operators of small MS4s
with an option of applying for a permit under Sec. 122.26(d), States
authorized to administer the NPDES program are not required to provide
this option. NPDES-authorized States could require all regulated small
MS4s to be permitted under the minimum measures management approach in
Sec. 122.34 as a matter of State law. Such an approach would be deemed
to be equally or more stringent than what is required by today's rule.
See 40 CFR 123.2(i). The federalism concerns discussed above do not
apply to requirements imposed by a State on its political subdivisions.
iv. Satisfaction of Minimum Measure Obligations by Another Entity.
An operator of a regulated small MS4 may
[[Page 68767]]
satisfy the requirement to implement one or more of the six minimum
measures in Sec. 122.34(b) by having a third party implement the
measure or measures. Today's rule provides a variety of means for small
MS4 operators to share responsibility for different aspects of their
storm water management program. The means by which the operators of
various MS4s share responsibility may affect who is ultimately
responsible for performance of the minimum measure and who files the
periodic reports on the implementation of the minimum measure. Section
122.35 addresses these issues. The rule describes two different
variants on third party implementation with different consequences if
the third party fails to implement the measure.
If the permit covering the discharge from a regulated small MS4
identifies the operator as the entity responsible for a particular
minimum control measure, then the operator-permittee remains
responsible for the implementation of that measure even if another
entity has agreed to implement the control measure. Section 122.35(a).
Another party may satisfy the operator-permittee's responsibility by
implementing the minimum control measure in a manner at least as
stringent or prescriptive as the corresponding NPDES permit
requirement. If the third party fails to do so, the operator-permittee
remains responsible for its performance. The operator of the MS4 should
consider entering into an agreement with the third party that
acknowledges the responsibility to implement the minimum measure. The
operator-permittee's NOI and its annual Sec. 122.34(f)(3) reports
submitted to the NPDES permitting authority must identify the third
party that is satisfying one or more of the permit obligations. This
requirement ensures that the permitting authority is aware which entity
is supposed to implement which minimum measures.
If, on the other hand, the regulated small MS4's permit recognizes
that an NPDES permittee other than the operator-permittee is
responsible for a particular minimum control measure, then the
operator-permittee is relieved from the responsibility for implementing
that measure. The operator-permittee is also relieved from the
responsibility for implementing any measure that the operator's permit
indicates will be performed by the NPDES permitting authority. Section
122.35(b). The MS4 operator-permittee would be responsible for
implementing the remaining minimum measures.
Today's final rule differs from the proposed version of
Sec. 122.35(b), which stated that, even if the third party's
responsibility is recognized in the permit, the MS4 operator-permittee
remained responsible for performance if the third party failed to
perform the measure consistent with Sec. 122.34(b). Under today's rule,
the operator-permittee is relieved from responsibility for performance
of a measure if the third party is an NPDES permittee whose permit
makes it responsible for performance of the measure (including, for
example, a State agency other than the State agency that issues NPDES
permits) or if the third party is the NPDES permitting authority
itself. Because the permitting authority is acknowledging the third
party's responsibility in the permit, commenters thought that the MS4
operator-permittee should not be responsible for ensuring that the
other entity is implementing the control measure properly. EPA agrees
that the operator-permittee should not be conditionally responsible
when the requirements are enforceable against some other NPDES
permittee. If the third party fails to perform the minimum measure, the
requirements will be enforceable against the third party. In addition,
the NPDES permitting authority could reopen the operator-permittee's
permit under Sec. 122.62 and modify the permit to make the operator
responsible for implementing the measure. A new paragraph has been
added to Sec. 122.62 to clarify that the permit may be reopened in such
circumstances.
Today's rule also provides that the operator-permittee is not
conditionally responsible where it is the State NPDES permitting
authority itself that fails to implement the measure. The permitting
authority does not need to issue a permit to itself (i.e., to the same
State agency that issues the permit) for the sole purpose of relieving
the small MS4 from responsibility in the event the State agency does
not satisfy its obligation to implement a measure. EPA does not believe
that the small MS4 should be responsible in the situation where the
NPDES permit issued to the small MS4 operator recognizes that the State
agency that issues the permit is responsible for implementing a
measure. If the State does fail to implement the measure, the State
agency could be held accountable for its commitment in the permit to
implement the measure. Where the State does not fulfill its
responsibility to implement a measure, a citizen also could petition
for withdrawal of the State's NPDES program or it could petition to
have the MS4's permit reopened to require the MS4 operator to implement
the measure.
EPA notes that not every State program that addresses erosion and
sediment control from construction sites will be adequate to satisfy
the requirement that each regulated small MS4 have a program to the
extent required by Sec. 122.34(b)(4). For example, although all NPDES
States are required to issue NPDES permits for construction activity
that disturbs greater than one acre, the State's NPDES permit program
will not necessarily be extensive enough to satisfy a regulated small
MS4's obligation under Sec. 122.34(b)(4). NPDES States will not
necessarily be implementing all of the required elements of that
minimum measure, such as procedures for site plan review in each
jurisdiction required to develop a program and procedures for receipt
and consideration of information submitted by the public on individual
construction sites. In order for a State erosion and sediment control
program to satisfy a small MS4 operator's obligation to implement
Sec. 122.34(b)(4), the State program would have to include all of the
elements of that minimum measure.
Where the operator-permittee is itself performing one or more of
the minimum measures, the operator-permittee remains responsible for
all of the reporting requirements under Sec. 122.34(f)(3). The
operator-permittee's reports should identify each entity that is
performing the control measures within the geographic jurisdiction of
the regulated small MS4. If the other entity also operates a regulated
MS4 and files reports on the progress of implementation of the measures
within the geographic jurisdiction of the MS4, then the operator-
permittee need not include that same information in its own reports.
If the other entity operates a regulated MS4 and is performing all
of the minimum measures for the permittee, the permittee is not
required to file the reports required by Sec. 122.34(f)(3). This relief
from reporting is specified in Sec. 122.35(a).
Section 122.35 addresses the concerns of some commenters who sought
relief for governmental facilities that are classified as small MS4s
under today's rule. These facilities frequently discharge storm water
through another regulated MS4 and could be regulated by that MS4's
program. For example, a State owned office complex that operates its
storm sewer system in an urbanized area will be regulated as an MS4
under today's rule even though its system may be subject to the storm
water controls of the municipality in
[[Page 68768]]
which it is located. Today's rule specifically revised the definition
of MS4 to recognize that different levels of government often operate
MS4s and that each such separate entity (including the federal
government) should be responsible for its discharges. If both MS4s
agree, the downstream MS4 can develop a storm water management program
that regulates the discharge from both MS4s. The upstream small MS4
operator still must submit an NOI that identifies the entity on which
the upstream small MS4 operator is relying to satisfy its permit
obligations. No reports are required from the upstream small MS4
operator, but the upstream operator must remain in compliance with the
downstream MS4 operator's storm water management program. This option
allows small MS4s to work together to develop one storm water
management program that satisfies the permit obligations of both. If
they cannot agree, the upstream small MS4 operator must develop its own
program.
As mentioned previously, comments from federal facilities and State
organizations that operate MS4s requested that their permit
requirements differ from those of MS4s that are political subdivisions
of States (cities, towns, counties, etc.). EPA acknowledges that there
are differences; e.g., many federal and State facilities do not serve a
resident population and thus might require a different approach to
public education. EPA believes, however, that MS4s owned by State and
federal governments can develop storm water management plans that
address the minimum measures. Federal and State owned small MS4s may
choose to work with adjacent municipally owned MS4s to develop a
unified plan that addresses all of the required measures within the
jurisdiction of all of the contiguous MS4s. The options in Sec. 122.35
minimize the burden on small MS4s that are covered by another MS4's
program.
One commenter recommended that if one MS4 discharges into a second
MS4, the operator of the upstream MS4 should have to provide a copy of
its NOI or permit application to the operator of the receiving MS4. EPA
did not adopt this recommendation because the NOI and permit
application will be publicly available; but EPA does recommend that
NPDES permitting authorities consider it as a possible permit
requirement. The commenter also suggested that monitoring data should
be collected by the upstream MS4 and provided to the downstream MS4.
EPA is not adopting such a uniform monitoring requirement because EPA
believes it is more appropriate to let the MS4 operators work out the
need for such data. If necessary, the downstream MS4s might want to
make such data a condition to allowing the upstream MS4 to connect to
its system.
v. Joint Permit Programs. Many commenters supported allowing the
operators of small MS4s to apply as co-permittees so they each would
not have to develop their own storm water management program. Today's
rule specifically allows regulated small MS4s to join with either other
small MS4s regulated under Sec. 122.34(d) or with medium and large MS4s
regulated under Sec. 122.26(d).
As is discussed in the previous section, regulated small MS4s may
indicate in their NOIs that another entity is performing one or more of
its required minimum control measures. Today's rule under
Sec. 122.33(b)(1) also specifically allows the operators of regulated
small MS4s to jointly submit an NOI. The joint NOI must clearly
indicate which entity is required to implement which control measure in
each geographic jurisdiction within the service area of the entire
small MS4. The operator of each regulated small MS4 remains responsible
for the implementation of each minimum measure for its MS4 (unless, as
is discussed in the previous section above, the permit recognizes that
another entity is responsible for completing the measure.) The joint
NOI, therefore, is legally equivalent to each entity submitting its own
NOI. EPA is, however, revising the rule language to specifically
authorize the joint submission of NOIs in response to comments that
suggested that such explicit authorization might encourage programs to
be coordinated on a watershed basis.
Section 122.33(b)(2)(iii) authorizes regulated small MS4s to
jointly apply for an individual permit to implement today's rule, where
allowed by an NPDES permitting authority. The permit application should
contain sufficient information to allow the permitting authority to
allocate responsibility among the parties under one of the two
permitting options in Secs. 122.33(b)(2)(i) and (ii).
Section 122.33(b)(3) of today's rule also allows an operator of a
regulated small MS4 to join as a co-permittee in an existing NPDES
permit issued to an adjoining medium or large MS4 or source designated
under the existing storm water program. This co-permittee option
applies only with the agreement of all co-permittees. Under this co-
permittee arrangement, the operator of the regulated small MS4 must
comply with the terms and conditions of the applicable permit rather
than the permit condition requirements of Sec. 122.34 of today's rule.
The regulated small MS4 that wishes to be a co-permittee must comply
with the applicable requirements of Sec. 122.26(d), but would not be
required to fulfill all the permit application requirements applicable
to medium and large MS4s. Specifically, the regulated small MS4 is not
required to comply with the application requirements of
Sec. 122.26(d)(1)(iii)
(Part 1 source identification), Sec. 122.26 (d)(1)(iv) (Part 1
discharge characterization), and Sec. 122.26(d)(2)(iii) (Part 2
discharge characterization data). Furthermore, the regulated small MS4
operator could satisfy the requirements in Sec. 122.26(d)(1)(v) (Part 1
management programs) and Sec. 122.26(d)(2)(iv) (Part 2 proposed
management program) by referring to the adjoining MS4 operator's
existing plan. An operator pursuing this option must describe in the
permit modification request how the adjoining MS4's storm water program
addresses or needs to be supplemented in order to adequately address
discharges from the MS4. The request must also explain the role of the
small MS4 operator in coordinating local storm water activities and
describe the resources available to accomplish the storm water
management plan.
EPA sought comments regarding the appropriateness of the
application requirements in these subsections of Sec. 122.26(d). One
commenter stated that newly regulated smaller MS4s should not be
required to meet the existing regulations' Part II application
requirements under Sec. 122.26(d) regarding the control of storm water
discharges from industrial activity. EPA disagrees. The smaller MS4
operators designated for regulation in today's rule may satisfy this
requirement by referencing the legal authority of the already regulated
MS4 program to the extent the newly regulated MS4 will rely on such
legal authority to satisfy its permit requirements. If the smaller MS4
operator plans to rely on its own legal authorities, it must identify
it in the application. If the smaller MS4 operator does not elect to
use its own legal authority, they may file an individual permit
application for an alternate program under Sec. 122.33(b)(2)(ii).
The explanatory language in Sec. 122.33(b)(3) recommends that the
smaller MS4s designated under today's rule identify how an existing
plan ``would need to be supplemented in order to adequately address
your discharges.'' One commenter suggested that this must be regulatory
language and not guidance. EPA disagrees that this needs to be
mandatory language.
[[Page 68769]]
Since many of the smaller MS4s designated today are ``donut holes''
within the geographic jurisdiction of an already regulated MS4, the
larger MS4's program generally will be adequate to address the newly
regulated MS4's discharges. The small MS4 applicant should consider the
adequacy of the existing MS4's program to address the smaller MS4's
water quality needs, but EPA is not imposing specific requirements.
Where circumstances suggest that the existing program is inadequate
with respect to the newly designated MS4 and the applicant does not
address the issue, the NPDES permitting authority must require that the
existing program be supplemented.
Commenters recommended that the application deadline for smaller
MS4s designated today be extended so that existing regulated MS4s would
not have to modify their permit in the middle of their permit term,
provided that permit renewal would occur within a reasonable time (12
to 18 months) of the deadline. In response, EPA notes that today's rule
allows operators of newly designated small MS4s up to three years and
90 days from the promulgation of today's rule to submit an application
to be covered under the permit issued to an already regulated MS4. The
permitting authority has a reasonable time after receipt of the
application to modify the existing permit to include the newly
designated source. If an existing MS4's permit is up for renewal in the
near future, the operator of a newly designated small MS4 may take that
into account when timing its application and the NPDES permitting
authority may take that into account when processing the application.
Another commenter suggested that the rule should include a
provision to allow permit application requirements for smaller MS4s
designated today to be determined by the permitting authority to
account for the particular needs/wants of an already regulated MS4
operator. EPA does not believe that the regulations should specifically
require this approach. When negotiating whether to include a newly
designated MS4 in its program, the already regulated MS4 operator may
require the newly designated MS4's operator to provide any information
that is necessary.
The co-permitting approach allows small MS4s to take advantage of
existing programs to ease the burden of creating their own programs.
The operators of regulated small MS4s, however, may find it simpler to
apply for a program under today's rule, and to identify the medium or
large MS4 operator that is implementing portions of its Sec. 122.34(b)
minimum measures.
d. Evaluation and Assessment
Under today's rule, operators of regulated small MS4s are required
to evaluate the appropriateness of their identified BMPs and progress
toward achieving their identified measurable goals. The purpose of this
evaluation is to determine whether or not the MS4 is meeting the
requirements of the minimum control measures. The NPDES permitting
authority is responsible for determining whether and what types of
monitoring needs to be conducted and may require monitoring in
accordance with State/Tribe monitoring plans appropriate to the
watershed. EPA does not encourage requirements for ``end-of-pipe''
monitoring for regulated small MS4s. Rather, EPA encourages permitting
authorities to carefully examine existing ambient water quality and
assess data needs. Permitting authorities should consider a combination
of physical, chemical, and biological monitoring or the use of other
environmental indicators such as exceedance frequencies of water
quality standards, impacted dry weather flows, and increased flooding
frequency. (Claytor, R. and W. Brown. 1996. Environmental Indicators to
Assess Storm Water Control Programs and Practices. Center for Watershed
Protection, Silver Spring, MD.) Section II.L., Water Quality Issues,
discusses monitoring in greater detail.
As recommended by the Intergovernmental Task Force on Monitoring
Water Quality (ITFM), the NPDES permitting authority is encouraged to
consider the following watershed objectives in determining monitoring
requirements: (1) To characterize water quality and ecosystem health in
a watershed over time, (2) to determine causes of existing and future
water quality and ecosystem health problems in a watershed and develop
a watershed management program, (3) to assess progress of watershed
management program or effectiveness of pollution prevention and control
practices, and (4) to support documentation of compliance with permit
conditions and/or water quality standards. With these objectives in
mind, the Agency encourages participation in group monitoring programs
that can take advantage of existing monitoring programs undertaken by a
variety of governmental and nongovernental entities. Many States may
already have a monitoring program in effect on a watershed basis. The
ITFM report is included in the docket for today's rule
(Intergovernmental Task Force on Monitoring Water Quality. 1995. The
Strategy for Improving Water-Quality Monitoring in the United States:
Final Report of the Intergovernmental Task Force on Monitoring Water
Quality. Copies can be obtained from: U.S. Geological Survey, Reston,
VA.).
EPA expects that many types of entities will have a role in
supporting group monitoring activities--including federal agencies,
State agencies, the public, and various classes or categories of point
source dischargers. Some regulated small MS4s might be required to
contribute to such monitoring efforts. EPA expects, however, that their
participation in monitoring activities will be relatively limited. For
purposes of today's rule, EPA recommends that, in general, NPDES
permits for small MS4s should not require the conduct of any additional
monitoring beyond monitoring that the small MS4 may be already
performing. In the second and subsequent permit terms, EPA expects that
some limited ambient monitoring might be appropriately required for
perhaps half of the regulated small MS4s. EPA expects that such
monitoring will only be done in identified locations for relatively few
pollutants of concern. EPA does not anticipate ``end-of-pipe''
monitoring requirements for regulated small MS4s.
EPA received a wide range of comments on this section of the rule.
Some commenters believe that EPA should require monitoring; others want
a strong statement that the newly regulated small MS4s should not be
required to monitor. Many commenters raised questions about exactly
what EPA expects MS4s to do to evaluate and assess their BMPs. EPA has
intentionally written today's rule to provide flexibility to both MS4s
and permitting authorities regarding appropriate evaluation and
assessment. Permitting authorities can specify monitoring or other
means of evaluation when writing permits. If additional requirements
are not specified, MS4s can decide what they believe is the most
appropriate way to evaluate their storm water management program. As
mentioned above, EPA expects that the necessity for monitoring and its
extent may change from permit cycle to permit cycle. This is another
reason for making the evaluation and assessment rule requirements very
flexible.
i. Recordkeeping. The NPDES permitting authority is required to
include at least the minimum appropriate recordkeeping conditions in
each permit. Additionally, the NPDES permitting authority can specify
that permittees develop, maintain, and/or
[[Page 68770]]
submit other records to determine compliance with permit conditions.
The MS4 operator must keep these records for at least 3 years but is
not required to submit records to the NPDES permitting authority unless
specifically directed to do so. The MS4 operator must make the records,
including the storm water management program, available to the public
at reasonable times during regular business hours (see 40 CFR 122.7 for
confidentiality provision). The MS4 operator is also able to assess a
reasonable charge for copying and to establish advance notice
requirements for members of the public.
EPA received a comment that questioned EPA's authority to require
MS4s to make their records available to the public. EPA disagrees with
the commenter and believes that the CWA does give EPA the authority to
require that MS4 records be available. It is also more practical for
the public to request records directly from the MS4 than to request
them from EPA who would then make the request to the MS4. Based on
comments, EPA revised the proposed rule so as not to limit the time for
advance notice requirements to 2 business days.
ii. Reporting. Under today's rule, the operator of a regulated
small MS4 is required to submit annual reports to the NPDES permitting
authority for the first permit term. For subsequent permit terms, the
MS4 operator must submit reports in years 2 and 4 unless the NPDES
permitting authority requires more frequent reports. EPA received
several comments supporting this timing for report submittal. Other
commenters suggested that annual reports during the first permit cycle
are too burdensome and not necessary. EPA believes that annual reports
are needed during the first 5-year permit term to help permitting
authorities track and assess the development of MS4 programs, which
should be established by the end of the initial term. Information
contained in these reports can also be used to respond to public
inquiries.
The report must include (1) the status of compliance with permit
conditions, an assessment of the appropriateness of identified BMPs and
progress toward achieving measurable goals for each of the minimum
control measures, (2) results of information collected and analyzed,
including monitoring data, if any, during the reporting period, (3) a
summary of what storm water activities the permittee plans to undertake
during the next reporting cycle, and (4) a change in any identified
measurable goal(s) that apply to the program elements.
The NPDES permitting authority is encouraged to provide a brief
two-page reporting format to facilitate compiling and analyzing the
data from submitted reports. EPA does not believe that submittal of a
brief annual report of this nature is overly burdensome, and has not
changed the required reporting time frame from the proposal. The
permitting authority will use the reports in evaluating compliance with
permit conditions and, where necessary, will modify the permit
conditions to address changed conditions.
iii. Permit-As-A-Shield. Section 122.36 describes the scope of
authorization (i.e. ``permit-as-a-shield'') under an NPDES permit as
provided by section 402(k) of the CWA. Section 402(k) provides that
compliance with an NPDES permit is deemed compliance, for purposes of
enforcement under CWA sections 309 and 505, with CWA sections 301, 302,
306, 307, and 403, except for any standard imposed under section 307
for toxic pollutants injurious to human health.
EPA's Policy Statement on Scope of Discharge Authorization and
Shield Associated with NPDES Permits, originally issued on July 1,
1994, and revised on April 11, 1995, provides additional information on
this matter.
e. Other Applicable NPDES Requirements
Any NPDES permit issued to an operator of a regulated small MS4
must also include other applicable NPDES permit requirements and
standard conditions, specifically the applicable requirements and
conditions at 40 CFR 122.41 through 122.49. Reporting requirements for
regulated small MS4s are governed by Sec. 122.34 and not the existing
requirements for medium and large MS4s at Sec. 122.42(c). In addition,
the NPDES permitting authority is encouraged to consult the Interim
Permitting Approach, issued on August 1, 1996. The discussion on the
Interim Permitting Approach in Section II.L.1, Water Quality Based
Effluent Limits, provides more information. The provisions of
Secs. 122.41 through 122.49 establish permit conditions and limitations
that are broadly applicable to the entire range of NPDES permits. These
provisions should be interpreted in a manner that is consistent with
provisions that address specific classes or categories of discharges.
For example, Sec. 122.44(d) is a general requirement that each NPDES
permit shall include conditions to meet water quality standards. This
requirement will be met by the specific approach outlined in today's
rule for the implementation of BMPs. BMPs are the most appropriate form
of effluent limitations to satisfy technology requirements and water
quality-based requirements in MS4 permits (see the introduction to
Section II.H.3, Municipal Permit Requirements, Section II.H.3.h,
Reevaluation of Rule, and the discussion of the Interim Permitting
Policy in Section II.L.1. below).
f. Enforceability
NPDES permits are federally enforceable. Violators may be subject
to the enforcement actions and penalties described in CWA sections 309,
504, and 505 or under similar water pollution enforcement provisions of
State, tribal or local law. Compliance with a permit issued pursuant to
section 402 of the Clean Water Act is deemed compliance, for purposes
of sections 309 and 505, with sections 301, 302, 306, 307, and 403
(except any standard imposed under section 307 for toxic pollutants
injurious to human health).
g. Deadlines
Today's final rule includes ``expeditious deadlines'' as directed
by CWA section 402(p)(6). In proposed Sec. 122.26(e), the permit
application for the ``ISTEA'' facilities was maintained as August 7,
2001 and the permit application deadline for storm water discharges
associated with other construction activity was established as 3 years
and 90 days from the final rule date. In proposed Sec. 122.33(c)(1),
operators of regulated small MS4s were required to seek permit coverage
within 3 years and 90 days from the date of publication of the final
rule. In proposed Sec. 122.33(c)(2), operators of regulated small MS4s
designated by the NPDES permitting authority on a local basis under
Sec. 122.32(a)(2) must seek coverage under an NPDES permit within 60
days of notice, unless the NPDES permitting authority specifies a later
date.
In order to increase the clarity of today's final rule, EPA has
changed the location of some of the above requirements. All application
deadlines for both Phase I and Phase II are now listed or referenced in
Sec. 122.26(e). Section 122.26(e)(1) contains the deadlines for storm
water associated with industrial activity. Paragraph (i) has been
changed to correct a typographical error. Paragraph (ii) has been
revised to reflect the changed application date for ``ISTEA''
facilities. (See discussion in section I.3, ISTEA Sources). The
application deadline for storm water discharges associated with other
construction activity is now in a new Sec. 122.26(e)(8). The
application deadline for regulated small MS4s
[[Page 68771]]
remains in Sec. 122.33(c) because this section is written in ``readable
regulation'' format, but it is also described in a new
Sec. 122.26(e)(9).
Under today's rule, permitting authorities are allowed up to 3
years to issue a general permit and MS4s designated under
Sec. 122.32(a)(1) are allowed up to 3 years and 90 days to submit a
permit application. Operators of regulated small MS4s that choose to be
a co-permittee with an adjoining MS4 with an existing NPDES storm water
permit must apply for a modification of that permit within the same
time frame. Several commenters stated that 90 days was not adequate
time to submit an NOI. This might be true if facilities did not start
developing their storm water program until publication of their general
permit. In fact, municipalities should start developing their storm
water program upon publication of today's final rule, if they have not
already done so. Municipalities that are uncertain if they fall within
the urbanized area should ask their permitting authority. EPA believes
that municipalities should not automatically take three years and 90
days to develop a program and submit their NOI. Three years is the
maximum amount of time to issue a general permit. MS4s that are
automatically designated under today's rule may have less than 3 years
and 90 days if the permitting authority issues a permit that requires
submission of NOIs before that time. EPA encourages States to modify
their NPDES program to include storm water and issue their permits as
soon as possible. It is important for permitting authorities to keep
their municipalities informed of their progress in developing or
modifying their NPDES storm water requirements.
EPA recognizes that MS4s brought into the program due to the 2000
Census calculations do not have as much time to develop a program as
those already designated from the 1990 Census. However, the official
Bureau of the Census urbanized area calculation for the 2000 Census is
expected to be published in the Federal Register in the spring of 2002,
which should give the potentially affected MS4s adequate time to
prepare for compliance under the applicable permit. However, if the
publication of this information is delayed, MS4s in newly designated
urbanized areas will have 180 days from the time the new designations
are published to submit an NOI, consistent with the time frame for
other regulated MS4s that are designated after promulgation of the
rule.
The proposed application deadline for MS4s designated under
Sec. 122.32(a)(2) was within 60 days of notice. Many commenters stated
that 60 days does not provide adequate time for the preparation of an
NOI or permit application. EPA agrees that newly designated MS4s may
not be aware that they might be designated since the permitting
authority could take several years to develop designation criteria. EPA
has decided that the application time frame for these facilities should
be consistent with the 180 days allowed for facilities designated under
Secs. 122.26(a)(9)(i)(C) and (D). Section 122.33(c)(2) of today's final
rule contains the modified time frame of 180 days to apply for
coverage.
h. Reevaluation of Rule
The municipal caucus of the Storm Water Phase II FACA Subcommittee
asked EPA to demonstrate its commitment to revisit the municipal
requirements of today's rule and make changes where necessary after
evaluating the storm water program and researching the effectiveness of
municipal BMPs. In Sec. 122.37 of today's final rule, EPA commits to
revisiting the regulations for the municipal storm water discharge
control program after completion of the first two permit terms. EPA
intends to use this time to work closely with stakeholders on research
efforts. Gathering and analyzing data related to the storm water
program, including data regarding the effectiveness of BMPs, is
critical to EPA's storm water program evaluation. EPA does not intend
to change today's NPDES municipal storm water program until the end of
this period, except under the following circumstances: a court decision
requires changes; a technical change is necessary for implementation;
or the CWA is modified, thereby requiring changes. After careful
analysis, EPA might also consider changes from consensus-based
stakeholder requests regarding requirements applicable to newly
regulated MS4s. EPA will apply the August 1, 1996, Interim Permitting
Approach to today's program during this interim period and encourages
all permitting authorities to use this approach in municipal storm
water permits for newly regulated MS4s and in determining MS4 permit
requirements under a TMDL approach. After careful consideration of the
data, EPA will make modifications as necessary.
EPA received comments that supported waiting two permit cycles
before re-evaluating the rule and other comments that requested re-
evaluation much sooner. EPA anticipates two full permit cycles are
necessary to obtain enough data to significantly evaluate the rule. The
re-evaluation time frame of 13 years from today remains as proposed.
I. Other Designated Storm Water Discharges
1. Discharges Associated with Small Construction Activity
Section 122.26(b)(15) of today's rule designates certain
construction activities for regulation as ``storm water discharges
associated with small construction activity.'' Specifically, storm
water discharges from construction activity equal to or greater than 1
acre and less than 5 acres are automatically designated except in those
circumstances where the operator (i.e., person responsible for
discharges that might occur) certifies to the permitting authority that
one of two specific waiver circumstances (described in section b.
below) applies. Sites below one acre may be designated under
Sec. 122.26(b)(15)(ii) where necessary to protect water quality.
Today's rule regulates these construction-related storm water
sources under CWA section 402(p)(6) to protect water quality rather
than under CWA section 402(p)(2). Designation under 402(p)(6) gives
States and EPA the flexibility to waive the permit requirement for
construction activity that is not likely to impair water quality, and
to designate additional sources below one acre that are likely to cause
water quality impairment. Thus, the one acre threshold of today's rule
is not an absolute threshold like the five acre threshold that applies
under the existing storm water rule.
Today's rule regulating certain storm water discharges from
construction activity disturbing less than 5 acres is consistent with
the 9th Circuit remand in NRDC v. EPA, 966 F.2d 1292 (9th Cir. 1992).
In that case, the court remanded portions of the existing storm water
regulations related to discharges from construction sites. The existing
Phase I regulations define ``storm water discharges associated with
industrial activity'' to include storm water discharges from
construction sites disturbing 5 acres or more of total land area (see
40 CFR 122.26(b)(14)(x)). In its decision, the court concluded that the
5-acre threshold was improper because the Agency had failed to identify
information ``to support its perception that construction activities on
less than 5 acres are non-industrial in nature'' (966 F.2d at 1306).
The court remanded the exemption to EPA for further proceedings (966
F.2d at 1310). EPA's objectives in today's action include an effort to
(1) address the 9th Circuit
[[Page 68772]]
remand to reconsider regulation of storm water discharges from
construction activities that disturb less than 5 acres of land, (2)
address water quality concerns associated with such activities, and (3)
balance conflicting recommendations and concerns of stakeholders in the
regulation of additional construction activity.
EPA responded to the Ninth Circuit's decision by designating
discharges from construction activities that disturb between 1 and 5
acres as ``discharges associated with small construction activity''
under CWA section 402(p)(6), rather than as ``discharges associated
with industrial activity'' under CWA section 402(p)(2)(B). Although a
size criterion alone may be an indicator of whether runoff from
construction sites between 1 and 5 acres is ``associated with
industrial activity,'' the Agency is instead relying on a size
threshold in tandem with provisions that allow for designations and
waivers based on potential for ``predicted water quality impairments''
to regulate construction sites between 1 and 5 acres under CWA section
402(p)(6). This approach was chosen by the Agency for the sake of
simplicity and certainty and, most importantly, to protect water
quality consistent with the mandate of CWA section 402(p)(6). Today's
rule also includes extended application deadlines for this new category
of dischargers under the authority of CWA section 402(p)(6) (see
Sec. 122.26(e)(8) of today's rule).
In today's rule, EPA is regulating storm water discharges from
additional construction sites to better protect the Nation's waters,
while remaining sensitive to a concern that the Agency should not
regulate discharges from construction sites that might not or do not
have adverse water quality impacts. EPA believes that today's rule will
successfully accomplish this objective by establishing a 1-acre
threshold nationwide that includes the flexibility to allow the
permitting authority to both waive requirements for discharges from
sites that are not expected to cause adverse water quality impacts and
to designate discharges from sites below 1-acre based on adverse water
quality impacts.
In addition to the diminishing water quality benefits of regulating
all sites below one acre, the Agency relied on practical considerations
in establishing a one acre threshold and not setting a lower threshold.
Regardless of the threshold established by EPA, a NPDES permit can only
be required if a construction site has a point source discharge. A
point source discharge means that pollutants are added to waters of the
United States through a discernible, confined, discrete conveyance.
``Sheet flow'' runoff from a small construction site would not result
in a point source discharge unless and until it channelized. As the
amount of disturbed land surface decreases, precipitation is less
likely to channelize and create a ``point source'' discharge (assuming
the absence of steep slopes or other factors that lead to increased
channelization). Categorical designation of very small sites may create
confusion about applicability of the NPDES permitting program to those
sites. EPA's one acre threshold reflects, in part, the need to
recognize that smaller sites are less likely to result in point source
discharges. Of course, the NPDES permitting authority could designate
smaller sites (below one acre, assuming point source discharges occur
from the smaller designated sites) for regulation if a watershed or
other local assessment indicated the need to do so. The Phase II rule
includes this designation authority at 40 CFR 122.26(a)(9)(i)(D) and
(b)(15)(ii).
The one acre threshold also provides an administrative tool for
more easily identifying those sites that are identified for coverage by
the rule (but may receive a waiver) and those that are not
automatically covered (but may be designated for inclusion). Although
all construction sites less than five acres could have a significant
water quality impact cumulatively, EPA is automatically designating for
permit coverage only those storm water discharges from construction
sites that disturb land equal to or greater than one acre. Categorical
regulation of discharges from construction below this one acre
threshold would overwhelm the resources of permitting authorities and
might not yield corresponding water quality benefits. Construction
activities that disturb less than one acre make up, in total, a very
small percentage of the total land disturbance from construction
nationwide. The one acre threshold is reasonable for accomplishing the
water quality goals of CWA section 402(p)(6) because it results in
97.5% of the total acreage disturbed by construction being designated
for coverage by the NPDES storm water program, while excluding from
automatic coverage the numerous smaller sites that represent 24.7% of
the total number of construction sites.
Some commenters believed that EPA has not adequately identified
water quality problems associated with storm water discharges from
construction activity disturbing less than five acres. Other commenters
believed that storm water discharges from small construction activity
is a significant water quality problem nationwide. Section I.B.3,
Construction Site Runoff, provides a detailed discussion of adverse
water quality impacts resulting from construction site storm water
discharges. EPA is regulating storm water discharges from construction
activity disturbing between 1 and 5 acres because the cumulative impact
of many sources, and not just a single identified source, is typically
the cause for water quality impairments, particularly for sediment-
related water quality standards.
Several commenters requested that EPA regulate discharges from
small construction activity as ``discharges associated with industrial
activity'' under CWA 402(p)(4) and not, as proposed, as ``storm water
discharges associated with other activity'' under CWA 402(p)(6). EPA is
regulating discharges from small construction sites as ``small
construction activity'' under the authority of CWA section 402(p)(6),
rather than section 402(p)(4), to ensure that regulation of these
sources is water quality-sensitive. CWA section 402(p)(6) affords the
opportunity for designations and waivers of sources based on potential
for ``predicted water quality impairments.'' Regulation of storm water
``associated with industrial activity'' does not necessarily focus
regulation to protect water quality.
a. Scope
The definition of ``storm water discharges associated with small
construction activity'' includes discharges from construction
activities, such as clearing, grading, and excavating activities, that
result in the disturbance of equal to or greater than 1 acre and less
than 5 acres (see Sec. 122.26(b)(15)(i)). Such activities could
include: road building; construction of residential houses, office
buildings, or industrial buildings; or demolition activity. The
definition of ``storm water discharges associated with small
construction activity'' also includes any other construction activity,
regardless of size, designated based on the potential for contribution
to a violation of a water quality standard or for significant
contribution of pollutants to waters of the United States
(Sec. 122.26(b)(15)(ii)). This designation is made by the Director, or
in States with approved NPDES programs, either the Director or the EPA
Regional Administrator.
For the purposes of today's rule, the definition of ``storm water
discharges associated with small construction activity'' includes
discharges from activities disturbing less than 1 acre if that
construction activity is part of a
[[Page 68773]]
``larger common plan of development or sale'' with a planned
disturbance of equal to or greater than 1 acre of land. A ``larger
common plan of development or sale'' means a contiguous area where
multiple separate and distinct construction activities are planned to
occur at different times on different schedules under one plan, e.g., a
housing development of five \1/4\ acre lots (Sec. 122.26(b)(15)(i)).
In addition to the regulatory text for smaller construction, the
Agency is also revising the existing text of Sec. 122.26(b)(14)(x) to
clarify EPA's intention regarding construction projects involving a
larger common plan of development or sale ultimately disturbing 5 or
more acres. Operators of such sites are required to seek coverage under
an NPDES permit regardless of the number of lots in the larger plan
because designation for permit coverage is based on the total amount of
land area to be disturbed under the common plan. This designation
attempts to address the potential cumulative effects of numerous
construction activities concentrated in a given area.
Several commenters asked that EPA allow the permitting authority to
set the appropriate size threshold based on water quality studies.
While EPA agrees that location-specific water quality studies provide
an ideal information base from which to make regulatory decisions,
today's rule establishes a default standard for regulation in the
absence of location-specific studies. The rule does allow for deviation
from the default standard through additional designations and waivers,
however, when supported by location-specific water quality information.
The rule codifies the ability of permitting authorities to provide
waivers for sites greater than or equal to one acre (the default
standard) and designate additional discharges from small sites below
one acre when location-specific information suggests that the default 1
acre standard is either unnecessary (waivers) or too limited
(designations) to protect water quality.
Some commenters wanted EPA to base the regulation of storm water
discharges from construction sites not only on size, but also on the
duration and intensity of activity occurring on the site. EPA believes
that a national 1-acre threshold, in combination with waivers and
additional designations, is the most effective and simplest way to
address adverse water quality impacts from storm water from small
construction sites. Moreover, as discussed below, the waiver for
rainfall erosivity does account for projects of limited duration. EPA
believes, however, that the intensity of activity occurring on-site
would be a very difficult condition to quantify.
Many commenters requested that EPA maintain the 5 acre threshold
from the existing regulations, which include opportunities for site-
specific designation, as the regulatory scope for regulating storm
water from construction sites, i.e., that the Agency not automatically
regulate storm water discharges from sites less than 5 acres. Several
commenters wanted construction requirements to be applied to sites
smaller than 1 acre, while some commenters suggested alternative
thresholds of 2 or 3 acres. The rest of the commenters supported the 1
acre threshold. None of the commenters presented any data or rationales
to support a specific size threshold.
EPA examined alternative size thresholds, including 0.5 acre, 1
acre, 2 acres and 5 acres. EPA had difficulty evaluating the
alternative size thresholds because, while directly proportional to the
size of the disturbed site, the water quality threat posed by
discharges from construction sites of differing sizes varies
nationwide, depending on the local climatological, geological,
geographical, and hydrological influences. In order to ensure
improvements in water quality nationwide, however, today's rule does
not allow various permitting authorities to establish different size
thresholds except based on the waiver and designation provisions of the
rule. EPA believes that the water quality impact from small
construction sites is as high as or higher than the impact from larger
sites on a per acre basis. By selecting the 1 acre size threshold and
coupling it with waivers and additional designations, EPA is seeking to
standardize improvement of water quality on a national basis while
providing permitting authorities with the opportunity to designate
those unregulated activities causing water quality impairments
regardless of site size, as well as to waive requirements when
information demonstrates that regulation is unnecessary.
EPA recognizes that the size criterion alone may not be the most
ideal predictor of the need for regulation, but effective protection of
water quality depends as much on simplicity in implementation as it
does on the scientific information underlying the regulatory criteria.
The default size criterion of 1 acre will ensure protection against
adverse water quality impacts from storm water from small construction
sites while not overburdening the resources of permitting authorities
and the construction industry to implement the program to protect water
quality in the first place.
One commenter stated a need to clarify whether routine road
maintenance is considered construction activity for the purpose of
today's rule. The NPDES general permit for discharges from construction
sites larger than 5 acres defined ``commencement of construction'' as
the initial disturbance of soils associated with clearing, grading, or
excavating activities or other construction activities (63 FR 7913).
For construction sites disturbing less than 5 acres, EPA does not
consider construction activity to include routine maintenance performed
to maintain the original line and grade, hydraulic capacity, or
original purpose of the facility.
Two commenters believed that the Multi-Sector General Permit for
storm water discharges from industrial activities (MSGP) (60 FR 50804)
already applies to storm water discharges from construction activities
at oil and gas exploration and production sites and asked for a
clarification on this issue. Commenters also requested a single general
permit to authorize both industrial storm water discharges and
construction site discharges which occur at the same industrial site.
Currently, when construction activity disturbing more than 5 acres
occurs on an industrial site covered by the MSGP, authorization under a
separate NPDES construction permit is needed because the MSGP does not
include the ``construction'' industrial sector. While the MSGP does
address sediment and erosion control, it is not as specific as the
NPDES general permit for storm water discharges from construction
activities disturbing more than 5 acres. Though permitting authorities
could conceivably develop a single general permit to authorize storm
water discharges associated with construction activity at these
industrial facilities, the commenter's request is not addressed by
today's rulemaking. When today's rule is implemented through general
permits (to be issued later), the permitting authority will have
discretion whether or not to incorporate the permit requirements for
both the industrial storm water discharges and construction site storm
water discharges into a single general permit. This type of request
should be addressed to the permitting authority.
One commenter suggested that discharges from small construction
sites should be regulated through a ``self-implementing rule''
approach. While today's rule is not a self-implementing rule, it does
add Sec. 122.28(b)(2)(v), which
[[Page 68774]]
gives the permitting authority the discretion to authorize a
construction general permit for sites less than 5 acres without
submitting a notice of intent. Such non-registration general permits
function similarly to self-implementing rules, but are, in fact,
permits. Today's rule will be implemented through NPDES permits rather
than self-implementing regulations to capitalize on the compliance,
tracking, enforcement, and public participation associated with NPDES
permits (see discussion in section II.C).
Other commenters believed that only the permitting authority should
regulate construction site storm water discharges (under a NPDES
permit) and that a small MS4 operator's regulation of storm water
discharges associated with construction (under the small MS4 NPDES
storm water program) is redundant. EPA disagrees that control measure
implementation by the NPDES authority and the small MS4 operator is
redundant. To the extent the two efforts overlap, today's rule provides
for consolidation and coordination of substantive requirements via
incorporation by reference permitting. Small MS4s operators may choose
to impose more prescriptive requirements than an NPDES permitting
authority based on localized water quality needs. In those cases, EPA
intends that the substantive requirements from the small MS4 program
should apply as the NPDES permit requirements for the construction site
discharger. In cases where a small MS4 program does not prioritize and
focus on storm water from construction sites (beyond the small MS4
minimum control measure in today's rule, which does not require the
small MS4 operator to control construction site discharges in a manner
as prescriptive as is expected for discharges regulated under NPDES
permits), the Agency intends that the NPDES general permit will provide
the substantive standards applicable to the construction site
discharge. EPA does anticipate, however, that implementation of MS4
programs to address construction site runoff within their jurisdiction
will enhance overall NPDES compliance by construction site dischargers.
EPA also notes that under Sec. 122.35(b), the permitting authority may
recognize its own program to control storm water discharges from
construction sites in lieu of requiring such a program in an MS4's
NPDES permit, provided that the permitting authority's program
satisfies the requirements of Sec. 122.34(b)(4), including, for
example, procedures for site plan reviews and consideration of
information submitted by the public on individual construction sites in
each jurisdiction required to be covered by the program.
b. Waivers
Under Sec. 122.26(b)(15)(i) of today's rule, NPDES permitting
authorities may waive today's requirement for construction site
operators to obtain a permit in two circumstances. The first waiver is
intended to apply where little or no rainfall is expected during the
period of construction. The second waiver may be granted when a TMDL or
equivalent analysis indicates that controls on construction site
discharges are not needed to protect water quality.
The first waiver is based on ``low predicted rainfall erosivity''
which can be found using tables of rainfall-runoff erosivity (R) values
published for each region in the U.S. R factors are published in the
U.S. Department of Agriculture (USDA) Agricultural Handbook 703
(Renard, K.G., Foster, G.R., Weesies, G.A., McCool, D.K., and D.C.
Yoder. 1997. Predicting Soil Erosion by Water: A Guide to Conservation
Planning with the Revised Universal Soil Loss Equation (RUSLE). U.S.
Department of Agriculture Handbook 703). The R factor varies based on
the time during the year when construction activity occurs, where in
the country it occurs, and how long the construction activity lasts.
The permitting authority may determine, using Handbook 703, which times
of year, if any, the waiver opportunity is available for construction
activity. EPA will provide assistance either through computer programs
or the World Wide Web on how to determine whether this waiver applies
for a particular geographic area and time period. Application of this
waiver for regulatory purposes will be determined by the authorized
NPDES authority. This waiver is discussed further in the following
section titled Rainfall-Erosivity Waiver.
The second waiver is based on a consideration of ambient water
quality. This waiver is available after a State or EPA develops and
implements TMDLs for the pollutant(s) of concern from storm water
discharges associated with construction activity. This waiver is also
available for sites discharging to non-impaired waters that do not
require TMDLs, when an equivalent analysis has determined allocations
for small construction sites for the pollutant(s) of concern or
determined that such allocations are not needed to protect water
quality based on consideration of existing in-stream concentrations,
expected growth in pollutant contributions from all sources, and a
margin of safety. The Agency envisions an equivalent analysis that
would demonstrate that water quality is not threatened by storm water
discharges from small construction activity. This waiver is discussed
further below in the sections titled TMDL Waiver and Water Quality
Issues.
The proposed rule included a waiver based on ``low predicted soil
loss.'' This waiver provision would have been applicable on a case-by-
case basis where the annual soil loss rate for the period of
construction for a site, using the Revised Universal Soil Loss Equation
(RUSLE), would be less than 2 tons/acre/year. The annual soil loss rate
of less than 2 tons/acre/year would be calculated through the use of
the RUSLE equation, assuming the constants of no ground cover and no
runoff controls in place.
Several commenters found the low soil loss waiver too complex and
impractical, and stated that expertise is not available at the local
level to prepare and evaluate eligibility for the waiver. Another
commenter questioned whether two tons/acre/year was an appropriate
threshold for predicting adverse water quality impacts. Two other
commenters said that RUSLE was never intended to predict off-site
impacts and is not an indicator of potential harm to water quality. EPA
agrees with the commenters on the difficulty associated with
determining and implementing this waiver. Most construction site
operators are not familiar with the RUSLE program, and the potential
burden on the permitting authority, construction industry, USDA's
Natural Resources Conservation Service and conservation districts
probably would have been significant. The Agency has not included this
waiver in the final rule.
Two commenters asked that EPA allow States the flexibility to
develop their own waiver criteria but did not suggest how the Agency
(or affected stakeholders) could evaluate the acceptability of
alternative State waiver criteria. Therefore, the final rule does not
provide for any such alternative waivers. If a State does seek to
develop alternate waiver criteria, then EPA procedures afford the
opportunity for subsequent actions, for example, under the Project XL
Program in EPA's Office of Reinvention, which seeks cleaner, smarter,
and cheaper solutions to environmental problems. Many commenters
suggested that EPA extend these waivers to existing industrial storm
water regulations for construction activity greater than 5 acres. These
construction site discharges are
[[Page 68775]]
regulated as industrial storm water discharges under CWA 402(p)(2) and
are not eligible for such water quality-based waivers.
Two commenters were concerned that waivers would create a potential
for significant degradation of small streams. EPA disagrees. If small
streams are threatened, the permitting authority would choose not to
provide any waivers. In addition, permitting authorities may protect
small streams by designating discharges from small construction
activity based on the potential for contribution to a violation of a
water quality standard or for significant contribution of pollutants to
waters of the U.S.
Two commenters asked that the waiver options be eliminated. They
felt it would create a gross inequity within the construction community
if some projects will not be subject to the requirements of today's
rule. While the comments may be valid, EPA disagrees that waivers
should be disallowed on this basis. Construction site discharges that
qualify for a waiver from permitting requirements are not expected to
present a threat to water quality, which is the basis for designation
and regulation under today's rule.
A number of commenters suggested additional waivers in cases where
new development will result in no additional adverse impacts to water
quality as compared to the existing development it replaces. EPA
believes these waivers are either unworkable or unnecessary. It would
be very difficult for most construction operators to determine, as well
as for other stakeholders to verify, on a site-by-site basis, that
there is no potential for adverse impact to water quality compared to
the replaced development.
Other commenters proposed waivers in cases where a local erosion
and sediment control program covers the project or a separate waiver
for small linear utility projects. Instead of waivers, today's rule
addresses the first suggestion through the qualifying program provision
described in the section titled Cross-Referencing State/Local Erosion
and Sediment Control Programs below. Today's rule provides waivers for
small linear projects in so far as they satisfy conditions for low
rainfall erosivity. (See Sec. 122.26(b)(15)(i)(A).)
Other commenters suggested waivers based on distance to water body,
existence of vegetated buffer around water body, slope of disturbed
land, or if discharging to very large bodies of water. As a result of
public outreach, EPA believes that these proposed waivers would be
generally unworkable for construction site dischargers and permitting
authorities because of the difficulty in applying them to all small
sites.
One commenter mentioned that waivers for the R factor (rainfall-
erosivity) and soil loss are effluent standards that have not been
developed in accordance with sections 301 and 304 of the CWA. EPA
disagrees that these sections are relevant to the designation of
sources in today's rule. The waiver provisions in this section of the
rule are jurisdictional because they affect the scope of the universe
of entities subject to the NPDES program. Therefore, the waiver
provisions are not themselves substantive control standards implemented
through NPDES permits, and thus, not subject to the statutory criteria
in sections 301 and 304.
Another commenter stated that waivers would allow exemptions to the
technology based requirements and would thus be inconsistent with the
two-fold approach of the CWA (a technology based minimum and a water
quality based overlay). EPA acknowledges that the CWA does not
generally provide for waivers for the Act's technology-based
requirements. The waiver provisions do not create exemptions from
technology-based standards that apply to NPDES dischargers; they
provide exemption from the underlying requirement for an NPDES permit
in the first place. Protection of water quality is the reason these
smaller sites are designated for regulation under NPDES. The Act's two
fold approach imposes more stringent water quality based effluent
limitations when technology-based limitations applicable to regulated
dischargers are insufficient to meet water quality standards. Under
today's rule, water quality protection is the basis for determining
which of the unregulated sources should be regulated at all. Thus,
today's rule is entirely consistent with the Act's two fold approach.
i. Rainfall-Erosivity Waiver. The rainfall-erosivity waiver under
Sec. 122.26(b)(15)(i)(A) is intended to exempt the requirements for a
permit when and where negligible rainfall/runoff-erosivity is expected.
In the development of the Universal Soil Loss Equation, analysis of
data indicated that when factors other than rainfall are held constant,
soil loss is directly proportional to a rainfall factor composed of
total storm kinetic energy times the maximum 30 minute intensity. The
average annual sum of the storm energy and intensity values for an area
comprise the R factor--the rainfall erosivity index. A detailed
explanation of the R factor can be found in Predicting Soil Erosion by
Water: A Guide to Conservation Planning With the Revised Universal Soil
Loss Equation (RUSLE) (USDA, 1997).
This waiver is time-sensitive and is dependent on when during the
year a construction activity takes place, how long it lasts, and the
expected rainfall and intensity during that time. R factors vary based
on location. EPA anticipates that this waiver opportunity responds to
concerns about the requirement for a permit when it is not expected to
rain, especially in the arid areas of the U.S. Under today's rule, the
permitting authority could waive the requirements for a permit for time
periods when the rainfall-erosivity factor (``R'' in RUSLE) is less
than five during the period of construction. For the purposes of
calculating this waiver, the period of construction activity starts at
the time of initial disturbance and ends with the time of final
stabilization. The operator must submit a written certification to the
Director in order to apply for such a waiver. EPA believes that those
areas receiving negligible rainfall during certain times of the year
are unlikely to have storm events causing discharges that could
adversely impact receiving streams. Consequently, BMPs would not be
necessary on those smaller sites. This waiver is most applicable to
projects of short duration and to the arid regions of the country where
the occurrence of rainfall follows a cyclic pattern--between no rain
and extremely heavy rain. EPA review of rainfall records for these
areas indicates that, during periods of the year when the number of
events and quantity of rain are low, storm water discharges from the
smaller construction sites regulated under today's rule should be
minimal.
Some commenters supported the use of the R factor as a waiver,
while others felt that a waiver based on rainfall statistics ignores
the fact that it may rain on any given day and it is the cumulative
effect of wet weather discharges which cause water quality impairments.
A commenter also asked what happens in ``El Nino'' years when
significantly more rainfall than normal occurs. Another commenter also
expressed concern that this waiver was not based on a measured water
quality impact, but instead on an indicator of potential impact. In
response to the previous comments, EPA notes that, under CWA 402(p)(6),
sources are designated on their potential for adverse impact.
Designation under the section is prospective, not retrospective or
remedial only. For that reason, the waivers under today's rule also
operate prospectively. EPA wanted to waive requirements for sites with
little
[[Page 68776]]
potential to impair water quality, and the R factor is the most
straightforward way to do this. The permitting authority, if electing
to use waivers, could always suspend the use of waivers in certain
areas or during certain times. In addition, the permitting authority
may choose to use a lower R factor threshold than the one set by EPA.
Application of this waiver is at the discretion of the permitting
authority, subject only to the limitation that R factors cannot exceed
5.
One commenter expressed the need for EPA to provide a justification
for the threshold value used for the R factor. None of the commenters
included any data to show that EPA's proposed R factor of 2 was either
too high or too low. EPA is using the R factor as an indicator of the
potential to impact water quality. In an effort to determine which R
threshold should be used, EPA conducted additional analysis of the
rainfall/runoff erosivity factor for 134 sites across the country. For
an R factor threshold of 5, approximately 12% of sites would be waived
if the project period lasted 6 months, 27% for 3 months, 47% for 1
month, and 60% of sites would be waived if the project lasted for only
15 days. None of the 134 sites would be waived if the project lasted an
entire year. For an R factor threshold of 2, approximately 9% of sites
would be waived if the project period lasted 6 months, 15% for 3
months, 31% for 1 month, and 43% for 15 days. For an R factor threshold
of 10, approximately 22% of sites would be waived if the project period
lasted 6 months, 37% for 3 months, 60% for 1 month, and 78% for 15
days. EPA believes that an R factor of 5 is an adequate threshold to
waive requirements for sites because they would not reasonably be
expected to impair water quality.
EPA will develop, as part of the tool box described in section
II.A.5, guidance materials and computer or web-accessible programs to
assist permitting authorities and construction site discharges in
determining if any resulting storm water discharges from specific
projects are eligible for this waiver.
ii. Water Quality Waiver. The water quality waiver under
Sec. 122.26(b)(15)(i)(B) is available where storm water controls are
not needed based on a comprehensive, location-specific evaluation of
water quality needs. The waiver is available based on either an EPA-
approved ``total maximum daily load'' (TMDL) under section 303(d) of
the CWA that addresses the pollutant(s) of concern or, for sites
discharging to non-impaired waters that do not require TMDLs, an
equivalent analysis that has either determined allocations for small
construction sites for the pollutant(s) of concern or determined that
such allocations are not needed to protect water quality based on
consideration of existing in-stream concentrations, expected growth in
pollutant contributions from all sources, and a margin of safety. The
pollutants of concern that must be addressed include sediment or a
parameter that addresses sediment (such as total suspended solids
(TSS), turbidity or siltation) and any other pollutant that has been
identified as a cause of impairment of any water body that will receive
a discharge from the construction activity. The operator must certify
to the NPDES permitting authority that the construction activity will
take place, and storm water discharges will occur, within the
applicable drainage area evaluated in the TMDLs or equivalent analyses.
Today's rule modifies the approach in the proposed rule. EPA
proposed to allow a waiver of permit requirements for small
construction if storm water controls were determined to be unnecessary
based on ``wasteload allocations that are part of `total maximum daily
loads' (TMDLs) that address the pollutants of concern,'' or ``a
comprehensive watershed plan, implemented for the water body, that
includes the equivalents of TMDLs, and addresses the pollutants of
concern.''
Commenters asked for clarification of the terms ``comprehensive
watershed plans'' and ``equivalent of TMDLs.'' EPA intended that both
terms would include a comprehensive analysis that determines that
controls on small construction sites are not needed based on
consideration of existing in-stream concentrations, expected growth in
pollutant contributions from all sources, and a margin of safety.
Today's rule makes this clarification.
One commenter pointed out that there are no water quality standards
for suspended solids, the major pollutant expected in discharges from
construction activity. The commenter asserted that no waiver would ever
be available. Another commenter noted that there are no sediment
criteria developed for streams, also making this waiver useless. EPA
notes that a number of States and Tribes have water quality standards
that address TSS, which are narrative in form, and that may serve as a
basis for water quality-based effluent limits. As efforts to identify
impairments and improve water quality progress, some States may yet
develop water quality standards for suspended solids. Although several
TMDLs for sediment and related parameters have been established, EPA
does recognize that currently it is extremely difficult to develop
TMDLs for sediment. EPA is partially addressing this concern by
clarifying in today's rule that the waivers may be based on a TMDL or
equivalent analyses for sediment or one of the various pollutant
parameters that are a proxy for sediment. These include TSS, turbidity
and siltation.
Other commenters noted that this waiver was unattainable if a TMDL
or equivalent analysis must be available for every pollutant that could
possibly be present in any amount in discharges from small construction
sites regardless of whether the pollutant is causing water quality
impairment. Commenters asked that EPA identify what constitutes the
``pollutants of concern'' for which a TMDL or its equivalent must be
developed. EPA has revised the proposed rule in response to these
concerns.
In order for discharges from construction sites under five acres to
qualify for the water quality waiver of today's rule, the construction
site operator must demonstrate that storm water controls are not
necessary for sediment or a parameter that addresses sediment (such as
TSS, turbidity or siltation) and any other pollutant that has been
identified as a cause of impairment of any water body that will receive
a discharge from the construction activity. Even if the water body is
not currently impaired for sediment, today's rule requires an analysis
of the potential impacts of sediment because the storm water discharges
from the construction activity will be a new source of loading to the
water body that could constitute a new impairment. Because the water
body will not necessarily have been included on a ``303(d) list'' and a
TMDL will not necessarily be required, the rule continues to allow an
analysis that is the equivalent of a TMDL. The designation of storm
water discharges from small construction activity for regulation in
today's rule is intended to control pollutants other than sediment.
This waiver provision requires a TMDL or equivalent analysis for a
pollutant other than gross particulates (i.e., sediment and other
particulate-focused pollutant parameters) only if the receiving water
is currently impaired for that pollutant.
One commenter expressed the concern that construction operators
will not know if they are in a watershed covered by a TMDL. To the
extent this is an operator's concern, he or she could contact their
NPDES permitting
[[Page 68777]]
authority before applying for permit coverage to determine if receiving
water is subject to a TMDL. Alternatively, the permitting authority
could identify the TMDL (or equivalent analysis) areas in the general
permit or another operator-accessible information source.
Another commenter expressed the concern that a TMDL waiver is
likely to be ineffective because the TMDL list is submitted only once
every 2 years. By the time a water is listed, the activity may have
been completed and stabilized. The commenter argued that, if a
watershed is impaired due to sediment from construction, then storm
water controls will still be needed, because small construction can
only be waived when it is not identified as a source of impairment. In
response, EPA notes that an analysis that is the equivalent of a TMDL
(specifically, equivalent to the component of a TMDL that
comprehensively analyses existing ambient conditions against the
applicable water quality standards) may also provide a basis for waiver
from the default 1 acre designation. Also, even if a water has been
identified as impaired for sediment, it is possible that a site or
category of sites may receive an allocation that is sufficiently high
enough to allow discharges without storm water controls.
c. Permit Process and Administration
The operator of the construction site, as with any operator of a
point source discharge, is responsible for obtaining coverage under a
NPDES permit as required by Sec. 122.21(b). The ``operator'' of the
construction site, as explained in the current NPDES construction
general permit, is typically the party or parties that either
individually or collectively meet the following two criteria: (1)
Operational control over the site specifications, including the ability
to make modifications in the specifications; and (2) day-to-day
operational control of those activities at the site necessary to ensure
compliance with permit conditions (63 FR 7859). If more than one party
meets these criteria, then each party involved would typically be a co-
permittee with any other operators. The operator could be the owner,
the developer, the general contractor, or individual contractor. When
responsibility for operational control is shared, all operators must
apply.
In today's rule, EPA is not requiring an NOI for NPDES general
permits for storm water discharges from construction activities
regulated by Sec. 122.26(b)(15) if the NPDES permitting authority finds
that the use of NOIs would be inappropriate (see Sec. 122.28(b)(2)(v)).
Under this approach, the NPDES permitting authority will have the
discretion to decide whether or not to require NOIs for discharges from
construction activity less than 5 acres. Compared to the existing storm
water regulation, the permitting authority thus has increased
flexibility in program implementation. EPA does recommend the use of
NOIs, however because NOIs track permit coverage and provide a useful
information source to prioritize inspections or enforcement. Requiring
an NOI allows for greater accountability by, and tracking of,
dischargers. This simple permit application and reporting mechanism
also allows for better outreach to the regulated community, uses an
existing and familiar mechanism, and is consistent with the existing
requirements for storm water discharges from larger construction
activities. Today's rule does not amend the requirement for NOIs in
general permits for storm water discharges from construction activity
disturbing 5 acres for more. See Sec. 122.28(b)(2)(v).
EPA expects that the vast majority of discharges of storm water
associated with small construction activity identified in
Sec. 122.26(b)(15) will be regulated through general permits. In the
event that an NPDES permitting authority decides to issue an individual
construction permit, however, individual application requirements for
these construction site discharges are found at Sec. 122.26(c)(1)(ii).
For any discharges of storm water associated with small construction
activity identified in Sec. 122.26(b)(15) that are not authorized by a
general permit, a permit application made pursuant to Sec. 122.26(c)
must be submitted to the Director by 3 years and 90 days after
publication of the final rule.
Some commenters expressed concern that linear construction projects
(e.g., roads, highways, pipelines) that cross several jurisdictions
will have to comply with multiple sets of requirements from various
jurisdictions, including multiple local governments and States. EPA is
limited in its options to address these concerns because the Agency
cannot issue NPDES permits in States authorized to implement the NPDES
program nor preempt other more stringent local and State requirements.
EPA believes, however, that the option for incorporating by reference
the State, Tribal or local requirements (see discussion in Section
II.I.2.d., Cross-Referencing State/Local Erosion and Sediment Control
Programs) should limit the administrative burden on the operator
responsible for discharges from linear construction projects. If the
operator were to implement the most comprehensive of the various
requirements for the whole project, it could avoid confusion due to
differing requirements for different sections of the project. In
addition, linear utility projects, which usually have a shorter project
period, are more likely to be eligible for the rainfall erosivity
waiver.
One commenter stated there was no reason to delay the application
period for regulated storm water discharges from small construction
activities. The commenter requested that the newly regulated
construction site discharges should be required to seek permit coverage
within 90 days, as opposed to 3 years, of the effective date of the
rule. The Agency does not accept this request. EPA anticipates that
NPDES permitting authorities will need one to two years to develop
adequate legal authority to implement a program to address this new
category of discharges, as well as to develop and issue general
permits. Moreover, to ensure effective implementation to protect water
quality, regulatory authorities will need additional time to inform
small construction site operators of requirements and provide guidance
and training on these requirements.
Finally, EPA received a comment requesting that the three year file
retention requirement be deleted for discharges from small construction
sites. While EPA recognizes that the three year record retention
schedule may be unnecessary for certain construction projects, the
Agency has determined it is necessary to retain files after the
completion of the project to ensure permit compliance, including
applicable construction site stabilization enabling permit termination
for such sites.
d. Cross-Referencing State, Tribal or Local Erosion and Sediment
Control Programs
In developing the NPDES permit requirements for construction sites
less than 5 acres, members of the Storm Water Phase II FACA
Subcommittee asked EPA to try to minimize redundancy in the
construction permit requirements. In response, today's rule at
Sec. 122.44(s) provides for incorporation of qualifying State, Tribal
or local erosion and sediment control program requirements by reference
into the NPDES permit authorizing storm water discharges from
construction sites (described under Secs. 122.26(b)(15) and
(b)(14)(x)). The incorporation by reference approach applies not only
to the newly regulated storm water discharges (from construction
activity disturbing between 1 and 5 acres, including designated sites,
but
[[Page 68778]]
excluding waived sites) but also to discharges from construction
activity disturbing 5 or more acres already covered by the existing
storm water regulations. For this latter category of discharges from
construction activity disturbing 5 or more acres, the incorporation by
reference approach requires that the pollutant control requirements
from the incorporated program also satisfy the statutory standard for
limitations representing application of the best available technology
economically achievable (BAT) and best conventional pollutant control
technology (BCT).
For permits issued for discharges from small construction activity
defined under Sec. 122.26(b)(15), a qualifying State, Tribal, or local
erosion and sediment control program is one that includes the program
elements described under Sec. 122.44(s)(1). These elements include
requirements for construction site operators to implement appropriate
erosion and sediment control BMPs, requirements to control waste, a
requirement to develop a storm water pollution prevention plan, and
requirements to submit a site plan for review. A storm water pollution
prevention plan includes site descriptions, descriptions of appropriate
control measures, copies of approved State, Tribal or local
requirements, maintenance procedures, inspection procedures, and
identification of non-storm water discharges. The construction site's
permit would require it to follow the requirements of the qualifying
local program rather than require it to follow two different sets of
requirements. If a partially-qualifying program does not have all of
the elements described under Sec. 122.44(s)(1), then the NPDES
permitting authority may still incorporate language in the small
construction site discharge's permit that requires the construction
site operator to follow the program, but the construction site
discharge permit also must incorporate the missing required elements in
order to satisfy CWA requirements.
The term ``local'' refers to the geographic area of applicability,
not the form of government that develops and administers the program.
Thus, a qualifying federal erosion and control program, such as certain
programs developed and administered by the federal Bureau of Land
Management, could be a qualifying local program.
As a result of this provision, local requirements will, in effect,
provide the substantive construction site erosion and sediment control
requirements for the NPDES permit authorization. Therefore, by
following one set of erosion and sediment control requirements,
construction site operators satisfy both local and NPDES permit
requirements without duplicative effort. At the same time,
noncompliance with the referenced local requirements will be considered
noncompliance with the NPDES permit which is federally enforceable. The
NPDES permitting authority will, of course, retain the discretion to
decide whether to include the alternative requirements in the general
permit. EPA believes that this approach will best balance the need for
consideration of specific local requirements and local implementation
with the need for federal and citizen oversight, and will extend
supplemental NPDES requirements to control storm water discharges from
construction sites.
EPA developed the ``incorporation by reference'' approach based on
implementation efforts designed by the State of Michigan. Michigan
relies on localities to develop substantive controls for storm water
discharges associated with construction activities on a localized
basis. Localities, however, are not required to do so. In areas where
the local authority does not choose to participate, the State
administers the sedimentation and erosion control requirements. The
State agency, as the NPDES permitting authority, receives an NOI
(termed ``notice of coverage'' by Michigan) under the general permit
and tracks and exercises oversight, as appropriate, over the activity
causing the storm water discharge. Michigan's goal under these
procedures is to utilize the existing erosion and sediment control
program infrastructure authorized under State law for storm water
discharge regulation. (See U.S. Environmental Protection Agency, Office
of Water. January 7, 1994. Memo: From Michael B. Cook, Director OWEC,
to Water Management Division Directors, Regarding the ``Approach Taken
by Michigan to Regulate Storm Water Discharges from Construction
Activities.'')
Most commenters supported the general concept of incorporating by
reference qualifying programs. Two commenters expressed concern that
different local construction requirements will create an impossible
regulatory scheme for builders who work in different localities. EPA
believes that allowing States to incorporate qualifying programs by
reference will minimize the differences for builders who work in
different areas of the State. These differences already exist, however,
not only for erosion and sediment controls, but also other aspects of
construction. In any event, the criteria for qualification for
localized programs should provide a certain degree of standardization
for various localities' requirements. EPA expects that the new rule for
construction and post-construction BMPs being developed under CWA
section 304(m) will also encourage standardization of local
requirements. (See discussion of this new rulemaking in section II.D.1,
Federal Role of this preamble).
Two commenters requested that an ``incorporation by reference''
should include permission, in writing, from the qualifying local
program administrator because of a perceived extra burden on the
referenced program. Any program requirements incorporated by reference
in NPDES permits should already apply to construction site dischargers
in the applicable area and therefore should not add any additional
burden to the referenced program. EPA has left to the discretion of the
permitting authority the decision on whether to seek permission from
the qualifying program before cross-referencing it in an NPDES permit.
One commenter stated that a qualifying local program should require
a SWPPP. The proposed rule defined the qualifying local program as a
program the meets the minimum program requirements established in the
proposed construction minimum control measure for small MS4s. To ensure
consistency in the controls for storm water discharges between the
larger, already regulated construction sites and the discharges from
smaller sites that will be regulated as a result of today's rule, EPA
has made a change to define a qualifying local program as one that
includes the elements described in Sec. 122.44(s)(1). Section
122.44(s)(1) requires the development and implementation of a storm
water pollution prevention plan as a criterion for qualification of
local programs for incorporation by reference. As noted above, if a
qualifying program does not include all the elements in
Sec. 122.44(s)(1) then the permitting authority will need to specify
the missing elements in order to rely on the incorporation by reference
approach.
One commenter asked what happens in regard to the use of qualifying
programs when a construction site operator is also the qualifying local
program operator. The provision for incorporation by reference applies
in this situation also. The local program operator will be required to
comply with requirements it has established for others.
[[Page 68779]]
e. Alternative Approaches
EPA received a number of comments on alternative permitting
approaches. Several commenters supported regulating discharges only
from those construction sites within urbanized areas. Other commenters
opposed this approach. EPA chose to address storm water discharges from
construction sites located both within and outside urbanized areas
because of the potential for adverse water quality impact from storm
water discharges from smaller sites in all areas. Regulating only those
sites within urbanized areas would have excluded a large number of
potential contributors to water quality impairment and would not
address large areas of new development occurring on the outer fringes
of urbanized areas. In fact, designating only small construction
discharges within urbanized areas might create a perverse incentive for
building only outside urbanized areas. Such an incentive would be
inconsistent with the Agency's intention behind designating to protect
water quality. The Agency intends that designation to protect water
quality in today's rule should be both remedial and preventive.
A number of commenters encouraged EPA to cover municipal
construction activities under the small MS4 general permit, instead of
issuing a separate NPDES construction permit to these municipal
construction projects. Similarly, a number of commenters supported EPA
giving industrial facilities the option of having storm water from
construction activities on the site covered by the industrial storm
water permit. Several other commenters found that combining multiple
permit types under one general permit introduced a degree of complexity
which was confusing to permittees. Permitting authorities have the
option of combining MS4 and construction permits or industrial and
construction permits, however, specific requirements for each would
still need to be included in the permit issued. EPA agrees that this
would probably result in a more complex and confusing permit compared
to the existing component permits.
Several commenters supported an alternative for regulated small
MS4s where a local qualified program alone, without an NPDES permit, is
sufficient to enforce compliance with construction site discharge
requirements. On the other hand, one commenter stated that linking the
local construction erosion and sediment control program to the existing
NPDES program for storm water from larger construction has driven
improvements in many local programs. Another commenter stated that the
potential fines under the NPDES program will encourage compliance and
will be much stronger than any fines a local program may have. EPA
agrees that the NPDES program is the best approach to address water
quality impacts from construction sites and provides benefits such as
accountability and federal enforcement.
A number of commenters supported issuing one permit for each
construction company, instead of a permit for each individual
construction activity (also requested for storm water discharges from
the larger, already regulated construction sites). Other commenters
found that a `licensing' program for construction site operators would
have many problems, including identifying who to permit and tracking
information on active sites. EPA is regulating only the storm water
discharges associated with construction activity from small sites, not
the construction activity itself. Separate NPDES permits (either
individual or general permit coverage) for construction site discharges
avoid potential problems in tracking sites and operator accountability.
Section 122.28(b)(2)(v) gives permitting authorities the option to
issue a general permit without requiring an NOI. If an NOI is not
required for each activity, permitting authorities could pursue other
options such as a company-wide NOI, license instead of an NOI, or
another mechanism.
2. Other Sources
In the Storm Water Discharges Potentially Addressed by Phase II of
the National Pollutant Discharge Elimination System Storm Water
Program, Report to Congress, March 1995, (``Report'') submitted by EPA
pursuant to CWA section 402(p)(5), EPA examined the remaining
unregulated point sources of storm water for the potential to adversely
affect water quality. Due to very limited national data on which to
estimate pollutant loadings on the basis of discharge categories, the
discussion of the extent of unregulated storm water discharges is
limited to an analysis of the number and geographic distribution of the
unregulated storm water discharges. Therefore, EPA is not designating
any additional unregulated point sources of storm water on a
nationwide, categorical basis. Instead, the remainder of the sources
will be regulated based on case-by-case post-promulgation designations
by the NPDES permitting authority.
EPA did, however, evaluate a variety of categories of discharges
for potential designation in the Report. EPA's efforts to identify
sources and categories of unregulated storm water discharges for
potential designation for regulation in today's rule started with an
examination of approximately 7.7 million commercial, retail,
industrial, and institutional facilities identified as ``unregulated.''
In general, the distribution of these facilities follows the
distribution of population, with a large percentage of facilities
concentrated within urbanized areas (see page 4-35 of the Report). This
examination resulted in identification of two general classes of
facilities with the potential for discharging pollutants to waters of
the United States through storm water point sources.
The first group (Group A) included sources that are very similar,
or identical, to regulated ``storm water discharges associated with
industrial activity'' but that were not included in the existing storm
water regulations because EPA used SIC codes in defining the universe
of regulated industrial activities. By relying on SIC codes, a
classification system created to identify industries rather than
environmental impacts from these industries discharges, some types of
storm water discharges that might otherwise be considered
``industrial'' were not included in the existing NPDES storm water
program. The second general class of facilities (Group B) was
identified on the basis of potential for activities and pollutants that
could contribute to storm water contamination.
EPA estimates that Group A has approximately 100,000 facilities.
Discharges from facilities in this group, which may be of high priority
due to their similarity to regulated storm water discharges from
industrial facilities, include, for example, auxiliary facilities or
secondary activities (e.g., maintenance of construction equipment and
vehicles, local trucking for an unregulated facility such as a grocery
store) and facilities intentionally omitted from existing storm water
regulations (e.g., publicly owned treatment works with a design flow of
less than 1 million gallons per day, landfills that have not received
industrial waste).
Group B consists of nearly one million facilities. EPA organized
Group B sources into 18 sectors for the purposes of the Report. The
automobile service sector (e.g., gas/service stations, general
automobile repair, new and used car dealerships, car and truck rental)
makes up more than one-third of the total number of facilities
identified in all 18 sectors.
EPA conducted a geographical analysis of the industrial and
commercial facilities in Groups A and
[[Page 68780]]
B. The geographical analysis shows that the majority are located in
urbanized areas (see Section 4.2.2, Geographic Extent of Facilities, in
the Report). In general, about 61 percent of Group A facilities and 56
percent of Group B facilities are located in urbanized areas. The
analysis also showed that nearly twice as many industrial facilities
are found in all urbanized areas as are found in large and medium
municipalities alone. Notable exceptions to this generalization
included lawn/garden establishments, small unregulated animal feedlots,
wholesale livestock, farm and garden machinery repair, bulk petroleum
wholesale, farm supplies, lumber and building materials, agricultural
chemical dealers, and petroleum pipelines, which can frequently be
located in smaller municipalities or rural areas.
In identifying potential categories of sources for designation in
today's notice, EPA considered designation of discharges from Group A
and Group B facilities. EPA applied three criteria to each potential
category in both groups to determine the need for designation: (1) The
likelihood for exposure of pollutant sources included in that category,
(2) whether such sources were adequately addressed by other
environmental programs, and (3) whether sufficient data were available
at this time on which to make a determination of potential adverse
water quality impacts for the category of sources. As discussed
previously, EPA searched for applicable nationwide data on the water
quality impacts of such categories of facilities.
By application of the first criterion, the likelihood for exposure,
EPA considered the nature of potential pollutant sources in exposed
portions of such sites. As precipitation contacts industrial materials
or activities, the resultant runoff is likely to mobilize and become
contaminated by pollutants. As the size of these exposed areas
increases, EPA expects a proportional increase in the pollutant
loadings leaving the site. If EPA concluded that a category of sources
has a high potential for exposure of raw materials, intermediate
products, final products, waste materials, byproducts, industrial
machinery, or industrial activity to rainfall, the Agency rated that
category of sources as having ``high'' potential for adverse water
quality impact. EPA's application of the first criterion showed that a
number of Group A and B sources have a high likelihood of exposure of
pollutants.
Through application of the second criterion, EPA assessed the
likelihood that pollutant sources are regulated in a comprehensive
fashion under other environmental protection programs, such as programs
under the Resource Conservation and Recovery Act (RCRA) or the
Occupational Health and Safety Act (OSHA). If EPA concluded that the
category of sources was sufficiently addressed under another program,
the Agency rated that source category as having ``low'' potential for
adverse water quality impact. Application of the second criterion
showed that some categories were likely to be adequately addressed by
other programs.
After application of the third criterion, availability of
nationwide data on the various storm water discharge categories, EPA
concluded that available data would not support any such nationwide
designations. While such data could exist on a regional or local basis,
EPA believes that permitting authorities should have flexibility to
regulate only those categories of sources contributing to localized
water quality impairments.
EPA received comments requesting designation of additional
industrial, commercial and retail sources (e.g. industrial activity
``look-alikes'', roads, commercial facilities and institutions, and
vehicle maintenance facilities) in the final rule, because the
commenters believe that the data exist to support national designation
of some of these sources. Other comments were received opposing
designation of any additional sources. Today's rule does not designate
any additional industrial or commercial category of sources either
because EPA currently lacks information indicating a consistent
potential for adverse water quality impact or because of EPA's belief
that the likelihood of adverse impacts on water quality is low, with
some possible exceptions on a more local basis. Since the time the
Agency submitted the Report, EPA has continued to seek additional data
and has requested available data from the FACA members. If sufficient
regional or nationwide data become available in the future, the
permitting authority could at that time designate a category of sources
or individual sources on a case-by-case basis. Therefore, today's rule
encourages control of storm water discharges from Groups A and B
through self-initiated, voluntary BMPs, unless the discharge (or
category of discharges) is designated for permitting by the permitting
authority. See discussion in section I.D., EPA's Reports to Congress.
3. ISTEA Sources
Provisions within the Intermodal Surface Transportation and
Efficiency Act (ISTEA) of 1991 temporarily exempted storm water
discharges associated with industrial activity that are owned or
operated by municipalities serving populations less than 100,000 people
(except for airports, power plants, and uncontrolled sanitary
landfills) from the need to apply for or obtain a storm water discharge
permit (section 1068(c) of ISTEA). Congress extended the NPDES
permitting moratorium for these facilities to allow small
municipalities additional time to comply with NPDES requirements for
certain sources of industrial storm water. The August 7, 1995 storm
water final rule (60 FR 40230) further extended this moratorium until
August 7, 2001. However, today's rule changes this deadline so that
previously exempted industrial facilities owned or operated by
municipalities serving populations less than 100,000 people, must now
submit an application for a permit within 3 years and 90 days from date
of publication of today's rule.
EPA received comments recommending that permit requirements for
municipally owned or operated industrial storm water discharges,
including those previously exempt under ISTEA, be included in a single
NPDES permit for all MS4 storm water discharges. The existing NPDES
regulations already provide permitting authorities the ability to issue
a single ``combination'' permit for MS4 discharges. However, if the
permitting authorities chose to issue this type of permit, they must
make sure that in doing so, they are not creating a double standard for
industrial facilities covered under the combination permit versus those
covered under separate general or individual permits. In order to avoid
this double standard, combination permits would have to contain
requirements that are the same or very similar to the requirements
found in separate MS4 and industrial permits, i.e., the minimum
measures and other necessary requirements of an MS4 permit, and the
SWPPP, monitoring and reporting requirements, and other necessary
requirements of an industrial permit. If such a combined MS4 general
permit were issued, the regulations require that each discharger submit
NOIs for their respective discharges, except for discharges from small
construction activities. Flexibility exists in developing a combination
NOI which could reduce the need to submit duplicative information, e.g.
owner/operator name and address. The combination NOI would still need
to require specific information for each separate municipally owned or
operated industrial location, including
[[Page 68781]]
construction projects disturbing 5 or more acres. The regulations at
Sec. 122.28(b)(2)(ii) list the necessary contents of an NOI, which
require: the facility name, facility address, type of facility or
discharge and receiving stream for each industrial discharge location.
When viewed in its entirety, a combination permit, which by necessity
would need to contain all elements of otherwise separate industrial and
MS4 permit requirements, and require NOI information for each separate
industrial activity, may have few advantages when compared to obtaining
separate MS4 and industrial general permit coverage.
In order to allow the permitting authority to issue a single storm
water permit for the MS4 and all municipally owned or operated
industrial facilities, including those previously exempt under ISTEA,
today's rule requires applications for ISTEA sources within 3 yrs and
90 days from date of publication of today's rule. The permitting
authority has the ultimate decision to determine whether or not a
single all-encompassing MS4 permit is appropriate.
4. Residual Designation Authority
The NPDES permitting authority's existing designation authority, as
well as the petition provisions are being retained. Today's rule
contains two provisions related to designation authority at
Secs. 122.26(a)(9)(i)(C) and (D). Subsection (C) adds designation
authority where storm water controls are needed for the discharge based
upon wasteload allocations that are part of TMDLs that address the
pollutant(s) of concern. EPA intends that the NPDES permitting
authority have discretion in the matter of designations based on TMDLs
under subsection (C). Subsection (D) carries forward residual
designation authority under former Sec. 122.26(g), and has been
modified to provide clarification on categorical designation. Under
today's rule, EPA and authorized States continue to exercise the
authority to designate remaining unregulated discharges composed
entirely of storm water for regulation on a case-by-case basis
(including Sec. 123.35). Individual sources are subject to regulation
if EPA or the State, as the case may be, determines that the storm
water discharge from the source contributes to a violation of a water
quality standard or is a significant contributor of pollutants to
waters of the United States. This standard is based on the text of
section CWA 402(p). In today's rule, EPA believes, as Congress did in
drafting section CWA 402(p)(2)(E), that individual instances of storm
water discharge might warrant special regulatory attention, but do not
fall neatly into a discrete, predetermined category. Today's rule
preserves the regulatory authority to subsequently address a source (or
category of sources) of storm water discharges of concern on a
localized or regional basis. For example, as States and EPA implement
TMDLs, permitting authorities may need to designate some point source
discharges of storm water on a categorical basis either locally or
regionally in order to assure progress toward compliance with water
quality standards in the watershed.
EPA received comments asking that Sec. 122.26(a)(9)(i)(D) as
proposed be modified to include specific language clarifying the
permitting authority's ability to designate additional sources on a
categorical basis as explained in the preamble to the proposed rule.
One comment requested that the designation language include
``categories of sources on a Statewide basis.'' EPA agrees that the
intent of the language may not have been clear regarding categorical
designation. Today's rule modifies subsection (D) to clarify that the
designation authority can be applied within different geographic areas
to any single discharge (i.e., a specific facility), or category of
discharges that are contributing to a violation of a water quality
standard or are significant contributors of pollutants to waters of the
United States. The added term ``within a geographic area'' allows
``State-wide'' or ``watershed-wide'' designation within the meaning of
the terms.
One commenter questioned the Agency's legal authority to provide
for such residual designation authority. The stakeholder argued that
the lapse of the October 1, 1994, permitting moratorium under CWA
section 402(p)(1) eliminated the significance of the CWA section
402(p)(2) exceptions to the moratorium, including the exception for
discharges of storm water determined to be contributing to a violation
of a water quality standard or a significant contributor of pollutants
under CWA section 402(p)(2)(E). The stakeholder further argued that
EPA's authority to designate sources for regulation under CWA section
402(p)(6) is limited to storm water discharges other than those
described under CWA section 402(p)(2). Because CWA section 402(p)(2)(E)
describes individually designated discharges, the stakeholder concluded
that regulations under CWA section 402(p)(6) cannot provide for post-
promulgation designation of individual sources. EPA disagrees.
First, as explained previously, EPA anticipates that NPDES
permitting authorities may yet determine that individual unregulated
point sources of storm water discharges require regulation on a case-
by-case basis. This conclusion is consistent with the Congress'
recognition of the potential need for such designation under the first
phase of storm water regulation as described in CWA section
402(p)(2)(E). Under CWA section 402(p)(2)(E), Congress recognized the
need for both EPA and the State to retain authority to regulate
unregulated point sources of storm water under the NPDES permit
program. Second, to the extent that CWA section 402(p)(6) requires
designation of a ``category'' of sources, the permitting authority may
designate such (as yet unidentified) sources as a category that should
be regulated to protect water quality. Though such sources may exist
and discharge today, if neither EPA nor the State/Tribal NPDES
permitting authority has designated the source for regulation under CWA
section 402(p)(2)(E) to date, then CWA section 402(p)(6) provides the
authority to designate such sources.
The Agency can designate a category of ``not yet identified''
sources to be regulated, based on local concerns, even if data do not
exist to support nationwide regulation of such sources. EPA does not
interpret the language in CWA section 402(p) to preclude States from
exercising designation authority under these provisions because such
designation (and subsequent regulation of designated sources) is within
the ``scope'' of the NPDES program.
EPA also believes that sources regulated pursuant to a State
designation are part of (and regulated under) a federally approved
State NPDES program, and thus subject to enforcement under CWA sections
309 and 505. Under existing NPDES State program regulations, State
programs that are ``greater in scope of coverage'' are not part of the
federally-approved program. By contrast, any such State regulation of
sources in this ``reserved category'' will be within the scope of the
federal program because today's rule recognizes the need for such post
promulgation designations of unregulated point sources of storm water.
Such regulation will be ``more stringent'' than the federal program
rather than ``greater in scope of coverage'' (40 CFR 123.1(h)).
EPA does not interpret the congressional direction in CWA section
402(p)(6) to preclude regulation of point sources of storm water that
should be regulated to protect water quality. Under CWA section 510,
Congress expressly recognized and preserved the authority of States to
adopt and enforce
[[Page 68782]]
more stringent regulation of point sources, as well as any requirement
respecting the control or abatement of pollution. Section 510 applies,
``except as expressly provided'' in the CWA. CWA section 502(14) does
expressly provide affirmative limitations on the regulation of certain
pollutant sources through the point source control program, the NPDES
permitting program. Section 502(14) excludes agricultural storm water
and return flows from irrigated agriculture from the definition of
point source, and section 402(l) limits applicability of the section
402 permit program for return flows from irrigated agriculture, as well
as for storm water runoff from certain oil, gas, and mining operations.
Unlike sections 502(14) and 402(l), EPA does not interpret CWA section
402(p)(6) as an express provision limiting the authority to designate
point sources of storm water for regulation on a case-by-case basis
after the promulgation of final regulations. Any source of storm water
discharge is encouraged to assess its potential for storm water
contamination and take preventive measures against contamination. Such
proactive actions could result in the avoidance of future regulation.
One comment was received requesting clarification of the term
``non-municipal'' in Sec. 122.26(a)(9)(ii). The commenter is concerned
that the term ``non-municipal,'' in this context, implies that
municipally owned or operated facilities cannot be designated. The term
``non-municipal'' in this context refers to the universe of unregulated
industrial and commercial facilities that could potentially be
designated according to Sec. 122.26(a)(9)(i) authority. There is no
exemption for municipally owned or operated facilities under these
designation provisions.
Finally, EPA received comments and evaluated the proposal under
which operators of regulated small, medium, and large MS4s would be
responsible for controlling discharges from industrial and other
facilities into their systems in lieu of requiring NPDES permit
coverage for such facilities. EPA did not adopt this framework due to
concerns with administrative and technical burden on the MS4 operators,
as well as concerns about such an intergovernmental mandate.
J. Conditional Exclusion for ``No Exposure'' of Industrial Activities
and Materials to Storm Water
1. Background
In 1992, the Ninth Circuit court remanded to EPA for further
rulemaking, a portion of the definition of ``storm water discharge
associated with industrial activity'' that excluded the category of
industrial activity identified as ``light industry'' when industrial
materials and/or activities were not exposed to storm water. See NRDC
v. EPA, 966 F.2d 1292, 1305 (9th Cir. 1992). Today's final rule
responds to that remand. In the 1990 storm water regulations, EPA
excluded the light industry category from the requirement for an NPDES
permit if the industrial materials and/or activities were not
``exposed'' to storm water (see Sec. 122.26(b)(14)). The Agency had
reasoned that most of the activity at these types of facilities takes
place indoors and that emissions from stacks, use of unhoused
manufacturing equipment, outside material storage or disposal, and
generation of large amounts of dust or particles would be atypical (55
FR 48008, November 16, 1990).
The Ninth Circuit determined that the exemption was arbitrary and
capricious for two reasons. First, the court found that EPA had not
established a record to support its assumption that light industry that
was not exposed to storm water was not ``associated with industrial
activity,'' particularly when other types of industrial activity not
exposed to storm water remained ``associated with industrial
activity.'' The court specifically found that ``[t]o exempt these
industries from the normal permitting process based on an
unsubstantiated assumption about this group of facilities is arbitrary
and capricious.'' Second, the court concluded that the exemption
impermissibly ``altered the statutory scheme'' for permitting because
the exemption relied on the unverified judgment of the light industrial
facility operator to determine non-applicability of the permit
application requirements. In other words, the court was critical that
the operator would determine for itself that there was ``no exposure''
and then simply not apply for a permit without any further action.
Without a basis for ensuring the effective operation of the permitting
scheme--either that facilities would self-report actual exposure or
that EPA would be required to inspect and monitor such facilities--the
court vacated and remanded the rule to EPA for further rulemaking.
One of the major concerns expressed by the FACA Committee, was that
EPA streamline and reinvent certain troublesome or problematic aspects
of the existing permitting program for storm water discharges. One area
identified was the mandatory applicability of the permitting program to
all industrial facilities, even those ``light industrial'' activities
that are of very low risk or of no risk to storm water contamination.
Such dischargers may not have any industrial sources of storm water
contamination on the plant site, yet they are still required to apply
for an NPDES storm water permit and meet all permitting requirements.
Examples of such facilities are a soap manufacturing plant (SIC Code
28) or hazardous waste treatment and disposal facility, where all
industrial activities, even loading docks, are inside a building or
under a roof.
Although they did not provide a written report, the FACA Committee
members advised EPA that the existing storm water program should be
revised to allow such facilities to seek an exclusion from the NPDES
storm water permitting requirements. The Committee agreed that such an
exclusion should also provide a strong incentive for other industrial
facilities that conduct industrial activities outdoors to move the
activities under cover or into buildings to prevent contamination of
rainfall and storm water runoff. The committee believed that such a
``no exposure'' permit exclusion could be a valuable incentive for
storm water pollution prevention.
In today's final rule, the Agency responds to both of the bases for
the court's remand. The exclusion from permitting based on ``no
exposure'' applies to all industrial categories listed in the existing
storm water regulations except construction. The court's opinion
rejected EPA's distinction between light industry and other industry,
but it did not preclude an interpretation that treats all ``non-
exposed'' industrial facilities in the same fashion. Presuming that an
industrial facility adequately prevents exposure of industrial
materials and activities to storm water, today's rule treats discharges
from ``non-exposed'' industrial facilities in a manner similar to the
way Congress intended for discharges from administrative buildings and
parking lots. Specifically, permits will not be required for storm
water discharges from these facilities on a categorical basis.
To assure that discharges from industrial facilities really are
similar to discharges from administrative buildings and parking lots,
and to respond to the second basis for the court's remand, the
permitting exclusion is ``conditional''. The person responsible for a
point source discharge from a ``no exposure'' industrial source must
meet the conditions of the exclusion, and complete, sign and submit the
certification to the permitting authority for tracking and
[[Page 68783]]
accountability purposes. EPA believes today's rule, therefore, is fully
consistent with the direction provided by the court.
EPA relied upon the ``no exposure'' concept discussed by the FACA
Committee in developing the ``no exposure'' provisions of today's rule.
EPA is deleting the sentence regarding ``no exposure'' for the
facilities in Sec. 122.26(b)(14)(xi) and adding a new Sec. 122.26(g)
titled ``Conditional Exclusion for No Exposure of Industrial Activities
to Storm Water.'' The ``no exposure'' provision will make storm water
discharges from all classes of industrial facilities eligible for
exclusion, except storm water discharges from regulated construction
activities. Regulated construction activities cannot claim ``no
exposure'' because the main pollutants of concern (e.g., sediment)
generally cannot entirely be sheltered from storm water.
Today's rule represents a significant expansion in the scope of the
``no exposure'' provision originally promulgated in the 1990 rule,
which was only for storm water discharges from light industry. The
intent of today's ``no exposure'' provision is to provide a simplified
method for complying with the CWA to all industrial facilities that are
entirely indoors. This includes facilities that are located within a
large office building, or at which the only items permanently exposed
to precipitation are roofs, parking lots, vegetated areas, and other
non-industrial areas or activities.
EPA received several comments related to storm water runoff from
parking lots, roof tops, lawns, and other non-industrial areas of an
industrial facility. Storm water discharges from these areas, which may
contain pollutants or which may result in additional storm water flows,
are not directly regulated under the existing storm water permitting
program because they are not ``storm water discharges associated with
industrial activity''. Many comments on this issue supported
maintaining the exclusion from the existing regulations for storm water
permitting for discharges from administrative buildings, parking lots,
and other non-industrial areas. Other comments opposed allowing the
continued exclusion for discharges from non-industrial areas of the
site because discharges from these areas are potentially a significant
cause of receiving water impairment. These comments urged that such
discharges should not be excluded from NPDES permit coverage. Today's
rule does not require permit coverage for discharges from a facility's
exposed areas that are separate from industrial activities such as
runoff from office buildings and accompanying parking lots, lawns and
other non-industrial areas. This approach is consistent with the
existing storm water rules which were based on Congress's intent to
exclude non-industrial areas such as ``parking lots and administrative
and employee buildings.'' 133 Cong. Rec. 985 (1987). EPA also lacks
data indicating that discharges from these areas at an industrial
facility cause significant receiving water impairments. Therefore, the
non-industrial areas at a facility do not need to be assessed as part
of the ``no exposure'' certification.
EPA received comments related to industrial facilities that achieve
``no exposure'' by constructing large amounts of impervious surfaces,
such as roofs, where previously there were pervious or porous surfaces
into which storm water could infiltrate. Some commenters made the point
that large amounts of impervious area may cause a significant increase
in storm water volume flowing off the industrial facility, and thus may
cause adverse receiving water impacts simply due to the increased
quantity of storm water flow. Some commenters said that storm water
discharges from impervious areas at an industrial facility are
generally more frequent, and often larger, than discharges from the
pre-existing natural surfaces. They believe that these discharges will
contain pollutants typical of commercial areas and roads and are an
equal threat to direct human uses of the water and can cause equal
damage to aquatic life and its habitat. Other commenters believe that
if Congress or EPA addresses the issue of flow, it should be addressed
on a broader scale than merely through the ``no exposure'' exclusion,
and that EPA has no authority under any existing legal framework to
regulate flow directly. Some commenters stated that developing federal
parameters for the control of water quantity, i.e. flow, would result
in federal intrusion into land use planning, an authority that they
claim is solely within the purview of State governments and their
political subdivisions.
EPA is not attempting to regulate flow via the ``no exposure''
provisions. EPA does agree, however, that increases in impervious
surfaces can result in increased runoff volumes from the site which in
turn may increase pollutant loading. In addition, the Agency notes that
in some States water quality standards include water quality criteria
for flow or turbidity. Therefore, in order to provide a minimal amount
of information on possible impacts from increased pollutant loading and
runoff volume, EPA's ``no exposure'' certification form (see Appendix
4) asks the discharger to indicate if they have paved or roofed over a
formerly exposed, pervious area in order to qualify for the ``no
exposure'' exclusion. If the answer is yes, the discharger must
indicate, by choosing from three possible responses, approximately how
much impervious area was created to achieve ``no exposure''. The
choices are: (1) less than 1 acre, (2) 1 to 5 acres, and (3) more than
5 acres. This requirement provides additional information that will aid
in determining if discharges from the facility are causing adverse
receiving water impacts. EPA intends to prevent water quality impacts
resulting from increased discharges of pollutants, which may result
from increased volume of runoff. In many cases, consideration of the
increased flow rate, velocity and energy of storm water discharges,
following construction of large amounts of impervious surfaces, must be
taken into consideration in order to reduce the discharge of
pollutants, to meet water quality standards and to prevent degradation
of receiving streams. EPA recommends that dischargers consider these
factors when making modifications to their site in order to qualify for
the ``no exposure'' exclusion.
2. Today's Rule
In order to claim relief under the ``no exposure'' provision, the
discharger of an otherwise regulated facility must submit a no exposure
certification that incorporates the questions of Sec. 122.26(g)(4)(iii)
to the NPDES permitting authority once every 5 years. This provision
applies across all categories of industrial activity covered by the
existing program, except discharges from construction activities.
In addition to submitting a ``no exposure'' certification every 5
years, the facility must allow the NPDES permitting authority or
operator of an MS4 (where there is a storm water discharge to the MS4)
to inspect the facility and to make such inspection reports publicly
available upon request. Also, upon request, the facility must submit a
copy of the ``no exposure'' certification to the operator of the MS4
into which the facility discharges (if applicable). All ``no exposure''
certifications must be signed in accordance with the signatory
requirements of Sec. 122.22. The ``no exposure'' certification is non-
transferable. In the event that the facility operator changes, the new
discharger must submit a new ``no exposure'' certification.
[[Page 68784]]
Members of the FACA Committee urged that EPA not allow dischargers
certifying ``no exposure'' to take actions to qualify for this
provision that result in a net environmental detriment. In developing a
regulatory implementation mechanism, however, EPA found that the phrase
``no net environmental detriment,'' was too imprecise to use within
this context. Therefore, today's rule addresses this issue by requiring
information that should help the permitting authority to determine
whether actions taken to qualify for the exclusion interfere with the
attainment or maintenance of water quality standards, including
designated uses. Permitting authorities will be able, where necessary,
to make a determination by evaluating the activities that changed at
the industrial site to achieve ``no exposure'', and assess whether
these changes cause an adverse impact on, or have the reasonable
potential to cause an instream excursion of, water quality standards,
including designated uses. EPA anticipates that many efforts to achieve
``no exposure'' will employ simple good housekeeping and contaminant
cleanup activities. Other efforts may involve moving materials and
industrial activities indoors into existing buildings or structures.
In very limited cases, industrial operators may make major changes
at a site to achieve ``no exposure''. These efforts may include
constructing a new building or cover to eliminate exposure or
constructing structures to prevent run-on and storm water contact with
industrial materials or activities. Where major changes to achieve ``no
exposure'' increase the impervious area of the site, the facility
operator must provide this information on the ``no exposure''
certification form as discussed above. Using this and other available
data and information, permitting authorities should be able to assess
whether any major change has resulted in increased pollutant
concentrations or loadings, toxicity of the storm water runoff, or a
change in natural hydrological patterns that would interfere with the
attainment and maintenance of water quality standards, including
designated uses or appropriate narrative, chemical, biological, or
habitat criteria where such State or Tribal water quality standards
exist. In these instances, the facility operator and their NPDES
permitting authority should take appropriate actions to ensure that
attainment or maintenance of water quality standards can be achieved.
The NPDES permitting authority should decide if the facility must
obtain coverage under an individual or general permit to ensure that
appropriate actions are taken to address adverse water quality impacts.
While the intent of today's ``no exposure'' provision is to reduce
the regulatory burdens on industrial facilities and government
agencies, the FACA Committee suggested that the NPDES permitting
authority consider a compliance assessment program to ensure that
facilities that have availed themselves of this ``no exposure'' option
meet the applicable requirements. Inspections could be conducted at the
discretion of the NPDES authority and be coordinated with other
facility inspections. EPA expects, however, that the permitting
authority will conduct inspections when it becomes aware of potential
water quality impacts possibly caused by the facility's storm water
discharges or when requested to do so by adversely affected members of
the public. The intent of this provision is that the 5 year ``no
exposure'' certification be fully available to, and enforceable by,
appropriate federal and State authorities under the CWA. Private
citizens can enforce against facilities for discharges of storm water
that are inconsistent with a ``no exposure'' certification if storm
water discharges from such facilities are not otherwise permitted and
in compliance with applicable requirements.
EPA received comments from owners, operators and representatives of
Phase I facilities classified as ``light industry'' as defined by the
regulations at Sec. 122.26(b)(14)(xi). The comments recommended
maintaining the approach of the existing regulations which does not
require the discharger to submit any supporting documentation to the
permitting authority in order to claim the ``no exposure'' exclusion
from permitting. As discussed previously, the ``no exposure'' concept
was developed in response to the Ninth Circuit court's remand of part
of the existing rules back to EPA. The court found that EPA cannot rely
on the ``unverified judgment'' of the facility. The comments opposing
documentation did not address the ``unverified judgment'' concern.
Today's rule is a ``conditional'' exclusion from permitting which
requires all categories, including the ``light industrial'' facilities
that have no exposure of materials to storm water, to submit a
certification to the permitting authority. Upon receipt of a complete
certification, the permitting authority can review the information, or
call, or inspect the facility if there are doubts about the facility's
``no exposure'' claim. Also, if the facility discharges into an MS4,
the operator of the MS4 can request a copy of the certification, and
can inspect the facility. The public can request a copy of the
certification and/or inspection reports. In adopting these conditional
``no exposure'' provisions, the Agency addressed the Ninth Circuit
court's ruling regarding the discharger's unverified judgment.
EPA received one comment requesting clarification on whether the
anti-backsliding provisions in the regulations at Sec. 122.44(l) apply
to industrial facilities that are currently covered under an NPDES
storm water permit, and whether such facilities could qualify for the
``no exposure'' exclusion under today's rule. The anti-backsliding
provisions will not prevent most industrial facilities that can certify
``no exposure'' under today's rule from qualifying for an exclusion
from permitting. The anti-backsliding provisions contain 5 exceptions
that allow permits to be renewed, reissued or modified with less
stringent conditions. One exception at Sec. 122.44(l)(2)(A) allows less
stringent conditions if ``material and substantial alterations or
additions to the permitted facility occurred after permit issuance
which justify the application of a less stringent effluent
limitation.'' Section 122.44(l)(B)(1) also allows less stringent
requirements if ``information is available which was not available at
the time of permit issuance and which would have justified the
application of less stringent effluent limitations at the time of
permit issuance.'' Facility's operators who certify ``no exposure'' and
submit the required information once every 5 years will have provided
the permitting authority ``information that was not available at the
time of permit issuance.'' Also, some facilities may, in order to
achieve ``no exposure'', make ``material and substantial alterations or
additions to the permitted facility.'' Therefore, most facilities
covered under existing NPDES general permits for storm water (e.g.,
EPA's Multi-Sector General Permit) will be eligible for the conditional
``no exposure'' exclusion from permitting without concern about the
anti-backsliding provisions. Such dischargers will have met one or both
of the anti-backsliding exceptions detailed above. Facilities that are
covered under individual permits containing numeric limitations for
storm water should consult with their permitting authority to determine
whether the anti-backsliding provisions will prevent them from
qualifying for the exclusion from permitting (for that discharge point)
based on a certification of ``no exposure''.
[[Page 68785]]
EPA received several comments regarding the timing of when the ``no
exposure'' certification should be submitted. The proposed rule said
that the ``no exposure'' certification notice must be submitted ``at
the beginning of each permit term or prior to commencing discharges
during a permit term.'' Some commenters interpreted this statement to
mean that existing facilities can only submit the certification at the
time a permit is being issued or renewed. EPA intended the phrase ``at
the beginning of each permit term'' to mean ``once every 5 years'' and
today's rule reflects this clarification. EPA envisions that the NPDES
storm water program will be implemented primarily through general
permits which are issued for a 5 year term. Likewise the ``no
exposure'' certification term is 5 years. The NPDES permitting
authority will maintain a simple registration list that should impose
only a minor administrative burden on the permitting authority. The
registration list will allow for tracking of industrial facilities
claiming the exclusion. This change allows a facility to submit a ``no
exposure'' certification at any time during the term of the permit,
provided that a new certification is submitted every 5 years from the
time it is first submitted (assuming that the facility maintains a ``no
exposure'' status). Once a discharger has established that the facility
meets the definition of ``no exposure'', and submits the necessary ``no
exposure'' certification, the discharger must maintain their ``no
exposure'' status. Failure to maintain ``no exposure'' at their
facility could result in the unauthorized discharge of pollutants to
waters of the United States and enforcement for violation of the CWA.
Where a discharger believes that exposure could occur in the future due
to some anticipated change at the facility, the discharger should
submit an application and obtain coverage under an NPDES permit prior
to such discharge to avoid penalties.
Where EPA is the permitting authority, dischargers may submit a
``no exposure'' certification at any time after the effective date of
today's rule. Where EPA is not the permitting authority, dischargers
may not be able to submit the certification until the non-federal
permitting authority completes any necessary statutory or regulatory
changes to adopt this ``no exposure'' provision. EPA recommends that
the discharger contact the permitting authority for guidance on when
the ``no exposure'' certification should be submitted.
EPA received comments on the proposed rule requirement that the
discharger ``must comply immediately with all the requirements of the
storm water program including applying for and obtaining coverage under
an NPDES permit,'' if changes occur at the facility which cause
exposure of industrial activities or materials to storm water. The
comments expressed the difficultly of immediate compliance. EPA expects
that most facility changes can be anticipated, therefore dischargers
should apply for and obtain NPDES permit coverage in advance of changes
that result in exposure to industrial activities or materials.
Permitting authorities may grant additional time, on a case-by-case
basis, for preparation and implementation of a storm water pollution
prevention plan.
Finally, today's rule at Sec. 122.26(g)(4) includes the information
which must be included on the ``no exposure'' certification. Authorized
States, Tribes or U.S. Territories may develop their own form which
includes this required information, at a minimum. EPA adopted the
requirements (with modification) from the draft ``No Exposure
Certification Form'' published as an appendix to the proposed rule.
Modifications were made to the draft form to address comments received
and to streamline the required information. EPA included these
certification requirements in today's rule in order to preserve its
integrity. Dischargers in areas where EPA is the permitting authority
should use the ``No Exposure Certification'' form included in Appendix
4.
3. Definition of ``No Exposure''
For purposes of this section, ``no exposure'' means that all
industrial materials or activities are protected by a storm resistant
shelter to prevent exposure to rain, snow, snowmelt, and/or runoff.
Industrial materials or activities include, but are not limited to,
material handling equipment or activities, industrial machinery, raw
materials, intermediate products, by-products, final products, or waste
products. Material handling activities include the storage, loading and
unloading, transportation, or conveyance of any raw material,
intermediate product, final product or waste product. However, storm
resistant shelter is not required for: (1) Drums, barrels, tanks, and
similar containers that are tightly sealed, provided those containers
are not deteriorated and do not leak; (2) adequately maintained
vehicles used in material handling; and (3) final products, other than
products that would be mobilized in storm water discharge (e.g., rock
salt). Each of these three exceptions to the no exposure definition are
discussed in more detail below.
EPA intends the term ``storm resistant shelter'' to include
completely roofed and walled buildings or structures, as well as
structures with only a top cover but no side coverings, provided
material under the structure is not otherwise subject to any run-on and
subsequent runoff of storm water. While the Agency intends that this
provision promote permanent ``no exposure'', EPA understands that
certain vehicles could pass between buildings and, during passage, be
exposed to rain and snow. Adequately maintained vehicles such as
trucks, automobiles, forklifts, or other such general purpose vehicles
at the industrial site that are not industrial machinery, and that are
not leaking contaminants or are not otherwise a source of industrial
pollutants, could be exposed to precipitation or runoff. Such
activities alone does not prevent a discharger from being able to
certify no exposure under this provision. Similarly, trucks or other
vehicles awaiting maintenance at vehicle maintenance facilities, as
defined at Sec. 122.26(b)(14)(viii), that are not leaking contaminants
or are not otherwise a source of industrial pollutants, are not
considered exposed.
In addition, EPA recognizes that there are circumstances where
permanent ``no exposure'' of industrial activities or materials is not
possible. Under such conditions, materials and activities may be
sheltered with temporary covers, such as tarps, between periods of
permanent enclosure. The final rule does not specify every such
situation. EPA intends that permitting authorities will address this
issue on a case-by-case basis. Permitting authorities can determine the
circumstances under which temporary structures will or will not meet
the requirements of this section. Until permitting authorities
specifically determine otherwise, EPA recommends application of the
``no exposure'' exclusion for temporary sheltering of industrial
materials or activities only during facility renovation or
construction, provided that the temporary shelter achieves the intent
of this section. Moreover, ``exposure'' that results from a leak in
protective covering would only be considered ``exposure'' if not
corrected prior to the next storm water discharge event. EPA received
one comment requesting that this allowance for temporary shelter be
limited to facility renovation or construction directly related to the
industrial activity requiring temporary shelter, and be scheduled to
minimize the use of temporary shelter. Another comment suggested
placing time limits
[[Page 68786]]
on the use of temporary shelter. The commenter did not recommend a
specific time period, rather the comment said that renovation in some
instances may take years, and that EPA should not allow temporary
shelter over prolonged periods. EPA agrees that the use of temporary
shelter must be related to the renovation or construction at the site,
and be scheduled or designed to minimize the use of temporary shelter.
Further, EPA agrees that the use of temporary shelter should be limited
in duration, but does not intend to define ``temporary'' or ``prolonged
period''.
Many final products are intended for outdoor use and pose little
risk of storm water contamination, such as new cars. Therefore, final
products, except those that can be mobilized in storm water discharge,
can be ``exposed'' and still allow the discharge to certify ``no
exposure''. EPA intends the term ``final products'' to mean those
products that are not used in producing another product. Any product
that can be used to make another product is considered an
``intermediate product.'' For example, a facility that makes horse
trailers can store the finished trailers outdoors as a final product.
The storage of those final products does not prevent eligibility to
claim ``no exposure''. However, any facility that makes parts for the
horse trailers (e.g., metal tubing, sheet metal, paint) is not eligible
for the ``no exposure'' exclusion from permitting if those
``intermediate products'' are stored outdoors (i.e., ``exposed'').
EPA received comments related to materials in drums, barrels, tanks
and similar containers. Some comments objected to the language in the
preamble to the proposed rule that would have recommended that the
``exposure'' determination for drums and barrels be based on the
``potential to leak.'' Those comments said that all drums and barrels
have the potential to leak, thereby making certification impossible.
They recommended allowing outdoor storage of drums and barrels except
for those that ``are leaking'' at the time of certification. Other
comments suggested allowing drums and barrels to be stored outside only
if the drums and barrels: are empty; have secondary containment; or
there is a spill contingency plan in place. Opposing comments suggested
that allowing outdoor exposure of drums and barrels, based on existing
integrity and condition, is inconsistent with the ``however packaged''
proposed rule language, and also would not satisfy the Ninth Circuit
remand. The comments point out that the former rule was invalidated by
the court in part because it relied on the ``unverified judgment'' of
the light industrial facility operator to determine the non-
applicability of the permit requirements, and that allowing the
facility operator to determine the condition of their drums and barrels
would result in the same flaw.
In response, EPA believes that drums and barrels that are stored
outdoors pose little risk of storm water contamination unless they are
open, deteriorated or leaking. The Agency has modified today's rule
accordingly. EPA intends the term ``open'' to mean any container that
is not tightly sealed and ``sealed'' to mean banded or otherwise
secured and without operational taps or valves. Drums, barrels, tanks,
and similar containers may only be stored outdoors under this
conditional exclusion. The addition of material to or withdrawing of
material from these containers while outside is deemed ``exposure''.
Moving the containers while outside does not create ``exposure''
provided that the containers are not open, deteriorated or leaking. In
order to complete the ``no exposure'' certification, a facility
operator must inspect all drums, barrels, tanks or other containers
stored outside to ensure that they are not open, deteriorated, or
leaking. EPA recommends that the discharger designate someone at the
facility to conduct frequent inspections to verify that the drums,
barrels, tanks or other containers remain in a condition such that they
are not open, deteriorated or leaking. Drums, barrels, tanks or other
containers stored outside that have valves which are used to put
material in or take material out of the container, and that have
dripped or may drip, are considered to be ``leaking'' and must be under
a storm resistant shelter in order to qualify for the no exposure
exclusion. Likewise, leaking pipes containing contaminants exposed to
storm water are deemed ``exposed.'' If at any time drums, barrels,
tanks or similar containers are opened, deteriorated or leaking, the
discharger should take immediate actions to close or replace the
container. Any resulting unpermitted discharge would violate the CWA.
The Director, the operator of the MS4, or the municipality may inspect
the facility to verify that all of the applicable areas meet the ``no
exposure'' conditions as specified in the rule language. In requiring
submission of the conditional ``no exposure'' certification and
allowing the permitting authority and the operator of the MS4 to
inspect the facility, today's rule does not rely on the unverified
judgment of the facility to determine that the no exposure provision is
being met.
EPA received several comments related to trash dumpsters that are
located outside. The preamble to the proposed rule listed dumpsters in
the same grouping as drums and barrels, which based exposure on the
``potential to leak''. Today's rule distinguishes between dumpsters and
drums/barrels. In the Phase I Question and Answer document (volume 1,
question 52) the Agency noted that a covered dumpster containing waste
material that is kept outside is not considered ``exposed'' as long as
``the container is completely covered and nothing can drain out holes
in the bottom, or is lost in loading onto a garbage truck.'' EPA
affirms this approach today. Industrial refuse and industrial trash
that is left uncovered is deemed ``exposed.''
For purposes of this provision, particulate matter emissions from
roof stacks/vents that are regulated and in compliance under other
environmental protection programs, such as air quality control
programs, and that do not cause storm water contamination, are
considered ``not exposed.'' EPA received comments on the phrase in the
draft ``no exposure'' certification form that asked whether
``particulate emissions from roof stacks/vents not otherwise regulated,
and in quantities detectable in the storm water outflow,'' are exposed
to precipitation. One comment expressed concern that the phrase ``in
quantities detectable in the storm water outflow'' implies that the
facility must conduct monitoring prior to completing the checklist, and
must continue to monitor after receiving the no exposure exclusion, in
order to be able to verify compliance with the no exposure provision.
Another comment said that current measurement technology allows
detection of pollutants at levels that may not cause environmental
harm. EPA does not intend to require monitoring of runoff from
facilities with roof stacks/vents prior to or after completing and
submitting the no exposure certification. EPA has thus replaced the
phrase ``in quantities detectable'' with ``evident'' to convey the
message that emissions from some roof stacks/vents have the potential
to contaminate storm water discharges in quantities that are considered
significant or that cause or contribute to a water quality standards
violation. In those instances where the permitting authority determines
that particulate emissions from facility roof stacks/vents are a
significant contributor of pollutants or contributing to water quality
violations, the permitting authority may require the discharger to
apply for and obtain coverage under a
[[Page 68787]]
permit. Visible deposits of residuals (e.g., particulate matter) near
roof or side vents are considered ``exposed''. Likewise, visible
``track out'' (i.e., pollutants carried on the tires of vehicles) or
windblown raw materials are deemed ``exposed.''
EPA received a comment requesting an allowance under the ``no
exposure'' provision for industrial facilities with several outfalls at
a site where some, but not all of the outfalls drain non-exposed areas.
The commenter provided an example of an industrial facility that has 5
outfalls draining different areas of the site, where two of those
outfalls drain areas where industrial activities or materials are not
exposed to storm water. The comment requested that the facility in this
example be allowed to submit a ``no exposure'' certification in order
to be relieved of permitting obligations for discharges from those two
outfalls.
EPA agrees, but the comment would be implemented on an outfall-by-
outfall basis in the permitting process, not through the ``no
exposure'' exclusion. The ``no exposure'' provision was developed to
allow exclusion from permitting of discharges from entire industrial
facilities (except construction), based on a claim of ``no exposure''
for all areas of the facility where industrial materials or activities
occur. Where exposure to industrial materials or activities exist at
some but not all areas of the facility, the ``no exposure'' exclusion
from permitting is not allowed because permit coverage is still
required for storm water discharges from the exposed areas. Relief from
permit requirements for outfalls draining non-exposed areas should be
addressed through the permit process, in coordination with the
permitting authority. Most NPDES general permits for storm water
discharge provide enough flexibility to allow minimal or no
requirements for non-exposed areas at industrial facilities. If the
permitting authority determines that additional flexibility is needed
for this scenario, the permits could be modified as necessary.
K. Public Involvement/Public Role
The Phase II FACA Subcommittee discussed the appropriate role of
the public in successful implementation of a municipal storm water
program. EPA believes that an educated and actively involved public is
essential to a successful municipal storm water program. An educated
public increases program compliance from residents and businesses as
they realize their individual and collective responsibility for
protecting water resources (e.g., the residents and businesses could be
subject to a local ordinance that prohibits dumping used oil down storm
sewers). Finally, the program is also more likely to receive public
support and participation when the public is actively involved from the
program's inception and allowed to participate in the decision making
process.
In a time of limited staff and financial resources, public
volunteers offer diverse backgrounds and expertise that may be used to
plan, develop, and implement a program that is tailored to local needs
(e.g., participate in public meetings and other opportunities for
input, perform lawful volunteer monitoring, assist in program
coordination with other preexisting and related programs, aid in the
development and distribution of educational materials, and provide
public training activities). The public's participation is also useful
in the areas of information dissemination/education and reporting of
violators, where large numbers of community members can be more
effective than a few regulators.
The public can also petition the NPDES permitting authority to
require an NPDES permit for a discharge composed entirely of storm
water that contributes to a violation of a water quality standard or is
a significant contributor of pollutants to waters of the United States.
In evaluating such a petition, the NPDES permitting authority is
encouraged to consider the set of designation criteria developed for
the evaluation of small MS4s located outside of an urbanized area in
places with a population of at least 10,000 and a population density of
1,000 or more. Furthermore, any person can protect water bodies by
taking civil action under section 505 of the CWA against any person who
is alleged to be in violation of an effluent standard or permit
condition. If civil action is taken, EPA encourages citizen plaintiffs
to resolve any disagreements or concerns directly with the parties
involved, either informally or through any available alternative
dispute resolution process.
EPA recognizes that public involvement and participation pose
challenges. It requires a substantial initial investment of staff and
financial resources, which could be very limited. Even with this
investment, the public might not be interested in participating. In
addition, public participation could slow down the decision making
process. However, the benefits are numerous.
EPA encourages members of the public to contact the NPDES
permitting authority or local MS4s operator for information on the
municipal storm water program and ways to participate. Such information
may also be available from local environmental, nonprofit and industry
groups.
Some commenters stressed the need to suggest to the public that
they have a responsibility to fund the municipal storm water program.
While EPA believes it is important that the program be adequately
funded, today's rule does not address appropriate mechanisms or levels
for such funding.
EPA received comments expressing concern that considerable public
involvement requirements could result in increased litigation. EPA is
not convinced there is a correlation between meaningful public
education programs and any increased probability of litigation.
Finally, EPA received comments stating that the Agency should not
en courage volunteer monitoring unless proper procedures are followed.
EPA agrees. EPA encourages only lawful monitoring, i.e., obtaining the
necessary approval if there is any question about lawful access to
sites. Moreover, as a matter of good practice and to enhance the
validity and usefulness of the results, any party, public or private,
conducting water quality monitoring is encouraged to use appropriate
quality control procedures and approved sampling and analytic methods.
L. Water Quality Issues
1. Water Quality Based Effluent Limits
In addition to technology based requirements, all point source
discharges of industrial storm water are subject to more stringent
NPDES permitting requirements when necessary to meet water quality
standards. CWA sections 402(p)(3)(A) and 301(b)(1)(C). For municipal
separate storm sewers, EPA or the State may determine that other permit
provisions (e.g. one of the minimum measures) are appropriate to
protect water quality and, for discharges to impaired waters, to
achieve reasonable further progress toward attainment of water quality
standards pending implementation of a TMDL. CWA section
402(p)(3)(B)(iii). See Defenders of Wildlife, et al. Browner, No. 98-
71080 (9th cir., August 11, 1999). Discharges of storm water also must
comply with applicable antidegradation policies and implementation
methods to maintain and protect water quality. 40 CFR 131.12. Section
122.34(a) emphasizes this point by specifically noting that a storm
water management program designed to reduce the discharge of pollutants
from the storm sewer system ``to the maximum extent practicable'' is
also designed to protect water quality.
[[Page 68788]]
Permits issued to non-municipal sources of storm water must include
water quality-based effluent limits where necessary to meet water
quality standards.
Commenters challenged EPA's interpretation of the CWA as requiring
water quality-based effluent limits for MS4s when necessary to protect
water quality. Commenters asserted that CWA 402(p)(3)(B), which
addresses permit requirements for municipal discharges, limits the
scope of municipal program requirements to an effective prohibition on
non-storm water discharges to a separate storm sewer and to controls
which reduce pollutants to the ``maximum extent practicable, including
management practices, control techniques and system design and
engineering methods.'' They asserted that the final rule should clarify
that neither numeric nor narrative water quality-based limits are
appropriate or authorized for MS4s.
EPA disagrees that section 402(p)(3) divests permitting authorities
of the tools necessary to issue permits to meet water quality
standards. Section 402(p)(3)(B)(iii) specifically preserves the
authority for EPA or the State to include other provisions determined
appropriate to reduce pollutants in order to protect water quality.
Defenders of Wildlife, slip op. at 11688. Small MS4s regulated under
today's rule are designated under CWA 402(p)(6) ``to protect water
quality.''
Commenters argued that water quality standards, particularly
numeric criteria, were not designed to address storm water discharges.
The episodic nature and magnitude of storm water events, they argue,
make it impossible to apply the ``end of pipe'' compliance assessment
approach, for example, in the development of water quality based
effluent limits.
EPA's disagrees with the commenters arguments about the inability
of water quality criteria to address high flow conditions. Today's
final rule does, however, address the concern that numeric effluent
limits will necessitate end of pipe treatment and the need to provide a
workable alternative.
Today's rule was developed under the approach outlined in the
Interim Permitting Policy for Water Quality-Based Effluent Limitations
in Storm Water Permits, issued on August 1, 1996. 61 FR 43761 (November
26, 1996) (the ``Interim Permitting Policy''). EPA intends to issue
NPDES permits consistent with the Interim Permitting Policy, which
provides as follows:
In response to recent questions regarding the type of water
quality-based effluent limitations that are most appropriate for NPDES
storm water permits, EPA is adopting an interim permitting approach for
regulating wet weather storm water discharges. Due to the nature of
storm water discharges, and the typical lack of information on which to
base numeric water quality-based effluent limitations (expressed as
concentration and mass), EPA will use an interim permitting approach
for NPDES storm water permits.
``The interim permitting approach uses best management practices
(BMPs) in first-round storm water permits, and expanded or better-
tailored BMPs in subsequent permits, where necessary, to provide for
the attainment of water quality standards. In cases where adequate
information exists to develop more specific conditions or limitations
to meet water quality standards, these conditions or limitations are to
be incorporated into storm water permits, as necessary and appropriate.
This interim permitting approach is not intended to affect those storm
water permits that already include appropriately derived numeric water
quality-based effluent limitations. Since the interim permitting
approach only addresses water quality-based effluent limitations, it
also does not affect technology-based effluent limitations, such as
those based on effluent limitations guidelines or developed using best
professional judgment, that are incorporated into storm water permits.
``Each storm water permit should include a coordinated and cost-
effective monitoring program to gather necessary information to
determine the extent to which the permit provides for attainment of
applicable water quality standards and to determine the appropriate
conditions or limitations of subsequent permits. Such a monitoring
program may include ambient monitoring, receiving water assessment,
discharge monitoring (as needed), or a combination of monitoring
procedures designed to gather necessary information.
``This interim permitting approach applies only to EPA; however,
EPA also encourages authorized States and Tribes to adopt similar
policies for storm water permits. This interim permitting approach
provides time, where necessary, to more fully assess the range of
issues and possible options for the control of storm water discharges
for the protection of water quality. This interim permitting approach
may be modified as a result of the ongoing Urban Wet Weather Flows
Federal Advisory Committee policy dialogue on this subject.''
One commenter challenged the Interim Permitting Policy on a
procedural basis, arguing that it was published without opportunity for
public notice and comment. In response, EPA notes that the Policy was
included verbatim and made available for public comment in the proposal
to today's final rule. Prior to that proposal, the Agency defended the
application of the Policy on a case-by-case basis in individual permit
proceedings. Moreover, the essential elements of the Policy--that
narrative effluent limitations are the most appropriate form of
effluent limitations for storm water dischargers from municipal
sources--was inherent in Sec. 122.34(a) of the proposed rule, and was
the subject of extensive public comment. In any event, the Policy does
not constitute a binding obligation. It is policy, not regulation.
Consistent with the recognition of data needs underlying the
Policy, EPA will evaluate the small MS4 storm water regulations after
the second round of permit issuance. Section 122.34(e)(2) of today's
rule expressly provides that for the interim ten-year period, ``EPA
strongly recommends that until the evaluation of the storm water
program in Sec. 122.37, no additional requirements beyond the minimum
control measures be imposed on regulated small MS4s without the
agreement of the operator of the affected small MS4, except where an
approved TMDL or equivalent analysis provides adequate information to
develop more specific measures to protect water quality.'' This
approach addresses the concern for protecting water resources from the
threat posed by storm water discharges with the important qualification
that there must be adequate information on the watershed or a specific
site as a basis for requiring tailored storm water controls beyond the
minimum control measures. As indicated, the Interim Permitting Policy
has several important limitations--it does not apply to technology-
based controls or to sources that already have numeric end of pipe
effluent limitations. EPA encourages authorized States and Tribes to
adopt policies similar to the Interim Permitting Policy when developing
storm water discharge programs. For a discussion of appropriate
monitoring activities, see Section H.3.d., Evaluation and Assessment.
Where a water quality analysis indicates there is a need and basis
for deriving water quality-based effluent limits in NPDES permits for
storm water discharges regulated under today's rule, EPA believes that
most of these cases would be satisfied by narrative effluent
[[Page 68789]]
limitations that require the implementation of BMPs. NPDES permit
limits will in most cases continue to be based on the specific approach
outlined in today's rule for the implementation of BMPs as the most
appropriate form of effluent limitation to satisfy technology and water
quality-based requirements. See Sec. 122.34(a). For storm water
management plans with existing BMPs, this may require further tailoring
of BMPs to address the pollutant(s) of concern, the nature of the
discharge and the receiving water. If the permitting authority
determines that, through implementation of appropriate BMPs required by
the NPDES storm water permit, the discharge has the necessary controls
to provide for attainment of water quality standards, additional
controls are not needed in the permit. Conversely, if a discharger
(MS4, industrial or construction) fails to adopt and implement adequate
BMPs, the permittee and/or the permitting authority should consider a
different mix of BMPs or more specific conditions to ensure water
quality protection.
Some commenters observed that there was no evidence from the
experience of storm water dischargers regulated under the existing
NPDES storm water program, or from studies or reports that allegedly
support EPA's position, that implementation of BMPs to satisfy the six
minimum control measures would meet applicable water quality standards
for a regulated small MS4. In response, EPA acknowledges that the six
minimum measures are intended to implement the statutory requirement to
control discharges to the maximum extent practicable, and they may not
result in the attainment of water quality standards in all cases. The
control measures do, however, focus on and address well-documented
threats to water quality associated with storm water discharges. Based
on the collective expertise of the FACA Sub-committee, EPA believes
that implementation of the six minimum measures will, for most
regulated small MS4s, be adequate to protect water quality, and for
other regulated small MS4s will substantially reduce the adverse
impacts of their discharges on water quality.
Some commenters asserted that analyses of existing water quality
criteria suggest that numeric criteria for aquatic life may be
overprotective if applied to storm water discharges. These comments
maintained that an approach that prohibits exceedance of applicable
water quality criteria is unworkable. Various commenters recommended
wet weather specific criteria, variances to the criteria during wet
weather events, and seasonal designated uses. Other commenters noted
that water quality-based effluent limits in NPDES permits have
traditionally been developed based on dry weather flow conditions
(e.g., assuming critical low-flow conditions in the receiving water to
ensure protection of aquatic life and human health). Wet weather
discharges, however, typically occur under high-flow conditions in the
receiving water. Assumptions regarding mass balance equations and size
of mixing zones may also not be pertinent during wet weather.
EPA acknowledges the need to devise a regulatory program that is
both flexible enough to accommodate the episodic nature, variability
and volume of wet weather discharges and prescriptive enough to ensure
protection of the water resource. EPA believes that wet weather
discharges can be adequately addressed in the existing regulations
through refining designated uses and assigning criteria that are
tailored to the level of water quality protection described by the
refined designated use.
EPA believes that lack of precision in assigning designated uses
and corresponding criteria by States and Tribes, in many cases may
result in application of water quality criteria that may not
appropriately match the intended condition of the water body. States
and Tribes have frequently designated uses without regard to site-
specific wet weather conditions. Because certain uses (swimming, for
example) might not exist during high-intensity storm events or in the
winter, States may factor such climatic conditions and seasonal uses
into their use designations with appropriate analyses. This would
acknowledge that a lower level of control, at lower compliance cost,
would be appropriate to protect that use. Before modifying any
designated use, however, States would need to evaluate the effect of
less stringent water quality criteria on protecting other uses,
including any threatened or endangered species, drinking water supplies
and downstream uses. EPA will further evaluate these issues in the
context of the Water Quality Standards Regulation, Advance Notice of
Proposed Rule Making (ANPRM), 63 FR, 36742, July 7, 1998.
One of the major themes presented by EPA in the ANPRM is that
refinement in use designations and tailoring of water quality criteria
to match refined use designations is an important future direction of
the water quality standards program. In assigning criteria to protect
general use classifications, a State or Tribe must ensure that the
criteria are sufficiently protective to safeguard the full range of
waters of the State, i.e., criteria would be based on the most
sensitive use. This approach has been disputed, especially for aquatic
life uses, where evidence suggests that the general use criteria will
require controls more stringent than needed to protect the existing or
potential aquatic life community for a specific water body. EPA
recognizes that there is a growing need to more precisely tailor use
descriptions and criteria to match site-specific conditions, ensuring
that uses and criteria provide an appropriate level of protection,
which, to the extent possible, are not overprotective. EPA is engaged
in an ongoing evaluation of its regulations in this area through the
ANPRM effort. At the same time, EPA continues to encourage States and
Tribes to review the applicability of the designated uses and
associated criteria using existing provisions in the water quality
standards regulation.
2. Total Maximum Daily Loads and Analysis To Determine the Need for
Water Quality-Based Limitations
The development and implementation of total maximum daily loads
(TMDLs) provide a link between water quality standards and effluent
limitations. CWA section 303(d) requires States to develop TMDLs to
provide more stringent water quality-based controls when technology-
based controls are inadequate to achieve applicable water quality
standards. A TMDL is the sum of the individual wasteload allocations
for point sources and load allocations for nonpoint sources, with
consideration for natural background conditions. A TMDL quantifies the
maximum allowable loading of a pollutant to a water body and allocates
this maximum load to contributing point and nonpoint sources so that
water quality criteria will not be exceeded and designated uses will be
protected. A TMDL also includes a margin of safety to account for
uncertainty about the relationship between pollutant loads and water
quality.
Today's final rule refers to TMDLs in several provisions. For the
purpose of today's rule, EPA relies on the component of the TMDL that
evaluates existing conditions and allocates loads. For discharges to
waters that are not impaired and for which a TMDL has not been
developed, today's rule also refers to an ``equivalent analysis.'' The
discussion that follows uses the term ``TMDL'' for both.
Under revised Sec. 122.26(a)(9)(i)(C), the permitting authority may
designate
[[Page 68790]]
storm water discharges that require NPDES permits based on TMDLs that
address the pollutants of concern. For storm water discharges
associated with small construction activity, Sec. 122.26(b)(15)(i)(B)
provides a waiver provision where it may be determined that storm water
controls are not needed based on TMDLs that address sediment and any
other pollutants of concern. The NPDES permitting authority may waive
requirements under the program for certain small MS4s within urbanized
areas serving less than 1,000 persons provided that, if the small MS4
discharges any pollutant that has been identified as a cause of
impairment of a water body into which it discharges, the discharge is
in compliance with a wasteload allocation in a TMDL for the pollutant
of concern. The permitting authority may also waive requirements for
MS4s in urbanized areas serving between 1,000 and 10,000 persons, if
the permitting authority determines that storm water controls are not
needed, as provided in Sec. 123.35(d)(2). See Sec. 122.32(c).
Under CWA section 303(d), States identify which of their water
bodies need TMDLs and rank them in order of priority. Generally, once a
TMDL has been completed for one or more pollutants in a water body, a
wasteload allocation for each point source discharging the pollutant(s)
is implemented as an enforceable condition in the NPDES permit.
Regulated small MS4s are essentially like other point source discharges
for purposes of the TMDL process.
A TMDL and the resulting wasteload allocations for pollutant(s) of
concern in a water body may not be available because the water body is
not on the State's 303(d) list, the TMDL has not yet been completed, or
the TMDL did not include specific pollutants of concern. In these
cases, the permitting authority must determine whether point sources
discharge pollutant(s) in amounts that cause, have the reasonable
potential to cause, or contribute to excursions above State water
quality standards, including narrative water quality criteria. This so-
called ``reasonable potential'' analysis is intended to determine
whether and for what pollutants water quality based effluent limits are
required. The analysis is, in effect, a substitute for a similar
determination that would be made as part of a TMDL, where necessary.
When ``reasonable potential'' exists, regulations at Sec. 122.44(d)
require a water quality-based effluent limit for the pollutant(s) of
concern in NPDES permits. The water quality-based effluent limits may
be narrative requirements to implement BMPs or, where necessary, may be
numeric pollutant effluent limitations.
Commenters, generally from the regulated community, objected that,
due to references to the need to develop a program ``to protect water
quality'' and to additional NPDES permit requirements beyond the
minimum control measures based on TMDLs or their equivalent, regulated
small MS4s will be subject to uncertain permit limitations beyond the
six minimum control measures. Commenters also asserted that through the
imposition of a wasteload allocation under a TMDL in impaired water
bodies, there is a likelihood that unattainable, yet enforceable
narrative and numeric standards will be imposed on regulated small
MS4s.
As is discussed in the preceding section, NPDES permits must
include any more stringent limitations when necessary to meet water
quality standards. However, even if a regulated small MS4 is subject to
water quality based effluent limits, such limits may be in the form of
narrative effluent limitations that require the implementation of BMPs.
As discussed earlier, EPA has adopted the Interim Permitting Policy and
incorporated it in the development of today's rule to recognize the
appropriateness of BMP-based limits developed on a case-by-case basis.
EPA formed a Federal Advisory Committee to provide advice to EPA on
identifying water quality-limited water bodies, establishing TMDLs for
them as appropriate, and developing appropriate watershed protection
programs for these impaired waters in accordance with CWA section
303(d). Operating under the auspices of the National Advisory Council
for Environmental Policy and Technology (NACEPT), the committee
produced its Report of the Federal Advisory Committee on the Total
Maximum Daily Load (TMDL) Program (July 1998). EPA recently published a
proposed rule to implement the Report's recommendations (64 FR 46012,
August 23, 1999).
3. Anti-Backsliding
In general, the term ``anti-backsliding'' refers to statutory
provisions at CWA sections 303(d)(4) and 402(o) and regulatory
provisions at 40 CFR 122.44(l). These provisions prohibit the renewal,
reissuance, or modification of an existing NPDES permit that contain
effluent limits, permit terms, limitations and conditions, or standards
that are less stringent than those established in the previous permit.
There are also exceptions to this prohibition known as
``antibacksliding exceptions.''
The issue of backsliding from prior permit limits, standards, or
conditions is not expected to initially apply to most storm water
dischargers designated under today's proposal because they generally
have not been previously authorized by an NPDES permit. However, the
backsliding prohibition would apply if a storm water discharge was
previously covered under another NPDES permit. Also, the backsliding
prohibition could apply when an NPDES storm water permit is reissued,
renewed, or modified. In most cases, however, EPA does not believe that
these provisions would restrict revisions to storm water NPDES permits.
One commenter questioned whether, if BMPs implemented by a
regulated small MS4 operator fail to produce results in removal of
pollutants and the permittee attempts to substitute a more effective
BMP, the small MS4 operator could be accused of violating the anti-
backsliding provisions and also be exposed to citizen lawsuits. In
response, EPA notes that in such circumstances the MS4's permit has not
changed and, therefore, the prohibition against backsliding is not
applicable. Further, any change in the mix of BMPs that was intended to
be more effective at controlling pollutants would not be considered
backsliding, even if it did not include all of the previously
implemented BMPs.
4. Water Quality-Based Waivers and Designations
Several sections of today's final rule refer to water quality
standards in identifying those storm water discharges that are and are
not required to be permitted under today's rule. As noted in
Sec. 122.30 of today's rule, CWA section 402(p)(6) requires the
designation of municipal storm water sources that need to be regulated
to protect water quality and the establishment of a comprehensive storm
water program to regulate these sources. Requirements applicable to
certain municipal sources may be waived based on the absence of
demonstrable water quality impacts. Section 122.32(c). The section
402(p)(6) mandate to protect water quality also provides the basis for
regulating discharges associated with small construction. See also
Sec. 122.26(b)(15)(i). Further, today's rule carries forward the
existing authority for the permitting authority to designate sources of
storm water discharges based upon water quality considerations. Section
122.26(a)(9)(i)(C) and (D).
As is discussed above in sections II.H.2.e (for small MS4s) and
II.I.1.b.ii
[[Page 68791]]
(for small construction), the requirements of today's rule may be
waived based on wasteload allocations that are part of ``total maximum
daily loads'' (TMDLs) that address the pollutants of concern or, in the
case of small construction and municipalities serving between 1,000 and
10,000 persons, the equivalents of TMDLs. One commenter stated that
waivers would allow exemptions to the technology based requirements and
would thus be inconsistent with the two-fold approach of the CWA (a
technology based minimum and a water quality based overlay). EPA
acknowledges that waivers are not allowed for other technology-based
requirements under the CWA. A more flexible approach is allowed,
however, for sources designated for regulation under 402(p)(6) to
protect water quality. For such sources EPA may allow a waiver where it
is demonstrated that an individual source does not present the threat
to water quality that was the basis for EPA's designation.
III. Cost-Benefit Analysis
EPA has determined that the range of the rule's benefits exceeds
the range of regulatory costs. The estimated rule costs range from
$847.6 million to $981.3 million annually with corresponding estimated
monetized annual benefits which range from $671.5 million to $1.628
billion, expected to exceed costs.
The rule's cost and benefit estimates are based on an annual
comparison of costs and benefits for a representative year (1998) in
which the rule is implemented. This differs from the approach used for
the proposed rule which projected cost and benefits over three permit
terms. EPA has chosen to use the current approach because it determined
that the ratio of annual benefits and costs would not change
significantly over time. Moreover, because there is not an initial
outlay of capital costs with benefits accruing in the future (i.e.,
benefits and costs are almost immediately at a steady state), it is not
necessary to discount costs in order to account for a time
differential.
EPA developed detailed estimates of the costs and benefits of
complying with each of the incremental requirements imposed by the
rule. The Agency used two approaches, a national water quality model
and national water quality assessment, to estimate the potential
benefits of the rule. Both approaches show that the benefits are likely
to exceed costs.
These estimates, including descriptions of the methodology and
assumptions used, are described in detail in the Economic Analysis of
the Final Phase II Rule, which is included in the record of this rule
making. Exhibit 3 summarizes costs and benefits associated with the
basic elements of today's rule.
Exhibit 3.--Comparison of Annual Compliance Cost and Benefit Estimates
\1\
------------------------------------------------------------------------
National water National water
quality model quality assessment
Monetized benefits (millions of 1998 (millions of 1998
dollars) dollars)
------------------------------------------------------------------------
Municipal Minimum Measures.. .................... $131.0-$410.2
Controls for Construction .................... $540.5-$686.0
Sites.
-------------------------------------------
Total Annual Benefits... $1,628.5............ $671.5-$1,096.2
------------------------------------------------------------------------
Costs Millions of 1998 dollars \2\
------------------------------------------------------------------------
Municipal Minimum Measures... $297.3
Controls/Waivers for $545.0-$678.7
Construction Sites.
Federal/State Administrative $5.3
Costs.
------------------------------------------
Total Annual Costs $847.6-$981.31
------------------------------------------------------------------------
\1\ National level benefits are not inclusive of all categories of
benefits that can be expected to result from the regulation.
\2\ Total may not add due to rounding.
A. Costs
1. Municipal Costs
Initially, to determine municipal costs for the proposed rule, EPA
used anticipated expenditure data included in permit applications from
a sample of 21 Phase I MS4s. Certain commenters criticized the Agency
for using anticipated expenditures because they could be significantly
different from the actual expenditures. These commenters suggested that
the Agency use the actual cost incurred by the Phase I MS4s. Other
comments stated that because the Phase I MS4s, in general, are large
municipalities, they may not be representative of the Phase II MS4s for
estimating regulatory costs. Finally, one commenter noted that the
sample of 21 municipalities used to project cost was relatively small.
To address the concerns of the commenters, EPA utilized a National
Association of Flood and Stormwater Management Agencies (NAFSMA) survey
of the Phase II community to obtain incremental cost estimates for
Phase II municipalities. Using the list of potential Phase II designees
published in the Federal Register (63 FR 1616), NAFSMA contacted more
than 1,600 jurisdictions. The goal of the survey was to solicit
information from those communities about the proposed Phase II NPDES
storm water program. Several of the survey questions corresponded
directly to the minimum measures required by the Phase II rule. One
hundred twenty-one surveys were returned to NAFSMA and were used to
develop municipal costs.
Using the NAFSMA information, EPA estimated average annual per
household program costs for automatically designated municipalities.
EPA also estimated an average annual per household administrative cost
for municipalities to address application, record keeping, and
reporting requirements of the Rule. The total average per household
cost of the rule is expected to $9.16 per household.
To determine potential national level costs for municipalities, EPA
multiplied the number of households (32.5 million) by the per household
cost ($9.16). EPA estimates the annual cost of the Phase II municipal
program at $298 million.
As an alternative method, and point of comparison, to the NAFSMA-
based approach, EPA reviewed actual expenditures reported from 35 Phase
I MS4s. The Agency targeted these 35 Phase I MS4s because they had
participated in the NPDES program for
[[Page 68792]]
nearly one permit term, were smaller in size and had detailed data
reflecting their actual program implementation costs. Of the 35 MS4s,
appropriate cost data was only available for 26 of those MS4s. EPA
analyzed the expenditure data and identified the relevant expenditures,
excluding costs presented in the annual reports unrelated to the
requirements of the Rule. The cost range and annual per household
program costs of $9.08 are similar to those found using the NAFSMA
survey data.
2. Construction Costs
In order to estimate the rule's construction-related cost on a
national level (the soil and erosion controls (SEC) requirements of the
rule and the potential impacts of the post-construction municipal
measure on construction), EPA estimated a per site cost for sites of
one, three, and five acres and multiplied these costs by the total
number of estimated Phase II construction starts across these size
categories.
To estimate the percentage of starts subject to the soil and
erosion control requirements between 1 and 5 acres, with respect to
each category of building permits (residential, commercial, etc.), EPA
initially used data from Prince George's County (PGC), Maryland, and
applied these percentages to national totals. In the proposal, EPA
recognized that the PGC data may not be representative of the entire
country and requested data that could be used to develop better
estimates of the number of construction sites between 1 and 5 acres.
EPA did not receive any substantiated national data from commenters.
In view of the unavailability of national data from commenters, EPA
made extensive efforts to collect construction site data around the
country. The Agency contacted more than 75 municipalities. EPA
determined that 14 of the contacted municipalities had useable
construction site data. Using data from these 14 municipalities, EPA
developed an estimate of the percentage of construction starts on one
to five acres. EPA then multiplied this percentage by the number of
building permits issued nationwide to determine the total number of
construction starts occurring on one to five acres. Finally, to isolate
the number of construction starts incrementally regulated by Phase II,
EPA subtracted the number of activities regulated under equivalent
programs (e.g., areas covered by the Coastal Zone Act Reauthorization
Amendments of 1990, and areas covered by equivalent State level soil
and erosion control requirements). Ultimately, EPA estimated that
110,223 construction starts would be incrementally covered by the rule
annually.
EPA then used standard cost estimates from Building Construction
Cost Data and Site Work Landscape Cost Data (R.S. Means, 1997a and
1997b) to estimate construction BMP costs for 27 model sites in a
variety of typical site conditions across the United States. The model
sites included three different site sizes (one, three and five acres),
three slope variations (3%, 7%, and 12%), and three soil erosivity
conditions (low, medium, and high). EPA chose BMP combinations
appropriate to the model site conditions. Based on the assumption that
any combination of site factors is equally likely to occur in a given
site, EPA developed average cost of sediment and erosion control for
all model sites. EPA estimated that, on average, BMPs for a 1 acre site
will cost $1,206, for a 3 acre site $4,598 and for a 5 acre site
$8,709.
EPA then estimated administrative costs per construction site for
the following elements required under the rule: Submittal of a notice
of intent for permit coverage; notification to municipalities;
development of a storm water pollution prevention plan; record
retention; and submittal of a notice of termination. EPA estimated the
average total administrative cost per site to be $937.
EPA also considered the cost implications of NPDES permit
authorities waiving the applicability of requirements to storm water
discharges from small construction sites based on two different
criteria involving water quality impact and low rainfall. EPA received
comments stating that a waiver would require a significant investment
in training or acquisition of a consultant. Based on comments received,
EPA eliminated one of the waiver conditions involving low soil loss
threshold because it necessitated use of the Revised Universal Soil
Loss Equation which could require extensive technical expertise.
Based on the opinions of construction industry experts, EPA
estimates that 15 percent of the construction sites that would
otherwise be covered by today's rule will be eligible to receive
waivers. Therefore, the Agency has excluded 15 percent of the
construction sites when deriving costs of sediment and erosion control.
The average cost for sites to qualify for the waiver is expected to be
$34 per site. The construction cost analysis for the proposed rule did
not include any costs for the preparation and submission of waiver
applications because EPA believed those costs would be negligible.
However, in response to public comments, EPA has estimated these
potential costs.
EPA has also estimated the potential costs for construction site
operators to implement the post-construction minimum measure. These are
costs that may be incurred by construction site operators if the MS4
chooses to meet the post-construction minimum measure by requiring on-
site structural, site-by-site control of post-construction runoff.
Municipalities may select from an array of structural and non-
structural options in implementing this measure, so the potential costs
to construction operators is uncertain. Nonetheless, EPA developed
average annual BMP costs for sites of one, three, five and seven acres.
EPA's analysis accounted for varying levels of imperviousness that
characterize residential, commercial, and institutional land uses.
Nationwide, these costs are expected to range from $44 million to $178
million annually.
Finally, to establish national incremental annual costs for Phase
II construction starts, EPA multiplied the total costs of compliance
for the chosen site size categories by the total number of Phase II
construction starts and added post-construction costs. EPA estimates
the annual compliance cost to range from $545 million to $678.7
million.
B. Quantitative Benefits
In the Economic Analysis for the proposed rule, a ``top-down''
approach was used to estimate economic benefits. Under this approach,
the combined economic benefits for wet weather programs were estimated
first, and then were divided among various water programs on the basis
of expert opinion. As a result, the benefits estimates for an
individual program were rather uncertain. Moreover, this approach was
inconsistent with the approach used to estimate the cost of the
proposed storm water rule, which was developed using municipal-based
and cost-based data to develop ``bottom-up'' costs. Therefore, EPA
decided to use a ``bottom-up'' approach for estimating benefits of the
Phase II rule. To adequately reflect the quantifiable benefits of the
rule, EPA used two different methods: (1) National Water Quality Model
and (2) National Water Quality Assessment.
To monetize benefits in both approaches, the Agency applied Carson
and Mitchell's (1993) estimates of household willingness-to-pay (WTP)
for water quality improvement to estimates of waters impaired by storm
water discharges. Carson and Mitchell's 1993 study reports the results
of their 1983 national survey of WTP for incremental
[[Page 68793]]
improvements in fresh water quality. Carson and Mitchell estimate the
WTP for three minimum levels of fresh water quality: boatable,
fishable, and sizable. EPA adjusted the WTP amounts to account for
inflation, growth in real per capita income, and increased attitudes
towards pollution control. The adjusted WTP amounts for improvements in
fresh water quality are $210 for boatable, $158 for fishable, and $177
for sizable. A brief summary of the national water quality model and
national water quality assessment approaches follow.
1. National Water Quality Model
One approach EPA used to estimate the benefits of the Phase II
municipal and construction site controls was the National Water
Pollution Control Assessment Model (NWPCAM). NWPCAM estimates benefits
of the storm water program at the national level, including the impact
on small streams. This model estimates water quality and the resultant
use support for the 632,000 miles of rivers and streams in the USEPA
Reach File Version 1 (RF1), which covers the continental United States.
The model analyzes water quality changes by stream reach. The
parameters modeled in the NWPCAM are biological oxygen demand (BOD),
total suspended solids (TSS), dissolved oxygen (DO), and fecal
coliforms (FC).
The model projects changes in water quality due to the Phase II
municipal and construction site controls. To calculate the economic
benefits of change in water quality, the number of households in the
proximity of the stream reach are determined, by overlaying the model
results on the 1990 Census of Populated Places and Minor Civil
Divisions, and updating the population to 1998. Economic benefits are
calculated using the Carson and Mitchell WTP values. The benefits are
separately estimated for local and non-local waters on the basis of WTP
values and proximity to water quality changes.
The value of the change in use support for local waters is greater
than the value of the non-local waters because of the opportunity to
use local waters by the local population. This model assumes that if
improvement occurs in waters that are not close to population centers
the economic value is lower. Therefore, benefits are estimated for
local and non-local waters separately. This assumption is based on
Carson and Mitchell's survey which asked respondents to apportion each
of their stated WTP values between achieving the water quality goals in
their own State and achieving those goals in the nation as a whole. On
average, respondents allocated 67% of their values to achieving in-
State water quality goals and the remainder to the nation as a whole.
Carson and Mitchell argue that for valuing local water quality changes
67% is a reasonable upper bound for the local multiplier and 33% for
the non-local water quality changes. For the purposes of this analysis,
the locality is defined as urban sites and associated populations
linked into the NWPCAM framework. Using this methodology, the total
monetized benefits of Phase II control of urban and construction site
runoff is estimated to be $1.628 billion per year. The local and non-
local benefits due to Phase II controls are presented in Exhibit 4.
Exhibit 4.--Local and Non-local Benefits Estimates Due to Phase II Controls National Water Quality Model
Estimate
----------------------------------------------------------------------------------------------------------------
Non-local
Use support Local benefits benefits \1\ Total benefits
($million/yr) ($million/yr) ($million/yr)
----------------------------------------------------------------------------------------------------------------
Swimming, Fishing, and Boating......................... 306.20 60.60 366.80
Fishing and Boating.................................... 395.10 51.90 447.00
Boating................................................ 700.10 114.60 814.70
--------------------------------------------------------
Total.............................................. 1401.40 227.10 1628.50
----------------------------------------------------------------------------------------------------------------
\1\ To estimate non-local willingness to pay per household, the 33% of willingness is multiplied by the fraction
of previously impaired national waters (in each use category) that attain the beneficial use as a result of
the Phase II rule. To estimate the aggregate non-local benefits, non-local willingness to pay is multiplied
with the total number of households in the US.
While the numbers of miles that are estimated to change their use
support are small, the benefits estimates are quite significant. This
is because urban runoff and, to a large extent, construction activity
occurs where the people actually reside and the water quality changes
mostly occur close to these population centers. NWPCAM indicates that
changes in pollution loads have the most effect immediately downstream
of pollution changes. As a result, the aggregate WTP is large because
large numbers of households in these population centers are associated
with the local waters that reflect improvement in designated use
support.
2. National Water Quality Assessment
EPA also estimated benefits of the Phase II Storm Water program
using the 1998 National Water Quality Inventory (305(b)) Report to
Congress, rather than the NWPCAM as a basis for estimating impairment
addressed by the rule. The Water Quality Assessment method separately
estimates benefits associated with improvements to fresh water, marine
water and construction site controls, and then aggregates these
separate categories into an estimate of total annual benefits.
a. Municipal Measures
i. Fresh Waters Benefits
In order to develop estimates for the potential value of the
municipal measures (except storm water runoff controls for construction
sites), EPA applied Carson & Mitchell WTP values to estimated existing
and projected future fresh water impairment. Carson & Mitchell did not
evaluate marine waters, so only fresh water values were available from
their research. Even though the Carson and Mitchell estimates apply to
all fresh water, it is not clear how these values would be apportioned
among rivers, lakes, and the Great Lakes. The 305(b) data indicate that
lakes are the most impaired by urban runoff/storm sewers, followed
closely by the Great Lakes, and then rivers. Therefore, EPA applied the
WTP values to the categories separately and assumed that the higher
resulting value for lakes represents the high end of the range (i.e.,
assuming that lake impairment is more indicative of national fresh
water impairment) and that the lower resulting value for impaired
rivers represents the low end of a value range for all fresh waters
(i.e., assuming that river impairment is more indicative of national
fresh water impairment). In addition, EPA estimated that the post-
construction runoff
[[Page 68794]]
requirements of the municipal program might result in benefits of at
least $16.8 million annually from avoided future runoff. The post-
construction estimate significantly underestimates potential program
benefits because it does not account for avoided hydrologic changes and
resulting water quality impairment associated with increases in
imperviousness from development and redevelopment. Summing the benefits
across the water quality use support levels yields an estimate of
benefits ranging from approximately $121.9 million to $378.2 million
per year.
ii. Marine Waters Benefits
In addition to the fresh water benefits captured by the Carson and
Mitchell study, EPA anticipates benefits as a result of improvements to
marine waters. Sufficient methods have not been developed to quantify
national-level benefits for commercial or recreational fishing. EPA
used beach closure data and visitation estimates from its Beach Watch
Program to estimate potential reductions in marine swimming visits due
to storm water runoff contamination events in 1997. The estimated
86,100 trips that did not occur because of beach closures in coastal
Phase II communities is a lower bound because it represents only those
beaches that report both closures and visitation data. EPA estimates
potential swimming benefits from the rule to be at least $2.1 million
annually.
EPA developed an analysis of potential benefits associated with
avoided health impacts from exposure to contaminants in storm sewer
effluent. Based on a study of incremental illnesses found among people
who swam within one yard of storm drains in Santa Monica Bay, EPA
estimated a range of incremental illnesses (Haile et al., 1996).
Depending on assumptions made about number of exposures to contaminants
and contaminant concentrations, benefits ranged from $7.0 million to
$29.9 million annually.
b. Construction Benefits
The major pollutant resulting from construction activities is
sediment. However, in addition to sediment, construction activities
also yield pollutants such as pesticides, petroleum products, and
solvents. Because circumstances will vary considerably from site to
site, data is not available with which to develop estimates of benefits
for each site and aggregate to obtain a national-level estimate.
In the proposed rule, EPA estimated the combined benefits of all
wet weather programs, and then used expert opinions to allocate them to
different individual programs. To eliminate the possible overlap
between the benefits of the soil and erosion control requirements,
municipal measures, and other wet weather storm water programs, EPA
chose to use an approach in today's final rule that directly estimates
the benefits of soil and erosion requirements.
A survey of North Carolina residents (Paterson et al., 1993)
indicated that households are willing to pay for erosion and sediment
controls similar to those in today's rule. Based on income and other
indicators, the values derived from the study are expected to be
similar to values held in the rest of the country. Using the mean value
of the willingness to pay of $25 per household, EPA projects annual
benefits of the soil and erosion requirements to range from $540.5-$686
million.
c. Summary of Benefits From the National Water Quality Assessment
Total benefits from municipal measures and construction site
controls are expected to range from $671.5 million to $1.1 billion per
year, including benefits of approximately $13.7 million per year
associated with small stream improvements. A summary of the potential
benefits is presented in Exhibit 5.
As shown in Exhibit 5, it was not possible to monetize all
categories of benefits using the WTP estimates. In particular, benefits
for improving marine water quality such as fishing and passive use
benefits are not included in the values used to estimate the potential
benefits of the municipal minimum measures (excluding construction
sites controls), and they are not estimated separately, because
information is not currently available.
Exhibit 5.--Potential Annual Benefits of the Phase II Storm Water Rule
National Water Quality Assessment Estimate
------------------------------------------------------------------------
Benefit category Annual WTP
------------------------------------------------------------------------
Municipal Minimum Measures \1\
------------------------------------------------------------------------
Fresh Water Use and Passive $121.9-$378.2
Use \2\.
Marine Recreational Swimming. $2.1
Human Health (Marine Waters). $7.0-$29.9
Other Marine Use and Passive (+)
Use.
------------------------------------------------------------------------
Erosion and Sediment Controls for Construction Sites
------------------------------------------------------------------------
Fresh Water and Marine Use $540.5-$686
and Passive Use \3\.
------------------------------------------------------------------------
Total Phase II Program
------------------------------------------------------------------------
Total Use & Passive Use >$671.5->$1,096.2
(Fresh Water and Marine).
------------------------------------------------------------------------
+= positive benefits expected but not monetized.
\1\ Includes water quality benefit of municipal programs, based on 80%
effectiveness of municipal programs.
\2\ Based on research by Carson and Mitchell (1993). Fresh water value
only. Does not include commercial fishery, navigation, or diversionary
(e.g. municipal drinking water cost savings or risk reductions)
benefits. May not fully capture human health risk reduction or
ecological values.
\3\ Based on research by Paterson et al. (1993). Although the survey's
description of the benefits of reducing soil erosion from construction
sites included reduced dredging, avoided flooding, and water storage
capacity benefits, these benefit categories may not be fully
incorporated in the WTP values. Small streams may account for over 2%
of total benefits.
C. Qualitative Benefits
There are additional benefits to storm water control that cannot be
quantified or monetized. Thus, the current estimate of monetized
benefits may understate the true value of storm water controls because
it omits many ways in which society is likely to benefit from reduced
storm water pollution, such as improved
[[Page 68795]]
aesthetic quality of waters, benefits to wildlife and to threatened and
endangered species, cultural values, and biodiversity benefits.
A benefit that EPA did not monetize completely is the flood control
benefits attributable to municipal storm water controls reducing
downstream flooding, although flood control benefits associated with
sediment and erosion control are already reflected to some extent in
the construction benefits. Similarly, the Agency could not value the
benefits from increased property value due to storm water controls
reflected in the rule, even though a commenter suggested inclusion of
these benefits in the estimates.
Moreover, while a number of commenters requested that EPA include
ecological benefits, the Agency was not able to fully monetize these
benefits. Urbanization usually increases the amount of sediment,
nutrients, metals and other pollutants associated with land disturbance
and development. Development usually not only results in a dramatic
increase in the volume of water runoff, but also in a substantial
decrease in that water's quality due to stream scour, runoff and
dispersion of toxic pollutants, and oversiltation. These kinds of
secondary benefits could not be fully reflected in the monetized
benefits. EPA was able to only monetize the aquatic life support
benefits for waters assumed to be impaired. Thus, only the aquatic life
support benefits attributable to municipal controls, reflected through
human satisfaction, are taken into account.
Reduced nutrient level is another benefit of the storm water
control which is not fully captured by the economic analysis. High
nutrient levels often lead to eutrophication of the aquatic system. The
quality change in ecological sources as the result of storm water
controls to reduce pollutants is not fully reflected in the present
benefits.
D. National Economic Impact
Finally, the Agency determined that the rule will have minimal
impacts on the economy or employment. This is because the final rule
regulates small MS4s and construction sites under 5 acres, not the
typical industrial plants or other non-construction activities that
could directly impact production and thus those sectors of the economy.
Discussions with representatives within the construction industry
indicate that construction costs will likely be passed on to buyers,
thus not seriously affecting the housing industry directly. One
commenter argued that the rule will have a negative employment effect
because the builders will build fewer homes requiring less building
materials as a result of the declining demand induced by the cost of
the soil and erosion controls. EPA disagrees with this argument because
the cost of the controls, as the percentage of the price of a median
home, is negligible and will be passed on to final buyers.
Flexibility within the rule allows MS4s to tailor the storm water
program requirements to their needs and financial position, minimizing
impacts. For sedimentation and erosion controls on construction sites,
the rule contemplates application of commonly used BMPs to reduce costs
for the construction industry. Thus, the rule attempts to use existing
practices to prevent pollution, which should minimize impacts on
States, Tribes, municipalities and the construction industry.
Thus, EPA concludes that the effect of the rule, if any, on the
national economy will be minimal. The benefits of today's rule more
than offset any cost impacts on the national economy.
IV. Regulatory Requirements
A. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved some of the
information collection requirements contained in this final rule (i.e.
those found in 40 CFR 122.26(g) and 123.35(b)) under the provisions of
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned
OMB control number 2040-0211.
The burden and costs described below are for the information
collection, reporting, and record keeping requirements for the three
year period beginning with the effective date of today's rule.
Additional information collection requirements for regulated small MS4s
and small construction sites will occur after this initial three year
period and will be counted in a subsequent information collection
requirement. The total burden of the information collection
requirements for the first three years of this rule is estimated at
56,369 hours with a corresponding cost of $2,151,305 million annually.
This burden and cost is for industrial facilities to complete and
submit the no exposure certification, for NPDES-authorized States to
process and review the no exposure certification, and for the NPDES-
authorized States to develop designation criteria and assess additional
MS4s outside of urbanized areas. Compliance with the applicable
information collection requirements imposed under this rule are
mandatory, pursuant to CWA section 402.
Exhibit 6 presents average annual burden and cost estimates for
Phase II respondents for the first three years. Burden means the total
time, effort, or financial resources expended by persons to generate,
maintain, retain, disclose or provide information to or for a Federal
agency. This includes the time needed to review instructions; develop,
acquire, install, and utilize technology and systems for the purposes
of collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust existing ways for complying with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
Exhibit 6.--Average Annual Burden and Cost Estimates for Phase II Respondents
----------------------------------------------------------------------------------------------------------------
(A) x (B)=C
A Respondents B Burden hours Annual D Respondent (C) x (D)=E
Information collection activity per year per respondent respondent labor cost ($/ Annual Cost
(projected) per year burden hours hr) (1998 $) ($)
\1\ (predicted) (projected) (projected)
----------------------------------------------------------------------------------------------------------------
Ind. No Expos. Facilities:\2\
No Expos. Certification..... 36,377 1.0 36,377 44.35 1,613,320
---------------- ---------------
Annual Subtotal......... .............. .............. 36,377 .............. 1,613,320
NPDES-Authorized States:\3\
Designation of Addit. MS4s 15 332.8 4,892 26.91 131,644
\4\........................
[[Page 68796]]
No Exp. Cert. Proc. & Rev... 30,200 0.5 15,100 26.91 406,341
---------------- ---------------
Annual Subtotal......... .............. .............. 19,992 .............. 537,985
---------------- ---------------
Annual Totals........... .............. .............. 56,369 .............. 2,151,305
----------------------------------------------------------------------------------------------------------------
Notes:
\1\ Source: U.S. EPA, Office of Wastewater Management. Economic Analysis for the Storm Water Phase II Rule.
\2\ The total number of potential no exposure respondents was divided by 5 to estimate an annual total. It was
assumed that the annual number of respondents for the no exposure certification would be spread over the five
year period the exclusion applies.
\3\ The number of respondents in each category represents only those respondents located within the 44 NPDES-
authorized States and Territories. The burden and cost estimates provided in this section are for the NPDES-
authorized States in their role as the permitting authority for municipal designations and industrial no
exposure.
\4\ The number of respondents for this activity, 15, represents the number of NPDES-authorized States and
Territories that must develop designation criteria and assess small MS4s located outside of an urbanized area
for possible Phase II coverage divided by the three year ICR period.
Given the requirements of today's regulation, EPA believes there
will be no capital startup and no operation and maintenance costs
associated with information collection requirements of the rule.
The government burden associated with today's rule will impact
State, Tribal, and Territorial governments (NPDES-authorized
governmental entities) that have storm water program authority, as well
as the federal government (i.e., EPA), where it is the NPDES permitting
authority. As of March 1999, 43 States and the Virgin Islands had NPDES
authority.
The annual burden imposed upon authorized governmental entities
(delegated States and the Virgin Islands) and the federal government
for the next three years is estimated to be 19,992 hours ($537,985) and
4,087 hours ($115,948) respectively, for a total of 24,079 hours
($653,933). This estimate is based on the average time that governments
will expend to carry out the following activities: designate additional
MS4s (332.8 hours) and process and review ``no exposure'' certificates
from industrial dischargers (0.5 hour).
Under the existing rule, storm water discharges from light
industrial activities identified under Sec. 122.26(b)(14)(xi) were
exempted from the permit application requirements if they were not
exposed to storm water. Today's rule expands the applicability of the
``no exposure'' exclusion to include all industrial activity regulated
under Sec. 122.26(b)(14) (except category (x), construction). The ``no
exposure'' provision is applied through the use of a written
certification process, thus representing a slight reporting burden
increase for ``light'' industries with ``no exposure'.
In addition to the information collection, reporting, and record
keeping burden for the next three years, today's rule contains
information collection requirements that will not begin until three
years or more from the effective date of today's rule. These
information collection requirements were not included in the
information collection request approved by OMB. EPA will submit these
burden estimates for OMB approval when it submits ICR 2040-0211 to OMB
for renewal in three years. The rule burdens for regulated small MS4s
and small construction sites that will be included in the ICR renewal
fall into three areas: application for an NPDES permit or submittal of
waiver information, record keeping of storm water management
activities, and submittal of reports to the permitting authority. There
will also be an additional burden for the permitting authority to
review this information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15. EPA is
amending the table in 40 CFR Part 9 of currently approved ICR control
numbers issued by OMB for various regulations to list the first three
years of information requirements contained in this final rule.
B. Executive Order 12866
Under Executive Order 12866, [58 FR 51,735 (October 4, 1993)] the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action''. As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a
[[Page 68797]]
written statement is needed, section 205 of the UMRA generally requires
EPA to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows EPA to adopt an
alternative other than the least costly, most cost-effective or least
burdensome alternative if the Administrator publishes with the final
rule an explanation why that alternative was not adopted.
EPA has determined that today's rule contains a Federal mandate
that may result in expenditures of $100 million or more in any one year
for both State, local, and tribal governments, in the aggregate, and
the private sector. Accordingly, EPA has prepared under section 202 of
the UMRA a written statement which is summarized below.
1. Summary of UMRA Section 202 Written Statement
EPA promulgates today's storm water regulation pursuant to the
specific mandate of Clean Water Act section 402(p)(6), as well as
sections 301, 308, 402, and 501. (33 U.S.C. sections 1342(p)(6), 1311,
1318, 1342, 1361.) Section 402(p)(6) of the CWA requires that EPA
designate sources to be regulated to protect water quality and
establish a comprehensive program to regulate those sources.
In the Economic Analysis of the Final Phase II Rule (EA), EPA
describes the qualitative and monetized benefits associated with
today's rule and then compares the monetized benefits with the
estimated costs for the rule. EPA developed detailed estimates of the
costs and benefits of complying with each of the incremental
requirements imposed by the rule. These estimates, including
descriptions of the methodology and assumptions used, are described in
detail in the EA. The Agency used two approaches, a national water
quality model and national water quality assessment, to estimate the
potential benefits of the rule. Both approaches show that the benefits
are likely to exceed costs. Exhibit 3 in section III of this preamble
summarizes the costs and benefits associated with the basic elements of
today's rule.
There are additional benefits to storm water control that cannot be
quantified or monetized. Thus, the current estimate of monetized
benefits may understate the true value of storm water controls because
it omits many ways by which society is likely to benefit from reduced
storm water pollution, such as improved aesthetic quality of waters,
benefits to wildlife and to threatened and endangered species, cultural
values, and biodiversity benefits.
Several commenters asserted that today's rule is an unfunded
mandate and that, without funding, the monitoring of the already
existing pollution control programs would suffer. In section II.D.3 of
the preamble, EPA lists some of the programs that EPA anticipates may
provide funds to help develop and, in limited circumstances, implement
storm water management programs.
In the EA, EPA reviewed the expected effect of today's rule on the
national economy. The Agency determined that the rule will have minimal
impacts on the economy or employment. This is because the final rule
regulates small MS4s and construction sites under 5 acres, not the
typical industrial plants or other non-construction activities that
could directly impact production and thus those sectors of the economy.
Discussions with representatives within the construction industry
indicate that construction costs will likely be passed on to buyers,
thus not seriously affecting the housing industry directly. Flexibility
within the rule allows MS4s to tailor the storm water program
requirements to their needs and financial position, minimizing impacts.
For sedimentation and erosion controls on construction sites, the rule
contemplates application of commonly used BMPs to reduce costs for the
construction industry. Thus, the rule attempts to use existing
practices to prevent pollution, which should minimize impacts on
States, Tribes, municipalities and the construction industry.
Thus, EPA concludes that the effect of the rule, if any, on the
national economy would be minimal. The benefits of today's rule more
than offset any cost impacts on the national economy.
Consistent with the intergovernmental consultation provisions of
section 204 of the UMRA and Executive Order 12875, ``Enhancing the
Intergovernmental Partnership,'' EPA consulted with the governmental
entities affected by this rule.
First, EPA provided States, Tribal and local governments with the
opportunity to comment on draft alternative approaches for the proposed
rule through publishing a notice requesting information and public
comment in the Federal Register on September 9, 1992 (57 FR 41344).
This notice presented a full range of regulatory alternatives. At that
time, EPA received more than 130 comments, including approximately 43
percent from municipalities and 24 percent from State or Federal
agencies. These comments were the genesis of many of the provisions in
the today's rule, including reliance on the NPDES program framework
(including general permits), providing State and local governments
flexibility in selecting additional sources requiring regulation, and
focusing on high priority polluters. These comments helped to focus on
pollution prevention, watershed-based concerns and BMPs. They also led
to certain exemptions for facilities that do not pollute national
waters.
In early 1993, EPA, in conjunction with the Rensselaerville
Institute, held public and expert meetings to assist in developing and
analyzing options for identifying unregulated storm water sources and
possible controls. These meetings provided participants an additional
opportunity to provide input into the CWA section 402(p)(6) program
development process. The final rule addresses several of the key
concerns identified in these groups, including provisions that provide
flexibility to the States to select sources to be controlled and types
of permits to be issued, and flexibility to MS4s in selecting BMPs.
EPA also conducted outreach with representatives of small entities,
including small government representatives, in conjunction with the
convening of a Small Business Advocacy Review Panel under SBREFA which
is discussed in section IV.E. of the preamble.
In addition, EPA established the Urban Wet Weather Flows Advisory
Committee under the Federal Advisory Committee Act (FACA). The Urban
Wet Weather Flows Advisory Committee, in turn established the Storm
Water Phase II Subcommittee. Consistent with FACA, the membership of
the Committee and the Storm Water Phase II Subcommittee was balanced
among EPA's various outside stakeholder interests, including
representatives from State governments, municipal governments (both
elected officials and appointed officials) and Tribal governments, as
well as industrial and commercial sectors, agriculture, environmental
and public interest groups.
In general, municipal and Tribal government representatives
supported the NPDES approach in today's rule for the following reasons:
It will be uniformly applied on a nationwide basis; it provides
flexibility to allow incorporation of State and local programs; it
resolves the problem of donut holes that cause water quality impacts in
urbanized areas; and it allows co-permitting of small regulated
[[Page 68798]]
MS4s with those regulated under the existing storm water program.
In contrast, State representatives sought alternative approaches
for State implementation of the storm water program for Phase II
sources. State representatives asserted that a non-NPDES alternative
approach best facilitated watershed management and avoided duplication
and overlapping regulations. These representatives pointed out that
there are a variety of State programs--not based on the CWA--
implementing effective storm water controls, and that EPA should
provide incentives for their implementation and improvement in
performance. EPA continues to believe that an NPDES approach is the
best approach in order to adequately protect water quality. However,
EPA has worked with States on an alternative approach that provides
flexibility within the NPDES framework. The final rule allows States
with a watershed permitting approach to phase in permit coverage for
MS4s in jurisdictions with a population less than 10,000 and provides
two waivers from coverage for small MS4s. This issue is discussed in
section II.C of the preamble, Program Framework: NPDES Approach.
Some municipal governments objected that the rule's minimum
measures for small MS4s violate the Tenth Amendment insofar as they
require the operators of MS4s to regulate third parties according to
the ``minimum measures'' for municipal storm water management programs.
EPA disagrees that today's rule is inconsistent with Tenth Amendment
principles. Permits issued under today's rule will not compel political
subdivisions of States to regulate in their sovereign capacities, but
rather to effectively control discharges out of their storm sewer
systems in their owner/operator capacities. For MS4s that do not accept
this ``default'' minimum measures-based approach (to control discharges
out of the storm sewer system by exercising local powers to control
discharges into the storm sewer system), today's rule allows for
alternative permits through individual permit applications. EPA made
revisions to the rule to allow regulated small MS4s to opt out of the
minimum measures approach and instead apply for an individual permit.
This issue is discussed in section II.H.3.c.iii of the preamble,
Alternative Permit Option/Tenth Amendment.
2. Selection of the Least Costly, Most Cost-Effective or Least
Burdensome Alternative That Achieves the Objectives of the Statute
Today's rule evolved over time and incorporated aspects of
alternatives that responded to concerns presented by the various
stakeholders. A primary characteristic of today's rule is the
flexibility it offers both the permitting authority and the regulated
sources (small MS4s and small construction sites), by the use of
general permits, implementation of BMPs suited to specific locations,
and allowing MS4s to develop their own program goals.
In the administrative record supporting the proposed rule, EPA
estimated ranges of costs associated with six different options,
including a no action option, the proposed option, and four other
options that considered various combinations of the following: Covering
all the unregulated construction sites below 5 acres, all small MS4s,
certain industrial and commercial activities, and all point sources.
EPA developed detailed cost estimates for the incremental requirements
imposed under the final regulation, and for each of the alternatives,
and applied these estimates to the remaining unregulated point sources
of storm water. The Agency compared the estimated annual range of costs
imposed under today's rule and other major options considered. The
range of values for each option included the costs for compliance,
including paperwork requirements for the operators of small
construction sites, industrial facilities, and MS4s and administrative
costs for State and Federal NPDES permitting authorities.
Today's rule reflects the least costly option that achieves the
objectives of the statute, thus meeting the requirements of section
205. EPA did not consider ``no regulation'' to be an ``option'' because
it would not achieve the objectives of CWA section 402(p)(6). A portion
of currently unregulated point sources of storm water need to reduce
pollutants to protect water quality.
Today's rule is estimated to range in cost from $847.6 million to
$981.3 million annually, although the cost estimate for the proposed
rule was reported as a range of $138 to $869 million annually. That
range reflected a unit cost range for the municipal minimum measures
and a cost range per construction site for soil erosion control. EPA
has since revised its cost analysis to allow it to report the current
estimate, which is toward the high end of the original cost range. The
four other regulatory options considered at proposal involved higher
regulatory costs and, therefore, were not selected. These four options
and their estimated costs are as follows:
(1) An option based on the August 7, 1995 direct final rule was
estimated to cost between $2.2 billion and $78.9 billion per year.
(2) A ``Plan B'' option was estimated to cost between $0.6 billion
and $3.2 billion per year.
(3) An option based on the September 30, 1996 draft proposed rule
was estimated to cost between $0.2 billion and $3.7 billion per year.
(4) An option based on the February 13, 1997 draft proposed rule,
was estimated to cost between $0.2 billion and $3.5 billion.
There are three reasons why the costs for these four options
exceeded the estimated cost range for the proposed rule. The first two
options regulated substantially more municipal governments. The first,
third, and fourth options required industrial facilities to apply for
permits. Finally, the first three options applied permit requirements
to construction sites below 1 acre. Consequently, these options would
be more costly than today's rule even with the revised analysis methods
used to estimate costs.
3. Effects on Small Governments
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements. EPA
has determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments. Although
today's rule expands the NPDES program (with modifications) to certain
MS4s serving populations below 100,000 and although many MS4s are owned
by small governments, EPA does not believe today's rule significantly
or uniquely affects small governments. As explained in section IV.E. of
the preamble, EPA today certifies that the rule will not have a
significant impact on small governmental jurisdictions. In addition,
the rule will not have a unique impact on small governments because the
rule will affect small governments in
[[Page 68799]]
to the same extent as (or to a lesser extent than) larger governments
that are already covered by the existing storm water rules. Thus,
today's rule is not subject to the requirements of section 203 of UMRA.
Notwithstanding this finding, in developing today's rule, EPA
provided notice of the requirements to potentially affected small
governments; enabled officials of affected small governments to provide
meaningful and timely input in the development of regulatory proposals;
and informed, educated and advised small governments on compliance with
the requirements.
Concerning notice, EPA provided States, local, and Tribal
governments with the opportunity to comment on alternative approaches
for an early draft of the proposed rule by publishing a notice
requesting information and public comment in the Federal Register on
September 9, 1992 (57 FR 41344). This notice presented a full range of
regulatory alternatives. At that time, EPA received more than 130
comments, including approximately 43 percent from municipalities and 24
percent from State or Federal agencies.
The Agency also provided, through the SBREFA panel process and the
FACA process, the opportunity for elected officials of small
governments (and their representatives) to meaningfully participate in
the development of the rule. Through such participation and exchange,
EPA not only notified potentially affected small governments of
requirements of the developing rule, but also allowed officials of
affected small governments to have meaningful and timely input into the
development of regulatory proposals.
In addition to involving municipalities in the development of the
rule, EPA also continues to inform, educate, and advise small
governments on compliance with the requirements of today's rule. For
example, EPA supported 10 workshops, presented by the American Public
Works Association from September 1998 through May 1999, designed to
educate local governments on the implementation of the rule. The
workshop curriculum included information on a variety of key issues
such as anticipated regulatory requirements, agency reporting, best
management practices, construction site controls, post construction
management for new and redeveloped sites, public education and public
involvement strategies, detection and control of illicit discharges,
and good housekeeping practices. Moreover, EPA has prepared a series of
fact sheets, available on the EPA website at www.epa.gov/owm/sw/
toolbox, that explains the rule in detail.
Finally, to assist small governments in implementing the Phase II
program, EPA is committed to the following: (1) developing a tool box
of implementation strategies; (2) providing written technical
assistance, including guidance on developing BMPs and measurable goals;
and (3) compiling a comprehensive evaluation of the NPDES municipal
storm water Phase II program over the next 13 years.
D. Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
If EPA complies by consulting, Executive Order 13132 requires EPA
to provide to the Office of Management and Budget (OMB), in a
separately identified section of the preamble to the rule, a federalism
summary impact statement (FSIS). The FSIS must include a description of
the extent of EPA's prior consultation with State and local officials,
a summary of the nature of their concerns and the agency's position
supporting the need to issue the regulation, and a statement of the
extent to which the concerns of State and local officials have been
met. For final rules subject to Executive Order 13132, EPA also must
submit to OMB a statement from the agency's Federalism Official
certifying that EPA has fulfilled the Executive Order's requirements.
EPA has concluded that this final rule may have federalism
implications. As discussed above in section IV.C., the rule contains a
Federal mandate that may result in the expenditure by State, local and
tribal governments, in the aggregate, of $100 million or more in any
one year. Accordingly, the rule may have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
Moreover, the rule will impose substantial direct compliance costs on
State or local governments. Accordingly, EPA provides the following
FSIS under section 6(b) of Executive Order 13132.
1. Description of the Extent of the Agency's Prior Consultation with
State and Local Governments
Although this rule was proposed long before the November 2, 1999
effective date of Executive Order 13132, EPA consulted extensively with
affected State and local governments pursuant to the intergovernmental
consultation provisions of Executive Order 12875, ``Enhancing the
Intergovernmental Partnership'' (now revoked by Executive Order 13132)
and section 204 of UMRA.
First, EPA provided State and local governments the opportunity to
comment on draft alternative approaches for the proposed rule through
publishing a notice requesting information and public comment in the
Federal Register on September 9, 1992 (57 FR 41344). This notice
presented a full range of regulatory alternatives. At that time, EPA
received more than 130 comments, including approximately 43 percent
from municipalities and 24 percent from State or Federal agencies.
These comments were the genesis of many of the provisions in the
today's rule, including reliance on the NPDES program framework
(including general permits), providing State and local governments
flexibility in selecting additional sources requiring regulation, and
focusing on high priority polluters. These comments helped to focus on
pollution prevention, watershed-based concerns and BMPs. They also led
to certain exemptions for facilities that do not pollute national
waters.
In early 1993, EPA, in conjunction with the Rensselaerville
Institute, held public and expert meetings to assist in developing and
analyzing options for identifying unregulated storm water sources and
possible controls. These meetings provided participants an additional
opportunity to provide input into the CWA section 402(p)(6) program
[[Page 68800]]
development process. The final rule addresses several of the key
concerns identified in these groups, including provisions that provide
flexibility to the States to select sources to be controlled and types
of permits to be issued, and flexibility to MS4s in selecting BMPs.
EPA also conducted outreach with representatives of small entities,
including small governments, in conjunction with the convening of a
Small Business Advocacy Review Panel under SBREFA which is discussed in
section III.F. of the preamble.
In addition, EPA established the Urban Wet Weather Flows Advisory
Committee (FACA), which in turn established the Storm Water Phase II
Subcommittee. Consistent with the Federal Advisory Committee Act, the
membership of the Committee and the Storm Water Phase II Subcommittee
was balanced among EPA's various outside stakeholder interests,
including representatives from State governments, municipal governments
(both elected officials and appointed officials) and Tribal
governments, as well as industrial and commercial sectors, agriculture,
environmental and public interest groups.
2. Summary of Nature of State and Local Government Concerns, and
Statement of the Extent to Which Those Concerns Have Been Met
In general, municipal government representatives supported the
NPDES approach in today's rule for the following reasons: it will be
uniformly applied on a nationwide basis; it provides flexibility to
allow incorporation of State and local programs; it resolves the
problem of donut holes that cause water quality impacts in urbanized
areas; and it allows co-permitting of small regulated MS4s with those
regulated under the existing storm water program.
In contrast, State representatives sought alternative approaches
for State implementation of the storm water program for Phase II
sources. State representatives asserted that a non-NPDES alternative
approach best facilitated watershed management and avoided duplication
and overlapping regulations. These representatives pointed out that
there are a variety of State programs--not based on the CWA--
implementing effective storm water controls, and that EPA should
provide incentives for their implementation and improvement in
performance. EPA continues to believe that an NPDES approach is the
best approach in order to adequately protect water quality. However,
EPA has worked with States on an alternative approach that provides
flexibility within the NPDES framework. The final rule allows States
with a watershed permitting approach to phase in permit coverage for
MS4s in jurisdictions with a population less than 10,000 and provides
two waivers from coverage for small MS4s. This issue is discussed in
section II.C of the preamble, Program Framework: NPDES Approach.
Some municipal governments objected that the rule's minimum
measures for small MS4s violate the Tenth Amendment insofar as they
require the operators of MS4s to regulate third parties according to
the ``minimum measures'' for municipal storm water management programs.
EPA disagrees that today's rule is inconsistent with Tenth Amendment
principles. Permits issued under today's rule will not compel political
subdivisions of States to regulate in their sovereign capacities, but
rather to effectively control discharges out of their storm sewer
systems in their owner/operator capacities. For MS4s that do not accept
this ``default'' minimum measures-based approach (to control discharges
out of the storm sewer system by exercising local powers to control
discharges into the storm sewer system), today's rule allows for
alternative permits through individual permit applications. EPA made
revisions to the rule to allow regulated small MS4s to opt out of the
minimum measures approach and instead apply for an individual permit.
This issue is discussed in section II.H.3.c.iii of the preamble,
Alternative Permit Option/Tenth Amendment.
3. Summary of the Agency's Position Supporting the Need To Issue the
Regulation
As discussed more fully in section I.B. above, today's rule is
needed because uncontrolled storm water discharges from areas of urban
development and construction activity have been shown to have negative
impacts on receiving waters by changing the physical, biological, and
chemical composition of the water, resulting in an unhealthy
environment for aquatic organisms, wildlife, and people. As discussed
in section II.C., the NPDES approach in today's rule is needed to
ensure uniform application on a nationwide basis, to provide
flexibility to allow incorporation of State and local programs, to
resolve the problem of donut holes that cause water quality impacts in
urbanized areas, and to allow co-permitting of small regulated MS4s
with those regulated under the existing storm water program.
The draft final rule was transmitted to OMB on July 6, 1999.
Because transmittal occurred before the November 2, 1999 effective date
of Executive Order 13132, certification under section 8 of the
Executive Order is not required.
E. Regulatory Flexibility Act (RFA), as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an Agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impact of today's rule on small
entities, small entity is defined as: (1) a building contractor (SIC
15) with up to $17.0 million in annual revenue; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district, or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
Although this final rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the impact of this rule on small entities.
For purposes of evaluating the economic impact of this rule on
small governmental jurisdictions, EPA compared annual compliance costs
with annual government revenues obtained from the 1992 Census of
Governments, using state-specific estimates of annual revenue per
capita for municipalities in three population size categories (fewer
than 10,000, 10,000-25,000, and 25,000-50,000).
In order to estimate the annual compliance cost for small
governmental jurisdictions, EPA used the mean variable municipal cost
of $8.93 per household as calculated in a 1998 study of 121
municipalities conducted by the national Association of Flood and
Stormwater Management Agencies (NAFSMA). In addition, EPA used the
estimated fixed administrative costs of $1,545 per municipality for
reporting,
[[Page 68801]]
recordkeeping, and application requirements for today's rule.
In evaluating the economic impact of this rule on small
governmental jurisdictions, EPA determined that compliance costs
represent more than 1 percent of estimated revenues for only 10 percent
of small governments and more than 3 percent of the revenue for 0.7
percent of these entities. In both absolute and relative terms, EPA
does not consider this a significant economic impact on a substantial
number of small entities.
EPA normally uses the ``sales test'' for determining the economic
impact on small businesses. Under a sales test, annual compliance costs
are compared with the small business's total annual sales. However, the
direct application of the sales test is not suitable in this case,
because of the uncertainty associated with estimating the number of
units an ``average'' developer/contractor develops or builds in a
typical year. For this rule, EPA has approximated the sales test by
estimating compliance costs for three sizes of construction sites and
comparing them with a representative sale price for three building
categories. Although EPA's analysis is not exactly a ``sales test,'' it
is similar to the sales test, producing comparable results.
For small building contractors, EPA estimated administrative
compliance costs of $870 per site for applying for coverage, reporting,
record keeping, monitoring and preparing a storm water pollution
prevention plan. EPA estimated compliance costs for installing soil and
erosion controls as ranging from $1,206 to $8,709 per site. EPA
compliance cost estimates are based on 27 theoretical model
construction sites designed to mimic the mostly likely used best
management practices around the country.
In evaluating the economic impact on small building contractors,
EPA divided the revised compliance costs per construction start by the
appropriate homes-to-site ratio for each of the three sizes of
construction sites. The average compliance cost per home ranges from
approximately $450 to $650. EPA concluded that compliance costs are
roughly 0.22 to 0.43 percent of both the mean, $181,300, and median,
$151,000, sale price of a home.
The absence of data to specifically assess annual compliance costs
for building contractors as a percentage of annual sales (i.e., a very
direct estimate of the impact on potentially affected small businesses)
led EPA to perform additional market analysis to examine the ability of
potentially affected firms to pass along regulatory costs to buyers for
single-family homes constructed subject to today's rule. If the small
building contractors covered by the rule are able to pass on the costs
of compliance, either completely or partially, to their purchasers,
then the rule's impact on these small business entities is
significantly reduced. The market analysis shows that demand for homes
is not overly sensitive to small changes in price, therefore builders
should be able to pass on at least a significant fraction of the
compliance costs to buyers.
EPA also assessed the effect of the building contractors' costs on
average monthly mortgage rates and on the demand for new homes. Based
on that screening analysis, EPA concludes that the costs to building
contractors, and the potential changes in housing prices and monthly
mortgage payments for single-family home buyers, are not expected to
have a significant impact on the market for single-family houses. In
both absolute and relative terms, EPA does not consider this a
significant economic impact on a substantial number of small entities.
EPA also certified this rule at proposal. Even though the Agency
was not required to, we convened a Small Business Advocacy Review Panel
(``Panel'') in June 1997. A number of small entity representatives had
already been actively involved with EPA through the FACA process, and
were, therefore, broadly knowledgeable about the development of the
proposed and final rules. Prior to convening the Panel, EPA consulted
with the Small Business Administration to identify a group of small
entity representatives to advise the Panel. The Agency distributed a
briefing package describing its preliminary analysis under the RFA to
the small entity representatives (as well as to representatives from
OMB and SBA) and conducted two telephone conference calls and an all-
day meeting at EPA Headquarters in May of 1997 with small entity
representatives. With this preliminary work complete, in June 1997, EPA
formally convened the SBREFA Panel, comprising representatives from
OMB, SBA, EPA's Office of Water and EPA's Small Business Advocacy
Chair. The Panel received written comments from small entity
representatives based on their involvement in the earlier meetings, and
invited additional comments.
Consistent with requirements of the RFA, the Panel evaluated the
assembled materials and small-entity comments on issues related to: (1)
a description and the number of small entities that would be regulated;
(2) a description of the projected record keeping, reporting and other
compliance requirements applicable to small entities; (3)
identification of other Federal rules that may duplicate, overlap, or
conflict with the proposal to the final rule; and (4) regulatory
alternatives that would minimize any significant economic impact of the
rule on small entities while accomplishing the stated objectives of the
CWA section 402(p)(6).
On August 7, 1997, the Panel provided a Final Report (hereinafter,
``Report'') to the EPA Administrator. A copy of the Report is included
in the docket for the rule. The Panel acknowledged and commended EPA's
efforts to work with stakeholders, including small entities, through
the FACA process. The SBREFA Panel stated that, because of EPA's
extensive outreach and responsiveness in addressing stakeholder
concerns, commenters during the SBREFA process raised fewer concerns
than might otherwise have been expected. Based on the advice and
recommendations of the Panel, today's rule includes a number of
provisions designed to minimize any significant impact on small
entities. (See Appendix 5).
F. National Technology Transfer And Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standard bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This action does not mandate the use of any particular technical
standards, although in designing appropriate BMPs regulated small MS4s
and small construction sites are encouraged to use any voluntary
consensus standards that may be applicable and appropriate. Because no
specific technical standards are included in the rule, section 12(d) of
the NTTAA is not applicable.
G. Executive Order 13045
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically
[[Page 68802]]
significant'' as defined under E.O. 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to E.O. 13045 because it does not
concern an environmental health or safety risk that may have a
disproportionate effect on children. The rule expands the scope of the
existing NPDES permitting program to require small municipalities and
small construction sites to regulate their storm water discharges. The
rule does not itself, however, establish standards or criteria that
would be included in permits for those sources. Such standards or
criteria will be developed through other actions, for example, in the
establishment of water quality standards or subsequently in the
issuance of permits themselves. As such, today's action does not
concern an environmental health or safety risk that may have a
disproportionate effect on children. To the extent it does address a
risk that may have a disproportionate effect on children, expanding the
scope of the permitting program will have a corresponding
disproportionate benefit to children to protect them from such risk.
H. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the Tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected Tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian Tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian Tribal governments. Even though the Agency is not
required to address Tribes under the Regulatory Flexibility Act, EPA
used the same revenue test that was used for municipalities to assess
the impact of the rule on communities of Tribal governments and
determine that they will not be significantly affected. In addition,
the rule will not have a unique impact on the communities of Tribal
governments because small municipal governments are also covered by
this rule and larger municipal governments are already covered by the
existing storm water rules. Accordingly, the requirements of section
3(b) of Executive Order 13084 do not apply to this rule.
I. Congressional Review Act
The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and the Comptroller General
of the United States. EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This rule is a ``major rule'' as defined by 5 U.S.C. 804(2).
This rule will be effective on February 7, 2000.
List of Subjects
40 CFR Part 9
Environmental protection, Reporting and recordkeeping requirements.
40 CFR Part 122
Administrative practice and procedure, Confidential business
information, Environmental protection, Hazardous substances,
Incorporation by reference, Reporting and recordkeeping requirements,
Sewage disposal, Waste treatment and disposal, Water pollution control.
40 CFR Part 123
Administrative practice and procedure, Confidential business
information, Hazardous materials, Indians--lands, Intergovernmental
relations, Penalties, Reporting and recordkeeping requirements, Sewage
disposal, Waste treatment and disposal, Water pollution control,
Penalties.
40 CFR Part 124
Administrative practice and procedure, Air pollution control,
Hazardous waste, Indians--lands, Reporting and recordkeeping
requirements, Water pollution control, Water supply.
Dated: October 29, 1999.
Carol M. Browner,
Administrator.
Appendices to the Preamble
Appendix 1 to Preamble--Federally-Recognized American Indian Areas
Located Fully or Partially in Bureau of the Census Urbanized Areas
[Based on 1990 Census data]
------------------------------------------------------------------------
State American Indian Area Urbanized Area
------------------------------------------------------------------------
AZ...... Pascua Yacqui Reservation (pt.): Pascua Tucson, AZ (Phase
Yacqui Tribe of Arizona. I).
AZ...... Salt River Reservation (pt.): Salt River Phoenix, AZ (Phase
Pima-Maricopa Indian Community of the I).
Salt River Reservation, California.
AZ...... San Xavier Reservation (pt.): Tohono Tucson, AZ (Phase
O'odham Nation of Arizona (formerly I).
known as the Papago Tribe of the Sells,
Gila Bend & San Xavier Reservation).
CA...... Augustine Reservation: Augustine Band of Indio-Coachella, CA
Cahuilla Mission of Indians of the (Phase I).
Augustine Reservation, CA.
CA...... Cabazon Reservation: Cabazon Band of Indio-Coachella, CA
Cahuilla Mission Indians of the Cabazon (Phase I).
Reservation, CA.
[[Page 68803]]
CA...... Fort Yuma (Quechan) (pt.): Quechan Tribe Yuma, AZ-CA.
of the Fort Yuma Indian Reservation,
California & Arizona.
CA...... Redding Rancheria: Redding Rancheria of Redding, CA.
California.
FL...... Hollywood Reservation: Seminole Tribe... Fort Lauderdale, FL
(Phase I).
FL...... Seminole Trust Lands: Seminole Tribe of Fort Lauderdale, FL
Florida, Dania, Big Cypress & Brighton (Phase I).
Reservations.
ID...... Fort Hall Reservation and Trust Lands: Pocatello, ID.
Shosone-Bannock Tribes of the Fort Hall
Reservation of Idaho.
ME...... Penobscot Reservation and Trust Lands Bangor, ME.
(pt.): Penobscot Tribe of Maine.
MN...... Shakopee Community: Shakopee Mdewakanton Minneapolis-St.
Sioux Community of Minnesota (Prior Paul, MN (Phase I).
Lake).
NM...... Sandia Pueblo (pt.): Pueblo of Sandia, Albuquerque, NM
New Mexico. (Phase I).
NV...... Las Vegas Colony: Las Vegas Tribe of Las Vegas, NV (Phase
Paiute Indians of the Las Vegas Indian I).
Colony, Nevada.
NV...... Reno-Sparks Colony: Reno-Sparks Indian Reno, NV (Phase I).
Colony, Nevada.
OK...... Osage Reservation (pt.): Osage Nation of Tulsa, OK (Phase I).
Oklahoma.
OK...... Absentee Shawnee-Citizens Band of Oklahoma City, OK
Potawatomi TJSA (pt.): Absentee-Shawnee (Phase I).
Tribe of Indians of Oklahoma; Citizen
Potawatomi Nation, Oklahoma.
OK...... Cherokee TJSA 9 (pt.): Cherokee Nation Ft. Smith, AR-OK;
of Oklahoma; United Keetoowah Band of Tulsa, OK (Phase
Cherokee Indians of Oklahoma. I).
OK...... Cheyenne-Arapaho TJSA (pt.): Cheyenne- Oklahoma City, OK
Arapaho Tribes of Oklahoma. (Phase I).
OK...... Choctaw TJSA (pt.): Choctaw Nation of Ft. Smith, AR-OK
Oklahoma. (Phase I).
OK...... Creek TJSA (pt.): Alabama-Quassarte Tulsa, OK (Phase I).
Tribal Town of the Creek Nation of
Oklahoma; Kialegee Tribal Town of the
Creek Indian Nation of Oklahoma;
Muscogee (Creek) Nation of Oklahoma;
Thlopthlocco Tribal Town of the Creek
Nation of Oklahoma.
OK...... Kiowa-Comanche-Apache-Ft. Sill Apache: Lawton, OK.
Apache Tribe of Oklahoma; Comanche
Indian Tribe, Oklahoma; Fort Sill
Apache Tribe of Oklahoma; Kiowa Indian
Tribe of Oklahoma.
TX...... Ysleta del Sur Reservation: Ysleta Del El Paso, TX-NM
Sur Pueblo of Texas. (Phase I).
WA...... Muckleshoot Reservation and Trust Lands Seattle, WA (Phase
(pt.): Muckleshoot Indian Tribe of the I).
Muckleshoot Reservation.
WA...... Puyallup Reservation and Trust Lands Tacoma, WA (Phase
(pt.): Puyallup Tribe of the Puyallup I).
Reservation, WA.
WA...... Yakima Reservation (pt.): Confederated Yakima, WA.
Tribes and Bands of the Yakama Indian
Nation of the Yakama Reservation, WA.
WI...... Oneida (West) (pt.): Oneida Tribe of Green Bay, WI.
Wisconsin.
------------------------------------------------------------------------
Please Note
``(pt.)'' indicates that the American Indian Area (AIA) listed
is only partially located within the referenced urbanized area.
The first line under ``American Indian Area'' is the name of the
federally-recognized reservation/colony/rancheria or trust land as
it appears in the Bureau of the Census data. After this first line,
the names of the tribes included in the AIA are listed as they
appear in the Bureau of Indian Affairs' list of Federally Recognized
Indian Tribes. [Federal Register: Nov. 13, 1996, Vol. 66, No. 220,
pgs. 58211-58216]
``TJSAs'' are Tribal Jurisdiction Statistical Areas in Oklahoma
that are defined in conjunction with the federally-recognized tribes
in Oklahoma who have definite land areas under their jurisdiction,
but do not have reservation status.
``(Phase I)'' indicates that the referenced urbanized area
includes a medium or large MS4 currently regulated under the
existing NPDES storm water program (i.e., Phase I). Any Tribally
operated MS4 within these such urban areas would not automatically
have been covered under Phase I, however.
Sources
Michael Ratcliffe, Geographic Concepts Division, Bureau of the
Census, U.S. Department of Commerce.
1990 Census of Population and Housing, Summary Population and
Housing Characteristics, United States. Tables 9 & 10. [1990 CPH-1-
1]. Bureau of the Census, U.S. Department of Commerce.
BILLING CODE 6560-50-P
[[Page 68804]]
[GRAPHIC] [TIFF OMITTED] TR08DE99.001
BILLING CODE 6560-50-C
[[Page 68805]]
Appendix 3 to the Preamble--Urbanized Areas of the United States
and Puerto Rico
(Source: 1990 Census of Population and Housing, U.S. Bureau of the
Census--This list is subject to change with the Decennial Census)
Alabama
Anniston
Auburn-Opelika
Birmingham
Columbus, GA-AL
Decatur
Dothan
Florence
Gadsden
Huntsville
Mobile
Montgomery
Tuscaloosa
Alaska
Anchorage
Arizona
Phoenix
Tucson
Yuma, AZ-CA
Arkansas
Fayetteville-Springdale
Fort Smith, AR-OK
Little Rock-North Little Rock
Memphis, TN-AR-MS
Pine Bluff
Texarkana, AR-TX
California
Antioch-Pittsburgh
Bakersfield
Chico
Davis
Fairfield
Fresno
Hemet-San Jacinto
Hesperia-Apple Valley-Victorville
Indio-Coachella
Lancaster-Palmdale
Lodi
Lompoc
Los Angeles
Merced
Modesto
Napa
Oxnard-Ventura
Palm Springs
Redding
Riverside-San Bernardino
Sacramento
Salinas
San Diego
San Francisco-Oakland
San Jose
San Luis Obispo
Santa Barbara
Santa Cruz
Santa Maria
Santa Rosa
Seaside-Monterey
Simi Valley
Stockton
Vacaville
Visalia
Watsonville
Yuba City
Yuma
Colorado
Boulder
Colorado Springs
Denver
Fort Collins
Grand Junction
Greeley
Longmont
Pueblo
Connecticut
Bridgeport-Milford
Bristol
Danbury, CT-NY
Hartford-Middletown
New Britain
New Haven-Meriden
New London-Norwich
Norwalk
Springfield, MA-CT
Stamford, CT-NY
Waterbury
Worcester, MA-CT
Delaware
Dover
Wilmington, DE-NJ-MD-PA
District of Columbia
Washington, DC-MD-VA
Florida
Daytona Beach
Deltona
Fort Lauderdale-Hollywood-Pompano Beach
Fort Myers-Cape Coral
Fort Pierce
Fort Walton Beach
Gainesville
Jacksonville
Kissimmee
Lakeland
Melbourne-Palm Bay
Miami-Hialeah
Naples
Ocala
Orlando
Panama City
Pensacola
Punta Gorda
Sarasota-Bradenton
Spring Hill
Stuart
Tallahassee
Tampa-St. Petersburg-Clearwater
Titusville
Vero Beach
West Palm Beach-Boca Raton-Delray Beach
Winter Haven
Georgia
Albany
Athens
Atlanta
Augusta
Brunswick
Chattanooga
Columbus
Macon
Rome
Savannah
Warner Robins
Hawaii
Honolulu
Kailua
Idaho
Boise City
Idaho Falls
Pocatello
Illinois
Alton
Aurora
Beloit, WI-IL
Bloomington-Normal
Champaign-Urbana
Chicago, IL-Northwestern IN
Crystal Lake
Davenport-Rock Island-Moline, IA-IL
Decatur
Dubuque
Elgin
Joliet
Kankakee
Peoria
Rockford
Round Lake Beach-McHenry, IL-WI
St. Louis, MO-IL
Springfield
Indiana
Anderson
Bloomington
Chicago, IL-Northwestern IN
Elkhart-Goshen
Evansville, IN-KY
Fort Wayne
Indianapolis
Kokomo
Lafayette-West Lafayette
Louisville, KY-IN
Muncie
South Bend-Mishawaka, IN-MI
Terre Haute
Iowa
Cedar Rapids
Davenport-Rock Island-Moline, IA-IL
Des Moines
Dubuque, IA-IL-WI
Iowa City
Omaha, NE-IA
Sioux City, IA-NE-SD
Waterloo-Cedar Falls
Kansas
Kansas City, MO-KS
Lawrence
St. Joseph, MO-KS
Topeka
Wichita
Kentucky
Cincinnati, OH-KY
Clarksville, TN-KY
Evansville, IN-KY
Huntington-Ashland, WV-KY-OH
Lexington-Fayette
Louisville, KY-IN
Owensboro
Louisiana
Alexandria
Baton Rouge
Houma
Lafayette
Lake Charles
Monroe
New Orleans
Shreveport
[[Page 68806]]
Slidell
Maine
Bangor
Lewiston-Auburn
Portland
Portsmouth-Dover-Rochester, NH-ME
Maryland
Annapolis
Baltimore
Cumberland
Frederick
Hagerstown, MD-PA-WV
Washington, DC-MD-VA
Wilmington, DE-NJ-MD-PA
Massachusetts
Boston
Brockton
Fall River, MA-RI
Fitchburg-Leominster
Hyannis
Lawrence-Haverhill, MA-NH
Lowell, MA-NH
New Bedford
Pittsfield
Providence-Pawtucket, RI-MA
Springfield, MA-CT
Taunton
Worcester, MA-CT
Michigan
Ann Arbor
Battle Creek
Bay City
Benton Harbor
Detroit
Flint
Grand Rapids
Holland
Jackson
Kalamazoo
Lansing-East Lansing
Muskegon
Port Huron
Saginaw
South Bend-Mishawaka, IN-MI
Toledo, OH-MI
Minnesota
Duluth, MN-WI
Fargo-Moorhead, ND-MN
Grand Forks, ND-MN
La Crosse, WI-MN
Minneapolis-St.Paul
Rochester
St. Cloud
Mississippi
Biloxi-Gulfport
Hattiesburg
Jackson
Memphis, TN-AR-MS
Pascagoula
Missouri
Columbia
Joplin
Kansas City, MO-KS
St. Joseph, MO-KS
St. Louis, MO-IL
Springfield
Montana
Billings
Great Falls
Missoula
Nebraska
Lincoln
Omaha, NE-IA
Sioux City, IA-NE-SD
Nevada
Las Vegas
Reno
New Hampshire
Lawrence-Haverhill, MA-NH
Lowell, MA-NH
Manchester
Nashua
Portsmouth-Dover-Rochester, NH-ME
New Jersey
Allentown-Bethlehem-Easton, PA-NJ
Atlantic City
New York, NY-Northeastern NJ
Philadelphia, PA-NJ
Trenton, NJ-PA
Vineland-Millville
Wilmington, DE-NJ-MD-PA
New Mexico
Albuquerque
El Paso
Las Cruces
Santa Fe
New York
Albany-Schenectady-Troy
Binghamton
Buffalo-Niagara Falls
Danbury, CT-NY
Elmira
Glens Falls
Ithaca
Newburgh
New York, NY-Northeastern NJ
Poughkeepsie
Rochester
Stamford, CT-NY
Syracuse
Utica-Rome
North Carolina
Asheville
Burlington
Charlotte
Durham
Fayetteville
Gastonia
Goldsboro
Greensboro
Greenville
Hickory
High Point
Jacksonville
Kannapolis
Raleigh
Rocky Mount
Wilmington
Winston-Salem
North Dakota
Bismark
Fargo-Moorhead, ND-MN
Grand Forks, ND-MN
Ohio
Akron
Canton
Cincinnati, OH-KY
Cleveland
Columbus
Dayton
Hamilton
Huntington-Ashland, WV-KY-OH
Lima
Lorain-Elyria
Mansfield
Middletown
Newark
Parkersburg, WV-OH
Sharon, PA-OH
Springfield
Steubenville-Weirton, OH-WV-PA
Toledo, OH-MI
Wheeling, WV-OH
Youngstown-Warren
Oklahoma
Fort Smith, AR-OK
Lawton
Oklahoma City
Tulsa
Oregon
Eugene-Springfield
Longview
Medford
Portland-Vancouver, OR-WA
Salem
Pennsylvania
Allentown-Bethlehem-Easton, PA-NJ
Altoona
Erie
Hagerstown, MD-PA-WV
Harrisburg
Johnstown
Lancaster
Monessen
Philadelphia, PA-NJ
Pittsburgh
Pottstown
Reading
Scranton-Wilkes-Barre
Sharon, PA-OH
State College
Steubenville-Weirton, OH-WV-PA
Trenton, NJ-PA
Williamsport
Wilmington, DE-NJ-MD-PA
York
Rhode Island
Fall River, MA-RI
Newport
Providence-Pawtucket, RI-MA
South Carolina
Anderson
Augusta, GA-SC
Charleston
Columbia
Florence
Greenville
Myrtle Beach
Rock Hill
Spartanburg
Sumter
South Dakota
Rapid City
Sioux City, IA-NE-SD
Sioux Falls
Tennessee
Bristol, TN-Bristol, VA
[[Page 68807]]
Chattanooga, TN-GA
Clarksville, TN-KY
Jackson
Johnson City
Kingsport, TN-VA
Knoxville
Memphis, TN-AR-MS
Nashville
Texas
Abilene
Amarillo
Austin
Beaumont
Brownsville
Bryan-College Station
Corpus Christi
Dallas-Fort Worth
Denton
El Paso, TX-NM
Galveston
Harlingen
Houston
Killeen
Laredo
Lewisville
Longview
Lubbock
McAllen-Edinburg-Mission
Midland
Odessa
Port Arthur
San Angelo
San Antonio
Sherman-Denison
Temple
Texarkana, TX-Texarkana, AR
Texas City
Tyler
Victoria
Waco
Wichita Falls
Utah
Logan
Ogden
Provo-Orem
Salt Lake City
Vermont
Burlington
Virginia
Bristol, TN-Bristol, VA
Charlottesville
Danville
Fredericksburg
Kingsport, TN-VA
Lynchburg
Norfolk-Virginia Beach-Newport News
Petersburg
Richmond
Roanoke
Washington, DC-MD-VA
Washington
Bellingham
Bremerton
Longview, WA-OR
Olympia
Portland-Vancouver, OR-WA
Richland-Kennewick-Pasco
Seattle
Spokane
Tacoma
Yakima
West Virginia
Charleston
Cumberland, MD-WV
Hagerstown, MD-PA-WV
Huntington-Ashland, WV-KY-OH
Parkersburg, WV-OH
Steubenville-Weirton, OH-WV-PA
Wheeling, WV-OH
Wisconsin
Appleton-Neenah
Beloit, WI-IL
Duluth, MN-WI
Eau Claire
Green Bay
Janesville
Kenosha
La Crosse, WI-MN
Madison
Milwaukee
Oshkosh
Racine
Round Lake Beach-McHenry, IL-WI
Sheboygan
Wausau
Wyoming
Casper
Cheyenne
Puerto Rico
Aquadilla
Arecibo
Caguas
Cayey
Humacao
Mayaguez
Ponce
San Juan
Vega Baja-Manati
BILLING CODE 6560-50-P
[[Page 68808]]
Appendix 4 to the Preamble--No Exposure Certification Form
[GRAPHIC] [TIFF OMITTED] TR08DE99.003
[[Page 68809]]
[GRAPHIC] [TIFF OMITTED] TR08DE99.002
[[Page 68810]]
[GRAPHIC] [TIFF OMITTED] TR08DE99.004
[[Page 68811]]
[GRAPHIC] [TIFF OMITTED] TR08DE99.005
BILLING CODE 6560-50-C
Appendix 5 to Preamble--Regulatory Flexibility for Small Entities
A. Regulatory Flexibility for Small Municipal Storm Sewer Systems
(MS4s)
Different Compliance, Reporting, or Timetables That Are Responsive
to Resources of Small Entities
NPDES permitting authorities can issue general permits instead
of requiring individual permits. This flexibility avoids the high
application costs and administrative burden associated with
individual permits.
NPDES permitting authorities can specify a time period of up to
five years for small MS4s to fully develop and implement their
program
Analytic monitoring is not required.
After the first permit term and subsequent permit terms,
submittal of a summary report is only required in years two and four
(Phase I municipalities are currently required to submit a detailed
report each year).
A brief reporting format is encouraged to facilitate compiling
and analyzing data from submitted reports. EPA intends to develop a
model form for this purpose.
NPDES Permitting Authorities can phase in permit coverage for
small MS4s serving jurisdictions with a population under 10,000 on a
schedule consistent with a State watershed permitting approach.
Clarifying, Consolidating, or Simplifying Compliance and Reporting
Requirements
The rule avoids duplication in permit requirements by allowing
NPDES permitting authorities to include permit conditions that
direct an MS4 to follow the requirements of a qualifying local
program rather than the requirements of a minimum measure.
Compliance with these programs is considered compliance with the
NPDES general permit.
The rule allows NPDES permitting authorities to recognize
existing responsibilities among different municipal entities to
satisfy obligations for the minimum control measures.
A further alternative allows a small MS4 to satisfy its NPDES
permit obligations if another governmental entity is already
implementing a minimum control measure in the jurisdiction of the
small MS4. The following conditions must be met:
1. The other entity is implementing the control measure,
2. The particular control measure (or component thereof) is at
least as stringent as the corrersponding NPDES permit requirement,
and
3. The other entity agrees to implement the control measure on
your behalf.
The rule allows a covered small MS4 to ``piggy-back'' on to the
storm water management program of an adjoining Phase I MS4. A small
MS4 is waived from the application requirements of
Sec. 122.26(d)(1)(iii), (iv) and (d)(2)(iii) [discharge
characterization] and may satisfy the requirements of
Sec. 122.26(d)(1)(v) and (d)(2)(iv) [identifying a management plan]
by referencing the adjoining Phase I MS4's storm water management
plan.
The rule accommodates the use of the watershed approach through
NPDES general permits that could be issued on a watershed basis. The
small MS4 can develop measures that are tailored to meet their
watershed requirements. The small MS4's storm water management
program can tie into watershed-wide plans.
Performance Rather Than Design Standards for Small Entities
Small governmental jurisdictions whose MS4s are covered by this
rule are allowed to choose the best management practices (BMPs) to
be implemented and the measurable goals for each of the minimum
control measures:
1. Public education and outreach on storm water impacts
2. Public Involvement/Participation
3. Illicit discharge detection and elimination
[[Page 68812]]
4. Construction site storm water runoff control
5. Post-construction storm water management in new development
and redevelopment
6. Pollution prevention/good housekeeping for municipal
operations
EPA will provide guidance and recommend, but not mandate,
certain BMPs for some of the minimum control measures listed above.
States can provide guidance to supplement or supplant EPA guidance.
Small MS4s can identify the measurable goals for each of the
minimum control measures listed above. In their reports to the NPDES
permitting authority, the small MS4s must evaluate their progress
towards achievement of their identified measurable goals.
Waivers for Small Entities From Coverage
The rule allows permitting authorities to waive from coverage
MS4s operated by small governmental jurisdictions located within an
urbanized area and serving a population less than 1,000 people where
the permitting authority has determined the MS4 is not contributing
substantially to the pollutant loadings of an interconnected MS4
and, if the MS4 discharges pollutants that have been identified as a
cause of impairment in the receiving water of the MS4 then the
permitting authority has determined that storm water controls are
not needed based on a TMDL that addresses the pollutants of concern.
The rule allows the permitting authority to waive from coverage
MS4s serving a population under 10,000 where the permitting
authority has evaluated all waters that receive a discharge from the
MS4 and the permitting authority has determined that storm water
controls are not needed based on a TMDL that addresses the
pollutants of concern and future discharges do not have the
potential to result in exceedances of water quality standards.
B. Regulatory Flexibility for Small Construction Activities
Different Compliance, Reporting, or Timetables That Are Responsive
to Resources of Small Entities
The rule gives NPDES permitting authorities discretion not to
require the submittal of a notice of intent (NOI) for coverage under
a NPDES general permit, thereby reducing administrative and
financial burden. All construction sites disturbing greater than 5
acres must submit an NOI.
Clarifying, Consolidating, or Simplifying Compliance and Reporting
Requirements
The rule avoids duplication by allowing the NPDES permitting
authority to incorporate by reference State, Tribal, or local
programs under a NPDES general permit. Compliance with these
programs is considered compliance with the NPDES general permit.
Performance Rather Than Design Standards for Small Entities
The operator of a covered construction activity selects and
implement the BMPs most appropriate for the construction site based
on the operator's storm water pollution prevention plan.
Waivers for Small Entities From Coverage
Waivers could be granted based on the use of a rainfall
erosivity factor or a comprehensive analysis of water quality
impacts.
(A) Low rainfall waiver: When the rainfall erosivity factor
(``R'' from Revised Universal Soil Loss Equation) is less than 5
during the period of construction activity, a permit is not
required.
(B) Determination based on Water Quality Analysis: The NPDES
permitting authority can waive from coverage construction activities
disturbing from 1 acre up to 5 acres of land where storm water
controls are not needed based on:
1. A TMDL approved or established by EPA that addresses the
pollutants of concern, or
2. For non-impaired waters, an equivalent analysis that
determines that such allocations are not needed to protect water
quality based on consideration of existing in-stream concentrations,
expected growth in pollutant contributions from all sources, and a
margin of safety.
C. Regulatory Flexibility for Industrial/Commercial Facilities
Waivers for Small Entities From Coverage
The rule provides a ``no-exposure'' waiver provision for Phase I
industrial/commercial facilities. Qualifying facilities seeking this
provision simply need to complete a self-certification form
indicating that no industrial materials or activities are exposed to
rain, snow, snow melt and/or runoff.
Appendix 6 of Preamble--Governmental Entities Located Fully or
Partially Within an Urbanized Area
(This is a reference list only, not a list of all operators of
small MS4s subject to Secs. 122.32-122.36. For example, a listed
governmental entity is only regulated if it operates a small MS4
within an ``urbanized area'' boundary as determined by the Bureau of
the Census. Furthermore, entities such as military bases, large
hospitals, prison complexes, universities, sewer districts, and
highway departments that operate a small MS4 within an urbanized
area are also subject to the permitting regulations but are not
individually listed here. See Sec. 122.26(b)(16) for the definition
of a small MS4 and Sec. 122.32(a) for the definition of a regulated
small MS4.)
(Source: 1990 Census of Population and Housing, U.S. Bureau of
the Census. This list is subject to change with the Decennial
Census)
AL Anniston city
AL Attalla city
AL Auburn city
AL Autauga County
AL Blue Mountain town
AL Calhoun County
AL Colbert County
AL Dale County
AL Decatur city
AL Dothan city
AL Elmore County
AL Etowah County
AL Flint City town
AL Florence city
AL Gadsden city
AL Glencoe city
AL Grimes town
AL Hartselle city
AL Hobson City town
AL Hokes Bluff city
AL Houston County
AL Kinsey town
AL Lauderdale County
AL Lee County
AL Limestone County
AL Madison County
AL Midland City town
AL Montgomery County
AL Morgan County
AL Muscle Shoals city
AL Napier Field town
AL Northport city
AL Opelika city
AL Oxford city
AL Phenix City city
AL Prattville city
AL Priceville town
AL Rainbow City city
AL Russell County
AL Sheffield city
AL Southside city
AL Sylvan Springs town
AL Talladega County
AL Tuscaloosa city
AL Tuscaloosa County
AL Tuscumbia city
AL Weaver city
AR Alexander town
AR Barling city
AR Benton County
AR Cammack Village city
AR Crawford County
AR Crittenden County
AR Farmington city
AR Fayetteville city
AR Fort Smith city
AR Greenland town
AR Jacksonville city
AR Jefferson County
AR Johnson city
AR Marion city
AR Miller County
AR North Little Rock city
AR Pine Bluff city
AR Pulaski County
AR Saline County
AR Sebastian County
AR Shannon Hills city
AR Sherwood city
AR Springdale city
AR Sunset town
AR Texarkana city
AR Van Buren city
AR Washington County
AR West Memphis city
AR White Hall city
AZ Apache Junction city
AZ Chandler city
AZ El Mirage town
AZ Gilbert town
AZ Guadalupe town
AZ Maricopa County
AZ Oro Valley town
AZ Paradise Valley town
AZ Peoria city
AZ Pinal County
[[Page 68813]]
AZ South Tucson city
AZ Surprise town
AZ Tolleson city
AZ Youngtown town
AZ Yuma city
AZ Yuma County
CA Apple Valley town
CA Belvedere city
CA Benicia city
CA Brentwood city
CA Butte County
CA Capitola city
CA Carmel-by-the-Sea city
CA Carpinteria city
CA Ceres city
CA Chico city
CA Compton city
CA Corte Madera town
CA Cotati city
CA Davis city
CA Del Rey Oaks city
CA Fairfax town
CA Hesperia city
CA Imperial County
CA Lakewood city
CA Lancaster city
CA Larkspur city
CA Lodi city
CA Lompoc city
CA Marin County
CA Marina city
CA Marysville city
CA Merced city
CA Merced County
CA Mill Valley city
CA Monterey city
CA Monterey County
CA Morgan Hill city
CA Napa city
CA Napa County
CA Novato city
CA Pacific Grove city
CA Palm Desert city
CA Palmdale city
CA Piedmont city
CA Placer County
CA Redding city
CA Rocklin city
CA Rohnert Park city
CA Roseville city
CA Ross town
CA San Anselmo town
CA San Buenaventura (Ventura) city
CA San Francisco city
CA San Joaquin County
CA San Luis Obispo city
CA San Luis Obispo County
CA San Rafael city
CA Sand City city
CA Santa Barbara city
CA Santa Barbara County
CA Santa Cruz city
CA Santa Cruz County
CA Santa Maria city
CA Sausalito city
CA Scotts Valley city
CA Seaside city
CA Shasta County
CA Solano County
CA Sonoma County
CA Stanislaus County
CA Suisun City city
CA Sutter County
CA Tiburon town
CA Tulare County
CA Vacaville city
CA Victorville city
CA Villa Park city
CA Visalia city
CA Watsonville city
CA West Sacramento city
CA Yolo County
CA Yuba City city
CA Yuba County
CO Adams County
CO Arvada city
CO Boulder city
CO Boulder County
CO Bow Mar town
CO Broomfield city
CO Cherry Hills Village city
CO Columbine Valley town
CO Commerce City city
CO Douglas County
CO Edgewater city
CO El Paso County
CO Englewood city
CO Evans city
CO Federal Heights city
CO Fort Collins city
CO Fountain city
CO Garden City town
CO Glendale city
CO Golden city
CO Grand Junction city
CO Greeley city
CO Greenwood Village city
CO Jefferson County
CO La Salle town
CO Lakeside town
CO Larimer County
CO Littleton city
CO Longmont city
CO Manitou Springs city
CO Mesa County
CO Mountain View town
CO Northglenn city
CO Pueblo city
CO Pueblo County
CO Sheridan city
CO Thornton city
CO Weld County
CO Westminster city
CO Wheat Ridge city
CT Ansonia city
CT Avon town
CT Beacon Falls town
CT Berlin town
CT Bethel town
CT Bloomfield town
CT Bozrah town
CT Branford town
CT Bridgeport city
CT Bristol city
CT Brookfield town
CT Burlington town
CT Cheshire town
CT Cromwell town
CT Danbury city
CT Darien town
CT Derby city
CT Durham town
CT East Granby town
CT East Hartford town
CT East Haven town
CT East Lyme town
CT East Windsor town
CT Easton town
CT Ellington town
CT Enfield town
CT Fairfield County
CT Fairfield town
CT Farmington town
CT Franklin town
CT Glastonbury town
CT Greenwich town
CT Groton city
CT Groton town
CT Guilford town
CT Hamden town
CT Hartford city
CT Hartford County
CT Ledyard town
CT Lisbon town
CT Litchfield County
CT Manchester town
CT Meriden city
CT Middlebury town
CT Middlefield town
CT Middlesex County
CT Middletown city
CT Milford city (remainder)
CT Monroe town
CT Montville town
CT Naugatuck borough
CT New Britain city
CT New Canaan town
CT New Fairfield town
CT New Haven city
CT New Haven County
CT New London city
CT New London County
CT New Milford town
CT Newington town
CT Newtown town
CT North Branford town
CT North Haven town
CT Norwalk city
CT Norwich city
CT Orange town
CT Oxford town
CT Plainville town
CT Plymouth town
CT Portland town
CT Preston town
CT Prospect town
CT Rocky Hill town
CT Seymour town
CT Shelton city
CT Sherman town
CT Somers town
CT South Windsor town
CT Southington town
CT Sprague town
CT Stonington town
CT Stratford town
CT Suffield town
CT Thomaston town
CT Thompson town
CT Tolland County
CT Tolland town
CT Trumbull town
CT Vernon town
CT Wallingford town
CT Waterbury city
CT Waterford town
CT Watertown town
CT West Hartford town
CT West Haven city
CT Weston town
CT Westport town
CT Wethersfield town
CT Wilton town
CT Windham County
CT Windsor Locks town
CT Windsor town
CT Wolcott town
CT Woodbridge town
[[Page 68814]]
CT Woodmont borough
DE Camden town
DE Dover city
DE Kent County
DE Newark city
DE Wyoming town
FL Alachua County
FL Baldwin town
FL Bay County
FL Belleair Shore town
FL Biscayne Park village
FL Brevard County
FL Callaway city
FL Cape Canaveral city
FL Cedar Grove town
FL Charlotte County
FL Cinco Bayou town
FL Clay County
FL Cocoa Beach city
FL Cocoa city
FL Collier County
FL Daytona Beach city
FL Daytona Beach Shores city
FL Destin city
FL Edgewater city
FL El Portal village
FL Florida City city
FL Fort Pierce city
FL Fort Walton Beach city
FL Gainesville city
FL Gulf Breeze city
FL Hernando County
FL Hillsboro Beach town
FL Holly Hill city
FL Indialantic town
FL Indian Harbour Beach city
FL Indian River County
FL Indian River Shores town
FL Indian Shores town
FL Kissimmee city
FL Lazy Lake village
FL Lynn Haven city
FL Malabar town
FL Marion County
FL Martin County
FL Mary Esther city
FL Melbourne Beach town
FL Melbourne city
FL Melbourne Village town
FL Naples city
FL New Smyrna Beach city
FL Niceville city
FL Ocala city
FL Ocean Breeze Park town
FL Okaloosa County
FL Orange Park town
FL Ormond Beach city
FL Osceola County
FL Palm Bay city
FL Panama City city
FL Parker city
FL Ponce Inlet town
FL Port Orange city
FL Port St. Lucie city
FL Punta Gorda city
FL Rockledge city
FL Santa Rosa County
FL Satellite Beach city
FL Sewall's Point town
FL Shalimar town
FL South Daytona city
FL Springfield city
FL St. Johns County
FL St. Lucie County
FL St. Lucie village
FL Stuart city
FL Sweetwater city
FL Titusville city
FL Valparaiso city
FL Vero Beach city
FL Virginia Gardens village
FL Volusia County
FL Walton County
FL Weeki Wachee city
FL West Melbourne city
FL Windermere town
GA Albany city
GA Athens city
GA Bartow County
GA Brunswick city
GA Catoosa County
GA Centerville city
GA Chattahoochee County
GA Cherokee County
GA Chickamauga city
GA Clarke County
GA Columbia County
GA Conyers city
GA Dade County
GA Dougherty County
GA Douglas County
GA Douglasville city
GA Fayette County
GA Floyd County
GA Fort Oglethorpe city
GA Glynn County
GA Grovetown city
GA Henry County
GA Houston County
GA Jones County
GA Lee County
GA Lookout Mountain city
GA Mountain Park city
GA Oconee County
GA Payne city
GA Rockdale County
GA Rome city
GA Rossville city
GA Stockbridge city
GA Vernonburg town
GA Walker County
GA Warner Robins city
GA Winterville city
GA Woodstock city
IA Altoona city
IA Asbury city
IA Bettendorf city
IA Black Hawk County
IA Buffalo city
IA Carter Lake city
IA Cedar Falls city
IA Clive city
IA Coralville city
IA Council Bluffs city
IA Dallas County
IA Dubuque city
IA Dubuque County
IA Elk Run Heights city
IA Evansdale city
IA Hiawatha city
IA Iowa City city
IA Johnson County
IA Johnston city
IA Le Claire city
IA Linn County
IA Marion city
IA Norwalk city
IA Panorama Park city
IA Pleasant Hill city
IA Polk County
IA Pottawattamie County
IA Raymond city
IA Riverdale city
IA Robins city
IA Scott County
IA Sergeant Bluff city
IA Sioux City city
IA University Heights city
IA Urbandale city
IA Warren County
IA Waterloo city
IA West Des Moines city
IA Windsor Heights city
IA Woodbury County
ID Ada County
ID Ammon city
ID Bannock County
ID Bonneville County
ID Chubbuck city
ID Idaho Falls city
ID Iona city
ID Pocatello city
ID Power County
IL Addison township
IL Addison village
IL Algonquin township
IL Algonquin village
IL Alorton village
IL Alsip village
IL Alton city
IL Antioch township
IL Antioch village
IL Arlington Heights village
IL Aroma Park village
IL Aroma township
IL Aurora city
IL Aurora township
IL Avon township
IL Ball township
IL Bannockburn village
IL Barrington township
IL Barrington village
IL Bartlett village
IL Bartonville village
IL Batavia city
IL Batavia township
IL Beach Park village
IL Bedford Park village
IL Belleville city
IL Bellevue village
IL Bellwood village
IL Bensenville village
IL Benton township
IL Berkeley village
IL Berwyn city
IL Bethalto village
IL Blackhawk township
IL Bloom township
IL Bloomingdale township
IL Bloomingdale village
IL Bloomington city
IL Bloomington township
IL Blue Island city
IL Bolingbrook village
IL Bourbonnais township
IL Bourbonnais village
IL Bowling township
IL Bradley village
IL Bremen township
IL Bridgeview village
IL Bristol township
IL Broadview village
IL Brookfield village
IL Brooklyn village
IL Buffalo Grove village
IL Burbank city
IL Burnham village
IL Burr Ridge village
[[Page 68815]]
IL Burritt township
IL Burton township
IL Cahokia village
IL Calumet City city
IL Calumet Park village
IL Calumet township
IL Canteen township
IL Capital township
IL Carbon Cliff village
IL Carol Stream village
IL Carpentersville Village
IL Cary village
IL Caseyville township
IL Caseyville village
IL Centreville city
IL Centreville township
IL Champaign city
IL Champaign County
IL Champaign township
IL Channahon township
IL Cherry Valley township
IL Cherry Valley village
IL Chicago city
IL Chicago Heights city
IL Chicago Ridge village
IL Chouteau township
IL Cicero town
IL Cincinnati township
IL Clarendon Hills village
IL Coal Valley township
IL Coal Valley village
IL Collinsville city
IL Collinsville township
IL Colona township
IL Colona village
IL Columbia city
IL Country Club Hills city
IL Countryside city
IL Crest Hill city
IL Crestwood village
IL Crete township
IL Crete village
IL Creve Coeur village
IL Crystal Lake city
IL Cuba township
IL Curran township
IL Darien city
IL Decatur city
IL Decatur township
IL Deer Park village
IL Deerfield township
IL Deerfield village
IL Des Plaines city
IL Dixmoor village
IL Dolton village
IL Dorr township
IL Downers Grove township
IL Downers Grove village
IL Dry Grove township
IL Du Page township
IL Dundee township
IL Dunleith township
IL Dupo village
IL East Alton village
IL East Dubuque city
IL East Dundee village
IL East Hazel Crest village
IL East Moline city
IL East Peoria city
IL East St. Louis city
IL Edwardsville city
IL Edwardsville township
IL Ela township
IL Elgin city
IL Elgin township
IL Elk Grove township
IL Elk Grove Village village
IL Elm Grove township
IL Elmhurst city
IL Elmwood Park village
IL Evanston city
IL Evergreen Park village
IL Fairmont City village
IL Fairview Heights city
IL Flossmoor village
IL Fondulac township
IL Ford Heights village
IL Forest Park village
IL Forest View village
IL Forsyth village
IL Fort Russell township
IL Foster township
IL Fox Lake village
IL Fox River Grove village
IL Frankfort township
IL Frankfort village
IL Franklin Park village
IL Fremont township
IL Gardner township
IL Geneva city
IL Geneva township
IL Gilberts village
IL Glen Carbon village
IL Glen Ellyn village
IL Glencoe village
IL Glendale Heights village
IL Glenview village
IL Glenwood village
IL Godfrey township
IL Golf village
IL Grafton township
IL Grandview village
IL Granite City city
IL Grant township
IL Grayslake village
IL Green Oaks village
IL Green Rock city
IL Groveland township
IL Gurnee village
IL Hainesville village
IL Hampton township
IL Hampton village
IL Hanna township
IL Hanover Park village
IL Hanover township
IL Harlem township
IL Harristown township
IL Harristown village
IL Hartford village
IL Harvey city
IL Harwood Heights village
IL Hawthorn Woods village
IL Hazel Crest village
IL Henry County
IL Hensley township
IL Hickory Hills city
IL Hickory Point township
IL Highland Park city
IL Highwood city
IL Hillside village
IL Hinsdale village
IL Hodgkins village
IL Hoffman Estates village
IL Hollis township
IL Homer township
IL Hometown city
IL Homewood village
IL Indian Creek village
IL Indian Head Park village
IL Inverness village
IL Itasca village
IL Jarvis township
IL Jerome village
IL Jo Daviess County
IL Joliet city
IL Joliet township
IL Justice village
IL Kane County
IL Kankakee city
IL Kankakee County
IL Kankakee township
IL Kendall County
IL Kenilworth village
IL Kickapoo township
IL Kildeer village
IL La Grange Park village
IL La Grange village
IL Lake Barrington village
IL Lake Bluff village
IL Lake Forest city
IL Lake in the Hills village
IL Lake Villa township
IL Lake Villa village
IL Lake Zurich village
IL Lakemoor village
IL Lakewood village
IL Lansing village
IL Leland Grove city
IL Lemont township
IL Leyden township
IL Libertyville township
IL Libertyville village
IL Limestone township
IL Lincolnshire village
IL Lincolnwood village
IL Lindenhurst village
IL Lisle township
IL Lisle village
IL Lockport city
IL Lockport township
IL Lombard village
IL Long Creek township
IL Long Grove village
IL Loves Park city
IL Lynwood village
IL Lyons township
IL Lyons village
IL Machesney Park village
IL Macon County
IL Madison city
IL Madison County
IL Maine township
IL Markham city
IL Marquette Heights city
IL Maryville village
IL Matteson village
IL Maywood village
IL McCook village
IL McCullom Lake village
IL McHenry city
IL McHenry County
IL McHenry township
IL McLean County
IL Medina township
IL Melrose Park village
IL Merrionette Park village
IL Midlothian village
IL Milan village
IL Milton township
IL Moline city
IL Moline township
IL Monee township
IL Monroe County
IL Montgomery village
IL Moro township
IL Morton Grove village
IL Morton township
IL Morton village
[[Page 68816]]
IL Mount Prospect village
IL Mount Zion township
IL Mount Zion village
IL Mundelein village
IL Nameoki township
IL Naperville city
IL Naperville township
IL National City village
IL New Lenox township
IL New Lenox village
IL New Millford village
IL New Trier township
IL Newport township
IL Niles township
IL Niles village
IL Normal town
IL Normal township
IL Norridge village
IL North Aurora village
IL North Barrington village
IL North Chicago city
IL North Pekin village
IL North Riverside village
IL Northbrook village
IL Northfield township
IL Northfield village
IL Northlake city
IL Norwood Park township
IL Norwood village
IL Nunda township
IL Oak Brook village
IL Oak Forest city
IL Oak Grove village
IL Oak Lawn village
IL Oak Park village
IL Oakbrook Terrace city
IL Oakley township
IL Oakwood Hills village
IL O'Fallon city
IL O'Fallon township
IL Olympia Fields village
IL Orland Hills village
IL Orland Park village
IL Orland township
IL Oswego township
IL Oswego village
IL Otto township
IL Owen township
IL Palatine township
IL Palatine village
IL Palos Heights city
IL Palos Hills city
IL Palos Park village
IL Palos township
IL Park City city
IL Park Forest village
IL Park Ridge city
IL Pekin city
IL Pekin township
IL Peoria city
IL Peoria County
IL Peoria Heights village
IL Phoenix village
IL Pin Oak township
IL Plainfield township
IL Plainfield village
IL Pontoon Beach village
IL Posen village
IL Precinct 10
IL Prospect Heights city
IL Proviso township
IL Rich township
IL Richton Park village
IL Richwoods township
IL River Forest village
IL River Grove village
IL Riverdale village
IL Riverside township
IL Riverside village
IL Riverwoods village
IL Robbins village
IL Rochester township
IL Rock Island city
IL Rock Island County
IL Rock Island township
IL Rockdale village
IL Rockford township
IL Rockton township
IL Rockton village
IL Rolling Meadows city
IL Romeoville village
IL Roscoe township
IL Roscoe village
IL Roselle village
IL Rosemont village
IL Round Lake Beach village
IL Round Lake Heights village
IL Round Lake Park village
IL Round Lake village
IL Roxana village
IL Rutland township
IL Sangamon County
IL Sauget village
IL Sauk Village village
IL Savoy village
IL Schaumburg township
IL Schaumburg village
IL Schiller Park village
IL Shields township
IL Shiloh Valley township
IL Shiloh village
IL Shorewood village
IL Silvis city
IL Skokie village
IL Sleepy Hollow village
IL Somer township
IL South Beloit city
IL South Chicago Heights village
IL South Elgin village
IL South Holland village
IL South Moline township
IL South Rock Island township
IL South Roxana village
IL South Wheatland township
IL Southern View village
IL Spring Bay township
IL Springfield city
IL Springfield township
IL St. Charles city
IL St. Charles township
IL St. Clair County
IL St. Clair township
IL Steger village
IL Stickney township
IL Stickney village
IL Stites township
IL Stone Park village
IL Stookey township
IL Streamwood village
IL Sugar Grove township
IL Sugar Loaf township
IL Summit village
IL Sunnyside village
IL Swansea village
IL Tazewell County
IL Thornton township
IL Thornton village
IL Tinley Park village
IL Tolono township
IL Tower Lakes village
IL Tremont township
IL Troy city
IL Troy township
IL University Park village
IL Urbana city
IL Urbana township
IL Venice city
IL Venice township
IL Vernon Hills village
IL Vernon township
IL Villa Park village
IL Warren township
IL Warrenville city
IL Washington city
IL Washington Park village
IL Washington township
IL Wauconda township
IL Waukegan city
IL Waukegan township
IL Wayne township
IL West Chicago city
IL West Deerfield township
IL West Dundee village
IL West Peoria township
IL Westchester village
IL Western Springs village
IL Westmont village
IL Wheatland township
IL Wheaton city
IL Wheeling township
IL Wheeling village
IL Whitmore township
IL Will County
IL Willow Springs village
IL Willowbrook village
IL Wilmette village
IL Winfield township
IL Winfield village
IL Winnebago County
IL Winnetka village
IL Winthrop Harbor village
IL Wood Dale city
IL Wood River city
IL Wood River township
IL Woodford County
IL Woodridge village
IL Woodside township
IL Worth township
IL Worth village
IL York township
IL Zion city
IN Aboite township
IN Adams township
IN Allen County
IN Anderson city
IN Anderson township
IN Baugo township
IN Beech Grove city
IN Bloomington city
IN Bloomington township
IN Boone County
IN Buck Creek township
IN Calumet township
IN Carmel city
IN Castleton town
IN Cedar Creek township
IN Center township
IN Centre township
IN Chesterfield town
IN Chesterton town
IN Clark County
IN Clarksville town
IN Clay township
IN Clermont town
IN Cleveland township
IN Concord township
IN Country Club Heights town
[[Page 68817]]
IN Crown Point city
IN Crows Nest town
IN Cumberland town
IN Daleville town
IN Delaware County
IN Delaware township
IN Dyer town
IN Eagle township
IN East Chicago city
IN Edgewood town
IN Elkhart city
IN Elkhart County
IN Elkhart township
IN Evansville city
IN Fairfield township
IN Fall Creek township
IN Fishers town
IN Floyd County
IN Fort Wayne city
IN Franklin township
IN Gary city
IN German township
IN Goshen city
IN Greenwood city
IN Griffith town
IN Hamilton County
IN Hamilton township
IN Hammond city
IN Hancock County
IN Hanover township
IN Harris township
IN Harrison township
IN Hendricks County
IN Highland town
IN Hobart city
IN Hobart township
IN Homecroft town
IN Honey Creek township
IN Howard County
IN Howard township
IN Indian Village town
IN Jackson township
IN Jefferson township
IN Jeffersonville city
IN Jeffersonville township
IN Johnson County
IN Knight township
IN Kokomo city
IN Lafayette city
IN Lafayette township
IN Lake County
IN Lake Station city
IN Lawrence city
IN Lawrence township
IN Liberty township
IN Lincoln township
IN Lost Creek township
IN Madison County
IN Meridian Hills town
IN Merrillville town
IN Mishawaka city
IN Monroe County
IN Mount Pleasant township
IN Muncie city
IN Munster town
IN New Albany city
IN New Albany township
IN New Chicago town
IN New Haven city
IN New Whiteland town
IN Newburgh town
IN North Crows Nest town
IN North township
IN Ogden Dunes town
IN Ohio township
IN Osceola town
IN Osolo township
IN Otter Creek township
IN Penn township
IN Perry township
IN Pigeon township
IN Pike township
IN Pleasant township
IN Portage city
IN Portage township
IN Porter County
IN Porter town
IN Richland township
IN Riley township
IN River Forest town
IN Rocky Ripple town
IN Roseland town
IN Ross township
IN Salem township
IN Schererville town
IN Seelyville town
IN Sellersburg town
IN Selma town
IN Silver Creek township
IN South Bend city
IN Southport city
IN Speedway town
IN Spring Hill town
IN St. John town
IN St. John township
IN St. Joseph County
IN St. Joseph township
IN Sugar Creek township
IN Taylor township
IN Terre Haute city
IN Tippecanoe County
IN Tippecanoe township
IN Union township
IN Utica township
IN Van Buren township
IN Vanderburgh County
IN Vigo County
IN Wabash township
IN Warren Park town
IN Warren township
IN Warrick County
IN Washington township
IN Wayne township
IN Wea township
IN West Lafayette city
IN West Terre Haute town
IN Westchester township
IN Westfield town
IN White River township
IN Whiteland town
IN Whiting city
IN Williams Creek town
IN Woodlawn Heights town
IN Wynnedale town
IN Yorktown town
IN Zionsville town
KS Attica township
KS Bel Aire city
KS Countryside city
KS Delano township
KS Doniphan County
KS Douglas County
KS Eastborough city
KS Elwood city
KS Fairway city
KS Gypsum township
KS Haysville city
KS Johnson County
KS Kechi city
KS Kechi township
KS Lake Quivira city
KS Lawrence city
KS Leawood city
KS Lenexa city
KS Merriam city
KS Minneha township
KS Mission city
KS Mission Hills city
KS Mission township
KS Mission Woods city
KS Monticello township
KS Ohio township
KS Olathe city
KS Olathe township
KS Park City city
KS Park township
KS Prairie Village city
KS Riverside township
KS Roeland Park city
KS Salem township
KS Sedgwick County
KS Shawnee city
KS Shawnee County
KS Shawnee township
KS Soldier township
KS Tecumseh township
KS Topeka township
KS Waco township
KS Wakarusa township
KS Washington township
KS Westwood city
KS Westwood Hills city
KS Williamsport township
KS Wyandotte County
KY Alexandria city
KY Ashland city
KY Bellefonte city
KY Bellevue city
KY Boone County
KY Boyd County
KY Bromley city
KY Bullitt County
KY Campbell County
KY Catlettsburg city
KY Christian County
KY Covington city
KY Crescent Park city
KY Crescent Springs city
KY Crestview city
KY Crestview Hills city
KY Daviess County
KY Dayton city
KY Edgewood city
KY Elsmere city
KY Erlanger city
KY Fairview city
KY Flatwoods city
KY Florence city
KY Forest Hills city
KY Fort Mitchell city
KY Fort Thomas city
KY Fort Wright city
KY Fox Chase city
KY Greenup County
KY Hebron Estates city
KY Henderson city
KY Henderson County
KY Highland Heights city
KY Hillview city
KY Hunters Hollow city
KY Independence city
KY Jessamine County
KY Kenton County
KY Kenton Vale city
KY Lakeside Park city
KY Latonia Lakes city
KY Ludlow city
KY Melbourne city
[[Page 68818]]
KY Newport city
KY Oak Grove city
KY Owensboro city
KY Park Hills city
KY Pioneer Village city
KY Raceland city
KY Russell city
KY Silver Grove city
KY Southgate city
KY Taylor Mill city
KY Villa Hills city
KY Wilder city
KY Woodlawn city
KY Wurtland city
LA Alexandria city
LA Baker city
LA Ball town
LA Bossier City city
LA Bossier Parish
LA Broussard town
LA Caddo Parish
LA Calcasieu Parish
LA Carencro city
LA Denham Springs city
LA Houma city
LA Lafayette city
LA Lafayette Parish
LA Lafourche Parish
LA Lake Charles city
LA Livingston Parish
LA Monroe city
LA Ouachita Parish
LA Pineville city
LA Plaquemines Parish
LA Port Allen city
LA Rapides Parish
LA Richwood town
LA Scott town
LA Slidell city
LA St. Bernard Parish
LA St. Charles Parish
LA St. Tammany Parish
LA Sulphur city
LA Terrebonne Parish
LA West Baton Rouge Parish
LA West Monroe city
LA Westlake city
LA Zachary city
MA Abington town
MA Acton town
MA Acushnet town
MA Agawam town
MA Amesbury town
MA Andover town
MA Arlington town
MA Ashland town
MA Attleboro city
MA Auburn town
MA Avon town
MA Barnstable County
MA Barnstable town
MA Bedford town
MA Bellingham town
MA Belmont town
MA Berkshire County
MA Beverly city
MA Billerica town
MA Blackstone town
MA Boxborough town
MA Boylston town
MA Braintree town
MA Bridgewater town
MA Bristol County
MA Brockton city
MA Brookline town
MA Burlington town
MA Cambridge city
MA Canton town
MA Charlton town
MA Chelmsford town
MA Chelsea city
MA Chicopee city
MA Cohasset town
MA Concord town
MA Dalton town
MA Danvers town
MA Dartmouth town
MA Dedham town
MA Dennis town
MA Dighton town
MA Dover town
MA Dracut town
MA Dudley town
MA East Bridgewater town
MA East Longmeadow town
MA Easthampton town
MA Easton town
MA Essex County
MA Essex town
MA Everett city
MA Fairhaven town
MA Fall River city
MA Fitchburg city
MA Foxborough town
MA Framingham town
MA Franklin town
MA Freetown town
MA Georgetown town
MA Gloucester city
MA Grafton town
MA Granby town
MA Groton town
MA Groveland town
MA Hadley town
MA Halifax town
MA Hamilton town
MA Hampden County
MA Hampden town
MA Hampshire County
MA Hanover town
MA Hanson town
MA Haverhill city
MA Hingham town
MA Hinsdale town
MA Holbrook town
MA Holden town
MA Holliston town
MA Holyoke city
MA Hudson town
MA Hull town
MA Lanesborough town
MA Lawrence city
MA Leicester town
MA Leominster city
MA Lexington town
MA Lincoln town
MA Littleton town
MA Longmeadow town
MA Lowell city
MA Ludlow town
MA Lunenburg town
MA Lynn city
MA Lynnfield town
MA Malden city
MA Manchester town
MA Mansfield town
MA Marblehead town
MA Marlborough city
MA Mashpee town
MA Maynard town
MA Medfield town
MA Medford city
MA Medway town
MA Melrose city
MA Merrimac town
MA Methuen town
MA Middlesex County
MA Middleton town
MA Millbury town
MA Millis town
MA Millville town
MA Milton town
MA Nahant town
MA Natick town
MA Needham town
MA New Bedford city
MA Newton city
MA Norfolk town
MA North Andover town
MA North Attleborough town
MA North Reading town
MA Northampton city
MA Northborough town
MA Northbridge town
MA Norton town
MA Norwell town
MA Norwood town
MA Oxford town
MA Paxton town
MA Peabody city
MA Pembroke town
MA Pittsfield city
MA Plainville town
MA Plymouth County
MA Quincy city
MA Randolph town
MA Raynham town
MA Reading town
MA Rehoboth town
MA Revere city
MA Rockland town
MA Rockport town
MA Salem city
MA Sandwich town
MA Saugus town
MA Scituate town
MA Seekonk town
MA Sharon town
MA Shrewsbury town
MA Somerset town
MA Somerville city
MA South Hadley town
MA Southampton town
MA Southborough town
MA Southwick town
MA Springfield city
MA Stoneham town
MA Stoughton town
MA Stow town
MA Sudbury town
MA Sutton town
MA Swampscott town
MA Swansea town
MA Taunton city
MA Tewksbury town
MA Tyngsborough town
MA Uxbridge town
MA Wakefield town
MA Walpole town
MA Waltham city
MA Watertown town
MA Wayland town
MA Webster town
MA Wellesley town
MA Wenham town
MA West Boylston town
MA West Bridgewater town
MA West Springfield town
[[Page 68819]]
MA Westborough town
MA Westfield city
MA Westford town
MA Westminster town
MA Weston town
MA Westport town
MA Westwood town
MA Weymouth town
MA Whitman town
MA Wilbraham town
MA Williamsburg town
MA Wilmington town
MA Winchester town
MA Winthrop town
MA Woburn city
MA Worcester County
MA Wrentham town
MA Yarmouth town
MD Allegany County
MD Annapolis city
MD Bel Air town
MD Berwyn Heights town
MD Bladensburg town
MD Bowie city
MD Brentwood town
MD Brookeville town
MD Capitol Heights town
MD Cecil County
MD Cheverly town
MD Chevy Chase Section Five village
MD Chevy Chase Section Three village
MD Chevy Chase town
MD Chevy Chase Village town
MD College Park city
MD Colmar Manor town
MD Cottage City town
MD Cumberland city
MD District Heights city
MD Edmonston town
MD Elkton town
MD Fairmount Heights town
MD Forest Heights town
MD Frederick city
MD Frostburg city
MD Funkstown town
MD Gaithersburg city
MD Garrett Park town
MD Glen Echo town
MD Glenarden town
MD Greenbelt city
MD Hagerstown city
MD Highland Beach town
MD Hyattsville city
MD Kensington town
MD Landover Hills town
MD Laurel city
MD Martin's Additions village
MD Morningside town
MD Mount Rainier city
MD New Carrollton city
MD North Brentwood town
MD Riverdale town
MD Rockville city
MD Seat Pleasant city
MD Smithsburg town
MD Somerset town
MD Takoma Park city
MD University Park town
MD Walkersville town
MD Washington Grove town
MD Williamsport town
ME Androscoggin County
ME Auburn city
ME Bangor city
ME Berwick town
ME Brewer city
ME Cape Elizabeth town
ME Cumberland County
ME Eliot town
ME Falmouth town
ME Gorham town
ME Kittery town
ME Lebanon town
ME Lewiston city
ME Lisbon town
ME Old Town city
ME Orono town
ME Penobscot County
ME Penobscot Indian Island Reservation
ME Portland city
ME Sabattus town
ME Scarborough town
ME South Berwick town
ME South Portland city
ME Veazie town
ME Westbrook city
ME York County
MI Ada township
MI Allegan County
MI Allen Park city
MI Alpine township
MI Ann Arbor township
MI Auburn Hills city
MI Bangor township
MI Bath township
MI Battle Creek city
MI Bay City city
MI Bay County
MI Bedford township
MI Belleville city
MI Benton Charter township
MI Benton Harbor city
MI Berkley city
MI Berlin township
MI Berrien County
MI Beverly Hills village
MI Bingham Farms village
MI Birmingham city
MI Blackman township
MI Bloomfield Hills city
MI Bloomfield township
MI Bridgeport township
MI Brownstown township
MI Buena Vista Charter township
MI Burtchville township
MI Burton city
MI Byron township
MI Calhoun County
MI Canton township
MI Carrollton township
MI Cascade township
MI Cass County
MI Center Line city
MI Chesterfield township
MI Clarkston village
MI Clawson city
MI Clay township
MI Clayton township
MI Clinton County
MI Clinton township
MI Clio city
MI Clyde township
MI Commerce township
MI Comstock township
MI Cooper township
MI Dalton township
MI Davison city
MI Davison township
MI De Witt township
MI Dearborn city
MI Dearborn Heights city
MI Delhi Charter township
MI Delta township
MI Detroit city
MI East China township
MI East Detroit city
MI East Grand Rapids city
MI East Lansing city
MI Eaton County
MI Ecorse city
MI Emmett township
MI Erie township
MI Essexville city
MI Farmington city
MI Farmington Hills city
MI Ferndale city
MI Fillmore township
MI Flat Rock city
MI Flint township
MI Flushing city
MI Flushing township
MI Fort Gratiot township
MI Frankenlust township
MI Franklin village
MI Fraser city
MI Fruitport township
MI Gaines township
MI Garden City city
MI Genesee County
MI Genesee township
MI Georgetown township
MI Gibraltar city
MI Grand Blanc city
MI Grand Blanc township
MI Grand Rapids Charter township
MI Grandville city
MI Grosse Ile township
MI Grosse Pointe city
MI Grosse Pointe Farms city
MI Grosse Pointe Park city
MI Grosse Pointe Shores village
MI Grosse Pointe Woods city
MI Hampton township
MI Hamtramck city
MI Harper Woods city
MI Harrison township
MI Hazel Park city
MI Highland Park city
MI Highland township
MI Holland city
MI Holland township
MI Howard township
MI Hudsonville city
MI Huntington Woods city
MI Huron township
MI Independence township
MI Ingham County
MI Inkster city
MI Ira township
MI Jackson city
MI Jackson County
MI James township
MI Kalamazoo city
MI Kalamazoo County
MI Kalamazoo township
MI Keego Harbor city
MI Kent County
MI Kentwood city
MI Kimball township
MI Kochville township
MI Lake Angelus city
MI Laketon township
MI Laketown township
MI Lansing city
MI Lansing township
MI Lathrup Village city
MI Leoni township
MI Lincoln Park city
[[Page 68820]]
MI Lincoln township
MI Livonia city
MI Macomb County
MI Macomb township
MI Madison Heights city
MI Marysville city
MI Melvindale city
MI Meridian township
MI Milford township
MI Milton township
MI Monitor township
MI Monroe County
MI Mount Clemens city
MI Mount Morris city
MI Mount Morris township
MI Mundy township
MI Muskegon city
MI Muskegon County
MI Muskegon Heights city
MI Muskegon township
MI New Baltimore city
MI Niles city
MI Niles township
MI North Muskegon city
MI Northville city
MI Northville township
MI Norton Shores city
MI Novi city
MI Novi township
MI Oak Park city
MI Oakland Charter township
MI Oakland County
MI Orchard Lake Village city
MI Orion township
MI Oshtemo township
MI Ottawa County
MI Parchment city
MI Park township
MI Pavilion township
MI Pennfield township
MI Pittsfield township
MI Plainfield township
MI Pleasant Ridge city
MI Plymouth city
MI Plymouth township
MI Pontiac city
MI Port Huron city
MI Port Huron township
MI Portage city
MI Portsmouth township
MI Redford township
MI Richfield township
MI River Rouge city
MI Riverview city
MI Rochester city
MI Rochester Hills city
MI Rockwood city
MI Romulus city
MI Roosevelt Park city
MI Roseville city
MI Ross township
MI Royal Oak city
MI Royal Oak township
MI Saginaw city
MI Saginaw County
MI Saginaw township
MI Schoolcraft township
MI Scio township
MI Shelby township
MI Shoreham village
MI Sodus township
MI South Rockwood village
MI Southfield city
MI Southfield township
MI Southgate city
MI Spaulding township
MI Spring Arbor township
MI Springfield city
MI Springfield township
MI St. Clair city
MI St. Clair County
MI St. Clair Shores city
MI St. Clair township
MI St. Joseph Charter township
MI St. Joseph city
MI Stevensville village
MI Sullivan township
MI Summit township
MI Sumpter township
MI Superior township
MI Swartz Creek city
MI Sylvan Lake city
MI Taylor city
MI Texas township
MI Thetford township
MI Thomas township
MI Trenton city
MI Troy city
MI Utica city
MI Van Buren township
MI Vienna township
MI Walker city
MI Walled Lake city
MI Washington township
MI Washtenaw County
MI Waterford township
MI Wayne city
MI West Bloomfield township
MI Westland city
MI White Lake township
MI Whiteford township
MI Williamstown township
MI Wixom city
MI Wolverine Lake village
MI Woodhaven city
MI Wyandotte city
MI Wyoming city
MI Ypsilanti city
MI Ypsilanti township
MI Zeeland city
MI Zilwaukee city
MN Andover city
MN Anoka city
MN Anoka County
MN Apple Valley city
MN Arden Hills city
MN Benton County
MN Birchwood Village city
MN Blaine city
MN Bloomington city
MN Brooklyn Center city
MN Brooklyn Park city
MN Burnsville city
MN Carver County
MN Cascade township
MN Champlin city
MN Chanhassen city
MN Circle Pines city
MN Clay County
MN Coon Rapids city
MN Cottage Grove city
MN Credit River township
MN Crystal city
MN Dakota County
MN Dayton city
MN Deephaven city
MN Dilworth city
MN Duluth city
MN Eagan city
MN East Grand Forks city
MN Eden Prairie city
MN Excelsior city
MN Falcon Heights city
MN Farmington city
MN Fort Snelling unorg.
MN Fridley city
MN Gem Lake city
MN Golden Valley city
MN Grant township
MN Greenwood city
MN Ham Lake city
MN Haven township
MN Hennepin County
MN Hermantown city
MN Hilltop city
MN Hopkins city
MN Houston County
MN Inver Grove Heights city
MN La Crescent city
MN La Crescent township
MN Lake Elmo city
MN Lakeville city
MN Landfall city
MN Lauderdale city
MN Le Sauk township
MN Lexington city
MN Lilydale city
MN Lino Lakes city
MN Little Canada city
MN Long Lake city
MN Loretto city
MN Mahtomedi city
MN Maple Grove city
MN Maple Plain city
MN Maplewood city
MN Marion township
MN Medicine Lake city
MN Medina city
MN Mendota city
MN Mendota Heights city
MN Midway township
MN Minden township
MN Minnetonka Beach city
MN Minnetonka city
MN Minnetrista city
MN Moorhead city
MN Moorhead township
MN Mound city
MN Mounds View city
MN New Brighton city
MN New Hope city
MN Newport city
MN North Oaks city
MN North St. Paul city
MN Oakdale city
MN Oakport township
MN Olmsted County
MN Orono city
MN Osseo city
MN Plymouth city
MN Polk County
MN Prior Lake city
MN Proctor city
MN Ramsey city
MN Robbinsdale city
MN Rochester city
MN Rochester township
MN Rosemount city
MN Roseville city
MN Sartell city
MN Sauk Rapids city
MN Sauk Rapids township
MN Savage city
MN Scott County
MN Sherburne County
MN Shoreview city
MN Shorewood city
MN South St. Paul city
[[Page 68821]]
MN Spring Lake Park city
MN Spring Park city
MN St. Anthony city
MN St. Cloud city
MN St. Cloud township
MN St. Louis County
MN St. Paul Park city
MN Stearns County
MN Sunfish Lake city
MN Tonka Bay city
MN Vadnais Heights city
MN Victoria city
MN Waite Park city
MN Washington County
MN Wayzata city
MN West St. Paul city
MN White Bear Lake city
MN White Bear township
MN Willernie city
MN Woodbury city
MN Woodland city
MN Wright County
MO Airport Drive village
MO Airport township
MO Andrew County
MO Arnold city
MO Avondale city
MO Ballwin city
MO Battlefield town
MO Bella Villa city
MO Bellefontaine Neighbors city
MO Bellerive village
MO Bel-Nor village
MO Bel-Ridge village
MO Belton city
MO Berkeley city
MO Beverly Hills city
MO Big Creek township
MO Birmingham village
MO Black Jack city
MO Blanchette township
MO Blue Springs city
MO Blue township
MO Bonhomme township
MO Boone County
MO Boone township
MO Breckenridge Hills village
MO Brentwood city
MO Bridgeton city
MO Brooking township
MO Buchanan County
MO Calverton Park village
MO Campbell No. 1 township
MO Campbell No. 2 township
MO Carl Junction city
MO Carroll township
MO Carterville city
MO Cass County
MO Cedar township
MO Center township
MO Charlack city
MO Chesterfield city
MO Chouteau township
MO Christian County
MO Clarkson Valley city
MO Clay County
MO Clay township
MO Claycomd village
MO Clayton city
MO Clayton township
MO Cliff Village village
MO Columbia city
MO Columbia township
MO Concord township
MO Cool Valley city
MO Cottleville town
MO Cottleville township
MO Country Club Hills city
MO Country Club village
MO Country Life Acres village
MO Crestwood city
MO Creve Coeur city
MO Creve Coeur township
MO Crystal Lake Park city
MO Dardenne township
MO Dellwood city
MO Dennis Acres village
MO Des Peres city
MO Duquesne village
MO Edmundson village
MO Ellisville city
MO Fenton city
MO Ferguson city
MO Ferguson township
MO Flordell Hills city
MO Florissant city
MO Florissant township
MO Fox township
MO Friedens township
MO Frontenac city
MO Galena township
MO Gallatin township
MO Gladstone city
MO Glen Echo Park village
MO Glenaire village
MO Glendale city
MO Grandview city
MO Grantwood Village town
MO Gravois township
MO Greendale city
MO Greene County
MO Hadley township
MO Hanley Hills village
MO Harvester township
MO Hazelwood city
MO High Ridge township
MO Hillsdale village
MO Houston Lake city
MO Huntleigh city
MO Imperial township
MO Iron Gates village
MO Jackson County
MO Jasper County
MO Jefferson County
MO Jefferson township
MO Jennings city
MO Joplin city
MO Joplin township
MO Kickapoo township
MO Kimmswick city
MO Kinloch city
MO Kirkwood city
MO Ladue city
MO Lake St. Louis city
MO Lake Tapawingo city
MO Lake Waukomis city
MO Lakeshire city
MO Leawood village
MO Lee's Summit city
MO Lemay township
MO Lewis and Clark township
MO Liberty city
MO Liberty township
MO Mac Kenzie village
MO Manchester city
MO Maplewood city
MO Marlborough village
MO Maryland Heights city
MO May township
MO Meramec township
MO Midland township
MO Mineral township
MO Missouri River township
MO Missouri township
MO Moline Acres city
MO Mount Pleasant township
MO Newton County
MO Normandy city
MO Normandy township
MO North Campbell No. 1 township
MO North Campbell No. 2 township
MO North Campbell No. 3 township
MO North Kansas City city
MO North View township
MO Northmoor city
MO Northwest township
MO Northwoods city
MO Norwood Court town
MO Oakland city
MO Oakland Park village
MO Oaks village
MO Oakview village
MO Oakwood Park village
MO Oakwood village
MO O'Fallon city
MO O'Fallon township
MO Olivette city
MO Overland city
MO Pagedale city
MO Parkdale town
MO Parkville city
MO Pasadena Hills city
MO Pasadena Park village
MO Pettis township
MO Pine Lawn city
MO Platte County
MO Platte township
MO Platte Woods city
MO Pleasant Valley city
MO Prairie township
MO Queeny township
MO Randolph village
MO Raymore city
MO Raymore township
MO Raytown city
MO Redings Mill village
MO Richmond Heights city
MO Rivers township
MO Riverside city
MO Riverview village
MO Rock Hill city
MO Rock township
MO Rocky Fork township
MO Saginaw village
MO Shoal Creek Drive village
MO Shoal Creek township
MO Shrewsbury city
MO Silver Creek village
MO Sioux township
MO Sni-A-Bar township
MO Spanish Lake township
MO Spencer Creek township
MO St. Ann city
MO St. Charles city
MO St. Ferdinand township
MO St. George city
MO St. John city
MO St. Joseph city
MO St. Louis city
MO St. Peters city
MO St. Peters township
MO Sugar Creek city
MO Sunset Hills city
MO Sycamore Hills village
MO Town and Country city
MO Twin Groves township
MO Twin Oaks village
MO Unity Village village
[[Page 68822]]
MO University City city
MO Uplands Park village
MO Valley Park city
MO Velda Village city
MO Velda Village Hills village
MO Vinita Park city
MO Vinita Terrace village
MO Warson Woods city
MO Washington township
MO Wayne township
MO Weatherby Lake city
MO Webb City city
MO Webster Groves city
MO Wellston city
MO Wentzville township
MO Westwood village
MO Wilbur Park village
MO Wilson township
MO Winchester city
MO Windsor township
MO Woodson Terrace city
MO Zumbehl township
MS Bay St. Louis city
MS Biloxi city
MS Brandon city
MS Clinton city
MS DeSoto County
MS D'Iberville city
MS Flowood town
MS Forrest County
MS Gautier city
MS Gulfport city
MS Hancock County
MS Harrison County
MS Hattiesburg city
MS Hinds County
MS Horn Lake city
MS Jackson County
MS Lamar County
MS Long Beach city
MS Madison city
MS Madison County
MS Moss Point city
MS Ocean Springs city
MS Pascagoula city
MS Pass Christian city
MS Pearl city
MS Petal city
MS Rankin County
MS Richland city
MS Ridgeland city
MS Southaven city
MS Waveland city
MT Billings city
MT Cascade County
MT Great Falls city
MT Missoula city
MT Missoula County
MT Yellowstone County
NC Alamance County
NC Apex town
NC Archdale city
NC Asheville city
NC Belmont city
NC Belville town
NC Bessemer City city
NC Biltmore Forest town
NC Black Mountain town
NC Brookford town
NC Brunswick County
NC Buncombe County
NC Burke County
NC Burlington city
NC Cabarrus County
NC Carrboro town
NC Cary town
NC Catawba County
NC Chapel Hill town
NC China Grove town
NC Clemmons village
NC Concord city
NC Conover city
NC Cramerton town
NC Dallas town
NC Davidson County
NC Durham County
NC Edgecombe County
NC Elon College town
NC Fletcher town
NC Forsyth County
NC Garner town
NC Gaston County
NC Gastonia city
NC Gibsonville town
NC Goldsboro city
NC Graham city
NC Greenville city
NC Guilford County
NC Harnett County
NC Haw River town
NC Henderson County
NC Hickory city
NC High Point city
NC Hildebran town
NC Hope Mills town
NC Indian Trail town
NC Jacksonville city
NC Jamestown town
NC Kannapolis city
NC Landis town
NC Leland town
NC Long View town
NC Lowell city
NC Matthews town
NC McAdenville town
NC Mebane city
NC Mecklenburg County
NC Mint Hill town
NC Montreat town
NC Mount Holly city
NC Nash County
NC New Hanover County
NC Newton city
NC Onslow County
NC Orange County
NC Pineville town
NC Pitt County
NC Randolph County
NC Ranlo town
NC Rocky Mount city
NC Rowan County
NC Rural Hall town
NC Spring Lake town
NC Stallings town
NC Thomasville city
NC Union County
NC Wake County
NC Walkertown town
NC Wayne County
NC Weaverville town
NC Wilmington city
NC Winterville town
NC Woodfin town
NC Wrightsville Beach town
ND Barnes township
ND Bismarck city
ND Bismarck unorg.
ND Burleigh County
ND Captain's Landing township
ND Cass County
ND Fargo city
ND Grand Forks city
ND Grand Forks County
ND Grand Forks township
ND Hay Creek township
ND Lincoln city
ND Mandan city
ND Mandan unorg.
ND Morton County
ND Reed township
ND West Fargo city
NE Bellevue city
NE Bellevue No. 2 precinct
NE Benson precinct
NE Boys Town village
NE Chicago precinct
NE Covington precinct
NE Dakota County
NE Douglas County
NE Douglas precinct
NE Florence precinct
NE Garfield precinct
NE Gilmore No. 1 precinct
NE Gilmore No. 2 precinct
NE Gilmore No. 3 precinct
NE Grant precinct
NE Highland No. 1 precinct
NE Highland No. 2 precinct
NE Jefferson precinct
NE La Platte precinct
NE La Vista city
NE Lancaster County
NE Lancaster precinct
NE McArdle precinct
NE Millard precinct
NE Papillion city
NE Papillion No. 2 precinct
NE Pawnee precinct
NE Ralston city
NE Richland No. 1 precinct
NE Richland No. 2 precinct
NE Richland No. 3 precinct
NE Sarpy County
NE South Sioux City city
NE Union precinct
NE Yankee Hill precinct
NH Amherst town
NH Auburn town
NH Bedford town
NH Dover city
NH Durham town
NH Goffstown town
NH Hillsborough County
NH Hollis town
NH Hooksett town
NH Hudson town
NH Litchfield town
NH Londonderry town
NH Madbury town
NH Manchester city
NH Merrimack County
NH Merrimack town
NH Nashua city
NH New Castle town
NH Newington town
NH Pelham town
NH Plaistow town
NH Portsmouth city
NH Rochester city
NH Rockingham County
NH Rollinsford town
NH Rye town
NH Salem town
NH Somersworth city
NH Strafford County
NH Windham town
NJ Aberdeen township
NJ Absecon city
[[Page 68823]]
NJ Allendale borough
NJ Allenhurst borough
NJ Alpha borough
NJ Alpine borough
NJ Asbury Park city
NJ Atlantic City city
NJ Atlantic County
NJ Atlantic Highlands borough
NJ Audubon borough
NJ Audubon Park borough
NJ Avon-by-the-Sea borough
NJ Barrington borough
NJ Bay Head borough
NJ Bayonne city
NJ Beachwood borough
NJ Bedminster township
NJ Belleville township
NJ Bellmawr borough
NJ Belmar borough
NJ Bergenfield borough
NJ Berkeley Heights township
NJ Berkeley township
NJ Berlin borough
NJ Berlin township
NJ Bernards township
NJ Bernardsville borough
NJ Beverly city
NJ Bloomfield township
NJ Bloomingdale borough
NJ Bogota borough
NJ Boonton town
NJ Boonton township
NJ Bordentown city
NJ Bordentown township
NJ Bound Brook borough
NJ Bradley Beach borough
NJ Branchburg township
NJ Brick township
NJ Bridgewater township
NJ Brielle borough
NJ Brigantine city
NJ Brooklawn borough
NJ Buena borough
NJ Buena Vista township
NJ Burlington city
NJ Burlington County
NJ Burlington township
NJ Butler borough
NJ Byram township
NJ Caldwell Borough township
NJ Camden city
NJ Cape May County
NJ Carlstadt borough
NJ Carneys Point township
NJ Carteret borough
NJ Cedar Grove township
NJ Chatham borough
NJ Chatham township
NJ Cherry Hill township
NJ Chesilhurst borough
NJ Chester township
NJ Chesterfield township
NJ Cinnaminson township
NJ City of Orange township
NJ Clark township
NJ Clayton borough
NJ Clementon borough
NJ Cliffside Park borough
NJ Clifton city
NJ Closter borough
NJ Collingswood borough
NJ Colts Neck township
NJ Commercial township
NJ Cranford township
NJ Cresskill borough
NJ Cumberland County
NJ Deal borough
NJ Delanco township
NJ Delran township
NJ Demarest borough
NJ Denville township
NJ Deptford township
NJ Dover town
NJ Dover township
NJ Dumont borough
NJ Dunellen borough
NJ East Brunswick township
NJ East Greenwich township
NJ East Hanover township
NJ East Newark borough
NJ East Orange city
NJ East Rutherford borough
NJ Eastampton township
NJ Eatontown borough
NJ Edgewater borough
NJ Edgewater Park township
NJ Edison township
NJ Egg Harbor township
NJ Elizabeth city
NJ Elk township
NJ Elmwood Park borough
NJ Emerson borough
NJ Englewood city
NJ Englewood Cliffs borough
NJ Englishtown borough
NJ Essex Fells township
NJ Evesham township
NJ Ewing township
NJ Fair Haven borough
NJ Fair Lawn borough
NJ Fairfield township
NJ Fairview borough
NJ Fanwood borough
NJ Fieldsboro borough
NJ Florence township
NJ Florham Park borough
NJ Fort Lee borough
NJ Franklin Lakes borough
NJ Franklin township
NJ Freehold borough
NJ Freehold township
NJ Galloway township
NJ Garfield city
NJ Garwood borough
NJ Gibbsboro borough
NJ Glassboro borough
NJ Glen Ridge Borough township
NJ Glen Rock borough
NJ Gloucester City city
NJ Gloucester County
NJ Gloucester township
NJ Green Brook township
NJ Greenwich township
NJ Guttenberg town
NJ Hackensack city
NJ Haddon Heights borough
NJ Haddon township
NJ Haddonfield borough
NJ Hainesport township
NJ Haledon borough
NJ Hamilton township
NJ Hanover township
NJ Harding township
NJ Harrington Park borough
NJ Harrison town
NJ Hasbrouck Heights borough
NJ Haworth borough
NJ Hawthorne borough
NJ Hazlet township
NJ Helmetta borough
NJ Highland Park borough
NJ Highlands borough
NJ Hillsborough township
NJ Hillsdale borough
NJ Hillside township
NJ Hi-Nella borough
NJ Hoboken city
NJ Ho-Ho-Kus borough
NJ Holmdel township
NJ Hopatcong borough
NJ Hopewell township
NJ Howell township
NJ Hunterdon County
NJ Interlaken borough
NJ Irvington township
NJ Island Heights borough
NJ Jackson township
NJ Jamesburg borough
NJ Jefferson township
NJ Jersey City city
NJ Keansburg borough
NJ Kearny town
NJ Kenilworth borough
NJ Keyport borough
NJ Kinnelon borough
NJ Lakehurst borough
NJ Lakewood township
NJ Laurel Springs borough
NJ Lavallette borough
NJ Lawnside borough
NJ Lawrence township
NJ Leonia borough
NJ Lincoln Park borough
NJ Linden city
NJ Lindenwold borough
NJ Linwood city
NJ Little Falls township
NJ Little Ferry borough
NJ Little Silver borough
NJ Livingston township
NJ Loch Arbour village
NJ Lodi borough
NJ Long Branch city
NJ Longport borough
NJ Lopatcong township
NJ Lumberton township
NJ Lyndhurst township
NJ Madison borough
NJ Magnolia borough
NJ Mahwah township
NJ Manalapan township
NJ Manasquan borough
NJ Manchester township
NJ Mantoloking borough
NJ Mantua township
NJ Manville borough
NJ Maple Shade township
NJ Maplewood township
NJ Margate City city
NJ Marlboro township
NJ Matawan borough
NJ Maywood borough
NJ Medford Lakes borough
NJ Medford township
NJ Mendham borough
NJ Mendham township
NJ Mercer County
NJ Merchantville borough
NJ Metuchen borough
NJ Middlesex borough
NJ Middlesex County
NJ Middletown township
NJ Midland Park borough
NJ Millburn township
NJ Millstone borough
NJ Milltown borough
NJ Millville city
NJ Mine Hill township
[[Page 68824]]
NJ Monmouth Beach borough
NJ Monmouth County
NJ Monroe township
NJ Montclair township
NJ Montvale borough
NJ Montville township
NJ Moonachie borough
NJ Moorestown township
NJ Morris County
NJ Morris Plains borough
NJ Morris township
NJ Morristown town
NJ Mount Arlington borough
NJ Mount Ephraim borough
NJ Mount Holly township
NJ Mount Laurel township
NJ Mount Olive township
NJ Mountain Lakes borough
NJ Mountainside borough
NJ National Park borough
NJ Neptune City borough
NJ Neptune township
NJ Netcong borough
NJ New Brunswick city
NJ New Milford borough
NJ New Providence borough
NJ Newark city
NJ Newfield borough
NJ North Arlington borough
NJ North Bergen township
NJ North Brunswick township
NJ North Caldwell township
NJ North Haledon borough
NJ North Plainfield borough
NJ Northfield city
NJ Northvale borough
NJ Norwood borough
NJ Nutley township
NJ Oakland borough
NJ Oaklyn borough
NJ Ocean City city
NJ Ocean County
NJ Ocean Gate borough
NJ Ocean township
NJ Oceanport borough
NJ Old Bridge township
NJ Old Tappan borough
NJ Oradell borough
NJ Palisades Park borough
NJ Palmyra borough
NJ Paramus borough
NJ Park Ridge borough
NJ Parsippany-Troy Hills township
NJ Passaic city
NJ Passaic County
NJ Passaic township
NJ Paterson city
NJ Paulsboro borough
NJ Pennington borough
NJ Penns Grove borough
NJ Pennsauken township
NJ Pennsville township
NJ Pequannock township
NJ Perth Amboy city
NJ Phillipsburg town
NJ Pine Beach borough
NJ Pine Hill borough
NJ Pine Valley borough
NJ Piscataway township
NJ Pitman borough
NJ Pittsgrove township
NJ Plainfield city
NJ Pleasantville city
NJ Pohatcong township
NJ Point Pleasant Beach borough
NJ Point Pleasant borough
NJ Pompton Lakes borough
NJ Prospect Park borough
NJ Rahway city
NJ Ramsey borough
NJ Randolph township
NJ Raritan borough
NJ Readington township
NJ Red Bank borough
NJ Ridgefield borough
NJ Ridgefield Park village
NJ Ridgewood village
NJ Ringwood borough
NJ River Edge borough
NJ River Vale township
NJ Riverdale borough
NJ Riverside township
NJ Riverton borough
NJ Rochelle Park township
NJ Rockaway borough
NJ Rockaway township
NJ Rockleigh borough
NJ Roseland borough
NJ Roselle borough
NJ Roselle Park borough
NJ Roxbury township
NJ Rumson borough
NJ Runnemede borough
NJ Rutherford borough
NJ Saddle Brook township
NJ Saddle River borough
NJ Salem County
NJ Sayreville borough
NJ Scotch Plains township
NJ Sea Bright borough
NJ Sea Girt borough
NJ Seaside Heights borough
NJ Seaside Park borough
NJ Secaucus town
NJ Shamong township
NJ Shrewsbury borough
NJ Shrewsbury township
NJ Somerdale borough
NJ Somers Point city
NJ Somerset County
NJ Somerville borough
NJ South Amboy city
NJ South Belmar borough
NJ South Bound Brook borough
NJ South Brunswick township
NJ South Hackensack township
NJ South Orange Village township
NJ South Plainfield borough
NJ South River borough
NJ South Toms River borough
NJ Spotswood borough
NJ Spring Lake borough
NJ Spring Lake Heights borough
NJ Springfield township
NJ Stanhope borough
NJ Stratford borough
NJ Summit city
NJ Sussex County
NJ Tabernacle township
NJ Tavistock borough
NJ Teaneck township
NJ Tenafly borough
NJ Teterboro borough
NJ Tinton Falls borough
NJ Totowa borough
NJ Trenton city
NJ Union Beach borough
NJ Union City city
NJ Union township
NJ Upper Saddle River borough
NJ Upper township
NJ Ventnor City city
NJ Verona township
NJ Victory Gardens borough
NJ Vineland city
NJ Voorhees township
NJ Waldwick borough
NJ Wall township
NJ Wallington borough
NJ Wanaque borough
NJ Warren County
NJ Warren township
NJ Washington township
NJ Watchung borough
NJ Waterford township
NJ Wayne township
NJ Weehawken township
NJ Wenonah borough
NJ West Caldwell township
NJ West Deptford township
NJ West Long Branch borough
NJ West New York town
NJ West Orange township
NJ West Paterson borough
NJ Westampton township
NJ Westfield town
NJ Westville borough
NJ Westwood borough
NJ Wharton borough
NJ Willingboro township
NJ Winfield township
NJ Winslow township
NJ Woodbridge township
NJ Woodbury city
NJ Woodbury Heights borough
NJ Woodcliff Lake borough
NJ Woodlynne borough
NJ Wood-Ridge borough
NJ Wyckoff township
NM Bernalillo County
NM Corrales village
NM Dona Ana County
NM Las Cruces city
NM Los Ranchos de Albuquerque village
NM Mesilla town
NM Rio Rancho city
NM Sandoval County
NM Santa Fe city
NM Santa Fe County
NM Sunland Park city
NY Albany city
NY Albany County
NY Amherst town
NY Amityville village
NY Ardsley village
NY Ashland town
NY Atlantic Beach village
NY Babylon town
NY Babylon village
NY Baldwinsville village
NY Ballston town
NY Barker town
NY Baxter Estates village
NY Bayville village
NY Beacon city
NY Bedford town
NY Belle Terre village
NY Bellerose village
NY Bellport village
NY Bethlehem town
NY Big Flats town
NY Binghamton city
NY Binghamton town
NY Blasdell village
NY Boston town
NY Briarcliff Manor village
NY Brighton town
NY Brightwaters village
[[Page 68825]]
NY Bronxville village
NY Brookhaven town
NY Brookville village
NY Broome County
NY Brunswick town
NY Buchanan village
NY Buffalo city
NY Camillus town
NY Camillus village
NY Carmel town
NY Cayuga Heights village
NY Cedarhurst village
NY Charlton town
NY Cheektowaga town
NY Chemung County
NY Chenango town
NY Chestnut Ridge village
NY Chili town
NY Cicero town
NY Clarence town
NY Clarkstown town
NY Clay town
NY Clayville village
NY Clifton Park town
NY Clinton village
NY Cohoes city
NY Colonie town
NY Colonie village
NY Conklin town
NY Cornwall on Hudson village
NY Cornwall town
NY Cortlandt town
NY Croton-on-Hudson village
NY De Witt town
NY Deerfield town
NY Depew village
NY Dickinson town
NY Dobbs Ferry village
NY Dryden town
NY Dutchess County
NY East Fishkill town
NY East Greenbush town
NY East Hills village
NY East Rochester village
NY East Rockaway village
NY East Syracuse village
NY East Williston village
NY Eastchester town
NY Elma town
NY Elmira city
NY Elmira Heights village
NY Elmira town
NY Elmsford village
NY Endicott village
NY Erie County
NY Evans town
NY Fairport village
NY Farmingdale village
NY Fayetteville village
NY Fenton town
NY Fishkill town
NY Fishkill village
NY Floral Park village
NY Flower Hill village
NY Floyd town
NY Fort Edward town
NY Fort Edward village
NY Frankfort town
NY Freeport village
NY Garden City village
NY Gates town
NY Geddes town
NY Glen Cove city
NY Glens Falls city
NY Glenville town
NY Grand Island town
NY Grand View-on-Hudson village
NY Great Neck Estates village
NY Great Neck Plaza village
NY Great Neck village
NY Greece town
NY Green Island village
NY Greenburgh town
NY Guilderland town
NY Halfmoon town
NY Hamburg town
NY Hamburg village
NY Harrison village
NY Hastings-on-Hudson village
NY Haverstraw town
NY Haverstraw village
NY Hempstead town
NY Hempstead village
NY Henrietta town
NY Herkimer County
NY Hewlett Bay Park village
NY Hewlett Harbor village
NY Hewlett Neck village
NY Hillburn village
NY Horseheads town
NY Horseheads village
NY Hudson Falls village
NY Huntington Bay village
NY Huntington town
NY Hyde Park town
NY Irondequoit town
NY Irvington village
NY Island Park village
NY Islandia village
NY Islip town
NY Ithaca city
NY Ithaca town
NY Johnson City village
NY Kenmore village
NY Kensington village
NY Kent town
NY Kings Point village
NY Kingsbury town
NY Kirkland town
NY Kirkwood town
NY La Grange town
NY Lackawanna city
NY LaFayette town
NY Lake Grove village
NY Lake Success village
NY Lancaster town
NY Lancaster village
NY Lansing town
NY Lansing village
NY Larchmont village
NY Lattingtown village
NY Lawrence village
NY Lee town
NY Lewiston town
NY Lewiston village
NY Lindenhurst village
NY Liverpool village
NY Lloyd Harbor village
NY Lloyd town
NY Long Beach city
NY Lynbrook village
NY Lysander town
NY Malta town
NY Malverne village
NY Mamaroneck town
NY Mamaroneck village
NY Manlius town
NY Manlius village
NY Manorhaven village
NY Marcy town
NY Massapequa Park village
NY Matinecock village
NY Menands village
NY Mill Neck village
NY Mineola village
NY Minoa village
NY Monroe County
NY Montebello village
NY Montgomery town
NY Moreau town
NY Mount Kisco village
NY Mount Pleasant town
NY Mount Vernon city
NY Munsey Park village
NY Muttontown village
NY New Castle town
NY New Hartford town
NY New Hartford village
NY New Hempstead village
NY New Hyde Park village
NY New Rochelle city
NY New Square village
NY New Windsor town
NY New York Mills village
NY Newburgh city
NY Newburgh town
NY Niagara County
NY Niagara Falls city
NY Niagara town
NY Niskayuna town
NY North Castle town
NY North Greenbush town
NY North Hempstead town
NY North Hills village
NY North Syracuse village
NY North Tarrytown village
NY North Tonawanda city
NY Northport village
NY Nyack village
NY Ogden town
NY Old Brookville village
NY Old Westbury village
NY Oneida County
NY Onondaga County
NY Onondaga town
NY Orange County
NY Orangetown town
NY Orchard Park town
NY Orchard Park village
NY Oriskany village
NY Ossining town
NY Ossining village
NY Oswego County
NY Owego town
NY Oyster Bay town
NY Paris town
NY Patchogue village
NY Patterson town
NY Peekskill city
NY Pelham Manor village
NY Pelham town
NY Pelham village
NY Pendleton town
NY Penfield town
NY Perinton town
NY Philipstown town
NY Phoenix village
NY Piermont village
NY Pittsford town
NY Pittsford village
NY Plandome Heights village
NY Plandome Manor village
NY Plandome village
NY Pleasant Valley town
NY Pleasantville village
NY Poestenkill town
NY Pomona village
NY Poospatuck Reservation
[[Page 68826]]
NY Poquott village
NY Port Chester village
NY Port Dickinson village
NY Port Jefferson village
NY Port Washington North village
NY Poughkeepsie city
NY Poughkeepsie town
NY Pound Ridge town
NY Putnam County
NY Putnam Valley town
NY Queensbury town
NY Ramapo town
NY Rensselaer city
NY Rensselaer County
NY Riverhead town
NY Rochester city
NY Rockville Centre village
NY Rome city
NY Roslyn Estates village
NY Roslyn Harbor village
NY Roslyn village
NY Rotterdam town
NY Russell Gardens village
NY Rye Brook village
NY Rye city
NY Rye town
NY Saddle Rock village
NY Salina town
NY Sands Point village
NY Saratoga County
NY Scarsdale town
NY Scarsdale village
NY Schaghticoke town
NY Schenectady city
NY Schenectady County
NY Schodack town
NY Schroeppel town
NY Schuyler town
NY Scotia village
NY Sea Cliff village
NY Shoreham village
NY Sloan village
NY Sloatsburg village
NY Smithtown town
NY Solvay village
NY Somers town
NY South Floral Park village
NY South Glens Falls village
NY South Nyack village
NY Southampton town
NY Southport town
NY Spencerport village
NY Spring Valley village
NY Stewart Manor village
NY Stony Point town
NY Suffern village
NY Suffolk County
NY Syracuse city
NY Tarrytown village
NY Thomaston village
NY Tioga County
NY Tompkins County
NY Tonawanda city
NY Tonawanda town
NY Troy city
NY Tuckahoe village
NY Ulster County
NY Union town
NY Upper Brookville village
NY Upper Nyack village
NY Utica city
NY Valley Stream village
NY Van Buren town
NY Vestal town
NY Veteran town
NY Village of the Branch village
NY Wappinger town
NY Wappingers Falls village
NY Warren County
NY Washington County
NY Waterford town
NY Waterford village
NY Watervliet city
NY Webster town
NY Webster village
NY Wesley Hills village
NY West Haverstraw village
NY West Seneca town
NY Westbury village
NY Westchester County
NY Western town
NY Wheatfield town
NY White Plains city
NY Whitesboro village
NY Whitestown town
NY Williamsville village
NY Williston Park village
NY Woodsburgh village
NY Yonkers city
NY Yorktown town
NY Yorkville village
OH Addyston village
OH Allen County
OH Allen township
OH Amberley village
OH Amelia village
OH American township
OH Amherst city
OH Amherst township
OH Anderson township
OH Arlington Heights village
OH Auglaize County
OH Aurora city
OH Austintown township
OH Avon city
OH Avon Lake city
OH Bainbridge township
OH Barberton city
OH Batavia township
OH Bath township
OH Bay Village city
OH Beachwood city
OH Beaver township
OH Beavercreek city
OH Beavercreek township
OH Bedford city
OH Bedford Heights city
OH Bellaire city
OH Bellbrook city
OH Belmont County
OH Belpre city
OH Belpre township
OH Bentleyville village
OH Berea city
OH Bethel township
OH Bexley city
OH Blendon township
OH Blue Ash city
OH Boardman township
OH Brady Lake village
OH Bratenahl village
OH Brecksville city
OH Brice village
OH Bridgeport village
OH Brilliant village
OH Brimfield township
OH Broadview Heights city
OH Brook Park city
OH Brookfield township
OH Brooklyn city
OH Brooklyn Heights village
OH Brookside village
OH Brown township
OH Brownhelm township
OH Brunswick city
OH Brunswick Hills township
OH Butler County
OH Butler township
OH Campbell city
OH Canfield city
OH Canfield township
OH Canton city
OH Canton township
OH Carlisle township
OH Carlisle village
OH Centerville city
OH Chagrin Falls township
OH Chagrin Falls village
OH Champion township
OH Chesapeake village
OH Cheviot city
OH Chippewa township
OH Cincinnati city
OH Clark County
OH Clear Creek township
OH Clermont County
OH Cleveland city
OH Cleveland Heights city
OH Cleves village
OH Clinton township
OH Coal Grove village
OH Coitsville township
OH Colerain township
OH Columbia township
OH Concord township
OH Copley township
OH Coventry township
OH Cridersville village
OH Cross Creek township
OH Cuyahoga County
OH Cuyahoga Falls city
OH Cuyahoga Heights village
OH Deer Park city
OH Deerfield township
OH Delaware County
OH Delhi township
OH Doylestown village
OH Dublin city
OH Duchouquet township
OH East Cleveland city
OH Eastlake city
OH Eaton township
OH Elmwood Place village
OH Elyria city
OH Elyria township
OH Englewood city
OH Erie County
OH Etna township
OH Euclid city
OH Evendale village
OH Fairborn city
OH Fairfax village
OH Fairfield city
OH Fairfield County
OH Fairfield township
OH Fairlawn city
OH Fairport Harbor village
OH Fairview Park city
OH Fayette township
OH Forest Park city
OH Fort Shawnee village
OH Franklin city
OH Franklin County
OH Franklin township
OH Gahanna city
OH Garfield Heights city
OH Geauga County
OH Genoa township
[[Page 68827]]
OH German township
OH Girard city
OH Glendale village
OH Glenwillow village
OH Golf Manor village
OH Goshen township
OH Grand River village
OH Grandview Heights city
OH Green township
OH Green village
OH Greene County
OH Greenhills village
OH Grove City city
OH Groveport village
OH Hamilton city
OH Hamilton County
OH Hamilton township
OH Hanging Rock village
OH Hanover township
OH Harbor View village
OH Harrison township
OH Hartville village
OH Heath city
OH Highland Heights city
OH Hilliard city
OH Hills and Dales village
OH Hinckley township
OH Holland village
OH Howland township
OH Hubbard city
OH Hubbard township
OH Huber Heights city
OH Hudson township
OH Hudson village
OH Independence city
OH Ironton city
OH Island Creek township
OH Jackson township
OH Jefferson County
OH Jefferson township
OH Jerome township
OH Kent city
OH Kettering city
OH Kirtland city
OH Lake County
OH Lake township
OH Lakeline village
OH Lakemore village
OH Lakewood city
OH Lawrence County
OH Lawrence township
OH Lemon township
OH Lexington village
OH Liberty township
OH Licking County
OH Licking township
OH Lima city
OH Lima township
OH Lincoln Heights city
OH Linndale village
OH Lockland village
OH Lorain city
OH Lorain County
OH Louisville city
OH Loveland city
OH Lowellville village
OH Lucas County
OH Lyndhurst city
OH Macedonia city
OH Mad River township
OH Madeira city
OH Madison township
OH Mahoning County
OH Maineville village
OH Mansfield city
OH Maple Heights city
OH Marble Cliff village
OH Mariemont village
OH Martins Ferry city
OH Mason city
OH Massillon city
OH Maumee city
OH Mayfield Heights city
OH Mayfield village
OH McDonald village
OH Mead township
OH Medina County
OH Mentor city
OH Mentor-on-the-Lake city
OH Meyers Lake village
OH Miami County
OH Miami township
OH Miamisburg city
OH Middleburg Heights city
OH Middletown city
OH Mifflin township
OH Milford city
OH Millbury village
OH Millville village
OH Minerva Park village
OH Mingo Junction city
OH Mogadore village
OH Monclova township
OH Monroe township
OH Monroe village
OH Montgomery city
OH Montgomery County
OH Moorefield township
OH Moraine city
OH Moreland Hills village
OH Mount Healthy city
OH Munroe Falls village
OH New Miami village
OH New Middletown village
OH New Rome village
OH Newark city
OH Newark township
OH Newburgh Heights village
OH Newton township
OH Newtown village
OH Niles city
OH Nimishillen township
OH North Bend village
OH North Canton city
OH North College Hill city
OH North Olmsted city
OH North Randall village
OH North Ridgeville city
OH North Royalton city
OH Northfield Center township
OH Northfield village
OH Northwood city
OH Norton city
OH Norwich township
OH Norwood city
OH Oakwood city
OH Oakwood village
OH Obetz village
OH Ohio township
OH Olmsted Falls city
OH Olmsted township
OH Ontario village
OH Orange township
OH Orange village
OH Oregon city
OH Ottawa County
OH Ottawa Hills village
OH Painesville city
OH Painesville township
OH Palmyra township
OH Parma city
OH Parma Heights city
OH Pease township
OH Pepper Pike city
OH Perry township
OH Perrysburg city
OH Perrysburg city
OH Perrysburg township
OH Pierce township
OH Plain township
OH Pleasant township
OH Poland township
OH Poland village
OH Portage County
OH Powell village
OH Prairie township
OH Proctorville village
OH Pultney township
OH Randolph township
OH Ravenna city
OH Ravenna township
OH Reading city
OH Reminderville village
OH Reynoldsburg city
OH Richfield township
OH Richfield village
OH Richland County
OH Richmond Heights city
OH Riveredge township
OH Riverlea village
OH Riverside village
OH Rocky River city
OH Rome township
OH Ross township
OH Rossford city
OH Russell township
OH Russia township
OH Sagamore Hills township
OH Seven Hills city
OH Shadyside village
OH Shaker Heights city
OH Sharon township
OH Sharonville city
OH Shawnee Hills village
OH Shawnee township
OH Sheffield Lake city
OH Sheffield township
OH Sheffield village
OH Silver Lake village
OH Silverton city
OH Solon city
OH South Amherst village
OH South Euclid city
OH South Point village
OH South Russell village
OH Springboro city
OH Springdale city
OH Springfield city
OH Springfield township
OH St. Bernard city
OH St. Clair township
OH Stark County
OH Steubenville city
OH Steubenville township
OH Stow city
OH Strongsville city
OH Struthers city
OH Suffield township
OH Sugar Bush Knolls village
OH Sugar Creek township
OH Summit County
OH Sycamore township
OH Sylvania city
OH Sylvania township
OH Symmes township
OH Tallmadge city
OH Terrace Park village
OH The Village of Indian Hill city
[[Page 68828]]
OH Timberlake village
OH Trenton city
OH Trotwood city
OH Troy township
OH Trumbull County
OH Truro township
OH Turtle Creek township
OH Tuscarawas township
OH Twinsburg city
OH Twinsburg township
OH Union city
OH Union County
OH Union township
OH University Heights city
OH Upper Arlington city
OH Upper township
OH Urbancrest village
OH Valley View village
OH Valleyview village
OH Vandalia city
OH Vermilion city
OH Vermilion township
OH Violet township
OH Wadsworth city
OH Wadsworth township
OH Waite Hill village
OH Walbridge village
OH Walton Hills village
OH Warren city
OH Warren County
OH Warren township
OH Warrensville Heights city
OH Warrensville township
OH Washington County
OH Washington township
OH Wayne County
OH Wayne township
OH Weathersfield township
OH Wells township
OH West Carrollton City city
OH West Milton village
OH Westerville city
OH Westlake city
OH Whitehall city
OH Whitewater township
OH Wickliffe city
OH Willoughby city
OH Willoughby Hills city
OH Willowick city
OH Wintersville village
OH Wood County
OH Woodlawn village
OH Woodmere village
OH Worthington city
OH Wyoming city
OH Youngstown city
OK Arkoma town
OK Bethany city
OK Bixby city
OK Broken Arrow city
OK Canadian County
OK Catoosa city
OK Choctaw city
OK Cleveland County
OK Comanche County
OK Creek County
OK Del City city
OK Edmond city
OK Forest Park town
OK Hall Park town
OK Harrah town
OK Jenks city
OK Jones town
OK Lake Aluma town
OK Lawton city
OK Le Flore County
OK Logan County
OK Midwest City city
OK Moffett town
OK Moore city
OK Mustang city
OK Nichols Hills city
OK Nicoma Park city
OK Norman city
OK Oklahoma County
OK Osage County
OK Pottawatomie County
OK Rogers County
OK Sand Springs city
OK Sequoyah County
OK Smith Village town
OK Spencer city
OK The Village city
OK Tulsa County
OK Valley Brook town
OK Wagoner County
OK Warr Acres city
OK Woodlawn Park town
OK Yukon city
OR Central Point city
OR Columbia County
OR Durham city
OR Jackson County
OR Keizer city
OR King City city
OR Lane County
OR Marion County
OR Maywood Park city
OR Medford city
OR Phoenix city
OR Polk County
OR Rainier city
OR Springfield city
OR Troutdale city
OR Tualatin city
OR Wood Village city
PA Abington township
PA Adamsburg borough
PA Alburtis borough
PA Aldan borough
PA Aleppo township
PA Aliquippa city
PA Allegheny County
PA Allegheny township
PA Allen township
PA Allenport borough
PA Alsace township
PA Altoona city
PA Ambler borough
PA Ambridge borough
PA Amwell township
PA Antis township
PA Antrim township
PA Archbald borough
PA Arnold city
PA Ashley borough
PA Aspinwall borough
PA Aston township
PA Avalon borough
PA Avoca borough
PA Baden borough
PA Baldwin borough
PA Baldwin township
PA Beaver borough
PA Beaver County
PA Beaver Falls city
PA Bell Acres borough
PA Belle Vernon borough
PA Bellevue borough
PA Ben Avon borough
PA Ben Avon Heights borough
PA Bensalem township
PA Berks County
PA Bern township
PA Bethel Park borough
PA Bethel township
PA Bethlehem city
PA Bethlehem township
PA Big Beaver borough
PA Birdsboro borough
PA Birmingham township
PA Blair County
PA Blair township
PA Blakely borough
PA Blawnox borough
PA Boyertown borough
PA Brackenridge borough
PA Braddock borough
PA Braddock Hills borough
PA Bradfordwoods borough
PA Brentwood borough
PA Bridgeport borough
PA Bridgeville borough
PA Bridgewater borough
PA Brighton township
PA Bristol borough
PA Bristol township
PA Brookhaven borough
PA Brownstown borough
PA Brownsville borough
PA Brownsville township
PA Bryn Athyn borough
PA Buckingham township
PA Bucks County
PA California borough
PA Caln township
PA Cambria County
PA Camp Hill borough
PA Canonsburg borough
PA Canton township
PA Carbondale city
PA Carbondale township
PA Carnegie borough
PA Carroll township
PA Castle Shannon borough
PA Catasauqua borough
PA Cecil township
PA Center township
PA Centre County
PA Chalfant borough
PA Chalfont borough
PA Charleroi borough
PA Charlestown township
PA Chartiers township
PA Cheltenham township
PA Chester city
PA Chester County
PA Chester Heights borough
PA Chester township
PA Cheswick borough
PA Chippewa township
PA Churchill borough
PA Clairton city
PA Clarks Green borough
PA Clarks Summit borough
PA Clifton Heights borough
PA Coal Center borough
PA Coatesville city
PA Colebrookdale township
PA College township
PA Collegeville borough
PA Collier township
PA Collingdale borough
PA Columbia borough
PA Colwyn borough
PA Concord township
PA Conemaugh township
PA Conestoga township
[[Page 68829]]
PA Conewago township
PA Conshohocken borough
PA Conway borough
PA Coplay borough
PA Coraopolis borough
PA Courtdale borough
PA Crafton borough
PA Crescent township
PA Cumberland County
PA Cumru township
PA Daisytown borough
PA Dale borough
PA Dallas borough
PA Dallas township
PA Dallastown borough
PA Darby borough
PA Darby township
PA Daugherty township
PA Dauphin County
PA Delaware County
PA Delmont borough
PA Derry township
PA Dickson City borough
PA Donora borough
PA Dormont borough
PA Douglass township
PA Dover borough
PA Dover township
PA Downingtown borough
PA Doylestown borough
PA Doylestown township
PA Dravosburg borough
PA Duboistown borough
PA Duncansville borough
PA Dunlevy borough
PA Dunmore borough
PA Dupont borough
PA Duquesne city
PA Duryea borough
PA East Allen township
PA East Bradford township
PA East Brandywine township
PA East Caln township
PA East Conemaugh borough
PA East Coventry township
PA East Deer township
PA East Fallowfield township
PA East Goshen township
PA East Hempfield township
PA East Lampeter township
PA East Lansdowne borough
PA East McKeesport borough
PA East Norriton township
PA East Pennsboro township
PA East Petersburg borough
PA East Pikeland township
PA East Pittsburgh borough
PA East Rochester borough
PA East Taylor township
PA East Vincent township
PA East Washington borough
PA East Whiteland township
PA Easton city
PA Easttown township
PA Eastvale borough
PA Economy borough
PA Eddystone borough
PA Edgewood borough
PA Edgeworth borough
PA Edgmont township
PA Edwardsville borough
PA Elco borough
PA Elizabeth borough
PA Elizabeth township
PA Ellport borough
PA Ellwood City borough
PA Emmaus borough
PA Emsworth borough
PA Erie city
PA Erie County
PA Etna borough
PA Exeter borough
PA Exeter township
PA Export borough
PA Fairfield township
PA Fairview township
PA Fallowfield township
PA Falls township
PA Fallston borough
PA Farrell city
PA Fayette City borough
PA Fayette County
PA Fell township
PA Ferguson township
PA Ferndale borough
PA Findlay township
PA Finleyville borough
PA Folcroft borough
PA Forest Hills borough
PA Forks township
PA Forty Fort borough
PA Forward township
PA Fountain Hill borough
PA Fox Chapel borough
PA Franconia township
PA Franklin borough
PA Franklin County
PA Franklin Park borough
PA Franklin township
PA Frankstown township
PA Frazer township
PA Freedom borough
PA Freemansburg borough
PA Geistown borough
PA Glassport borough
PA Glendon borough
PA Glenfield borough
PA Glenolden borough
PA Green Tree borough
PA Greensburg city
PA Hallam borough
PA Hampden township
PA Hampton township
PA Hanover township
PA Harborcreek township
PA Harmar township
PA Harmony township
PA Harris township
PA Harrisburg city
PA Harrison township
PA Harveys Lake borough
PA Hatboro borough
PA Hatfield borough
PA Hatfield township
PA Haverford township
PA Haysville borough
PA Heidelberg borough
PA Hellam township
PA Hellertown borough
PA Hempfield township
PA Hepburn township
PA Hermitage city
PA Highspire borough
PA Hilltown township
PA Hollidaysburg borough
PA Homestead borough
PA Homewood borough
PA Hopewell township
PA Horsham township
PA Houston borough
PA Hughestown borough
PA Hulmeville borough
PA Hummelstown borough
PA Hunker borough
PA Indiana township
PA Ingram borough
PA Irwin borough
PA Ivyland borough
PA Jackson township
PA Jacobus borough
PA Jeannette city
PA Jefferson borough
PA Jenkins township
PA Jenkintown borough
PA Jermyn borough
PA Jessup borough
PA Johnstown city
PA Juniata township
PA Kenhorst borough
PA Kennedy township
PA Kilbuck township
PA Kingston borough
PA Kingston township
PA Koppel borough
PA Lackawanna County
PA Laflin borough
PA Lancaster city
PA Lancaster County
PA Lancaster township
PA Langhorne borough
PA Langhorne Manor borough
PA Lansdale borough
PA Lansdowne borough
PA Larksville borough
PA Laurel Run borough
PA Laureldale borough
PA Lawrence County
PA Lawrence Park township
PA Lebanon County
PA Leesport borough
PA Leet township
PA Leetsdale borough
PA Lehigh County
PA Lehman township
PA Lemoyne borough
PA Liberty borough
PA Limerick township
PA Lincoln borough
PA Lititz borough
PA Logan township
PA Loganville borough
PA London Britain township
PA Londonderry township
PA Lorain borough
PA Lower Allen township
PA Lower Alsace township
PA Lower Burrell city
PA Lower Chichester township
PA Lower Frederick township
PA Lower Gwynedd township
PA Lower Heidelberg township
PA Lower Macungie township
PA Lower Makefield township
PA Lower Merion township
PA Lower Moreland township
PA Lower Nazareth township
PA Lower Paxton township
PA Lower Pottsgrove township
PA Lower Providence township
PA Lower Salford township
PA Lower Saucon township
PA Lower Southampton township
PA Lower Swatara township
PA Lower Yoder township
PA Loyalsock township
PA Luzerne borough
PA Luzerne County
PA Luzerne township
[[Page 68830]]
PA Lycoming County
PA Lycoming township
PA Macungie borough
PA Madison borough
PA Maidencreek township
PA Malvern borough
PA Manchester township
PA Manheim township
PA Manor borough
PA Manor township
PA Marcus Hook borough
PA Marple township
PA Marshall township
PA Marysville borough
PA Mayfield borough
PA McCandless township
PA McKean township
PA McKees Rocks borough
PA McKeesport city
PA Mechanicsburg borough
PA Media borough
PA Mercer County
PA Middle Taylor township
PA Middletown borough
PA Middletown township
PA Millbourne borough
PA Millcreek township
PA Millersville borough
PA Millvale borough
PA Modena borough
PA Mohnton borough
PA Monaca borough
PA Monessen city
PA Monongahela city
PA Monroe township
PA Montgomery County
PA Montgomery township
PA Montoursville borough
PA Moon township
PA Moosic borough
PA Morrisville borough
PA Morton borough
PA Mount Lebanon township
PA Mount Oliver borough
PA Mount Penn borough
PA Mountville borough
PA Muhlenberg township
PA Munhall borough
PA Municipality of Monroeville borough
PA Municipality of Murrysville borough
PA Nanticoke city
PA Narberth borough
PA Nether Providence township
PA Neville township
PA New Brighton borough
PA New Britain borough
PA New Britain township
PA New Cumberland borough
PA New Eagle borough
PA New Galilee borough
PA New Garden township
PA New Hanover township
PA New Kensington city
PA New Sewickley township
PA New Stanton borough
PA Newell borough
PA Newport township
PA Newton township
PA Newtown borough
PA Newtown township
PA Norristown borough
PA North Belle Vernon borough
PA North Braddock borough
PA North Catasauqua borough
PA North Charleroi borough
PA North Coventry township
PA North Franklin township
PA North Huntingdon township
PA North Irwin borough
PA North Londonderry township
PA North Sewickley township
PA North Strabane township
PA North Versailles township
PA North Wales borough
PA North Whitehall township
PA North York borough
PA Northampton borough
PA Northampton County
PA Northampton township
PA Norwood borough
PA Oakmont borough
PA O'Hara township
PA Ohio township
PA Old Forge borough
PA Old Lycoming township
PA Olyphant borough
PA Ontelaunee township
PA Osborne borough
PA Paint borough
PA Paint township
PA Palmer township
PA Palmyra borough
PA Parkside borough
PA Patterson Heights borough
PA Patterson township
PA Patton township
PA Paxtang borough
PA Penbrook borough
PA Penn borough
PA Penn Hills township
PA Penn township
PA Penndel borough
PA Pennsbury Village borough
PA Pequea township
PA Perkiomen township
PA Perry County
PA Perry township
PA Peters township
PA Phoenixville borough
PA Pine township
PA Pitcairn borough
PA Pittsburgh city
PA Pittston city
PA Pittston township
PA Plains township
PA Pleasant Hills borough
PA Plum borough
PA Plymouth borough
PA Plymouth township
PA Port Vue borough
PA Potter township
PA Pottstown borough
PA Pringle borough
PA Prospect Park borough
PA Pulaski township
PA Radnor township
PA Rankin borough
PA Ransom township
PA Reading city
PA Red Lion borough
PA Reserve township
PA Richland township
PA Ridley Park borough
PA Ridley township
PA Robinson township
PA Rochester borough
PA Rochester township
PA Rockledge borough
PA Roscoe borough
PA Rose Valley borough
PA Ross township
PA Rosslyn Farms borough
PA Rostraver township
PA Royalton borough
PA Royersford borough
PA Rutledge borough
PA Salem township
PA Salisbury township
PA Scalp Level borough
PA Schuylkill township
PA Schwenksville borough
PA Scott township
PA Scranton city
PA Sewickley borough
PA Sewickley Heights borough
PA Sewickley Hills borough
PA Sewickley township
PA Shaler township
PA Sharon city
PA Sharon Hill borough
PA Sharpsburg borough
PA Sharpsville borough
PA Shenango township
PA Shillington borough
PA Shiremanstown borough
PA Silver Spring township
PA Sinking Spring borough
PA Skippack township
PA Somerset County
PA Souderton borough
PA South Abington township
PA South Coatesville borough
PA South Fayette township
PA South Greensburg borough
PA South Hanover township
PA South Heidelberg township
PA South Heights borough
PA South Huntingdon township
PA South Park township
PA South Pymatuning township
PA South Strabane township
PA South Whitehall township
PA South Williamsport borough
PA Southmont borough
PA Southwest Greensburg borough
PA Speers borough
PA Spring City borough
PA Spring Garden township
PA Spring township
PA Springdale borough
PA Springdale township
PA Springettsbury township
PA Springfield township
PA St. Lawrence borough
PA State College borough
PA Steelton borough
PA Stockdale borough
PA Stonycreek township
PA Stowe township
PA Sugar Notch borough
PA Summit township
PA Susquehanna township
PA Sutersville borough
PA Swarthmore borough
PA Swatara township
PA Swissvale borough
PA Swoyersville borough
PA Tarentum borough
PA Taylor borough
PA Telford borough
PA Temple borough
PA Thornburg borough
PA Thornbury township
PA Throop borough
PA Tinicum township
PA Towamencin township
PA Trafford borough
PA Trainer borough
[[Page 68831]]
PA Trappe borough
PA Tredyffrin township
PA Tullytown borough
PA Turtle Creek borough
PA Union township
PA Upland borough
PA Upper Allen township
PA Upper Chichester township
PA Upper Darby township
PA Upper Dublin township
PA Upper Gwynedd township
PA Upper Leacock township
PA Upper Macungie township
PA Upper Makefield township
PA Upper Merion township
PA Upper Milford township
PA Upper Moreland township
PA Upper Pottsgrove township
PA Upper Providence township
PA Upper Saucon township
PA Upper Southampton township
PA Upper St. Clair township
PA Upper Yoder township
PA Uwchlan township
PA Valley township
PA Vanport township
PA Verona borough
PA Versailles borough
PA Wall borough
PA Warminster township
PA Warrington township
PA Warrior Run borough
PA Warwick township
PA Washington city
PA Washington County
PA Washington township
PA Wayne township
PA Wernersville borough
PA Wesleyville borough
PA West Bradford township
PA West Brownsville borough
PA West Chester borough
PA West Conshohocken borough
PA West Deer township
PA West Earl township
PA West Easton borough
PA West Elizabeth borough
PA West Fairview borough
PA West Goshen township
PA West Hanover township
PA West Hempfield township
PA West Homestead borough
PA West Lampeter township
PA West Lawn borough
PA West Manchester township
PA West Mayfield borough
PA West Middlesex borough
PA West Mifflin borough
PA West Newton borough
PA West Norriton township
PA West Pikeland township
PA West Pittston borough
PA West Pottsgrove township
PA West Reading borough
PA West Taylor township
PA West View borough
PA West Whiteland township
PA West Wyoming borough
PA West York borough
PA Westmont borough
PA Westmoreland County
PA Westtown township
PA Wheatland borough
PA Whitaker borough
PA White Oak borough
PA White township
PA Whitehall township
PA Whitemarsh township
PA Whitpain township
PA Wilkes-Barre city
PA Wilkes-Barre township
PA Wilkins township
PA Wilkinsburg borough
PA Williams township
PA Williamsport city
PA Willistown township
PA Wilmerding borough
PA Wilson borough
PA Windber borough
PA Windsor borough
PA Windsor township
PA Worcester township
PA Wormleysburg borough
PA Wrightsville borough
PA Wyoming borough
PA Wyomissing borough
PA Wyomissing Hills borough
PA Yardley borough
PA Yatesville borough
PA Yeadon borough
PA Yoe borough
PA York city
PA York County
PA York township
PA Youngwood borough
PR Aibonita
PR Anasco
PR Aquada
PR Aquadilla
PR Aquas Buenas
PR Arecibo
PR Bayamon
PR Cabo Rojo
PR Caguas
PR Camuy
PR Canovanas
PR Catano
PR Cayey
PR Cidra
PR Dorado
PR Guaynabo
PR Gurabo
PR Hatillo
PR Hormigueros
PR Humacao
PR Juncos
PR Las Piedras
PR Loiza
PR Manati
PR Mayaguez
PR Moca
PR Naguabo
PR Naranjito
PR Penuelas
PR Ponce
PR Rio Grande
PR San German
PR San Lorenzo
PR Toa Alta
PR Toa Baja
PR Trujillo Alto
PR Vega Alta
PR Vega Baja
PR Yabucao
RI Barrington town
RI Bristol town
RI Burrillville town
RI Central Falls city
RI Coventry town
RI Cranston city
RI Cumberland town
RI East Greenwich town
RI East Providence city
RI Glocester town
RI Jamestown town
RI Johnston town
RI Lincoln town
RI Middletown town
RI Newport city
RI Newport County
RI North Kingstown town
RI North Providence town
RI North Smithfield town
RI Pawtucket city
RI Portsmouth town
RI Providence city
RI Providence County
RI Scituate town
RI Smithfield town
RI Tiverton town
RI Warren town
RI Warwick city
RI Washington County
RI West Greenwich town
RI West Warwick town
RI Woonsocket city
SC Aiken city
SC Aiken County
SC Anderson city
SC Anderson County
SC Arcadia Lakes town
SC Berkeley County
SC Burnettown town
SC Cayce city
SC Charleston city
SC Charleston County
SC City View town
SC Columbia city
SC Cowpens town
SC Darlington County
SC Dorchester County
SC Edgefield County
SC Florence city
SC Florence County
SC Folly Beach city
SC Forest Acres city
SC Fort Mill town
SC Georgetown County
SC Goose Creek city
SC Hanahan city
SC Horry County
SC Irmo town
SC Isle of Palms city
SC Lexington County
SC Lincolnville town
SC Mount Pleasant town
SC Myrtle Beach city
SC North Augusta city
SC North Charleston city
SC Pickens County
SC Pineridge town
SC Quinby town
SC Rock Hill city
SC South Congaree town
SC Spartanburg city
SC Spartanburg County
SC Springdale town
SC Sullivan's Island town
SC Summerville town
SC Sumter city
SC Sumter County
SC Surfside Beach town
SC West Columbia city
SC York County
SD Big Sioux township
SD Central Pennington unorg.
SD Lincoln County
SD Mapleton township
[[Page 68832]]
SD Minnehaha County
SD North Sioux City city
SD Pennington County
SD Rapid City city
SD Split Rock township
SD Union County
SD Wayne township
TN Alcoa city
TN Anderson County
TN Bartlett town
TN Belle Meade city
TN Berry Hill city
TN Blount County
TN Brentwood city
TN Bristol city
TN Carter County
TN Church Hill town
TN Clarksville city
TN Collegedale city
TN Davidson County
TN East Ridge city
TN Elizabethton city
TN Farragut town
TN Forest Hills city
TN Germantown city
TN Goodlettsville city
TN Hamilton County
TN Hawkins County
TN Hendersonville city
TN Jackson city
TN Johnson City city
TN Jonesborough town
TN Kingsport city
TN Knox County
TN Lakesite city
TN Lakewood city
TN Lookout Mountain town
TN Loudon County
TN Madison County
TN Maryville city
TN Montgomery County
TN Mount Carmel town
TN Mount Juliet city
TN Oak Hill city
TN Red Bank city
TN Ridgeside city
TN Rockford city
TN Shelby County
TN Signal Mountain town
TN Soddy-Daisy city
TN Sullivan County
TN Sumner County
TN Washington County
TN Williamson County
TN Wilson County
TX Addison city
TX Alamo city
TX Alamo Heights city
TX Allen city
TX Archer County
TX Azle city
TX Balch Springs city
TX Balcones Heights city
TX Bayou Vista village
TX Baytown city
TX Bedford city
TX Bell County
TX Bellaire city
TX Bellmead city
TX Belton city
TX Benbrook city
TX Beverly Hills city
TX Bexar County
TX Blue Mound city
TX Bowie County
TX Brazoria County
TX Brazos County
TX Brookside Village city
TX Brownsville city
TX Bryan city
TX Buckingham town
TX Bunker Hill Village city
TX Cameron County
TX Carrollton city
TX Castle Hills city
TX Cedar Hill city
TX Cedar Park city
TX Chambers County
TX Cibolo city
TX Clear Lake Shores city
TX Clint town
TX Cockrell Hill city
TX College Station city
TX Colleyville city
TX Collin County
TX Comal County
TX Combes town
TX Converse city
TX Copperas Cove city
TX Corinth town
TX Coryell County
TX Crowley city
TX Dallas County
TX Dalworthington Gardens city
TX Deer Park city
TX Denison city
TX Denton city
TX Denton County
TX DeSoto city
TX Dickinson city
TX Donna city
TX Double Oak town
TX Duncanville city
TX Ector County
TX Edgecliff village
TX Edinburg city
TX El Lago city
TX El Paso County
TX Ellis County
TX Euless city
TX Everman city
TX Farmers Branch city
TX Flower Mound town
TX Forest Hill city
TX Fort Bend County
TX Friendswood city
TX Galena Park city
TX Galveston city
TX Galveston County
TX Grand Prairie city
TX Grapevine city
TX Grayson County
TX Gregg County
TX Groves city
TX Guadalupe County
TX Haltom City city
TX Hardin County
TX Harker Heights city
TX Harlingen city
TX Harrison County
TX Hedwig Village city
TX Hewitt city
TX Hickory Creek town
TX Hidalgo County
TX Highland Park town
TX Highland Village city
TX Hill Country Village city
TX Hilshire Village city
TX Hitchcock city
TX Hollywood Park town
TX Howe town
TX Humble city
TX Hunters Creek Village city
TX Hurst city
TX Hutchins city
TX Impact town
TX Jacinto City city
TX Jefferson County
TX Jersey Village city
TX Johnson County
TX Jones County
TX Katy city
TX Kaufman County
TX Keller city
TX Kemah city
TX Kennedale city
TX Killeen city
TX Kirby city
TX Kleberg County
TX La Marque city
TX La Porte city
TX Lacy-Lakeview city
TX Lake Dallas city
TX Lake Worth city
TX Lakeside City town
TX Lakeside town
TX Lampasas County
TX Lancaster city
TX League City city
TX Leander city
TX Leon Valley city
TX Lewisville city
TX Live Oak city
TX Longview city
TX Lubbock County
TX Lumberton city
TX Martin County
TX McAllen city
TX McLennan County
TX Meadows city
TX Midland city
TX Midland County
TX Mission city
TX Missouri City city
TX Montgomery County
TX Morgan's Point city
TX Nash city
TX Nassau Bay city
TX Nederland city
TX Nolanville city
TX North Richland Hills city
TX Northcrest town
TX Nueces County
TX Odessa city
TX Olmos Park city
TX Palm Valley town
TX Palmview city
TX Pantego town
TX Parker County
TX Pearland city
TX Pflugerville city
TX Pharr city
TX Piney Point Village city
TX Port Arthur city
TX Port Neches city
TX Portland city
TX Potter County
TX Primera town
TX Randall County
TX Richardson city
TX Richland Hills city
TX River Oaks city
TX Robinson city
TX Rockwall city
TX Rockwall County
TX Rollingwood city
TX Rose Hill Acres city
TX Rowlett city
[[Page 68833]]
TX Sachse city
TX Saginaw city
TX San Angelo city
TX San Benito city
TX San Juan city
TX San Patricio County
TX Sansom Park city
TX Santa Fe city
TX Schertz city
TX Seabrook city
TX Seagoville city
TX Selma city
TX Shavano Park city
TX Sherman city
TX Shoreacres city
TX Smith County
TX Socorro town
TX South Houston city
TX Southside Place city
TX Spring Valley city
TX Stafford town
TX Sugar Land city
TX Sunset Valley city
TX Tarrant County
TX Taylor County
TX Taylor Lake Village city
TX Temple city
TX Terrell Hills city
TX Texarkana city
TX Texas City city
TX Tom Green County
TX Travis County
TX Tye town
TX Tyler city
TX Universal City city
TX University Park city
TX Victoria city
TX Victoria County
TX Wake Village city
TX Waller County
TX Watauga city
TX Webb County
TX Webster city
TX Weslaco city
TX West Lake Hills city
TX West University Place city
TX Westover Hills town
TX Westworth village
TX White Oak city
TX White Settlement city
TX Wichita County
TX Wichita Falls city
TX Williamson County
TX Wilmer city
TX Windcrest city
TX Woodway city
UT American Fork city
UT Bluffdale city
UT Bountiful city
UT Cache County
UT Cedar Hills town
UT Centerville city
UT Clearfield city
UT Clinton city
UT Davis County
UT Draper city
UT Farmington city
UT Farr West city
UT Fruit Heights city
UT Harrisville city
UT Highland city
UT Hyde Park city
UT Kaysville city
UT Layton city
UT Lehi city
UT Lindon city
UT Logan city
UT Mapleton city
UT Midvale city
UT Millville city
UT Murray city
UT North Logan city
UT North Ogden city
UT North Salt Lake city
UT Ogden city
UT Orem city
UT Pleasant Grove city
UT Pleasant View city
UT Providence city
UT Provo city
UT River Heights city
UT Riverdale city
UT Riverton city
UT Roy city
UT Sandy city
UT Smithfield city
UT South Jordan city
UT South Ogden city
UT South Salt Lake city
UT South Weber city
UT Springville city
UT Sunset city
UT Syracuse city
UT Uintah town
UT Utah County
UT Washington Terrace city
UT Weber County
UT West Bountiful city
UT West Jordan city
UT West Point city
UT West Valley City city
UT Woods Cross city
VA Albemarle County
VA Alexandria city
VA Amherst County
VA Bedford County
VA Botetourt County
VA Bristol city
VA Campbell County
VA Charlottesville city
VA Colonial Heights city
VA Danville city
VA Dinwiddie County
VA Fairfax city
VA Falls Church city
VA Fredericksburg city
VA Gate City town
VA Gloucester County
VA Hanover County
VA Herndon town
VA Hopewell city
VA James City County
VA Loudoun County
VA Lynchburg city
VA Manassas city
VA Manassas Park city
VA Occoquan town
VA Petersburg city
VA Pittsylvania County
VA Poquoson city
VA Prince George County
VA Richmond city
VA Roanoke city
VA Roanoke County
VA Salem city
VA Scott County
VA Spotsylvania County
VA Stafford County
VA Suffolk city
VA Vienna town
VA Vinton town
VA Washington County
VA Weber City town
VA Williamsburg city
VA York County
VT Burlington city
VT Chittenden County
VT Colchester town
VT Essex Junction village
VT Essex town
VT Shelburne town
VT South Burlington city
VT Williston town
VT Winooski city
WA Algona city
WA Auburn city
WA Beaux Arts Village town
WA Bellevue city
WA Bellingham city
WA Benton County
WA Bonney Lake city
WA Bothell city
WA Bremerton city
WA Brier city
WA Clyde Hill town
WA Cowlitz County
WA Des Moines city
WA DuPont city
WA Edmonds city
WA Everett city
WA Fife city
WA Fircrest town
WA Franklin County
WA Gig Harbor city
WA Hunts Point town
WA Issaquah city
WA Kelso city
WA Kennewick city
WA Kent city
WA Kirkland city
WA Kitsap County
WA Lacey city
WA Lake Forest Park city
WA Longview city
WA Lynnwood city
WA Marysville city
WA Medina city
WA Mercer Island city
WA Mill Creek city
WA Millwood town
WA Milton city
WA Mountlake Terrace city
WA Mukilteo city
WA Normandy Park city
WA Olympia city
WA Pacific city
WA Pasco city
WA Port Orchard city
WA Puyallup city
WA Redmond city
WA Renton city
WA Richland city
WA Ruston town
WA Selah city
WA Steilacoom town
WA Sumner city
WA Thurston County
WA Tukwila city
WA Tumwater city
WA Union Gap city
WA Vancouver city
WA West Richland city
WA Whatcom County
WA Woodway city
WA Yakima city
WA Yakima County
WA Yarrow Point town
WI Algoma town
[[Page 68834]]
WI Allouez village
WI Altoona city
WI Appleton city
WI Ashwaubenon village
WI Bayside village
WI Bellevue town
WI Beloit city
WI Beloit town
WI Big Bend village
WI Black Wolf town
WI Blooming Grove town
WI Brookfield city
WI Brookfield town
WI Brown County
WI Brown Deer village
WI Brunswick town
WI Buchanan town
WI Burke town
WI Butler village
WI Caledonia town
WI Calumet County
WI Campbell town
WI Cedarburg city
WI Cedarburg town
WI Chippewa County
WI Chippewa Falls city
WI Clayton town
WI Combined Locks village
WI Cudahy city
WI Dane County
WI De Pere city
WI De Pere town
WI Delafield town
WI Douglas County
WI Dunn town
WI Eagle Point town
WI Eau Claire city
WI Eau Claire County
WI Elm Grove village
WI Elmwood Park village
WI Fitchburg city
WI Fox Point village
WI Franklin city
WI Germantown town
WI Germantown village
WI Glendale city
WI Grafton town
WI Grafton village
WI Grand Chute town
WI Green Bay city
WI Greendale village
WI Greenfield city
WI Greenville town
WI Hales Corners village
WI Hallie town
WI Harmony town
WI Harrison town
WI Hobart town
WI Holmen village
WI Howard village
WI Janesville city
WI Janesville town
WI Kaukauna city
WI Kenosha city
WI Kenosha County
WI Kimberly village
WI Kohler village
WI La Crosse city
WI La Crosse County
WI La Prairie town
WI Lafayette town
WI Lannon village
WI Lima town
WI Lisbon town
WI Little Chute village
WI Madison town
WI Maple Bluff village
WI Marathon County
WI McFarland village
WI Medary town
WI Menasha city
WI Menasha town
WI Menomonee Falls village
WI Mequon city
WI Middleton city
WI Middleton town
WI Monona city
WI Mount Pleasant town
WI Muskego city
WI Neenah city
WI Neenah town
WI Nekimi town
WI New Berlin city
WI North Bay village
WI Norway town
WI Oak Creek city
WI Onalaska city
WI Onalaska town
WI Oshkosh city
WI Oshkosh town
WI Outagamie County
WI Ozaukee County
WI Pewaukee town
WI Pewaukee village
WI Pleasant Prairie town
WI Pleasant Prairie village
WI Racine city
WI Racine County
WI Rib Mountain town
WI River Hills village
WI Rock County
WI Rock town
WI Rothschild village
WI Salem town
WI Schofield city
WI Scott town
WI Sheboygan city
WI Sheboygan County
WI Sheboygan Falls city
WI Sheboygan Falls town
WI Sheboygan town
WI Shelby town
WI Shorewood Hills village
WI Shorewood village
WI Somers town
WI South Milwaukee city
WI St. Francis city
WI Stettin town
WI Sturtevant village
WI Superior city
WI Superior village
WI Sussex village
WI Thiensville village
WI Turtle town
WI Union town
WI Vandenbroek town
WI Vernon town
WI Washington County
WI Washington town
WI Waukesha city
WI Waukesha County
WI Waukesha town
WI Wausau city
WI Wauwatosa city
WI West Allis city
WI West Milwaukee village
WI Weston town
WI Westport town
WI Wheaton town
WI Whitefish Bay village
WI Wilson town
WI Wind Point village
WI Winnebago County
WV Bancroft town
WV Barboursville village
WV Belle town
WV Benwood city
WV Berkeley County
WV Bethlehem village
WV Brooke County
WV Cabell County
WV Cedar Grove town
WV Ceredo city
WV Charleston city
WV Chesapeake town
WV Clearview village
WV Dunbar city
WV East Bank town
WV Follansbee city
WV Glasgow town
WV Glen Dale city
WV Hancock County
WV Huntington city
WV Hurricane city
WV Kanawha County
WV Kenova city
WV Marmet city
WV Marshall County
WV McMechen city
WV Mineral County
WV Moundsville city
WV Nitro city
WV North Hills town
WV Ohio County
WV Parkersburg city
WV Poca town
WV Putnam County
WV Ridgeley town
WV South Charleston city
WV St. Albans city
WV Triadelphia town
WV Vienna city
WV Wayne County
WV Weirton city
WV Wheeling city
WV Wood County
WY Casper city
WY Cheyenne city
WY Evansville town
WY Laramie County
WY Mills town
WY Natrona County
[[Page 68835]]
Appendix 7 of Preamble--Governmental Entities (Located Outside of
an Urbanized Area) That Must Be Examined By the NPDES Permitting
Authority for Potential Designation Under Sec. 123.35(b)(2)
(All listed entities have a population of at least 10,000 and a
population density of at least 1,000. A listed entity would only be
potentially designated if it operates a small MS4. See
Sec. 122.26(b)(16) for the definition of a small MS4.)
(This list does not include all operators of small MS4s that may
be designated by the NPDES permitting authority. Operators of small
MS4s in areas with populations below 10,000 and densities below
1,000 may also be designated but examination of them is not
required. Also, entities such as military bases, large hospitals,
prison complexes, universities, sewer districts, and highway
departments that operate a small MS4 in an area listed here, or in
an area otherwise designated by the NPDES permitting authority, may
be designated and become subject to permitting regulations.)
(Source: 1990 Census of Population and Housing, U.S. Bureau of the
Census. This list is subject to change with the Decennial Census)
AL Daphne city
AL Jacksonville city
AL Selma city
AR Arkadelphia city
AR Benton city
AR Blytheville city
AR Conway city
AR El Dorado city
AR Hot Springs city
AR Magnolia city
AR Rogers city
AR Searcy city
AR Stuttgart city
AZ Douglas city
CA Arcata city
CA Arroyo Grande city
CA Atwater city
CA Auburn city
CA Banning city
CA Brawley city
CA Calexico city
CA Clearlake city
CA Corcoran city
CA Delano city
CA Desert Hot Springs city
CA Dinuba city
CA Dixon city
CA El Centro city
CA El Paso de Robles (Paso Robles) city
CA Eureka city
CA Fillmore city
CA Gilroy city
CA Grover City city
CA Hanford city
CA Hollister city
CA Lemoore city
CA Los Banos city
CA Madera city
CA Manteca city
CA Oakdale city
CA Oroville city
CA Paradise town
CA Petaluma city
CA Porterville city
CA Red Bluff city
CA Reedley city
CA Ridgecrest city
CA Sanger city
CA Santa Paula city
CA Selma city
CA South Lake Tahoe city
CA Temecula city
CA Tracy city
CA Tulare city
CA Turlock city
CA Ukiah city
CA Wasco city
CA Woodland city
CO Canon City city
CO Durango city
CO Lafayette city
CO Louisville city
CO Loveland city
CO Sterling city
FL Bartow city
FL Belle Glade city
FL De Land city
FL Eustis city
FL Haines City city
FL Key West city
FL Leesburg city
FL Palatka city
FL Plant City city
FL St. Augustine city
FL St. Cloud city
GA Americus city
GA Carrollton city
GA Cordele city
GA Dalton city
GA Dublin city
GA Griffin city
GA Hinesville city
GA Moultrie city
GA Newnan city
GA Statesboro city
GA Thomasville city
GA Tifton city
GA Valdosta city
GA Waycross city
IA Ames city
IA Ankeny city
IA Boone city
IA Burlington city
IA Fort Dodge city
IA Fort Madison city
IA Indianola city
IA Keokuk city
IA Marshalltown city
IA Mason City city
IA Muscatine city
IA Newton city
IA Oskaloosa city
IA Ottumwa city
IA Spencer city
ID Caldwell city
ID Coeur d'Alene city
ID Lewiston city
ID Moscow city
ID Nampa city
ID Rexburg city
ID Twin Falls city
IL Belvidere city
IL Canton city
IL Carbondale city
IL Centralia city
IL Charleston city
IL Danville city
IL De Kalb city
IL Dixon city
IL Effingham city
IL Freeport city
IL Galesburg city
IL Jacksonville city
IL Macomb city
IL Mattoon city
IL Mount Vernon city
IL Ottawa city
IL Pontiac city
IL Quincy city
IL Rantoul village
IL Sterling city
IL Streator city
IL Taylorville city
IL Woodstock city
IN Bedford city
IN Columbus city
IN Crawfordsville city
IN Frankfort city
IN Franklin city
IN Greenfield city
IN Huntington city
IN Jasper city
IN La Porte city
IN Lebanon city
IN Logansport city
IN Madison city
IN Marion city
IN Martinsville city
IN Michigan City city
IN New Castle city
IN Noblesville city
IN Peru city
IN Plainfield town
IN Richmond city
IN Seymour city
IN Shelbyville city
IN Valparaiso city
IN Vincennes city
IN Wabash city
IN Warsaw city
IN Washington city
KS Arkansas City city
KS Atchison city
KS Coffeyville city
KS Derby city
KS Dodge City city
KS El Dorado city
KS Emporia city
KS Garden City city
KS Great Bend city
KS Hays city
KS Hutchinson city
KS Junction City city
KS Leavenworth city
KS Liberal city
KS Manhattan city
KS McPherson city
KS Newton city
KS Ottawa city
KS Parsons city
KS Pittsburg city
KS Salina city
KS Winfield city
KY Bowling Green city
KY Danville city
KY Frankfort city
KY Georgetown city
KY Glasgow city
KY Hopkinsville city
KY Madisonville city
KY Middlesborough city
KY Murray city
KY Nicholasville city
KY Paducah city
KY Radcliff city
KY Richmond city
KY Somerset city
KY Winchester city
[[Page 68836]]
LA Abbeville city
LA Bastrop city
LA Bogalusa city
LA Crowley city
LA Eunice city
LA Hammond city
LA Jennings city
LA Minden city
LA Morgan City city
LA Natchitoches city
LA New Iberia city
LA Opelousas city
LA Ruston city
LA Thibodaux city
MA Amherst town
MA Clinton town
MA Milford town
MA Newburyport city
MD Aberdeen town
MD Cambridge city
MD Salisbury city
MD Westminster city
ME Waterville city
MI Adrian city
MI Albion city
MI Alpena city
MI Big Rapids city
MI Cadillac city
MI Escanaba city
MI Grand Haven city
MI Marquette city
MI Midland city
MI Monroe city
MI Mount Pleasant city
MI Owosso city
MI Sturgis city
MI Traverse City city
MN Albert Lea city
MN Austin city
MN Bemidji city
MN Brainerd city
MN Faribault city
MN Fergus Falls city
MN Hastings city
MN Hutchinson city
MN Mankato city
MN Marshall city
MN New Ulm city
MN North Mankato city
MN Northfield city
MN Owatonna city
MN Stillwater city
MN Willmar city
MN Winona city
MO Cape Girardeau city
MO Farmington city
MO Hannibal city
MO Jefferson City city
MO Kennett city
MO Kirksville city
MO Marshall city
MO Maryville city
MO Poplar Bluff city
MO Rolla city
MO Sedalia city
MO Sikeston city
MO Warrensburg city
MO Washington city
MS Brookhaven city
MS Canton city
MS Clarksdale city
MS Cleveland city
MS Columbus city
MS Greenville city
MS Greenwood city
MS Grenada city
MS Indianola city
MS Laurel city
MS McComb city
MS Meridian city
MS Natchez city
MS Starkville city
MS Vicksburg city
MS Yazoo City city
MT Bozeman city
MT Havre city
MT Helena city
MT Kalispell city
NC Albemarle city
NC Asheboro city
NC Boone town
NC Eden city
NC Elizabeth City city
NC Havelock city
NC Henderson city
NC Kernersville town
NC Kinston city
NC Laurinburg city
NC Lenoir city
NC Lexington city
NC Lumberton city
NC Monroe city
NC New Bern city
NC Reidsville city
NC Roanoke Rapids city
NC Salisbury city
NC Sanford city
NC Shelby city
NC Statesville city
NC Tarboro town
NC Wilson city
ND Dickinson city
ND Jamestown city
ND Minot city
ND Williston city
NE Beatrice city
NE Columbus city
NE Fremont city
NE Grand Island city
NE Hastings city
NE Kearney city
NE Norfolk city
NE North Platte city
NE Scottsbluff city
NJ East Windsor township
NJ Plainsboro township
NJ Bridgeton city
NJ Princeton borough
NM Alamogordo city
NM Artesia city
NM Clovis city
NM Deming city
NM Farmington city
NM Gallup city
NM Hobbs city
NM Las Vegas city
NM Portales city
NM Roswell city
NM Silver City town
NV Elko city
NY Amsterdam city
NY Auburn city
NY Batavia city
NY Canandaigua city
NY Corning city
NY Cortland city
NY Dunkirk city
NY Fredonia village
NY Fulton city
NY Geneva city
NY Gloversville city
NY Jamestown city
NY Kingston city
NY Lockport city
NY Massena village
NY Middletown city
NY Ogdensburg city
NY Olean city
NY Oneonta city
NY Oswego city
NY Plattsburgh city
NY Potsdam village
NY Watertown city
OH Alliance city
OH Ashland city
OH Ashtabula city
OH Athens city
OH Bellefontaine city
OH Bowling Green city
OH Bucyrus city
OH Cambridge city
OH Chillicothe city
OH Circleville city
OH Coshocton city
OH Defiance city
OH Delaware city
OH Dover city
OH East Liverpool city
OH Findlay city
OH Fostoria city
OH Fremont city
OH Galion city
OH Greenville city
OH Lancaster city
OH Lebanon city
OH Marietta city
OH Marion city
OH Medina city
OH Mount Vernon city
OH New Philadelphia city
OH Norwalk city
OH Oxford city
OH Piqua city
OH Portsmouth city
OH Salem city
OH Sandusky city
OH Sidney city
OH Tiffin city
OH Troy city
OH Urbana city
OH Washington city
OH Wilmington city
OH Wooster city
OH Xenia city
OH Zanesville city
OK Ada city
OK Altus city
OK Bartlesville city
OK Chickasha city
OK Claremore city
OK McAlester city
OK Miami city
OK Muskogee city
OK Okmulgee city
OK Owasso city
OK Ponca City city
OK Stillwater city
OK Tahlequah city
OK Weatherford city
OR Albany city
OR Ashland city
OR Astoria city
OR Bend city
OR City of the Dalles city
OR Coos Bay city
OR Corvallis city
OR Grants Pass city
OR Hermiston city
[[Page 68837]]
OR Klamath Falls city
OR La Grande city
OR Lebanon city
OR McMinnville city
OR Newberg city
OR Pendleton city
OR Roseburg city
OR Woodburn city
PA Berwick borough
PA Bloomsburg town
PA Butler city
PA Carlisle borough
PA Chambersburg borough
PA Ephrata borough
PA Hanover borough
PA Hazleton city
PA Indiana borough
PA Lebanon city
PA Meadville city
PA New Castle city
PA Oil City city
PA Pottsville city
PA Sunbury city
PA Uniontown city
PA Warren city
RI Narragansett town
SC Clemson city
SC Easley city
SC Gaffney city
SC Greenwood city
SC Newberry town
SC Orangeburg city
SD Aberdeen city
SD Brookings city
SD Huron city
SD Mitchell city
SD Vermillion city
SD Watertown city
SD Yankton city
TN Brownsville city
TN Cleveland city
TN Collierville town
TN Cookeville city
TN Dyersburg city
TN Greeneville town
TN Lawrenceburg city
TN McMinnville city
TN Millington city
TN Morristown city
TN Murfreesboro city
TN Shelbyville city
TN Springfield city
TN Union City city
TX Alice city
TX Alvin city
TX Andrews city
TX Angleton city
TX Bay City city
TX Beeville city
TX Big Spring city
TX Borger city
TX Brenham city
TX Brownwood city
TX Burkburnett city
TX Canyon city
TX Cleburne city
TX Conroe city
TX Coppell city
TX Corsicana city
TX Del Rio city
TX Dumas city
TX Eagle Pass city
TX El Campo city
TX Gainesville city
TX Gatesville city
TX Georgetown city
TX Henderson city
TX Hereford city
TX Huntsville city
TX Jacksonville city
TX Kerrville city
TX Kingsville city
TX Lake Jackson city
TX Lamesa city
TX Levelland city
TX Lufkin city
TX Mercedes city
TX Mineral Wells city
TX Mount Pleasant city
TX Nacogdoches city
TX New Braunfels city
TX Palestine city
TX Pampa city
TX Pecos city
TX Plainview city
TX Port Lavaca city
TX Robstown city
TX Rosenberg city
TX Round Rock city
TX San Marcos city
TX Seguin city
TX Snyder city
TX Stephenville city
TX Sweetwater city
TX Taylor city
TX The Colony city
TX Uvalde city
TX Vernon city
TX Vidor city
UT Brigham City city
UT Cedar City city
UT Spanish Fork city
UT Tooele city
VA Blacksburg town
VA Christiansburg town
VA Front Royal town
VA Harrisonburg city
VA Leesburg town
VA Martinsville city
VA Radford city
VA Staunton city
VA Waynesboro city
VA Winchester city
VT Rutland city
WA Aberdeen city
WA Anacortes city
WA Centralia city
WA Ellensburg city
WA Moses Lake city
WA Mount Vernon city
WA Oak Harbor city
WA Port Angeles city
WA Pullman city
WA Sunnyside city
WA Walla Walla city
WA Wenatchee city
WI Beaver Dam city
WI Fond du Lac city
WI Fort Atkinson city
WI Manitowoc city
WI Marinette city
WI Marshfield city
WI Menomonie city
WI Monroe city
WI Oconomowoc city
WI Stevens Point city
WI Sun Prairie city
WI Two Rivers city
WI Watertown city
WI West Bend city
WI Whitewater city
WI Wisconsin Rapids city
WV Beckley city
WV Bluefield city
WV Clarksburg city
WV Fairmont city
WV Martinsburg city
WV Morgantown city
WY Evanston city
WY Gillette city
WY Green River city
WY Laramie city
WY Rock Springs city
WY Sheridan city
For the reasons set forth in the preamble, chapter I of title 40 of
the Code of Federal Regulations is amended as follows:
PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT
1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330,
1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g,
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2,
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542,
9601-9657, 11023, 11048.
2. In Sec. 9.1 the table is amended by adding entries in numerical
order under the indicated heading to read as follows:
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
[[Page 68838]]
------------------------------------------------------------------------
OMB control
40 CFR citation No.
------------------------------------------------------------------------
* * * *
* * *
------------------------------------------------------------------------
EPA Administered Permit Programs: The National Pollutant Discharge
Elimination System
------------------------------------------------------------------------
* * * *
* * *
122.26(g)............................................... 2040-0211
* * * *
* * *
------------------------------------------------------------------------
State Permit Requirements
------------------------------------------------------------------------
* * * *
* * *
123.35(b)............................................... 2040-0211
* * * *
* * *
------------------------------------------------------------------------
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
1. The authority citation for part 122 continues to read as
follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
2. Revise Sec. 122.21(c)(1) to read as follows:
Sec. 122.21 Application for a permit (applicable to State programs,
see Sec. 123.25).
* * * * *
(c) Time to apply. (1) Any person proposing a new discharge, shall
submit an application at least 180 days before the date on which the
discharge is to commence, unless permission for a later date has been
granted by the Director. Facilities proposing a new discharge of storm
water associated with industrial activity shall submit an application
180 days before that facility commences industrial activity which may
result in a discharge of storm water associated with that industrial
activity. Facilities described under Sec. 122.26(b)(14)(x) or
(b)(15)(i) shall submit applications at least 90 days before the date
on which construction is to commence. Different submittal dates may be
required under the terms of applicable general permits. Persons
proposing a new discharge are encouraged to submit their applications
well in advance of the 90 or 180 day requirements to avoid delay. See
also paragraph (k) of this section and Sec. 122.26(c)(1)(i)(G) and
(c)(1)(ii).
* * * * *
3. Amend Sec. 122.26 as follows:
a. Revise paragraphs (a)(9), (b)(4)(i), (b)(7)(i), (b)(14)
introductory text, (b)(14)(x), (b)(14)(xi);
b. Redesignate paragraph (b)(15) as paragraph (b)(20) and add new
paragraphs (b)(15) through (b)(19);
c. Revise the heading for paragraph (c), the first sentence of
paragraph (c)(1) introductory text, the first sentence of paragraph
(c)(1)(ii) introductory text, paragraphs (e) heading and introductory
text, (e)(1), (e)(5) introductory text, and (e)(5)(i);
d. Add paragraphs (e)(8) and (e)(9); and
e. Revise paragraphs (f)(4), (f)(5), and (g).
The additions and revisions read as follows:
Sec. 122.26 Storm water discharges (applicable to State NPDES
programs, see Sec. 123.25).
(a) * * *
(9)(i) On and after October 1, 1994, for discharges composed
entirely of storm water, that are not required by paragraph (a)(1) of
this section to obtain a permit, operators shall be required to obtain
a NPDES permit only if:
(A) The discharge is from a small MS4 required to be regulated
pursuant to Sec. 122.32;
(B) The discharge is a storm water discharge associated with small
construction activity pursuant to paragraph (b)(15) of this section;
(C) The Director, or in States with approved NPDES programs either
the Director or the EPA Regional Administrator, determines that storm
water controls are needed for the discharge based on wasteload
allocations that are part of ``total maximum daily loads'' (TMDLs) that
address the pollutant(s) of concern; or
(D) The Director, or in States with approved NPDES programs either
the Director or the EPA Regional Administrator, determines that the
discharge, or category of discharges within a geographic area,
contributes to a violation of a water quality standard or is a
significant contributor of pollutants to waters of the United States.
(ii) Operators of small MS4s designated pursuant to paragraphs
(a)(9)(i)(A), (a)(9)(i)(C), and (a)(9)(i)(D) of this section shall seek
coverage under an NPDES permit in accordance with Secs. 122.33 through
122.35. Operators of non-municipal sources designated pursuant to
paragraphs (a)(9)(i)(B), (a)(9)(i)(C), and (a)(9)(i)(D) of this section
shall seek coverage under an NPDES permit in accordance with paragraph
(c)(1) of this section.
(iii) Operators of storm water discharges designated pursuant to
paragraphs (a)(9)(i)(C) and (a)(9)(i)(D) of this section shall apply to
the Director for a permit within 180 days of receipt of notice, unless
permission for a later date is granted by the Director (see
Sec. 124.52(c) of this chapter).
(b) * * *
(4) * * *
(i) Located in an incorporated place with a population of 250,000
or more as determined by the 1990 Decennial Census by the Bureau of the
Census (Appendix F of this part); or
* * * * *
(7) * * *
(i) Located in an incorporated place with a population of 100,000
or more but less than 250,000, as determined by the 1990 Decennial
Census by the Bureau of the Census (Appendix G of this part); or
* * * * *
(14) Storm water discharge associated with industrial activity
means the discharge from any conveyance that is used for collecting and
conveying storm
[[Page 68839]]
water and that is directly related to manufacturing, processing or raw
materials storage areas at an industrial plant. The term does not
include discharges from facilities or activities excluded from the
NPDES program under this part 122. For the categories of industries
identified in this section, the term includes, but is not limited to,
storm water discharges from industrial plant yards; immediate access
roads and rail lines used or traveled by carriers of raw materials,
manufactured products, waste material, or by-products used or created
by the facility; material handling sites; refuse sites; sites used for
the application or disposal of process waste waters (as defined at part
401 of this chapter); sites used for the storage and maintenance of
material handling equipment; sites used for residual treatment,
storage, or disposal; shipping and receiving areas; manufacturing
buildings; storage areas (including tank farms) for raw materials, and
intermediate and final products; and areas where industrial activity
has taken place in the past and significant materials remain and are
exposed to storm water. For the purposes of this paragraph, material
handling activities include storage, loading and unloading,
transportation, or conveyance of any raw material, intermediate
product, final product, by-product or waste product. The term excludes
areas located on plant lands separate from the plant's industrial
activities, such as office buildings and accompanying parking lots as
long as the drainage from the excluded areas is not mixed with storm
water drained from the above described areas. Industrial facilities
(including industrial facilities that are federally, State, or
municipally owned or operated that meet the description of the
facilities listed in paragraphs (b)(14)(i) through (xi) of this
section) include those facilities designated under the provisions of
paragraph (a)(1)(v) of this section. The following categories of
facilities are considered to be engaging in ``industrial activity'' for
purposes of paragraph (b)(14):
* * * * *
(x) Construction activity including clearing, grading and
excavation, except operations that result in the disturbance of less
than five acres of total land area. Construction activity also includes
the disturbance of less than five acres of total land area that is a
part of a larger common plan of development or sale if the larger
common plan will ultimately disturb five acres or more;
(xi) Facilities under Standard Industrial Classifications 20, 21,
22, 23, 2434, 25, 265, 267, 27, 283, 285, 30, 31 (except 311), 323, 34
(except 3441), 35, 36, 37 (except 373), 38, 39, and 4221-25;
(15) Storm water discharge associated with small construction
activity means the discharge of storm water from:
(i) Construction activities including clearing, grading, and
excavating that result in land disturbance of equal to or greater than
one acre and less than five acres. Small construction activity also
includes the disturbance of less than one acre of total land area that
is part of a larger common plan of development or sale if the larger
common plan will ultimately disturb equal to or greater than one and
less than five acres. Small construction activity does not include
routine maintenance that is performed to maintain the original line and
grade, hydraulic capacity, or original purpose of the facility. The
Director may waive the otherwise applicable requirements in a general
permit for a storm water discharge from construction activities that
disturb less than five acres where:
(A) The value of the rainfall erosivity factor (``R'' in the
Revised Universal Soil Loss Equation) is less than five during the
period of construction activity. The rainfall erosivity factor is
determined in accordance with Chapter 2 of Agriculture Handbook Number
703, Predicting Soil Erosion by Water: A Guide to Conservation Planning
With the Revised Universal Soil Loss Equation (RUSLE), pages 21-64,
dated January 1997. The Director of the Federal Register approves this
incorporation by reference in accordance with 5 U.S.C 552(a) and 1 CFR
part 51. Copies may be obtained from EPA's Water Resource Center, Mail
Code RC4100, 401 M St. S.W., Washington, DC 20460. A copy is also
available for inspection at the U.S. EPA Water Docket , 401 M Street
S.W., Washington, DC. 20460, or the Office of the Federal Register, 800
N. Capitol Street N.W. Suite 700, Washington, DC. An operator must
certify to the Director that the construction activity will take place
during a period when the value of the rainfall erosivity factor is less
than five; or
(B) Storm water controls are not needed based on a ``total maximum
daily load'' (TMDL) approved or established by EPA that addresses the
pollutant(s) of concern or, for non-impaired waters that do not require
TMDLs, an equivalent analysis that determines allocations for small
construction sites for the pollutant(s) of concern or that determines
that such allocations are not needed to protect water quality based on
consideration of existing in-stream concentrations, expected growth in
pollutant contributions from all sources, and a margin of safety. For
the purpose of this paragraph, the pollutant(s) of concern include
sediment or a parameter that addresses sediment (such as total
suspended solids, turbidity or siltation) and any other pollutant that
has been identified as a cause of impairment of any water body that
will receive a discharge from the construction activity. The operator
must certify to the Director that the construction activity will take
place, and storm water discharges will occur, within the drainage area
addressed by the TMDL or equivalent analysis.
(ii) Any other construction activity designated by the Director, or
in States with approved NPDES programs either the Director or the EPA
Regional Administrator, based on the potential for contribution to a
violation of a water quality standard or for significant contribution
of pollutants to waters of the United States.
Exhibit 1 to Sec. 122.26(b)(15).--Summary of Coverage of ``Storm Water
Discharges Associated with Small Construction Activity'' Under the NPDES
Storm Water Program
------------------------------------------------------------------------
------------------------------------------------------------------------
Automatic Designation: Construction activities that
Required Nationwide Coverage. result in a land disturbance of equal to
or greater than one acre and less than
five acres.
Construction activities
disturbing less than one acre if part of
a larger common plan of development or
sale with a planned disturbance of equal
to or greater than one acre and less
than five acres. (see Sec.
122.26(b)(15)(i).)
Potential Designation: Construction activities that
Optional Evaluation and result in a land disturbance of less
Designation by the NPDES than one acre based on the potential for
Permitting Authority or EPA contribution to a violation of a water
Regional Administrator.. quality standard or for significant
contribution of pollutants. (see Sec.
122.26(b)(15)(ii).)
[[Page 68840]]
Potential Waiver: Waiver from Any automatically designated construction
Requirements as Determined activity where the operator certifies:
by the NPDES Permitting (1) A rainfall erosivity factor of less
Authority.. than five, or (2) That the activity will
occur within an area where controls are
not needed based on a TMDL or, for non-
impaired waters that do not require a
TMDL, an equivalent analysis for the
pollutant(s) of concern. (see Sec.
122.26(b)(15)(i).)
------------------------------------------------------------------------
(16) Small municipal separate storm sewer system means all separate
storm sewers that are:
(i) Owned or operated by the United States, a State, city, town,
borough, county, parish, district, association, or other public body
(created by or pursuant to State law) having jurisdiction over disposal
of sewage, industrial wastes, storm water, or other wastes, including
special districts under State law such as a sewer district, flood
control district or drainage district, or similar entity, or an Indian
tribe or an authorized Indian tribal organization, or a designated and
approved management agency under section 208 of the CWA that discharges
to waters of the United States.
(ii) Not defined as ``large'' or ``medium'' municipal separate
storm sewer systems pursuant to paragraphs (b)(4) and (b)(7) of this
section, or designated under paragraph (a)(1)(v) of this section.
(iii) This term includes systems similar to separate storm sewer
systems in municipalities, such as systems at military bases, large
hospital or prison complexes, and highways and other thoroughfares. The
term does not include separate storm sewers in very discrete areas,
such as individual buildings.
(17) Small MS4 means a small municipal separate storm sewer system.
(18) Municipal separate storm sewer system means all separate storm
sewers that are defined as ``large'' or ``medium'' or ``small''
municipal separate storm sewer systems pursuant to paragraphs (b)(4),
(b)(7), and (b)(16) of this section, or designated under paragraph
(a)(1)(v) of this section.
(19) MS4 means a municipal separate storm sewer system.
* * * * *
(c) Application requirements for storm water discharges associated
with industrial activity and storm water discharges associated with
small construction activity--(1) Individual application. Dischargers of
storm water associated with industrial activity and with small
construction activity are required to apply for an individual permit or
seek coverage under a promulgated storm water general permit. * * *
* * * * *
(ii) An operator of an existing or new storm water discharge that
is associated with industrial activity solely under paragraph
(b)(14)(x) of this section or is associated with small construction
activity solely under paragraph (b)(15) of this section, is exempt from
the requirements of Sec. 122.21(g) and paragraph (c)(1)(i) of this
section. * * *
* * * * *
(e) Application deadlines. Any operator of a point source required
to obtain a permit under this section that does not have an effective
NPDES permit authorizing discharges from its storm water outfalls shall
submit an application in accordance with the following deadlines:
(1) Storm water discharges associated with industrial activity. (i)
Except as provided in paragraph (e)(1)(ii) of this section, for any
storm water discharge associated with industrial activity identified in
paragraphs (b)(14)(i) through (xi) of this section, that is not part of
a group application as described in paragraph (c)(2) of this section or
that is not authorized by a storm water general permit, a permit
application made pursuant to paragraph (c) of this section must be
submitted to the Director by October 1, 1992;
(ii) For any storm water discharge associated with industrial
activity from a facility that is owned or operated by a municipality
with a population of less than 100,000 that is not authorized by a
general or individual permit, other than an airport, powerplant, or
uncontrolled sanitary landfill, the permit application must be
submitted to the Director by March 10, 2003.
* * * * *
(5) A permit application shall be submitted to the Director within
180 days of notice, unless permission for a later date is granted by
the Director (see Sec. 124.52(c) of this chapter), for:
(i) A storm water discharge that the Director, or in States with
approved NPDES programs, either the Director or the EPA Regional
Administrator, determines that the discharge contributes to a violation
of a water quality standard or is a significant contributor of
pollutants to waters of the United States (see paragraphs (a)(1)(v) and
(b)(15)(ii) of this section);
* * * * *
(8) For any storm water discharge associated with small
construction activity identified in paragraph (b)(15)(i) of this
section, see Sec. 122.21(c)(1). Discharges from these sources require
permit authorization by March 10, 2003, unless designated for coverage
before then.
(9) For any discharge from a regulated small MS4, the permit
application made under Sec. 122.33 must be submitted to the Director
by:
(i) March 10, 2003 if designated under Sec. 122.32(a)(1) unless
your MS4 serves a jurisdiction with a population under 10,000 and the
NPDES permitting authority has established a phasing schedule under
Sec. 123.35(d)(3) (see Sec. 122.33(c)(1)); or
(ii) Within 180 days of notice, unless the NPDES permitting
authority grants a later date, if designated under Sec. 122.32(a)(2)
(see Sec. 122.33(c)(2)).
(f) * * *
(4) Any person may petition the Director for the designation of a
large, medium, or small municipal separate storm sewer system as
defined by paragraph (b)(4)(iv), (b)(7)(iv), or (b)(16) of this
section.
(5) The Director shall make a final determination on any petition
received under this section within 90 days after receiving the petition
with the exception of petitions to designate a small MS4 in which case
the Director shall make a final determination on the petition within
180 days after its receipt.
(g) Conditional exclusion for ``no exposure'' of industrial
activities and materials to storm water. Discharges composed entirely
of storm water are not storm water discharges associated with
industrial activity if there is ``no exposure'' of industrial materials
and activities to rain, snow, snowmelt and/or runoff, and the
discharger satisfies the conditions in paragraphs (g)(1) through (g)(4)
of this section. ``No exposure'' means that all industrial materials
and activities are protected by a storm resistant shelter to prevent
exposure to rain, snow, snowmelt, and/or runoff. Industrial materials
or activities include, but are not limited to, material handling
equipment or activities, industrial machinery, raw materials,
intermediate products, by-products, final products, or waste
[[Page 68841]]
products. Material handling activities include the storage, loading and
unloading, transportation, or conveyance of any raw material,
intermediate product, final product or waste product.
(1) Qualification. To qualify for this exclusion, the operator of
the discharge must:
(i) Provide a storm resistant shelter to protect industrial
materials and activities from exposure to rain, snow, snow melt, and
runoff;
(ii) Complete and sign (according to Sec. 122.22) a certification
that there are no discharges of storm water contaminated by exposure to
industrial materials and activities from the entire facility, except as
provided in paragraph (g)(2) of this section;
(iii) Submit the signed certification to the NPDES permitting
authority once every five years;
(iv) Allow the Director to inspect the facility to determine
compliance with the ``no exposure'' conditions;
(v) Allow the Director to make any ``no exposure'' inspection
reports available to the public upon request; and
(vi) For facilities that discharge through an MS4, upon request,
submit a copy of the certification of ``no exposure'' to the MS4
operator, as well as allow inspection and public reporting by the MS4
operator.
(2) Industrial materials and activities not requiring storm
resistant shelter. To qualify for this exclusion, storm resistant
shelter is not required for:
(i) Drums, barrels, tanks, and similar containers that are tightly
sealed, provided those containers are not deteriorated and do not leak
(``Sealed'' means banded or otherwise secured and without operational
taps or valves);
(ii) Adequately maintained vehicles used in material handling; and
(iii) Final products, other than products that would be mobilized
in storm water discharge (e.g., rock salt).
(3) Limitations. (i) Storm water discharges from construction
activities identified in paragraphs (b)(14)(x) and (b)(15) are not
eligible for this conditional exclusion.
(ii) This conditional exclusion from the requirement for an NPDES
permit is available on a facility-wide basis only, not for individual
outfalls. If a facility has some discharges of storm water that would
otherwise be ``no exposure'' discharges, individual permit requirements
should be adjusted accordingly.
(iii) If circumstances change and industrial materials or
activities become exposed to rain, snow, snow melt, and/or runoff, the
conditions for this exclusion no longer apply. In such cases, the
discharge becomes subject to enforcement for un-permitted discharge.
Any conditionally exempt discharger who anticipates changes in
circumstances should apply for and obtain permit authorization prior to
the change of circumstances.
(iv) Notwithstanding the provisions of this paragraph, the NPDES
permitting authority retains the authority to require permit
authorization (and deny this exclusion) upon making a determination
that the discharge causes, has a reasonable potential to cause, or
contributes to an instream excursion above an applicable water quality
standard, including designated uses.
(4) Certification. The no exposure certification must require the
submission of the following information, at a minimum, to aid the NPDES
permitting authority in determining if the facility qualifies for the
no exposure exclusion:
(i) The legal name, address and phone number of the discharger (see
Sec. 122.21(b));
(ii) The facility name and address, the county name and the
latitude and longitude where the facility is located;
(iii) The certification must indicate that none of the following
materials or activities are, or will be in the foreseeable future,
exposed to precipitation:
(A) Using, storing or cleaning industrial machinery or equipment,
and areas where residuals from using, storing or cleaning industrial
machinery or equipment remain and are exposed to storm water;
(B) Materials or residuals on the ground or in storm water inlets
from spills/leaks;
(C) Materials or products from past industrial activity;
(D) Material handling equipment (except adequately maintained
vehicles);
(E) Materials or products during loading/unloading or transporting
activities;
(F) Materials or products stored outdoors (except final products
intended for outside use, e.g., new cars, where exposure to storm water
does not result in the discharge of pollutants);
(G) Materials contained in open, deteriorated or leaking storage
drums, barrels, tanks, and similar containers;
(H) Materials or products handled/stored on roads or railways owned
or maintained by the discharger;
(I) Waste material (except waste in covered, non-leaking
containers, e.g., dumpsters);
(J) Application or disposal of process wastewater (unless otherwise
permitted); and
(K) Particulate matter or visible deposits of residuals from roof
stacks/vents not otherwise regulated, i.e., under an air quality
control permit, and evident in the storm water outflow;
(iv) All ``no exposure'' certifications must include the following
certification statement, and be signed in accordance with the signatory
requirements of Sec. 122.22: ``I certify under penalty of law that I
have read and understand the eligibility requirements for claiming a
condition of ``no exposure'' and obtaining an exclusion from NPDES
storm water permitting; and that there are no discharges of storm water
contaminated by exposure to industrial activities or materials from the
industrial facility identified in this document (except as allowed
under paragraph (g)(2)) of this section. I understand that I am
obligated to submit a no exposure certification form once every five
years to the NPDES permitting authority and, if requested, to the
operator of the local MS4 into which this facility discharges (where
applicable). I understand that I must allow the NPDES permitting
authority, or MS4 operator where the discharge is into the local MS4,
to perform inspections to confirm the condition of no exposure and to
make such inspection reports publicly available upon request. I
understand that I must obtain coverage under an NPDES permit prior to
any point source discharge of storm water from the facility. I certify
under penalty of law that this document and all attachments were
prepared under my direction or supervision in accordance with a system
designed to assure that qualified personnel properly gathered and
evaluated the information submitted. Based upon my inquiry of the
person or persons who manage the system, or those persons directly
involved in gathering the information, the information submitted is to
the best of my knowledge and belief true, accurate and complete. I am
aware there are significant penalties for submitting false information,
including the possibility of fine and imprisonment for knowing
violations.''
4. Revise Sec. 122.28(b)(2)(v) to read as follows:
Sec. 122.28 General permits (applicable to State NPDES programs, see
Sec. 123.25).
* * * * *
(b) * * *
(2) * * *
(v) Discharges other than discharges from publicly owned treatment
works, combined sewer overflows, municipal
[[Page 68842]]
separate storm sewer systems, primary industrial facilities, and storm
water discharges associated with industrial activity, may, at the
discretion of the Director, be authorized to discharge under a general
permit without submitting a notice of intent where the Director finds
that a notice of intent requirement would be inappropriate. In making
such a finding, the Director shall consider: the type of discharge; the
expected nature of the discharge; the potential for toxic and
conventional pollutants in the discharges; the expected volume of the
discharges; other means of identifying discharges covered by the
permit; and the estimated number of discharges to be covered by the
permit. The Director shall provide in the public notice of the general
permit the reasons for not requiring a notice of intent.
* * * * *
5. Add Secs. 122.30 through 122.37 to subpart B to read as follows:
Sec. 122.30 What are the objectives of the storm water regulations for
small MS4s?
(a) Sections 122.30 through 122.37 are written in a ``readable
regulation'' format that includes both rule requirements and EPA
guidance that is not legally binding. EPA has clearly distinguished its
recommended guidance from the rule requirements by putting the guidance
in a separate paragraph headed by the word ``guidance''.
(b) Under the statutory mandate in section 402(p)(6) of the Clean
Water Act, the purpose of this portion of the storm water program is to
designate additional sources that need to be regulated to protect water
quality and to establish a comprehensive storm water program to
regulate these sources. (Because the storm water program is part of the
National Pollutant Discharge Elimination System (NPDES) Program, you
should also refer to Sec. 122.1 which addresses the broader purpose of
the NPDES program.)
(c) Storm water runoff continues to harm the nation's waters.
Runoff from lands modified by human activities can harm surface water
resources in several ways including by changing natural hydrologic
patterns and by elevating pollutant concentrations and loadings. Storm
water runoff may contain or mobilize high levels of contaminants, such
as sediment, suspended solids, nutrients, heavy metals, pathogens,
toxins, oxygen-demanding substances, and floatables.
(d) EPA strongly encourages partnerships and the watershed approach
as the management framework for efficiently, effectively, and
consistently protecting and restoring aquatic ecosystems and protecting
public health.
Sec. 122.31 As a Tribe, what is my role under the NPDES storm water
program?
As a Tribe you may:
(a) Be authorized to operate the NPDES program including the storm
water program, after EPA determines that you are eligible for treatment
in the same manner as a State under Secs. 123.31 through 123.34 of this
chapter. (If you do not have an authorized NPDES program, EPA
implements the program for discharges on your reservation as well as
other Indian country, generally.);
(b) Be classified as an owner of a regulated small MS4, as defined
in Sec. 122.32. (Designation of your Tribe as an owner of a small MS4
for purposes of this part is an approach that is consistent with EPA's
1984 Indian Policy of operating on a government-to-government basis
with EPA looking to Tribes as the lead governmental authorities to
address environmental issues on their reservations as appropriate. If
you operate a separate storm sewer system that meets the definition of
a regulated small MS4, you are subject to the requirements under
Secs. 122.33 through 122.35. If you are not designated as a regulated
small MS4, you may ask EPA to designate you as such for the purposes of
this part.); or
(c) Be a discharger of storm water associated with industrial
activity or small construction activity under Secs. 122.26(b)(14) or
(b)(15), in which case you must meet the applicable requirements.
Within Indian country, the NPDES permitting authority is generally EPA,
unless you are authorized to administer the NPDES program.
Sec. 122.32 As an operator of a small MS4, am I regulated under the
NPDES storm water program?
(a) Unless you qualify for a waiver under paragraph (c) of this
section, you are regulated if you operate a small MS4, including but
not limited to systems operated by federal, State, Tribal, and local
governments, including State departments of transportation; and:
(1) Your small MS4 is located in an urbanized area as determined by
the latest Decennial Census by the Bureau of the Census. (If your small
MS4 is not located entirely within an urbanized area, only the portion
that is within the urbanized area is regulated); or
(2) You are designated by the NPDES permitting authority, including
where the designation is pursuant to Secs. 123.35(b)(3) and (b)(4) of
this chapter, or is based upon a petition under Sec. 122.26(f).
(b) You may be the subject of a petition to the NPDES permitting
authority to require an NPDES permit for your discharge of storm water.
If the NPDES permitting authority determines that you need a permit,
you are required to comply with Secs. 122.33 through 122.35.
(c) The NPDES permitting authority may waive the requirements
otherwise applicable to you if you meet the criteria of paragraph (d)
or (e) of this section. If you receive a waiver under this section, you
may subsequently be required to seek coverage under an NPDES permit in
accordance with Sec. 122.33(a) if circumstances change. (See also
Sec. 123.35(b) of this chapter.)
(d) The NPDES permitting authority may waive permit coverage if
your MS4 serves a population of less than 1,000 within the urbanized
area and you meet the following criteria:
(1) Your system is not contributing substantially to the pollutant
loadings of a physically interconnected MS4 that is regulated by the
NPDES storm water program (see Sec. 123.35(b)(4) of this chapter); and
(2) If you discharge any pollutant(s) that have been identified as
a cause of impairment of any water body to which you discharge, storm
water controls are not needed based on wasteload allocations that are
part of an EPA approved or established ``total maximum daily load''
(TMDL) that addresses the pollutant(s) of concern.
(e) The NPDES permitting authority may waive permit coverage if
your MS4 serves a population under 10,000 and you meet the following
criteria:
(1) The permitting authority has evaluated all waters of the U.S.,
including small streams, tributaries, lakes, and ponds, that receive a
discharge from your MS4;
(2) For all such waters, the permitting authority has determined
that storm water controls are not needed based on wasteload allocations
that are part of an EPA approved or established TMDL that addresses the
pollutant(s) of concern or, if a TMDL has not been developed or
approved, an equivalent analysis that determines sources and
allocations for the pollutant(s) of concern;
(3) For the purpose of this paragraph (e), the pollutant(s) of
concern include biochemical oxygen demand (BOD), sediment or a
parameter that addresses sediment (such as total suspended solids,
turbidity or siltation), pathogens, oil and grease, and any pollutant
that has been identified as a cause of impairment of any water body
that will receive a discharge from your MS4; and
[[Page 68843]]
(4) The permitting authority has determined that future discharges
from your MS4 do not have the potential to result in exceedances of
water quality standards, including impairment of designated uses, or
other significant water quality impacts, including habitat and
biological impacts.
Sec. 122.33 If I am an operator of a regulated small MS4, how do I
apply for an NPDES permit and when do I have to apply?
(a) If you operate a regulated small MS4 under Sec. 122.32, you
must seek coverage under a NPDES permit issued by your NPDES permitting
authority. If you are located in an NPDES authorized State, Tribe, or
Territory, then that State, Tribe, or Territory is your NPDES
permitting authority. Otherwise, your NPDES permitting authority is the
EPA Regional Office.
(b) You must seek authorization to discharge under a general or
individual NPDES permit, as follows:
(1) If your NPDES permitting authority has issued a general permit
applicable to your discharge and you are seeking coverage under the
general permit, you must submit a Notice of Intent (NOI) that includes
the information on your best management practices and measurable goals
required by Sec. 122.34(d). You may file your own NOI, or you and other
municipalities or governmental entities may jointly submit an NOI. If
you want to share responsibilities for meeting the minimum measures
with other municipalities or governmental entities, you must submit an
NOI that describes which minimum measures you will implement and
identify the entities that will implement the other minimum measures
within the area served by your MS4. The general permit will explain any
other steps necessary to obtain permit authorization.
(2)(i) If you are seeking authorization to discharge under an
individual permit and wish to implement a program under Sec. 122.34,
you must submit an application to your NPDES permitting authority that
includes the information required under Secs. 122.21(f) and 122.34(d),
an estimate of square mileage served by your small MS4, and any
additional information that your NPDES permitting authority requests. A
storm sewer map that satisfies the requirement of Sec. 122.34(b)(3)(i)
will satisfy the map requirement in Sec. 122.21(f)(7).
(ii) If you are seeking authorization to discharge under an
individual permit and wish to implement a program that is different
from the program under Sec. 122.34, you will need to comply with the
permit application requirements of Sec. 122.26(d). You must submit both
Parts of the application requirements in Secs. 122.26(d)(1) and (2) by
March 10, 2003. You do not need to submit the information required by
Secs. 122.26(d)(1)(ii) and (d)(2) regarding your legal authority,
unless you intend for the permit writer to take such information into
account when developing your other permit conditions.
(iii) If allowed by your NPDES permitting authority, you and
another regulated entity may jointly apply under either paragraph
(b)(2)(i) or (b)(2)(ii) of this section to be co-permittees under an
individual permit.
(3) If your small MS4 is in the same urbanized area as a medium or
large MS4 with an NPDES storm water permit and that other MS4 is
willing to have you participate in its storm water program, you and the
other MS4 may jointly seek a modification of the other MS4 permit to
include you as a limited co-permittee. As a limited co-permittee, you
will be responsible for compliance with the permit's conditions
applicable to your jurisdiction. If you choose this option you will
need to comply with the permit application requirements of Sec. 122.26,
rather than the requirements of Sec. 122.34. You do not need to comply
with the specific application requirements of Sec. 122.26(d)(1)(iii)
and (iv) and (d)(2)(iii) (discharge characterization). You may satisfy
the requirements in Sec. 122.26 (d)(1)(v) and (d)(2)(iv)
(identification of a management program) by referring to the other
MS4's storm water management program.
(4) Guidance: In referencing an MS4's storm water management
program, you should briefly describe how the existing plan will address
discharges from your small MS4 or would need to be supplemented in
order to adequately address your discharges. You should also explain
your role in coordinating storm water pollutant control activities in
your MS4, and detail the resources available to you to accomplish the
plan.
(c) If you operate a regulated small MS4:
(1) Designated under Sec. 122.32(a)(1), you must apply for coverage
under an NPDES permit, or apply for a modification of an existing NPDES
permit under paragraph (b)(3) of this section by March 10, 2003, unless
your MS4 serves a jurisdiction with a population under 10,000 and the
NPDES permitting authority has established a phasing schedule under
Sec. 123.35(d)(3) of this chapter.
(2) Designated under Sec. 122.32(a)(2), you must apply for coverage
under an NPDES permit, or apply for a modification of an existing NPDES
permit under paragraph (b)(3) of this section, within 180 days of
notice, unless the NPDES permitting authority grants a later date.
Sec. 122.34 As an operator of a regulated small MS4, what will my
NPDES MS4 storm water permit require?
(a) Your NPDES MS4 permit will require at a minimum that you
develop, implement, and enforce a storm water management program
designed to reduce the discharge of pollutants from your MS4 to the
maximum extent practicable (MEP), to protect water quality, and to
satisfy the appropriate water quality requirements of the Clean Water
Act. Your storm water management program must include the minimum
control measures described in paragraph (b) of this section unless you
apply for a permit under Sec. 122.26(d). For purposes of this section,
narrative effluent limitations requiring implementation of best
management practices (BMPs) are generally the most appropriate form of
effluent limitations when designed to satisfy technology requirements
(including reductions of pollutants to the maximum extent practicable)
and to protect water quality. Implementation of best management
practices consistent with the provisions of the storm water management
program required pursuant to this section and the provisions of the
permit required pursuant to Sec. 122.33 constitutes compliance with the
standard of reducing pollutants to the ``maximum extent practicable.''
Your NPDES permitting authority will specify a time period of up to 5
years from the date of permit issuance for you to develop and implement
your program.
(b) Minimum control measures--(1) Public education and outreach on
storm water impacts. (i) You must implement a public education program
to distribute educational materials to the community or conduct
equivalent outreach activities about the impacts of storm water
discharges on water bodies and the steps that the public can take to
reduce pollutants in storm water runoff.
(ii) Guidance: You may use storm water educational materials
provided by your State, Tribe, EPA, environmental, public interest or
trade organizations, or other MS4s. The public education program should
inform individuals and households about the steps they can take to
reduce storm water pollution, such as ensuring proper septic system
maintenance, ensuring the proper use and disposal of landscape and
garden chemicals including fertilizers and pesticides, protecting and
restoring riparian vegetation, and properly disposing of used motor oil
or
[[Page 68844]]
household hazardous wastes. EPA recommends that the program inform
individuals and groups how to become involved in local stream and beach
restoration activities as well as activities that are coordinated by
youth service and conservation corps or other citizen groups. EPA
recommends that the public education program be tailored, using a mix
of locally appropriate strategies, to target specific audiences and
communities. Examples of strategies include distributing brochures or
fact sheets, sponsoring speaking engagements before community groups,
providing public service announcements, implementing educational
programs targeted at school age children, and conducting community-
based projects such as storm drain stenciling, and watershed and beach
cleanups. In addition, EPA recommends that some of the materials or
outreach programs be directed toward targeted groups of commercial,
industrial, and institutional entities likely to have significant storm
water impacts. For example, providing information to restaurants on the
impact of grease clogging storm drains and to garages on the impact of
oil discharges. You are encouraged to tailor your outreach program to
address the viewpoints and concerns of all communities, particularly
minority and disadvantaged communities, as well as any special concerns
relating to children.
(2) Public involvement/participation. (i) You must, at a minimum,
comply with State, Tribal and local public notice requirements when
implementing a public involvement/ participation program.
(ii) Guidance: EPA recommends that the public be included in
developing, implementing, and reviewing your storm water management
program and that the public participation process should make efforts
to reach out and engage all economic and ethnic groups. Opportunities
for members of the public to participate in program development and
implementation include serving as citizen representatives on a local
storm water management panel, attending public hearings, working as
citizen volunteers to educate other individuals about the program,
assisting in program coordination with other pre-existing programs, or
participating in volunteer monitoring efforts. (Citizens should obtain
approval where necessary for lawful access to monitoring sites.)
(3) Illicit discharge detection and elimination. (i) You must
develop, implement and enforce a program to detect and eliminate
illicit discharges (as defined at Sec. 122.26(b)(2)) into your small
MS4.
(ii) You must:
(A) Develop, if not already completed, a storm sewer system map,
showing the location of all outfalls and the names and location of all
waters of the United States that receive discharges from those
outfalls;
(B) To the extent allowable under State, Tribal or local law,
effectively prohibit, through ordinance, or other regulatory mechanism,
non-storm water discharges into your storm sewer system and implement
appropriate enforcement procedures and actions;
(C) Develop and implement a plan to detect and address non-storm
water discharges, including illegal dumping, to your system; and
(D) Inform public employees, businesses, and the general public of
hazards associated with illegal discharges and improper disposal of
waste.
(iii) You need address the following categories of non-storm water
discharges or flows (i.e., illicit discharges) only if you identify
them as significant contributors of pollutants to your small MS4: water
line flushing, landscape irrigation, diverted stream flows, rising
ground waters, uncontaminated ground water infiltration (as defined at
40 CFR 35.2005(20)), uncontaminated pumped ground water, discharges
from potable water sources, foundation drains, air conditioning
condensation, irrigation water, springs, water from crawl space pumps,
footing drains, lawn watering, individual residential car washing,
flows from riparian habitats and wetlands, dechlorinated swimming pool
discharges, and street wash water (discharges or flows from fire
fighting activities are excluded from the effective prohibition against
non-storm water and need only be addressed where they are identified as
significant sources of pollutants to waters of the United States).
(iv) Guidance: EPA recommends that the plan to detect and address
illicit discharges include the following four components: procedures
for locating priority areas likely to have illicit discharges;
procedures for tracing the source of an illicit discharge; procedures
for removing the source of the discharge; and procedures for program
evaluation and assessment. EPA recommends visually screening outfalls
during dry weather and conducting field tests of selected pollutants as
part of the procedures for locating priority areas. Illicit discharge
education actions may include storm drain stenciling, a program to
promote, publicize, and facilitate public reporting of illicit
connections or discharges, and distribution of outreach materials.
(4) Construction site storm water runoff control. (i) You must
develop, implement, and enforce a program to reduce pollutants in any
storm water runoff to your small MS4 from construction activities that
result in a land disturbance of greater than or equal to one acre.
Reduction of storm water discharges from construction activity
disturbing less than one acre must be included in your program if that
construction activity is part of a larger common plan of development or
sale that would disturb one acre or more. If the NPDES permitting
authority waives requirements for storm water discharges associated
with small construction activity in accordance with
Sec. 122.26(b)(15)(i), you are not required to develop, implement, and/
or enforce a program to reduce pollutant discharges from such sites.
(ii) Your program must include the development and implementation
of, at a minimum:
(A) An ordinance or other regulatory mechanism to require erosion
and sediment controls, as well as sanctions to ensure compliance, to
the extent allowable under State, Tribal, or local law;
(B) Requirements for construction site operators to implement
appropriate erosion and sediment control best management practices;
(C) Requirements for construction site operators to control waste
such as discarded building materials, concrete truck washout,
chemicals, litter, and sanitary waste at the construction site that may
cause adverse impacts to water quality;
(D) Procedures for site plan review which incorporate consideration
of potential water quality impacts;
(E) Procedures for receipt and consideration of information
submitted by the public, and
(F) Procedures for site inspection and enforcement of control
measures.
(iii) Guidance: Examples of sanctions to ensure compliance include
non-monetary penalties, fines, bonding requirements and/or permit
denials for non-compliance. EPA recommends that procedures for site
plan review include the review of individual pre-construction site
plans to ensure consistency with local sediment and erosion control
requirements. Procedures for site inspections and enforcement of
control measures could include steps to identify priority sites for
inspection and enforcement based on the nature of the construction
activity, topography, and the characteristics of soils and receiving
[[Page 68845]]
water quality. You are encouraged to provide appropriate educational
and training measures for construction site operators. You may wish to
require a storm water pollution prevention plan for construction sites
within your jurisdiction that discharge into your system. See
Sec. 122.44(s) (NPDES permitting authorities' option to incorporate
qualifying State, Tribal and local erosion and sediment control
programs into NPDES permits for storm water discharges from
construction sites). Also see Sec. 122.35(b) (The NPDES permitting
authority may recognize that another government entity, including the
permitting authority, may be responsible for implementing one or more
of the minimum measures on your behalf.)
(5) Post-construction storm water management in new development and
redevelopment.
(i) You must develop, implement, and enforce a program to address
storm water runoff from new development and redevelopment projects that
disturb greater than or equal to one acre, including projects less than
one acre that are part of a larger common plan of development or sale,
that discharge into your small MS4. Your program must ensure that
controls are in place that would prevent or minimize water quality
impacts.
(ii) You must:
(A) Develop and implement strategies which include a combination of
structural and/or non-structural best management practices (BMPs)
appropriate for your community;
(B) Use an ordinance or other regulatory mechanism to address post-
construction runoff from new development and redevelopment projects to
the extent allowable under State, Tribal or local law; and
(C) Ensure adequate long-term operation and maintenance of BMPs.
(iii) Guidance: If water quality impacts are considered from the
beginning stages of a project, new development and potentially
redevelopment provide more opportunities for water quality protection.
EPA recommends that the BMPs chosen: be appropriate for the local
community; minimize water quality impacts; and attempt to maintain pre-
development runoff conditions. In choosing appropriate BMPs, EPA
encourages you to participate in locally-based watershed planning
efforts which attempt to involve a diverse group of stakeholders
including interested citizens. When developing a program that is
consistent with this measure's intent, EPA recommends that you adopt a
planning process that identifies the municipality's program goals
(e.g., minimize water quality impacts resulting from post-construction
runoff from new development and redevelopment), implementation
strategies (e.g., adopt a combination of structural and/or non-
structural BMPs), operation and maintenance policies and procedures,
and enforcement procedures. In developing your program, you should
consider assessing existing ordinances, policies, programs and studies
that address storm water runoff quality. In addition to assessing these
existing documents and programs, you should provide opportunities to
the public to participate in the development of the program. Non-
structural BMPs are preventative actions that involve management and
source controls such as: policies and ordinances that provide
requirements and standards to direct growth to identified areas,
protect sensitive areas such as wetlands and riparian areas, maintain
and/or increase open space (including a dedicated funding source for
open space acquisition), provide buffers along sensitive water bodies,
minimize impervious surfaces, and minimize disturbance of soils and
vegetation; policies or ordinances that encourage infill development in
higher density urban areas, and areas with existing infrastructure;
education programs for developers and the public about project designs
that minimize water quality impacts; and measures such as minimization
of percent impervious area after development and minimization of
directly connected impervious areas. Structural BMPs include: storage
practices such as wet ponds and extended-detention outlet structures;
filtration practices such as grassed swales, sand filters and filter
strips; and infiltration practices such as infiltration basins and
infiltration trenches. EPA recommends that you ensure the appropriate
implementation of the structural BMPs by considering some or all of the
following: pre-construction review of BMP designs; inspections during
construction to verify BMPs are built as designed; post-construction
inspection and maintenance of BMPs; and penalty provisions for the
noncompliance with design, construction or operation and maintenance.
Storm water technologies are constantly being improved, and EPA
recommends that your requirements be responsive to these changes,
developments or improvements in control technologies.
(6) Pollution prevention/good housekeeping for municipal
operations. (i) You must develop and implement an operation and
maintenance program that includes a training component and has the
ultimate goal of preventing or reducing pollutant runoff from municipal
operations. Using training materials that are available from EPA, your
State, Tribe, or other organizations, your program must include
employee training to prevent and reduce storm water pollution from
activities such as park and open space maintenance, fleet and building
maintenance, new construction and land disturbances, and storm water
system maintenance.
(ii) Guidance: EPA recommends that, at a minimum, you consider the
following in developing your program: maintenance activities,
maintenance schedules, and long-term inspection procedures for
structural and non-structural storm water controls to reduce floatables
and other pollutants discharged from your separate storm sewers;
controls for reducing or eliminating the discharge of pollutants from
streets, roads, highways, municipal parking lots, maintenance and
storage yards, fleet or maintenance shops with outdoor storage areas,
salt/sand storage locations and snow disposal areas operated by you,
and waste transfer stations; procedures for properly disposing of waste
removed from the separate storm sewers and areas listed above (such as
dredge spoil, accumulated sediments, floatables, and other debris); and
ways to ensure that new flood management projects assess the impacts on
water quality and examine existing projects for incorporating
additional water quality protection devices or practices. Operation and
maintenance should be an integral component of all storm water
management programs. This measure is intended to improve the efficiency
of these programs and require new programs where necessary. Properly
developed and implemented operation and maintenance programs reduce the
risk of water quality problems.
(c) If an existing qualifying local program requires you to
implement one or more of the minimum control measures of paragraph (b)
of this section, the NPDES permitting authority may include conditions
in your NPDES permit that direct you to follow that qualifying
program's requirements rather than the requirements of paragraph (b) of
this section. A qualifying local program is a local, State or Tribal
municipal storm water management program that imposes, at a minimum,
the relevant requirements of paragraph (b) of this section.
(d)(1) In your permit application (either a notice of intent for
coverage
[[Page 68846]]
under a general permit or an individual permit application), you must
identify and submit to your NPDES permitting authority the following
information:
(i) The best management practices (BMPs) that you or another entity
will implement for each of the storm water minimum control measures at
paragraphs (b)(1) through (b)(6) of this section;
(ii) The measurable goals for each of the BMPs including, as
appropriate, the months and years in which you will undertake required
actions, including interim milestones and the frequency of the action;
and
(iii) The person or persons responsible for implementing or
coordinating your storm water management program.
(2) If you obtain coverage under a general permit, you are not
required to meet any measurable goal(s) identified in your notice of
intent in order to demonstrate compliance with the minimum control
measures in paragraphs (b)(3) through (b)(6) of this section unless,
prior to submitting your NOI, EPA or your State or Tribe has provided
or issued a menu of BMPs that addresses each such minimum measure. Even
if no regulatory authority issues the menu of BMPs, however, you still
must comply with other requirements of the general permit, including
good faith implementation of BMPs designed to comply with the minimum
measures.
(3) Guidance: Either EPA or your State or Tribal permitting
authority will provide a menu of BMPs. You may choose BMPs from the
menu or select others that satisfy the minimum control measures.
(e)(1) You must comply with any more stringent effluent limitations
in your permit, including permit requirements that modify, or are in
addition to, the minimum control measures based on an approved total
maximum daily load (TMDL) or equivalent analysis. The permitting
authority may include such more stringent limitations based on a TMDL
or equivalent analysis that determines such limitations are needed to
protect water quality.
(2) Guidance: EPA strongly recommends that until the evaluation of
the storm water program in Sec. 122.37, no additional requirements
beyond the minimum control measures be imposed on regulated small MS4s
without the agreement of the operator of the affected small MS4, except
where an approved TMDL or equivalent analysis provides adequate
information to develop more specific measures to protect water quality.
(f) You must comply with other applicable NPDES permit
requirements, standards and conditions established in the individual or
general permit, developed consistent with the provisions of
Secs. 122.41 through 122.49, as appropriate.
(g) Evaluation and assessment--(1) Evaluation. You must evaluate
program compliance, the appropriateness of your identified best
management practices, and progress towards achieving your identified
measurable goals.
Note to Paragraph (g)(1): The NPDES permitting authority may
determine monitoring requirements for you in accordance with State/
Tribal monitoring plans appropriate to your watershed. Participation
in a group monitoring program is encouraged.
(2) Recordkeeping. You must keep records required by the NPDES
permit for at least 3 years. You must submit your records to the NPDES
permitting authority only when specifically asked to do so. You must
make your records, including a description of your storm water
management program, available to the public at reasonable times during
regular business hours (see Sec. 122.7 for confidentiality provision).
(You may assess a reasonable charge for copying. You may require a
member of the public to provide advance notice.)
(3) Reporting. Unless you are relying on another entity to satisfy
your NPDES permit obligations under Sec. 122.35(a), you must submit
annual reports to the NPDES permitting authority for your first permit
term. For subsequent permit terms, you must submit reports in year two
and four unless the NPDES permitting authority requires more frequent
reports. Your report must include:
(i) The status of compliance with permit conditions, an assessment
of the appropriateness of your identified best management practices and
progress towards achieving your identified measurable goals for each of
the minimum control measures;
(ii) Results of information collected and analyzed, including
monitoring data, if any, during the reporting period;
(iii) A summary of the storm water activities you plan to undertake
during the next reporting cycle;
(iv) A change in any identified best management practices or
measurable goals for any of the minimum control measures; and
(v) Notice that you are relying on another governmental entity to
satisfy some of your permit obligations (if applicable).
Sec. 122.35 As an operator of a regulated small MS4, may I share the
responsibility to implement the minimum control measures with other
entities?
(a) You may rely on another entity to satisfy your NPDES permit
obligations to implement a minimum control measure if:
(1) The other entity, in fact, implements the control measure;
(2) The particular control measure, or component thereof, is at
least as stringent as the corresponding NPDES permit requirement; and
(3) The other entity agrees to implement the control measure on
your behalf. In the reports you must submit under Sec. 122.34(g)(3),
you must also specify that you rely on another entity to satisfy some
of your permit obligations. If you are relying on another governmental
entity regulated under section 122 to satisfy all of your permit
obligations, including your obligation to file periodic reports
required by Sec. 122.34(g)(3), you must note that fact in your NOI, but
you are not required to file the periodic reports. You remain
responsible for compliance with your permit obligations if the other
entity fails to implement the control measure (or component thereof).
Therefore, EPA encourages you to enter into a legally binding agreement
with that entity if you want to minimize any uncertainty about
compliance with your permit.
(b) In some cases, the NPDES permitting authority may recognize,
either in your individual NPDES permit or in an NPDES general permit,
that another governmental entity is responsible under an NPDES permit
for implementing one or more of the minimum control measures for your
small MS4 or that the permitting authority itself is responsible. Where
the permitting authority does so, you are not required to include such
minimum control measure(s) in your storm water management program. (For
example, if a State or Tribe is subject to an NPDES permit that
requires it to administer a program to control construction site runoff
at the State or Tribal level and that program satisfies all of the
requirements of Sec. 122.34(b)(4), you could avoid responsibility for
the construction measure, but would be responsible for the remaining
minimum control measures.) Your permit may be reopened and modified to
include the requirement to implement a minimum control measure if the
entity fails to implement it.
[[Page 68847]]
Sec. 122.36 As an operator of a regulated small MS4, what happens if I
don't comply with the application or permit requirements in
Secs. 122.33 through 122.35?
NPDES permits are federally enforceable. Violators may be subject
to the enforcement actions and penalties described in Clean Water Act
sections 309 (b), (c), and (g) and 505, or under applicable State,
Tribal, or local law. Compliance with a permit issued pursuant to
section 402 of the Clean Water Act is deemed compliance, for purposes
of sections 309 and 505, with sections 301, 302, 306, 307, and 403,
except any standard imposed under section 307 for toxic pollutants
injurious to human health. If you are covered as a co-permittee under
an individual permit or under a general permit by means of a joint
Notice of Intent you remain subject to the enforcement actions and
penalties for the failure to comply with the terms of the permit in
your jurisdiction except as set forth in Sec. 122.35(b).
Sec. 122.37 Will the small MS4 storm water program regulations at
Secs. 122.32 through 122.36 and Sec. 123.35 of this chapter change in
the future?
EPA will evaluate the small MS4 regulations at Secs. 122.32 through
122.36 and Sec. 123.35 of this chapter after December 10, 2012 and make
any necessary revisions. (EPA intends to conduct an enhanced research
effort and compile a comprehensive evaluation of the NPDES MS4 storm
water program. EPA will re-evaluate the regulations based on data from
the NPDES MS4 storm water program, from research on receiving water
impacts from storm water, and the effectiveness of best management
practices (BMPs), as well as other relevant information sources.)
6. In Sec. 122.44, redesignate paragraphs (k)(2) and (k)(3) as
paragraphs (k)(3) and (k)(4), remove the comma at the end of newly
redesignated paragraph (k)(3) and add a semicolon in its place, and add
new paragraphs (k)(2) and (s) to read as follows:
Sec. 122.44 Establishing limitations, standards, and other permit
conditions (applicable to State NPDES programs, see Sec. 123.25).
* * * * *
(k) * * *
(2) Authorized under section 402(p) of CWA for the control of storm
water discharges;
* * * * *
(s) Qualifying State, Tribal, or local programs. (1) For storm
water discharges associated with small construction activity identified
in Sec. 122.26(b)(15), the Director may include permit conditions that
incorporate qualifying State, Tribal, or local erosion and sediment
control program requirements by reference. Where a qualifying State,
Tribal, or local program does not include one or more of the elements
in this paragraph (s)(1), then the Director must include those elements
as conditions in the permit. A qualifying State, Tribal, or local
erosion and sediment control program is one that includes:
(i) Requirements for construction site operators to implement
appropriate erosion and sediment control best management practices;
(ii) Requirements for construction site operators to control waste
such as discarded building materials, concrete truck washout,
chemicals, litter, and sanitary waste at the construction site that may
cause adverse impacts to water quality;
(iii) Requirements for construction site operators to develop and
implement a storm water pollution prevention plan. (A storm water
pollution prevention plan includes site descriptions, descriptions of
appropriate control measures, copies of approved State, Tribal or local
requirements, maintenance procedures, inspection procedures, and
identification of non-storm water discharges); and
(iv) Requirements to submit a site plan for review that
incorporates consideration of potential water quality impacts.
(2) For storm water discharges from construction activity
identified in Sec. 122.26(b)(14)(x), the Director may include permit
conditions that incorporate qualifying State, Tribal, or local erosion
and sediment control program requirements by reference. A qualifying
State, Tribal or local erosion and sediment control program is one that
includes the elements listed in paragraph (s)(1) of this section and
any additional requirements necessary to achieve the applicable
technology-based standards of ``best available technology'' and ``best
conventional technology'' based on the best professional judgment of
the permit writer.
7. Add Sec. 122.62(a)(14) to read as follows:
Sec. 122.62 Modification or revocation and reissuance of permits
(applicable to State programs, see Sec. 123.25).
* * * * *
(a) * * *
(14) For a small MS4, to include an effluent limitation requiring
implementation of a minimum control measure or measures as specified in
Sec. 122.34(b) when:
(i) The permit does not include such measure(s) based upon the
determination that another entity was responsible for implementation of
the requirement(s); and
(ii) The other entity fails to implement measure(s) that satisfy
the requirement(s).
* * * * *
8. Revise Appendices F, G, H, and I to Part 122 to read as follows:
Appendix F to Part 122.--Incorporated Places With Populations Greater
Than 250,000 According to the 1990 Decennial Census by the Bureau of the
Census
------------------------------------------------------------------------
State Incorporated Place
------------------------------------------------------------------------
Alabama................................... Birmingham.
Arizona................................... Phoenix.
Tucson.
California................................ Long Beach.
Los Angeles.
Oakland.
Sacramento.
San Diego.
San Francisco.
San Jose.
Colorado.................................. Denver.
District of Columbia
Florida................................... Jacksonville.
Miami.
Tampa.
Georgia................................... Atlanta.
Illinois.................................. Chicago.
Indiana................................... Indianapolis.
Kansas.................................... Wichita.
Kentucky.................................. Louisville.
Louisiana................................. New Orleans.
Maryland.................................. Baltimore.
Massachusetts............................. Boston.
Michigan.................................. Detroit.
Minnesota................................. Minneapolis.
St. Paul.
Missouri.................................. Kansas City.
St. Louis.
Nebraska.................................. Omaha.
New Jersey................................ Newark.
New Mexico................................ Albuquerque.
New York.................................. Buffalo.
Bronx Borough.
Brooklyn Borough.
Manhattan Borough.
Queens Borough.
Staten Island Borough.
North Carolina............................ Charlotte.
Ohio...................................... Cincinnati.
Cleveland.
Columbus.
Toledo.
Oklahoma.................................. Oklahoma City.
Tulsa.
Oregon.................................... Portland.
Pennsylvania.............................. Philadelphia.
Pittsburgh.
Tennessee................................. Memphis.
Nashville/Davidson.
Texas..................................... Austin.
Dallas.
El Paso.
Fort Worth.
Houston.
[[Page 68848]]
San Antonio.
Virginia.................................. Norfolk.
Virginia Beach.
Washington................................ Seattle.
Wisconsin................................. Milwaukee.
------------------------------------------------------------------------
Appendix G to Part 122.--Incorporated Places With Populations Greater
Than 100,000 But Less Than 250,000 According to the 1990 Decennial
Census by the Bureau of the Census
------------------------------------------------------------------------
State Incorporated place
------------------------------------------------------------------------
Alabama................................... Huntsville.
Mobile.
Montgomery.
Alaska.................................... Anchorage.
Arizona................................... Mesa.
Tempe.
Arkansas.................................. Little Rock.
California................................ Anaheim.
Bakersfield.
Berkeley.
Chula Vista.
Concord.
El Monte.
Escondido.
Fremont.
Fresno.
Fullerton.
Garden Grove.
Glendale.
Hayward.
Huntington Beach.
Inglewood.
Irvine.
Modesto.
Moreno Valley.
Oceanside.
Ontario.
Orange.
Colorado.................................. Aurora.
Colorado Springs.
Lakewood.
Pueblo.
Connecticut............................... Bridgeport.
Hartford.
New Haven.
Stamford.
Waterbury.
Florida................................... Fort Lauderdale.
Hialeah.
Hollywood.
Orlando.
St. Petersburg.
Tallahassee.
Georgia................................... Columbus.
Macon.
Savannah.
Idaho..................................... Boise City.
Illinois.................................. Peoria.
Rockford.
Indiana................................... Evansville.
Fort Wayne.
Gary.
South Bend.
Iowa...................................... Cedar Rapids.
Davenport.
Des Moines.
Kansas.................................... Kansas City.
Topeka.
Kentucky.................................. Lexington-Fayette.
Louisiana................................. Baton Rouge.
Shreveport.
Massachusetts............................. Springfield.
Worcester.
Michigan.................................. Ann Arbor.
Flint.
Grand Rapids.
Lansing.
Livonia.
Sterling Heights.
Warren.
Mississippi............................... Jackson.
Missouri.................................. Independence.
Springfield.
Nebraska.................................. Lincoln.
Nevada.................................... Las Vegas.
Reno.
New Jersey................................ Elizabeth.
Jersey City.
Paterson.
New York.................................. Albany.
Rochester.
Syracuse.
Yonkers.
North Carolina............................ Durham.
Greensboro.
Raleigh.
Winston-Salem.
Ohio...................................... Akron.
Dayton.
Youngstown.
Oregon.................................... Eugene.
Pennsylvania.............................. Allentown.
Erie.
Rhode Island.............................. Providence.
South Carolina............................ Columbia.
Tennessee................................. Chattanooga.
Knoxville.
Texas..................................... Abilene.
Amarillo.
Arlington.
Beaumont.
Corpus Christi.
Garland.
Irving.
Laredo.
Lubbock.
Mesquite.
Pasadena.
Plano.
Waco.
Utah...................................... Salt Lake City.
Virginia.................................. Alexandria.
Chesapeake.
Hampton.
Newport News.
Portsmouth.
Richmond.
Roanoke.
Washington................................ Spokane.
Tacoma.
Wisconsin................................. Madison.
------------------------------------------------------------------------
Appendix H to Part 122.--Counties With Unincorporated Urbanized Areas
With a Population of 250,000 or More According to the 1990 Decennial
Census by the Bureau of the Census
------------------------------------------------------------------------
Unincorporated
State County urbanized
population
------------------------------------------------------------------------
California.................... Los Angeles.......... 886,780
Sacramento........... 594,889
San Diego............ 250,414
Delaware...................... New Castle........... 296,996
Florida....................... Dade................. 1,014,504
Georgia....................... DeKalb............... 448,686
Hawaii........................ Honolulu \1\......... 114,506
Maryland...................... Anne Arundel......... 344,654
Baltimore............ 627,593
Montgomery........... 599,028
[[Page 68849]]
Prince George's...... 494,369
Texas......................... Harris............... 729,206
Utah.......................... Salt Lake............ 270,989
Virginia...................... Fairfax.............. 760,730
Washington.................... King................. 520,468
------------------------------------------------------------------------
\1\ County was previously listed in this appendix; however, population
dropped to below 250,000 in the 1990 Census.
Appendix I to Part 122.--Counties With Unincorporated Urbanized Areas
Greater Than 100,000 But Less Than 250,000 According to the 1990
Decennial Census by the Bureau of the Census
------------------------------------------------------------------------
Unincorporated
State County urbanized
population
------------------------------------------------------------------------
Alabama....................... Jefferson............ 78,608
Arizona....................... Pima................. 162,202
California.................... Alameda.............. 115,082
Contra Costa......... 131,082
Kern................. 128,503
Orange............... 223,081
Riverside............ 166,509
San Bernardino....... 162,202
Colorado...................... Arapahoe............. 103,248
Florida....................... Broward.............. 142,329
Escambia............. 167,463
Hillsborough......... 398,593
Lee.................. 102,337
Manatee.............. 123,828
Orange............... 378,611
Palm Beach........... 360,553
Pasco................ 148,907
Pinellas............. 255,772
Polk................. 121,528
Sarasota............. 172,600
Seminole............. 127,873
Georgia....................... Clayton.............. 133,237
Cobb................. 322,595
Fulton............... 127,776
Gwinnett............. 237,305
Richmond............. 126,476
Kentucky...................... Jefferson............ 239,430
Louisiana..................... East Baton Rouge..... 102,539
Parish............... 331,307
Jefferson Parish..... .................
Maryland...................... Howard............... 157,972
North Carolina................ Cumberland........... 146,827
Nevada........................ Clark................ 327,618
Oregon........................ Multnomah \1\........ 52,923
Washington........... 116,687
South Carolina................ Greenville........... 147,464
Richland............. 130,589
Virginia...................... Arlington............ 170,936
Chesterfield......... 174,488
Henrico.............. 201,367
Prince William....... 157,131
Washington.................... Pierce............... 258,530
Snohomish............ 157,218
------------------------------------------------------------------------
\1\ County was previously listed in this appendix; however, population
dropped to below 100,000 in the 1990 Census.
PART 123--STATE PROGRAM REQUIREMENTS
1. The authority citation for part 123 continues to read as
follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
2. Amend Sec. 123.25 by removing the word ``and'' at the end of
paragraph (a)(37), by removing the period at the end of paragraph
(a)(38) and adding a semicolon in its place, and by adding paragraphs
(a)(39) through (a)(45) to read as follows:
Sec. 123.25 Requirements for permitting.
(a) * * *
[[Page 68850]]
(39) Sec. 122.30 (What are the objectives of the storm water
regulations for small MS4s?);
(40) Sec. 122.31 (For Indian Tribes only) (As a Tribe, what is my
role under the NPDES storm water program?);
(41) Sec. 122.32 (As an operator of a small MS4, am I regulated
under the NPDES storm water program?);
(42) Sec. 122.33 (If I am an operator of a regulated small MS4, how
do I apply for an NPDES permit? When do I have to apply?);
(43) Sec. 122.34 (As an operator of a regulated small MS4, what
will my NPDES MS4 storm water permit require?);
(44) Sec. 122.35 (As an operator of a regulated small MS4, may I
share the responsibility to implement the minimum control measures with
other entities?); and
(45) Sec. 122.36 (As an operator of a regulated small MS4, what
happens if I don't comply with the application or permit requirements
in Secs. 122.33 through 122.35?).
* * * * *
3. Add Sec. 123.35 to subpart B to read as follows:
Sec. 123.35 As the NPDES Permitting Authority for regulated small
MS4s, what is my role?
(a) You must comply with the requirements for all NPDES permitting
authorities under Parts 122, 123, 124, and 125 of this chapter. (This
section is meant only to supplement those requirements and discuss
specific issues related to the small MS4 storm water program.)
(b) You must develop a process, as well as criteria, to designate
small MS4s other than those described in Sec. 122.32(a)(1) of this
chapter, as regulated small MS4s to be covered under the NPDES storm
water discharge control program. This process must include the
authority to designate a small MS4 waived under paragraph (d) of this
section if circumstances change. EPA may make designations under this
section if a State or Tribe fails to comply with the requirements
listed in this paragraph. In making designations of small MS4s, you
must:
(1)(i) Develop criteria to evaluate whether a storm water discharge
results in or has the potential to result in exceedances of water
quality standards, including impairment of designated uses, or other
significant water quality impacts, including habitat and biological
impacts.
(ii) Guidance: For determining other significant water quality
impacts, EPA recommends a balanced consideration of the following
designation criteria on a watershed or other local basis: discharge to
sensitive waters, high growth or growth potential, high population
density, contiguity to an urbanized area, significant contributor of
pollutants to waters of the United States, and ineffective protection
of water quality by other programs;
(2) Apply such criteria, at a minimum, to any small MS4 located
outside of an urbanized area serving a jurisdiction with a population
density of at least 1,000 people per square mile and a population of at
least 10,000;
(3) Designate any small MS4 that meets your criteria by December 9,
2002. You may wait until December 8, 2004 to apply the designation
criteria on a watershed basis if you have developed a comprehensive
watershed plan. You may apply these criteria to make additional
designations at any time, as appropriate; and
(4) Designate any small MS4 that contributes substantially to the
pollutant loadings of a physically interconnected municipal separate
storm sewer that is regulated by the NPDES storm water program.
(c) You must make a final determination within 180 days from
receipt of a petition under Sec. 122.26(f) of this chapter (or
analogous State or Tribal law). If you do not do so within that time
period, EPA may make a determination on the petition.
(d) You must issue permits consistent with Secs. 122.32 through
122.35 of this chapter to all regulated small MS4s. You may waive or
phase in the requirements otherwise applicable to regulated small MS4s,
as defined in Sec. 122.32(a)(1) of this chapter, under the following
circumstances:
(1) You may waive permit coverage for each small MS4s in
jurisdictions with a population under 1,000 within the urbanized area
where all of the following criteria have been met:
(i) Its discharges are not contributing substantially to the
pollutant loadings of a physically interconnected regulated MS4 (see
paragraph (b)(4) of this section); and
(ii) If the small MS4 discharges any pollutant(s) that have been
identified as a cause of impairment of any water body to which it
discharges, storm water controls are not needed based on wasteload
allocations that are part of an EPA approved or established ``total
maximum daily load'' (TMDL) that address the pollutant(s) of concern.
(2) You may waive permit coverage for each small MS4 in
jurisdictions with a population under 10,000 where all of the following
criteria have been met:
(i) You have evaluated all waters of the U.S., including small
streams, tributaries, lakes, and ponds, that receive a discharge from
the MS4 eligible for such a waiver.
(ii) For all such waters, you have determined that storm water
controls are not needed based on wasteload allocations that are part of
an EPA approved or established TMDL that addresses the pollutant(s) of
concern or, if a TMDL has not been developed or approved, an equivalent
analysis that determines sources and allocations for the pollutant(s)
of concern.
(iii) For the purpose of paragraph (d)(2)(ii) of this section, the
pollutant(s) of concern include biochemical oxygen demand (BOD),
sediment or a parameter that addresses sediment (such as total
suspended solids, turbidity or siltation), pathogens, oil and grease,
and any pollutant that has been identified as a cause of impairment of
any water body that will receive a discharge from the MS4.
(iv) You have determined that current and future discharges from
the MS4 do not have the potential to result in exceedances of water
quality standards, including impairment of designated uses, or other
significant water quality impacts, including habitat and biological
impacts.
(v) Guidance: To help determine other significant water quality
impacts, EPA recommends a balanced consideration of the following
criteria on a watershed or other local basis: discharge to sensitive
waters, high growth or growth potential, high population or commercial
density, significant contributor of pollutants to waters of the United
States, and ineffective protection of water quality by other programs.
(3) You may phase in permit coverage for small MS4s serving
jurisdictions with a population under 10,000 on a schedule consistent
with a State watershed permitting approach. Under this approach, you
must develop and implement a schedule to phase in permit coverage for
approximately 20 percent annually of all small MS4s that qualify for
such phased-in coverage. Under this option, all regulated small MS4s
are required to have coverage under an NPDES permit by no later than
March 8, 2007. Your schedule for phasing in permit coverage for small
MS4s must be approved by the Regional Administrator no later than
December 10, 2001.
(4) If you choose to phase in permit coverage for small MS4s in
jurisdictions with a population under 10,000, in accordance with
paragraph (d)(3) of this section, you may also provide waivers in
accordance with paragraphs (d)(1) and (d)(2) of this section pursuant
to your approved schedule.
[[Page 68851]]
(5) If you do not have an approved schedule for phasing in permit
coverage, you must make a determination whether to issue an NPDES
permit or allow a waiver in accordance with paragraph (d)(1) or (d)(2)
of this section, for each eligible MS4 by December 9, 2002.
(6) You must periodically review any waivers granted in accordance
with paragraph (d)(2) of this section to determine whether any of the
information required for granting the waiver has changed. At a minimum,
you must conduct such a review once every five years. In addition, you
must consider any petition to review any waiver when the petitioner
provides evidence that the information required for granting the waiver
has substantially changed.
(e) You must specify a time period of up to 5 years from the date
of permit issuance for operators of regulated small MS4s to fully
develop and implement their storm water program.
(f) You must include the requirements in Secs. 122.33 through
122.35 of this chapter in any permit issued for regulated small MS4s or
develop permit limits based on a permit application submitted by a
regulated small MS4. (You may include conditions in a regulated small
MS4 NPDES permit that direct the MS4 to follow an existing qualifying
local program's requirements, as a way of complying with some or all of
the requirements in Sec. 122.34(b) of this chapter. See Sec. 122.34(c)
of this chapter. Qualifying local, State or Tribal program requirements
must impose, at a minimum, the relevant requirements of Sec. 122.34(b)
of this chapter.)
(g) If you issue a general permit to authorize storm water
discharges from small MS4s, you must make available a menu of BMPs to
assist regulated small MS4s in the design and implementation of
municipal storm water management programs to implement the minimum
measures specified in Sec. 122.34(b) of this chapter. EPA plans to
develop a menu of BMPs that will apply in each State or Tribe that has
not developed its own menu. Regardless of whether a menu of BMPs has
been developed by EPA, EPA encourages State and Tribal permitting
authorities to develop a menu of BMPs that is appropriate for local
conditions. EPA also intends to provide guidance on developing BMPs and
measurable goals and modify, update, and supplement such guidance based
on the assessments of the NPDES MS4 storm water program and research to
be conducted over the next thirteen years.
(h)(1) You must incorporate any additional measures necessary to
ensure effective implementation of your State or Tribal storm water
program for regulated small MS4s.
(2) Guidance: EPA recommends consideration of the following:
(i) You are encouraged to use a general permit for regulated small
MS4s;
(ii) To the extent that your State or Tribe administers a dedicated
funding source, you should play an active role in providing financial
assistance to operators of regulated small MS4s;
(iii) You should support local programs by providing technical and
programmatic assistance, conducting research projects, performing
watershed monitoring, and providing adequate legal authority at the
local level;
(iv) You are encouraged to coordinate and utilize the data
collected under several programs including water quality management
programs, TMDL programs, and water quality monitoring programs;
(v) Where appropriate, you may recognize existing responsibilities
among governmental entities for the control measures in an NPDES small
MS4 permit (see Sec. 122.35(b) of this chapter); and
(vi) You are encouraged to provide a brief (e.g., two page)
reporting format to facilitate compiling and analyzing data from
submitted reports under Sec. 122.34(g)(3) of this chapter. EPA intends
to develop a model form for this purpose.
PART 124--PROCEDURES FOR DECISIONMAKING
1. The authority citation for part 124 continues to read as
follows:
Authority: Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300(f) et seq.;
Clean Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C.
7401 et seq.
2. Revise Sec. 124.52(c) to read as follows:
Sec. 124.52 Permits required on a case-by-case basis.
* * * * *
(c) Prior to a case-by-case determination that an individual permit
is required for a storm water discharge under this section (see
Sec. 122.26(a)(1)(v), (c)(1)(v), and (a)(9)(iii) of this chapter), the
Regional Administrator may require the discharger to submit a permit
application or other information regarding the discharge under section
308 of the CWA. In requiring such information, the Regional
Administrator shall notify the discharger in writing and shall send an
application form with the notice. The discharger must apply for a
permit within 180 days of notice, unless permission for a later date is
granted by the Regional Administrator. The question whether the initial
designation was proper will remain open for consideration during the
public comment period under Sec. 124.11 or Sec. 124.118 and in any
subsequent hearing.
[FR Doc. 99-29181 Filed 12-7-99; 8:45 am]
BILLING CODE 6560-50-P
