03-4521. Public Notice of Draft National Pollutant Discharge Elimination System (NPDES) General Permit for Storm Water Discharges from Federal Facility Small Municipal Separate Storm Sewer Systems (MS4s) in Colorado

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of availability of proposed NPDES general permit.

SUMMARY:

Region VIII of EPA is hereby giving notice of its tentative determination to issue an NPDES general permit for regulated storm water discharges from small municipal separate storm sewer systems (MS4s). The general permit is applicable to Federal Facilities within the State of Colorado. Only Federal Facilities located in urbanized areas (as defined by the 2000 U.S. Census) within the State of Colorado must apply. Federal facilities that are currently known to be located within Colorado urbanized areas, and will need to apply for coverage under the general permit include: Fort Carson; the General Services Administration's Denver Federal Center; Peterson Air Force Base; the U.S. Air Force Academy; the U.S. Department of Commerce—National Institute of Standards and Technology, Boulder Campus; the U.S. Bureau of Prisons Federal Correctional Institution, Englewood; and the Veterans Affairs Medical Center Denver. Additional Federal Facilities may need to apply for permit coverage at a later date based on subsequent Census data. This notice announces the availability of the proposed general permit and fact sheet for public comment.

NPDES permit coverage is required for small MS4s in accordance with final EPA regulations for Phase II storm water discharges (64 FR 68722, December 8, 1999). Operators of Phase II-designated small MS4s (regulated small MS4s) are required to submit a Notice of Intent (NOI) to EPA Region VIII to be covered under the general permit.

In accordance with the general permit, regulated small MS4 operators must develop, implement, and enforce a program designed to reduce the discharge of pollutants from their MS4s to the maximum extent practicable (MEP) to protect water quality and to satisfy the appropriate water quality requirements of the Clean Water Act. The small MS4 program must include the following six minimum control measures: public education and outreach; public involvement and participation; illicit discharge detection and elimination; construction site runoff control; post-construction runoff control; and pollution prevention/ good housekeeping. The rule assumes the use of narrative, rather than numeric, effluent limitations achieved through the implementation of best management practices (BMPs). Operators must establish BMPs and measurable goals for each minimum measure in the permit application. However, applicants will have up to five years to fully develop and implement their storm water management program.

State	Permit No.	Areas covered by the general permit
Colorado	COR042000	Federal Facilities in the State of Colorado, except those located in Indian Country.

DATES:

Public comments on this proposal must be received or postmarked no later than March 28, 2003. A public hearing may be requested within the comment period concerning the proposed permit.

ADDRESSES:

Public comments or requests for a public hearing should be sent to: Greg Davis (8EPR-EP); Attention: NPDES Permits; U.S. EPA, Region VIII; 999 18th Street, Suite 300; Denver, CO 80202-2466. Public comments will also be accepted via electronic mail (E-mail) at [e-mail].

Public Comment Period

Public comments are invited. Comments must be received or postmarked no later than March 28, 2003. Each comment should cite the page number and, where possible, the section(s) and/or paragraph(s) in the draft permit or Fact Sheet to which each comment refers. Commenters should use a separate paragraph for each issue discussed. Comments must be sent to the address given above in the ADDRESSES section.

FOR FURTHER INFORMATION CONTACT:

For a copy of the draft permit and Fact Sheet or for further information on the draft permit, contact either Greg Davis [phone] ([e-mail]) or Vern Berry, [phone] ([e-mail]), or at the address above in the Addresses section. Copies of the draft permit and Fact Sheet may be downloaded from the EPA Region VIII Web site at http://www.epa.gov/​region8/​water/​stormwater/​downloads.html.

SUPPLEMENTARY INFORMATION:

When the general permit is issued, it will be published by reference in the Federal Register. The general permit will be effective on the date specified in the Federal Register with an expiration five years from such date. Region VIII is not issuing NPDES General Permits for Storm Water Discharges from Small Municipal Separate Storm Sewer Systems (MS4s) located in Indian country. No MS4s in Indian country have been determined to require small MS4 permit coverage at this time.

Administrative Record: The proposed general permit and other related documents in the administrative record are on file in the EPA Region VIII NPDES file room and may be inspected upon request any time between 8 a.m. and 4 p.m., Monday through Friday, excluding legal holidays, at the address provided in the Addresses section above. Requests to view these files in the Region VIII NPDES file room should be sent to Greg Davis by phone at 303-312-6082, or by e-mail at [e-mail].

Executive Order 12866

Under Executive Order 12866 (58 FR 51735, 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 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; create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

OMB has waived review of NPDES general permits under the terms of Executive Order 12866.

Regulatory Flexibility Act

Issuance of an NPDES general permit is not subject to rulemaking requirements, including the requirement for a general notice of proposed rulemaking, under APA section 553 or any other law, and is thus not subject to the RFA requirement to prepare an IRFA.

The APA defines two broad, mutually exclusive categories of agency action—“rules” and “orders.” Its definition of “rule” encompasses “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency * * *” APA section 551(4). Its definition of “order” is residual: “a final disposition * * * of an agency in a matter other than rule making but including licensing.” APA section 551(6) (emphasis added). The APA defines “license” to “include * * * an agency permit * * *” APA section 551(8). The APA thus categorizes a permit as an order, which by the APA's definition is not a rule. Section 553 of the APA establishes “rule making” requirements. The APA defines “rule making” as “the agency process for formulating, amending, or repealing a rule.” APA section 551(5). By its terms, then, section 553 applies only to “rules” and not also to “orders,” which include permits.

Unfunded Mandates Reform Act

Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law 104-4, generally requires Federal agencies to assess the effects of their “regulatory actions” on State, local, and tribal governments and the private sector. UMRA uses the term “regulatory actions” to refer to regulations. (See, e.g., UMRA section 201, “Each agency shall * * * assess the effects of Federal regulatory actions * * * (other than to the extent that such regulations incorporate requirements specifically set forth in law)” (emphasis added)). UMRA section 102 defines “regulation” by reference to 2 U.S.C. 658 which in turn defines “regulation” and “rule” by reference to section 601(2) of the Regulatory Flexibility Act (RFA). That section of the RFA defines “rule” as “any rule for which the agency publishes a notice of proposed rulemaking pursuant to section 553(b) of [the Administrative Procedure Act (APA)], or any other law. * * *”

As discussed in the RFA section of this notice, NPDES general permits are not “rules” under the APA and thus not subject to the APA requirement to publish a notice of proposed rulemaking. NPDES general permits are also not subject to such a requirement under the CWA. While EPA publishes a notice to solicit public comment on draft general permits, it does so pursuant to the CWA section 402(a) requirement to provide “an opportunity for a hearing.” Thus, NPDES general permits are not “rules” for RFA or UMRA purposes.

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

Dated: February 14, 2003.

Stephen S. Tuber,

Acting Assistant Regional Administrator, Office of Partnerships and Regulatory Assistance.