[Federal Register Volume 63, Number 6 (Friday, January 9, 1998)]
[Proposed Rules]
[Pages 1536-1643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-180]
[[Page 1535]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 122 and 123
National Pollutant Discharge Elimination System--Proposed Regulations
for Revision of the Water Pollution Control Program Addressing Storm
Water Discharges; Proposed Rule
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 /
Proposed Rules
[[Page 1536]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 122 and 123
[No. W-97-12 (Proposed Rule) and No. W-97-15 (Information Collection
Request); FRL-5937-8]
RIN 2040-AC82
National Pollutant Discharge Elimination System--Proposed
Regulations for Revision of the Water Pollution Control Program
Addressing Storm Water Discharges
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The National Pollutant Discharge Elimination System (NPDES)
existing storm water program (Phase I) is resulting in significant
improvement of surface water quality in the United States by reducing
polluted runoff from a large number of priority sources, including
major industrial facilities, large and medium city storm sewers
(``municipal separate storm sewer systems'' or ``MS4s''), as well as
construction sites that disturb 5 or more acres. Today's proposed NPDES
storm water regulations (Phase II), which will be finalized by March 1,
1999, would expand this existing national program to smaller
municipalities and construction sites that disturb 1 to 5 acres. In
this expansion, EPA is proposing ``safety valves'' which would allow
certain sources to be excluded from the national program based on the
lack of impact on water quality, as well as to pull in other sources
not regulated on a national basis based on localized adverse impact on
water quality. Finally, EPA is proposing to conditionally exclude from
the NPDES storm water program, industrial facilities that have ``no
exposure'' of industrial activities to storm water, thereby reducing
application of the program to many industrial activities currently
covered by the program that have no industrial storm water discharges.
This rule would establish a cost effective, flexible approach for
reducing negative environmental impact by storm water discharges from
these currently unregulated sources.
The ``National Water Quality Inventory, 1994 Report to Congress''
indicates that storm water discharges from a variety of sources
including separate storm sewers, construction, waste disposal, and
resource extraction activities are major causes of water quality
impairment; roughly 46 percent of the identified cases of water quality
impairment of estuarine square miles surveyed, for example, are
attributable to storm sewer runoff. EPA believes that the
implementation of the six minimum measures, which focus on a ``best
management practices'' (BMP) approach, identified for the small
municipalities in this proposal should significantly reduce pollutants
in urban storm water compared to existing levels in a cost effective
manner. If after implementing the six minimum measures there is still a
water quality problem, the municipality would expand or use better
tailored BMPs in their minimum measures to result in water quality
improvement. Similarly, EPA believes that implementation of BMP
controls at small construction sites will also result in a significant
reduction is pollutant discharges and an improvement in surface water
quality. EPA believes this rule will cost significantly less than the
existing 1995 rule that is currently in place, and will result in
significant monetized financial, recreational and health benefits, as
well as benefits that EPA has been unable to monetize, including
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 siting costs of reservoirs. In
addition, there will be an economic savings from the proposed ``no
exposure'' streamlining. The rule would provide for a NPDES program
approach that: encourages the use of general permits, provides
flexibility for municipalities to determine the nature of storm water
controls, provides flexibility in use of watershed approaches, is
consistent with the existing storm water Phase I program, recognizes
and includes existing programs, utilizes the existing NPDES program
which is Federally enforceable and takes advantage of existing
structures and mechanisms for public participation. EPA is inviting
comment on alternative approaches that may be available to allow
efficient and effective targeting of environmental problems for the
Phase II program, without extension of the NPDES program to Phase II
dischargers. EPA is committed to continue seeking the input of all
stakeholders in the development of this proposed rule, including
continuing to seek input and advice from the Phase II Subcommittee of
the Urban Wet Weather Flows Federal Advisory Committee which was
established in 1995.
DATES: Public Comment Period for the Proposed Rule and Information
Collection Request (ICR). The public comment period for this proposed
rule and ICR will be from date of publication in the Federal Register
until April 9, 1998.
Public Meetings/Hearings. The public meetings/hearings will include
a presentation on the proposed rule and allow interested parties the
opportunity to provide written and/or oral comments for the official
record. Public meetings/hearings will be held at the times and
locations provided below. If all statements are finished before 4:00 pm
the hearings may be finished early. The hearing dates are:
1. February 23, 1998, 1:00 p.m. to 4:00 p.m., Washington, DC
2. February 25, 1998, 1:00 p.m. to 4:00 p.m., Boston, Massachusetts
3. February 27, 1998, 1:00 p.m. to 4:00 p.m., Atlanta, Georgia
4. March 2, 1998, 1:00 p.m. to 4:00 p.m., Chicago, Illinois
5. March 4, 1998, 1:00 p.m. to 4:00 p.m., Dallas, Texas
6. March 6, 1998, 1:00 p.m. to 4:00 p.m., San Francisco, California
ADDRESSES: Public Comments. All public comments regarding the proposed
rule shall be submitted by mail to: ``ATTN: Storm Water Proposed Rule
Comment Clerk--W-97-12, Water Docket, Mail Code 4101, EPA; 401 M
Street, SW; Washington, DC 20460.'' All public comments regarding the
proposed amendment to the ICR shall be submitted by mail to: ``ATTN:
Storm Water Proposed Rule ICR Comment Clerk--W-97-15, Water Docket,
Mail Code 4101, EPA; 401 M Street, SW, Washington, DC 20460'' and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th Street, NW, Washington, D.C. 20503, marked
``Attention: Desk Officer for EPA.''
Please submit an original and three copies of your comments and
enclosures (including references). Commenters who want EPA to
acknowledge receipt of their comments should enclose a self-addressed,
stamped envelope. No facsimiles (faxes) will be accepted. Comments may
also be submitted electronically to [email protected].
Electronic comments must be submitted as an ASCII file avoiding the use
of special characters or forms of encryption. Electronic comments must
be identified by the docket number (W-97-12 (storm water proposed rule)
and W-97-15 (storm water proposed rule ICR)). Comments and data will
also be accepted on disks in WordPerfect in 5.1 format or ASCII file
format. Electronic comments on this notice may be filed online at many
Federal Depository Libraries.
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To ensure that EPA can read, understand and therefore properly
respond to public comments, EPA would prefer that commenters cite,
where possible, the paragraph(s) or sections in the proposed rule
language, preamble or supporting documents to which the comment refers.
Commenters should use a separate paragraph for each issue discussed.
Public Hearings. The hearing locations are:
1. Washington, DC--Auditorium of the USEPA Education Center, 401 M St.
SW, Washington, DC 20460
2. Boston--John A. Volpe National Transportation Systems Center--
Auditorium (Bldg. #2), 55 Broadway--Kendall Square, Cambridge, MA 02142
3. Atlanta--Atlanta Federal Center, (Room C, AFC Conference Center), 61
Forsyth St. SW, Atlanta, GA 30303-3104
4. Chicago--USEPA Region 5 (Rm 331) 77 W. Jackson Blvd., Chicago, IL
60604-3590
5. Dallas--USEPA Region 6 (Regional Conference Room, 12th floor), 1445
Ross Ave., Dallas, TX 75202-2733
6. San Francisco--USEPA Region 9 (Marianas/ Palau Room, First Floor),
75 Hawthorne Street, San Francisco, CA 94105-3901
Docket. The complete administrative record for the proposed rule
and the ICR have been established under docket numbers W-97-12
(proposed 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, Room
2616, 401 M Street, SW, Washington, D.C. 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; [email protected].
SUPPLEMENTARY INFORMATION: Entities potentially regulated by this
action include:
------------------------------------------------------------------------
Examples of regulated
Category entities
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Federal Government........................ Owners or operators of
municipal separate storm
sewer systems.
Tribal Government......................... Owners or operators of a
separate storm sewer
system, or dischargers of
storm water associated with
industrial activity.
State Government.......................... Owners or operators of small
municipal separate storm
sewer systems.
Local Government.......................... Owners or operators of small
municipal separate storm
sewer systems (serving
populations less than
100,000) and municipal
construction and industrial
activities.
Industry.................................. Owners or operators of
industrial facilities who
may be dischargers of storm
water associated with
industrial or other
activity.
Construction Activity..................... Construction site owners or
operators.
Public.................................... Persons who may want to
participate in the petition
process.
------------------------------------------------------------------------
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
you are regulated by this action, you should carefully examine the
applicability criteria in Secs. 122.26(b)(15), 122.31, 122.32, and
123.35 of the proposed 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. Water Quality Concerns/Environmental Impacts
1. Studies and Assessments of Storm Water Runoff
a. Urban Development
b. Illicit Discharges
c. Construction Site Runoff
d. Improper Disposal of Materials
B. Statutory Background
C. EPA's Reports to Congress
D. EPA Regulations for the NPDES Program for Storm Water
E. EPA Outreach Efforts
F. The FACA Committee Effort
G. Related Nonpoint Source Programs
1. Section 319 of the Clean Water Act
2. Section 6217 of the Coastal Zone Act Reauthorization
Amendments
H. Watershed-based Approach for Water Quality Programs
II. Description of Proposed Program
A. Overview
1. Objectives EPA Seeks to Achieve in Today's Proposal
2. General Requirements for Regulated Entities Under Today's
Proposal
3. Integration of Today's Proposal With the Existing Storm Water
Program
4. General Permits
5. Tool Box
6. Deadlines Established in Today's Proposal
B. Readable Regulations
C. Program Framework
1. Today's Approach--The NPDES Program Approach
2. Alternatives Considered
a. State Alternative Non-NPDES Program
i. Alternative Overview
ii. State-Proposed Program Criteria
iii. Proposed Procedure for Approval and Periodic Review
iv. Proposed Procedure for Disapproval
3. Permits Versus Non-Permits
D. Federal Role
1. Develop Overall Framework of the Program
2. Encourage Use of a Watershed Approach
3. Provide Financial Assistance
4. Implement the Program for Non-NPDES Authorized States,
Tribes, and Territories
5. Oversee State 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
1. Background
a. EPA's Indian Policy
b. Existing NPDES Regulations for Storm Water
2. Today's Proposal
3. Other Relevant Issues
G. NPDES Permitting Authority's Role for the CWA section
402(p)(6) Municipal Program
1. Comply With Other Requirements
2. Designate Sources
a. Develop Designation Criteria
b. Apply Designation Criteria
c. Designate Physically Interconnected Municipal Separate Storm
Sewer Systems
d. Address Public Petition for Designation
3. Provide Waivers
4. Issue Permits
5. Support and Oversee the Local Programs
H. Municipal Role
1. Scope of Today's Proposal
2. Municipal Definition
a. Nationwide (``Automatic'') Designation
i. Urbanized Area Description
ii. Urbanized Area Profiles
iii. Rationale for Using Urbanized Areas
b. Municipal Designation by the Permitting Authority
c. Waiving the Requirements for Regulated Small Municipal
Separate Storm Sewer Systems
i. Combined Sewer Systems
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d. Designation Alternatives Considered--Preliminary Options
i. Designation Option 1
ii. Designation Option 2
iii. Designation Option 3
3. Municipal Permit Requirements
a. 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
vii. Satisfaction of Minimum Measure Obligations
b. Application Requirements, Including Notice of Intent
c. Evaluation and Assessment
i. Record Keeping
ii. Reporting
iii. Permit-As-A-Shield
d. Other Applicable NPDES Requirements
e. Enforceability
f. Deadlines
g. Reevaluation of Rule
I. Other Designated Storm Water Discharges
1. Background
2. Construction
a. Scope
b. Waivers
c. Permit Process and Administration
d. Cross-Referencing State/Local Erosion and Sediment Control
Programs
e. Alternative Approaches
3. Other Sources
4. Residual Designation Authority
J. Conditional Exemption for ``No Exposure'' of Industrial
Activities and Materials to Storm Water
1. Background
2. Definition of ``No Exposure''
3. Options Considered
K. Public Involvement/Public Role
L. Water Quality Issues
1. Water Quality Standards
a. Permitting Policy
2. Total Maximum Daily Loads (TMDLs)
3. Anti-backsliding
4. Monitoring
III. Paperwork Reduction Act
IV. Executive Order 12866
V. Unfunded Mandates Reform Act/Executive Order 12875
A. UMRA Section 202 Written Statement
B. Description of Intergovernmental Consultation
C. Selection of the Least Costly, Most Cost-Effective or Least
Burdensome Alternative That Achieves the Objectives of the Statute
D. Small Government Agency Plan
VI. Executive Order 12898
VII. Regulatory Flexibility Act
A. Economic Impact on Small Entities
B. SBREFA Panel Process
VIII. National Technology Transfer and Advancement Act
Legal Authority: 33 U.S.C. 1311; 33 U.S.C. 1342; 33 U.S.C. 1361.
CFR Citation: 40 CFR 122; 40 CFR 123.
I. Background
A. Water Quality Concerns/Environmental Impacts
In 1972, Congress amended the Federal Water Pollution Control Act
(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 a National Pollutant Discharge
Elimination System (NPDES) permit. The NPDES program is a permit
program designed to regulate point source discharges.
Initial efforts to improve water quality under the NPDES program
primarily focused on reducing pollutants in industrial process
wastewater and municipal sewage. This focus developed because many
sources of industrial process wastewater and municipal sewage were not
adequately controlled and represented immediate and pressing
environmental problems. Furthermore, these discharges 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 further developed, refined, and implemented, it
became increasingly evident that more diffuse sources of water
pollution were significant causes of water quality impairments.
Specifically, storm water runoff draining large surface areas, such as
agricultural and urban land, was found to be a major cause of adverse
water quality impairment, including nonattainment of designated uses.
In 1987, Congress amended the CWA to require implementation of a
comprehensive approach for addressing storm water discharges under the
NPDES program. Storm water discharges have a number of environmental
effects that can occur from land development, illicit discharges,
construction site runoff, and improper disposal of materials. The
following section entitled, Studies and Assessments of Storm Water
Runoff, discusses these four issues. Problems can also occur from
agricultural storm water discharges and return flows from irrigated
agriculture. This area of concern, however, is statutorily exempted
from regulation under the NPDES program (see CWA section 502(14)).
Other sources may be of concern in certain areas and can be addressed
on a case-by-case (or category-by-category) basis through the NPDES
permitting authority's designation authority.
Storm water runoff from lands modified by human activities can harm
surface water resources, and, in turn, violate water quality standards,
in two ways: (1) by changing natural hydrologic patterns and (2) 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. Such contaminants are carried to
nearby streams, rivers, lakes, and estuaries. Individually and
combined, these pollutants can reduce water quality and threaten one or
more designated beneficial uses. Often, an increased volume of runoff
or contaminants can lead to violations of applicable State water
quality standards.
1. Studies and Assessments of Storm Water Runoff
a. Urban Development
In support of today's proposal regarding land development, the
United States Environmental Protection Agency (EPA) has relied on
several broad-based assessments of storm water runoff and related water
quality impacts, including: (1) Nationwide Urban Runoff Program (NURP)
study (U.S. Environmental Protection Agency, Office of Water 1983.
Final Report of the Nationwide Urban Runoff Program Washington, D.C.),
(2) America's Clean Water--The States' Nonpoint Source Assessment
(Association of State and Interstate Water Pollution Control
Administrators 1985. America's Clean Water--The States' Nonpoint Source
Assessment. Prepared in cooperation with the U.S. Environmental
Protection Agency, Office of Water, Washington, D.C.), (3) U.S.
Geological Survey Urban-Storm Water Data Base for 22 Metropolitan Areas
Throughout the United States (Driver, N.E., Mustard, M.H., Rhinesmith,
R.B. and Middleburg, R.F. 1985. U.S. Geological Survey Urban Storm
Water Data Base for 22 Metropolitan Areas Throughout the United States.
U.S. Geological Survey Report No. 85-337, Lakewood, CO.), and (4) The
National Water Quality Inventory, 1994 Report to Congress (U.S.
Environmental Protection Agency, Office of Water 1995. National Water
Quality Inventory: 1994 Report to Congress Washington, D.C. EPA 841-R-
95-005.) These studies, which provide important data regarding storm
water runoff and associated pollutant loads, are briefly discussed
below. (For an extensive summary and review of storm water research,
see Makepeace, D.K., Smith, D.W., and S.J. Stanley 1995.
[[Page 1539]]
``Urban Storm Water Quality: Summary of Contaminant Data.'' Critical
Reviews in Environmental Science and Technology, 25(2):93-139.).
The Nationwide Urban Runoff Program (NURP) study, which was
conducted to facilitate understanding of the nature of urban runoff
from residential, commercial, and industrial areas, is the largest
study of storm water undertaken to date. One focus of the NURP 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 a 5-year period, between 1978 and 1983.
The majority of samples collected in the study were analyzed for eight
conventional pollutants and three 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 ten times the
level of total suspended solids (TSS) on an annual loading basis, as
discharges from municipal sewage treatment plants that provide
secondary treatment. The study compared TSS in runoff from residential
and commercial sites (180 mg/l) with TSS in effluent from treatment
plants providing secondary treatment (25 mg/l). 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 compared to effluent from secondary treatment
plants.
When analyzing annual loadings associated with storm water runoff,
it is important to note that discharges associated with urban runoff
are highly intermittent and that short-term loadings may have shock
loading effects on receiving water, such as low dissolved oxygen
levels. NURP study findings also showed that fecal coliform counts in
urban runoff are typically in the tens to hundreds of thousands per
hundred milliliter of runoff during warm weather conditions, although
the study suggested that fecal coliform may not be the most appropriate
indicator organism for identifying potential health risks in storm
water runoff.
Monitoring data summarized in the NURP study provide important
information about urban runoff from residential, commercial, and light
industrial areas. The NURP study did conclude, however, that the
quality of urban runoff can be adversely affected by several sources of
pollution that were not directly evaluated in the study, including
illicit discharges, construction site runoff, and illegal dumping. The
findings of the NURP study were reinforced by findings reported in a
study entitled, U.S. Geological Survey-Storm Water Data Base for 22
Metropolitan Areas Throughout the United States (Driver et al., 1985).
This report summarized monitoring data compiled during the mid-1980s,
covering 717 storm events at 99 sites in 22 metropolitan areas. In sum,
the U.S. Geological Survey (USGS) monitoring most consistently observed
problems of metals and sediment concentrations in urban storm water
runoff.
The report entitled, America's Clean Water--the States' Nonpoint
Source Assessment (ASIWPCA, 1985), is 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, the study 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 use impairment.
The National Water Quality Inventory, 1994 Report to Congress (U.S.
EPA, 1995b) provides a national assessment of water quality, based on
biennial reports submitted by the States under 305(b) of the CWA. In
the 305(b) reports, States, Tribes, and Territories assess their
individual water quality control programs by examining attainment or
nonattainment of designated uses. A designated use is the legally
applicable use specified in a water quality standard for a watershed,
waterbody, or segment of a waterbody. As such, each 305(b) report must
indicate the fraction of a States' waters that are fully supporting,
partially supporting, or not supporting designated beneficial uses.
Designated uses include support of aquatic life or water-contact
recreation.
The 1994 Report to Congress--based on a compilation of 60
individual 305(b) reports submitted by States, Tribes, and
Territories--assessed the following percentages of total waters
nationwide: 17 percent of river and stream miles, 42 percent of lake,
pond, and reservoir acres, and 78 percent of estuary square miles. In
waterbodies where designated beneficial uses were not being met,
States, Tribes, and Territories first identified and then assigned
water quality impairments based on the following categories of sources:
diffuse sources, industrial process wastewaters and municipal sewage,
combined sewer overflows, and natural and other sources.
Leading sources of water quality impairment nationwide identified
in the report include diffuse sources (i.e., urban storm water runoff--
runoff from agricultural and urban sources, construction sites, land
disposal of waste, and resource extraction), industrial process
wastewaters, and municipal point sources. The report identified
industrial process wastewaters as a leading source of pollution for 11
percent of impaired acres of lakes, ponds, and reservoirs and for 27
percent of acres of estuaries. The report cited municipal point sources
as a leading source of pollution for 17 percent of impaired rivers and
streams, 19 percent of impaired lakes, ponds, and reservoirs, and 39
percent of impaired estuaries. The report further assessed pollution
from diffuse sources, including storm water runoff from agricultural
and urban sources, construction sites, land disposal of waste, and
resource extraction and indicated that diffuse sources were a leading
cause of impaired waters, as follows. Twelve percent of rivers and
streams were impaired by urban runoff/storm sewers, and 11 percent were
impaired by resource extraction. Eighteen percent of lakes, ponds, and
reservoirs impaired by urban runoff/storm sewers, and 11 percent were
impaired by land disposal of wastes. Forty-six percent of estuaries
were impaired by urban runoff/storm sewers, and 13 percent were
impaired by land disposal of wastes. It should be noted that storm
water runoff from urban areas contributes a much broader range of
pollutants than the section 305(b) reports are intended to evaluate.
b. Illicit Discharges
Studies have shown that storm water discharges from separate storm
sewer systems often include wastes and wastewater from non-storm water
sources, commonly referred to as illicit discharges. These discharges
are ``illicit'' because the storm sewer systems are not designed to
accept and discharge, or to process, such wastes. These discharges
would be required to be permitted under the CWA. As a result, illicit
discharges to separate storm sewer systems can create severe widespread
contamination and water-quality problems. A particular problem involves
illicit discharges of sanitary wastes that can be directly linked to
high bacterial counts in receiving waters and can be dangerous to
public health.
The NURP study, discussed previously, determined that during
[[Page 1540]]
substantial dry periods, many storm water outfalls continue to
discharge to receiving waterbodies. Pollutant levels in these flows,
which are commonly referred to as dry weather flows, were shown to be
high enough to significantly degrade receiving water quality.
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. (Huron River Pollution
Abatement Program, Washtenaw County Statutory Drainage Board, 1987.)
Inflows from aging sanitary sewer collection systems are another
illicit discharge-related problem. 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 sewer main construction materials (e.g.,
asbestos cement, brick, cast iron, vitrified clay). Municipalities have
long recognized the problems of storm water infiltration into sanitary
sewer collection systems, because this type of infiltration often
disrupts the operation of the municipal sewage treatment plant.
However, the reverse problem of sewage exfiltration out of the sanitary
sewer collection system into the storm water collection system can
occur during dry weather periods.
c. Construction Site Runoff
Storm water discharges generated during construction activities can
cause an array of 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-
576.). Estimates indicate that 80 percent of the phosphorus and 73
percent of the Kjeldahl nitrogen in streams is associated with eroded
sediment (USDA. 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): 317-323.).
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 second largest
cause of impaired water quality in rivers and lakes (U.S. EPA, 1995b,
p. ES-8.). 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., Luger, M.I., Burby, E.J., Kaiser, E.J., Malcolm,
H.R., and A.C. Beard. 1993. ``Costs and Benefits of Urban Erosion and
Sediment Control: North Carolina Experience.'' Environmental
Management, 17(2):167-178.). Large inputs of coarse sediment into
stream channels will initially reduce stream depth and minimize habitat
complexity by filling in pools (U.S. Environmental Protection Agency.
1991. Monitoring Guidelines to Evaluate Effects of Forestry Activities
on Streams in the Pacific Northwest and Alaska. Seattle, WA: Region 10,
Water Division. 166 pp. EPA/910/9-91-001.). 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, Maryland, 276
pp. as cited in Klein, R.D. 1979. ``Urbanization and Stream Quality
Impairment.'' Water Resources Bulletin, 15(4): 948-963.).
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
(California Storm Water Best Management Practice Handbooks--
Construction Activity, Blue Print Service, Oakland, CA.) encourage the
detachment and transport of this material to waterbodies. Forest road
construction sites in steep areas or along stream banks, however, may
initiate landslides, debris flows, or other types of mass wasting
events (Megahan, W.F. 1984. ``Road Effects and Impacts--Watershed.'' In
Proceedings, Forest Transportation Symposium, USDA Forest Service
Region 2, Lakewood, CO. pp, 57-97). In these cases, coarse sediment
inputs may be of greatest concern. Construction sites can also generate
other pollutants associated with wastes onsite 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. Van Nostrand Reinhold, NY. p. 36.). 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 (U.S. Department of
Agriculture, Soil Conservation Service. 1970. Controlling Erosion on
Construction Sites. Agriculture Information Bulletin, Washington, D.C.
32 pp.; Meyer, L.D., Wischmeier, W.H., and W.H. Daniel. 1971.
``Erosion, Runoff and Revegetation of Denuded Construction Sites.''
Transactions of the ASAE, 14(1):138-141; Owen, O.S. 1975. Natural
Resource Conservation. MacMillan, New York as cited in Paterson, R.G.,
Luger, M.I., Burby, R.J., Edward, J.K., Malcom, H.R., and A.C. Beard.
1993. ``Costs and Benefits of Urban Erosion and Sediment Control: The
North Carolina Experience.'' Environmental Management, 17(2): 167-
178.). 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): 451-464) studied the
impacts of development on fluvial systems in
[[Page 1541]]
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)
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., McGuire, D., Stoffel, D., and B.
Miller. 1979. ``Sediment and Nutrient Yield from Residential
Construction Sites.'' Journal of Environmental Quality, 8(3): 304-
308.). Studies have examined the effects of road construction on
erosion rates and sediment yields in forested areas. In northern Idaho,
the erosion rate per unit area of surface cleared for logging road
construction averaged 220 times the erosion rate of undisturbed areas
over a 6-year period (Megahan, W.F., and W.J. Kidd. 1972. Effects of
Logging Roads on Sediment Production Rates in the Idaho Batholith. USDA
Forest Service Research Paper INT-123, Odgen, UT. 14pp.). Other studies
have documented increased surface erosion following logging road
construction, but at increases smaller than the 220-fold increase
reported in the 1972 study (Megahan, 1984).
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.
Progress Report on the Effects of Highway Construction on Suspended-
Sediment Discharge in the Coal River and Trace Fork, West Virginia.
U.S. Geological Survey Water Resources Investigations Report 84-4275,
Charleston, WV. 20pp.). 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 sq. mi.). 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 over a 2-year period (Hainly, R.A. 1980. The Effects of Highway
Construction on Sediment Discharge into Blockhouse Creek and Stream
Valley Run, Pennsylvania. U.S. Geological Survey Water Resources
Investigations Report 80-68, Harrisburg, PA. 50pp.). 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 sq. mi.)
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. U.S. Geological Survey Water
Resources Investigations Report 96-4259, Honolulu, HI. 34pp.) 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. U.S. Department of the Interior, Federal Water
Quality Administration, Water Pollution Control Research Series,
Program #15030 DTL, Washington, D.C.)
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. U.S.
Geological Survey 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. Daniel et
al. (Daniel et al., 1979) identified total storm runoff, followed by
peak storm runoff, as the most influential factors controlling the
sediment loadings from residential construction sites.
Storm water discharges from construction sites that occur when the
land area is disturbed (and prior to surface stabilization) can
severely 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 result in its limited use by boaters, swimmers, and other
recreational enthusiasts, and (3) directly impacting 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, Virginia, 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. Chesapeake Bay
Foundation, Annapolis, MD.) 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., Beschta, J.C., Scrivener, K.V.,
Koski, J.R., Sedell, J.R., 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. pp.98-142. 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.).
While most of the published data are from construction sites larger
than 5 acres, there are no compelling reasons why erosion rates and
sediment yields from smaller (less than 5 acres)
[[Page 1542]]
construction sites should be substantially different than those from
larger (more than 5 acres) construction sites. The limited amount of
data suggests that sediment yields from small sites are as high as or
higher than the 20 to 150 tons/acre/year measured from larger sites
(MacDonald, L.H. 1997. Technical Justification for Regulating
Construction Sites 1-5 Acres in Size. Unpublished report submitted to
the U.S. Environmental Protection Agency, Washington, DC. 28 pp.)
Furthermore, logic suggests that the cumulative effects of numerous
small sites will have impacts similar to those of larger sites in a
particular area.
The expected contribution of small sites to total sediment yields
depends, in part, on the extent to which erosion and sedimentation
controls are being applied. Current storm water regulations require
erosion and sedimentation controls on larger sites in urban areas which
suggests that in the absence of any erosion and sedimentation controls
smaller construction sites contribute a disproportionate amount of the
total sediment from construction activities (MacDonald, 1997). Another
view that supports the need for controls on smaller construction sites
is that smaller sites are less likely to have an effective plan to
control erosion and sedimentation, that these plans are less likely to
be properly implemented and maintained, and that small sites 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 the U.S. Environmental Protection Agency, Office
of Wastewater Management, Washington, DC. by the Center for Watershed
Protection, Silver Spring, MD). Sediment delivery in urban areas should
produce little difference between larger and smaller construction sites
because the runoff from either site is usually delivered directly to
the storm drain network.
Any assessment of impacts from smaller construction sites should
consider the proportion of a particular area that is associated with
small construction activity. Brown and Caraco (Brown and Caraco, 1997)
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.
As in many metropolitan areas, nine counties in the San Francisco
Bay area only require ESC permits for sites larger than 5 acres. Nearly
70 percent of the 542 permits issued in the Bay area during the last 3
years were for sites between 5 and 25 acres in size. Conversations with
several municipalities indicate that there may be as many as five
construction sites smaller than 5 acres for every site larger than 5
acres (MacDonald, 1997). Given the available data, MacDonald (1997)
estimates that construction sites less than 5 acres probably account
for slightly less than one-third of the total area under construction.
Regulating construction sites 1 to 5 acres in size will probably
increase the amount of area being regulated by approximately 20 to 30
percent. Given the high erosion rates associated with most construction
sites, this indicates that small construction sites can be a
significant source of water quality impairment, particularly in small
watersheds that are undergoing rapid development.
d. Improper Disposal of Materials
Improper disposal of materials may 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
catchbasins and other storm sewer inlets often occurs because many
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 catchbasin will reach an appropriate municipal sewage
treatment plant. Materials that are commonly disposed of improperly
include used 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 alternatives such as recycling and household pickup
programs.
B. 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 approach
for addressing storm water discharges. Section 402(p)(1) prohibits EPA
or NPDES-authorized States or Tribes from requiring NPDES permits for
discharges composed entirely of storm water (``storm water
discharges'') until October 1, 1992, except for the following five
classes of 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.
The October 1992 deadline was later extended to October 1, 1994, by the
Water Resources Development Act of 1992.
Congress clarified and amended the requirements for NPDES permits
for storm water discharges in section 402(p)(3)(A). This section
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. NPDES permits for discharges
from municipal
[[Page 1543]]
separate storm sewer systems (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. As with all point
source discharges under the CWA, storm water discharges are subject to
more stringent limitations when necessary to meet applicable water-
quality based standards pursuant to CWA section 301(b)(1)(C).
In CWA section 402(p)(4), Congress established statutory deadlines
for the initial steps in implementing the NPDES program for storm
water. This section required development of NPDES permit application
regulations, submission of NPDES permit applications, issuance of NPDES
permits sources covered by section 402(p)(2), and compliance with NPDES
permit conditions. This section instructed EPA to issue regulations
specifying NPDES permitting application requirements by February 4,
1989. In addition, this section required industrial facilities and
large municipal separate storm sewer systems to submit NPDES permit
applications by February 4, 1990. Medium municipal separate storm sewer
systems were to submit NPDES permit applications by February 4, 1992.
EPA was required to issue or deny all NPDES permits 1 year after each
of the respective deadlines, and facilities must comply with all permit
conditions within 3 years of final NPDES permit issuance. All other
storm water discharges fell under the statutory moratorium for the
requirement for an NPDES permit. EPA and authorized NPDES States were
prohibited from requiring a permit for such sources until October 1,
1994.
Congress granted extensions to the NPDES permit application process
for selected classes of discharges associated with industrial activity.
On December 18, 1991, Congress enacted the Intermodal Surface
Transportation Efficiency Act (ISTEA), which extended NPDES permit
application deadlines for most storm water discharges associated with
industrial activity from facilities that are owned or operated by
certain 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 an airport, power plant,
or uncontrolled sanitary landfill. See 40 CFR 122.26(e)(1); 57 FR
11524, April 2, 1992 (reservation of NPDES application deadlines for
ISTEA facilities).
C. EPA's Reports to Congress
Under CWA section 402(p)(5), EPA, in consultation with the States,
was required to conduct a study, first, to identify unregulated sources
of storm water discharges, as well as to determine the nature and
extent of pollutants in such discharges. Second, the study was to
establish procedures and methods of control of such discharges to the
extent necessary to mitigate impacts 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 a report wherein EPA reviewed and
analyzed municipal and industrial facilities 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). 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 storm water program 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. The report classified these unregulated industrial
discharges in two groups, Group A and Group B. Group A included 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 regulated sources. These ``look alike'' sources
were not regulated 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 lead to incomplete categorization of industrial
activities with discharges that needed to be regulated to protect water
quality. Group B included 18 industrial sectors, specifically 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. Clinton's Clean Water Initiative. Washington, D.C. EPA
800-R-94-001). This report addresses a number of issues associated with
NPDES requirements for storm water discharges and proposes (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 no
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.
D. EPA Regulations for the NPDES Program for Storm Water
The purpose of the regulations is to protect water quality. EPA's
findings are explained in Section I.A. For the final step in
implementation of the point source control program for storm water, CWA
section 402(p)(6) requires EPA, in consultation with States and local
officials, to issue regulations for the designation of the remaining
unregulated discharges to be regulated to protect water quality based
on studies conducted under section 402(p)(6), which is discussed below.
Under section 402(p)(6), EPA is to establish an extension of 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. The section 402(p)(6) program may include
[[Page 1544]]
performance standards, guidelines, guidance, and management practices
and treatment requirements, as appropriate. For additional background
information about the initial steps in the NPDES program for storm
water, see 55 FR 47990, November 16, 1990 (final regulations under CWA
sections 402(p)(3) and (p)(4)); 60 FR 40230, August 7, 1995 (final
regulations establishing permit application deadlines under section
402(p)(6)). EPA is currently subject to a consent order to propose
supplemental rules under section 402(p)(6) by November 25, 1997 (on
July 16, 1997, EPA filed papers to seek an extension of the signature
date for today's proposal from the original date of September 1, 1997
to the current date) and to finalize these rules by March 1, 1999. See
Natural Resources Defense Council, Inc. v. Browner, Civ. No. 95-634 PLF
(D.D.C., April 7, 1995). The Agency and NRDC also entered into a
settlement agreement to address the portions of the existing storm
water rules remanded by the 9th Circuit according to the same schedule
as the consent order.
The United States District Court for the District of Columbia
entered a consent decree to resolve this litigation. EPA and NRDC have
also stipulated to a modification of a companion settlement agreement
to extend the date for proposal of regulations to address portions of
the existing storm water regulations (no exposure and construction
below 5 acres), which were remanded to the Agency by the U.S. Court of
Appeals for the Ninth Circuit.
In today's notice, EPA is proposing to control storm water
discharges of concern through the NPDES program. Please refer to
today's preamble Section I.A. for a more detailed discussion of the
impacts of urbanization on water quality. EPA is also strongly
encouraging partnerships and the watershed approach as the management
framework for efficiently, effectively, and consistently protecting and
restoring aquatic ecosystems and protecting public health. These
regulations are intended to facilitate the implementation of a
watershed approach by providing the NPDES permitting authority and
municipalities the flexibility to address local environmental problems
by using general permits.
E. EPA Outreach Efforts
On September 9, 1992, EPA published a notice requesting information
and public comment on how to prepare regulations under 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 September 9, 1992, notice presented a range of alternatives
under each issue in an attempt to illustrate, and obtain input on, the
full range of potential approaches for the regulation of unregulated
sources to protect water quality. 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 recognized that a
major distinction between most options for identifying sources to be
regulated was either to require targeted municipalities to develop
source controls and management programs for storm water discharges
within their jurisdictions or to require permits for discharges from
facilities on an individual basis.
EPA received more than 130 comments on the September 9, 1992,
notice. Approximately 43 percent of the comments came from
municipalities, 29 percent from trade groups or industries, 24 percent
from State or Federal agencies, and approximately 4 percent from other
miscellaneous sources. No comments were received from environmental
groups. 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 indicates that the two options most favored by the
various groups participating were:
A program in which States would select sources to be
controlled in a manner that was consistent with criteria developed by
EPA. The comprehensive program under section 402(p)(6) would provide
States with flexibility to rely on either NPDES requirements or other
frameworks to control targeted sources.
A tiered approach that would provide for EPA selection of
high priority sources for control by NPDES permits and State selection
of other sources for control under a State water quality program other
than the NPDES program.
(Appendix I, ``Report on the EPA Storm Water Management Program
(Rensselaerville Study).'' 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). EPA, in consultation with the Small Business Administration,
invited 29 small entity representatives and streamlining
representatives to participate in this outreach effort. Many of the
representatives contacted in this outreach had been working closely
with EPA in developing this proposed rule through the FACA Committee
and the Storm Water Phase II FACA Subcommittee. The further discussion
of this process is found at Section VII, Regulatory Flexibility Act.
In May 1997, EPA conducted two telephone conference calls and held
an all-day meeting at EPA headquarters to solicit the advice and
recommendations of representatives. EPA eventually received 12 sets of
written comments from representatives (see Small Business Advocacy
Review Panel (SBREFA). August 7, 1997. Final Report on EPA's Planned
Proposed Rule for the National Pollutant Discharge Elimination System:
Storm Water Phase II.) On June 19, 1997, the Small Business Advocacy
Review Panel was convened to review the proposed rule. The panel
consisted of officials from EPA, the Small Business Administration, and
the Office of Management and Budget. The panel considered
representatives' comments previously submitted to EPA and allowed
representatives to provide additional comments. Based on comments and
its own discussions, the Panel has provided findings regarding the
elements of an IRFA and specific recommendations regarding the proposed
rule to EPA. The recommendations of the panel are discussed in Section
VII.B., Regulatory Flexibility Act, SBREFA Panel Process.
F. The FACA Committee Effort
To assist EPA in coordinating implementation of the urban municipal
wet weather water pollution control program, EPA established the Urban
Wet Weather Flows 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
[[Page 1545]]
FACA Committee assisted EPA in developing cost-effective solutions for
controlling the environmental and human health impacts of urban wet
weather flows with a minimum of regulatory burden. The FACA Committee
provided and continues to provide a forum for identifying and
addressing issues associated with water quality impacts from these
sources.
The FACA Committee has two subcommittees: the Storm Water Phase II
FACA Subcommittee (the designation and comprehensive program
requirements under CWA section 402(p)(6) are often referred to as
``Storm Water Phase II'') and the Sanitary Sewer Overflows (SSOs) FACA
Subcommittee. Consistent with the requirements of FACA, the membership
of both the FACA Committee and the subcommittees is balanced among
EPA's various outside stakeholder interests, including representatives
from municipalities, industrial and commercial sectors, agriculture,
environmental and public interest groups, States, Indian Tribes, and
EPA. Members have been selected and appointed for the duration of the
process. A Federal official or EPA employee serves as the Designated
Federal Officer and is present at all meetings. All FACA Committee and
subcommittee meetings are open to the public and announced in advance
in the Federal Register.
The Storm Water Phase II FACA Subcommittee met twelve times between
September 1995 and October 1997. The 32 subcommittee members discussed
the regulatory framework that serves as the basis for today's proposed
rule at these meetings as well as during numerous conference calls. EPA
provided subcommittee members with four successive drafts of the
proposed rule and preamble, outlines of the rule, documents identifying
changes made to each draft, and summaries of the written comments
received on each draft, including how the comments had been addressed.
EPA received extensive written comments from FACA members on a number
of occasions, together with extensive oral feedback at a number of
meetings and conference calls. Although the Storm Water Phase II FACA
Subcommittee has not reached consensus on the details of today's
proposal, they have provided EPA with significant input and insights,
which EPA has tried to balance and address.
Today's proposed regulations respond to President Clinton's
direction on regulatory reform. EPA sought to develop a common sense
regulatory approach to allow EPA, States, and Tribes to ``manage for
results'' and provide for ecosystem protection. EPA believes there is
considerable latitude in CWA section 402(p)(6) in establishing the
scope of coverage (i.e., the designation of sources to be regulated
under the NPDES program for storm water, as well as the comprehensive
program for regulating those sources). EPA has benefitted greatly from
the variety of view points and the lively exchange of ideas through the
FACA Committees and subcommittees. EPA has sought to build upon the
issues raised in proposing the scope, method, and timing of the
comprehensive program to regulate storm water and to more effectively
provide outreach and technical assistance for these new regulations.
The Storm Water Phase II FACA Subcommittee was also instrumental in
discussing lessons learned from implementation of the existing NPDES
program for storm water. Records and iterative draft versions of
today's proposal have been available and continue to be available to
the public at the Office of Wastewater Management's Home Page (see
http://www.epa.gov/owm) or through the Point Source Information
Provision Exchange System (PIPES) Home Page (see http://www.epa.gov/
owmitnet/pipes/pipes.htm).
The FACA Committee has provided the Storm Water Phase II FACA
Subcommittee with several recommendations for improving the existing
NPDES program for storm water. Some of these recommendations are
reflected as part of today's proposal. The FACA Committee provided
recommendations, for example, for the proposal regarding a ``no
exposure'' incentive for facilities with storm water discharges
``associated with industrial activity.'' EPA's proposal would apply
this recommendation to the designation of unregulated sources under
section 402(p)(6) as well. The FACA Committee also recommended that EPA
clarify and define the standards applicable to NPDES permit controls
for municipal separate storm sewer systems, specifically the standards
that permits require for controls to reduce the discharge of pollutants
``to the maximum extent practicable'' (MEP).
G. Related Nonpoint Source Programs
1. Section 319 of the Clean Water Act
In 1987, section 319 was added to the Clean Water Act to provide a
framework for funding State and local efforts to address pollutant
sources not addressed by the NPDES program (i.e., nonpoint sources). 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
the 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 4 years after program submission to reduce pollutant loadings
from identified nonpoint sources to levels required to achieve the
stated water quality objectives.
State 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.
Although most States have generally emphasized the use of voluntary
approaches in their section 319 programs, some States and local
governments have implemented regulations and policies to control
pollution from urban runoff. States such as Delaware and Florida, as
well as local jurisdictions such as the Lower Colorado River Authority,
are pursuing storm water management goals through numerical treatment
standards for new development. Many States and local governments have
enforceable erosion and sediment control regulations.
On a broader scale, nonpoint source pollution is being addressed at
the watershed level by such programs as those being implemented by the
State of Wisconsin, the Puget Sound Water Quality Authority, and the
States that are parties to the Great Lakes Water Quality Agreement. A
number of individual States and local communities have adopted
legislation or regulations that limit development or require special
management practices in areas surrounding water resources of special
concern, such as Maryland's Critical Areas Act.
2. Section 6217 of the Coastal Zone Act Reauthorization Amendments
Section 6217 of the Coastal Zone Act Reauthorization Amendments
(CZARA) of 1990 provides that States with
[[Page 1546]]
approved coastal zone management programs must develop and submit
coastal nonpoint pollution control programs 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.
Section 6217(g)(5) defines management measures as ``economically
achievable measures for the control of the addition of pollutants from
existing and new categories and classes of nonpoint sources of
pollution, which reflect the greatest degree of pollutant reduction
achievable through the application of the best available nonpoint
pollution control practices, technologies, processes, siting criteria,
operating methods, or other alternatives.'' Congress mandated a
technology-based approach based on technical and economic achievability
under the rationale that neither States nor EPA have the money, time,
or other resources to create and expeditiously implement a program that
depends on establishing cause and effect linkages between particular
land use activities and specific water quality problems. If this
technology-based approach fails to achieve and maintain applicable
water quality standards and to protect designated uses, CZARA
6217(b)(3) requires additional management measures.
EPA issued Guidance Specifying Management Measures for Sources of
Nonpoint Pollution in Coastal Waters under 6217(g) in January 1993. The
guidance identifies management measures for five major categories of
nonpoint source pollution: agriculture, forestry, urban, marinas and
recreational boating, and hydromodification. 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. In general, the management
measures were written to describe systems designed to reduce the
generation of pollutants. 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. The management
measures approach was adopted to provide State officials flexibility in
selecting strategies and management systems and practices that are
appropriate for regional or local conditions, provided that equivalent
or higher levels of pollutant control are achieved.
Storm water discharges regulated under the existing NPDES program,
such as discharges from municipal separate storm sewers serving a
population of 100,000 or more and construction activities that disturb
5 or more acres, do not need to be addressed in Coastal Nonpoint
Pollution Control Programs. However, potential new sources, such as
urban development adjacent to or surrounding municipal systems serving
a population of 100,000 or more, smaller urbanized areas, and
construction sites that disturb less than 5 acres, that are identified
in management measures under section 6217 guidance need to be addressed
in Coastal Nonpoint Pollution Control Programs until such discharges
are issued an NPDES permit. EPA and NOAA have worked and continue to
work together in their activities to ensure that authorities between
NPDES and CZARA do not overlap.
EPA and NOAA published Coastal Nonpoint Pollution Control Program:
Program Development and Approval Guidance (1993), which addresses such
issues as the basis and process for EPA/NOAA approval of State Coastal
Nonpoint Pollution Control Programs, how EPA and NOAA expect State
programs to implement management measures in conformity with EPA
guidance, and procedures for reviewing and modifying State coastal
boundaries to meet program requirements. The document clarifies that
States generally must implement management measures for each source
category identified in the EPA guidance developed under section
6217(g). The document also sets quantitative performance standards for
some measures. 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 municipal separate storm sewer systems and
construction sites covered under NPDES storm water permits (both
general and individual). The guidance also clarifies that regulatory
and nonregulatory mechanisms may be used to meet the requirement for
enforceable policies and mechanisms, provided that nonregulatory
approaches are backed by enforceable State authority ensuring that the
management measures will be implemented. Backup authority can include
sunset provisions for incentive programs. For example, a State may
provide additional incentives if too few owners or operators
participate in a tax incentive program or develop mandatory
requirements to achieve the necessary implementation of management
measures.
H. Watershed-based Approach for Water Quality Programs
EPA is promoting an integrated watershed approach for storm water
and other discharges that focuses on coordinated public and private
sector efforts to address the highest priority water quality problems
within hydrologically defined geographic areas. The watershed approach
is a decisionmaking process that reflects a common strategy for
information collection and analysis and a common understanding of the
roles, priorities, and responsibilities of all stakeholders within a
watershed. Implementation of the watershed approach is critical for the
improvement of water quality in the United States, and the approach is
an essential priority for EPA's water programs. EPA, therefore, is
reevaluating its programs, including the NPDES, ground water, drinking
water, and nonpoint source programs, to determine how they can be more
effectively incorporated into the watershed approach.
EPA intends that a central role be given to watershed planning and
analysis by permitting authorities implementing storm water programs
under today's proposed rule. While States are not required to use a
watershed approach, EPA believes that this approach would significantly
improve implementation of today's proposed rule. As discussed in
Section II.A., Overview, EPA designed today's proposed rule to
facilitate watershed planning and analysis, particularly in the area of
designating those storm water sources to be covered under the program
or giving regulatory relief to storm water discharges already
designated, but also in determining and implementing the requirements
for the owners and operators of small municipal separate storm sewer
systems. EPA expects that the NPDES permitting authority would work
with State agencies who have jurisdiction
[[Page 1547]]
over nonpoint sources and other areas within the watershed not covered
under the NPDES program in the development of a comprehensive watershed
plan.
EPA's overall support of using watershed-based alternatives is
described in greater detail in EPA's Watershed Approach Framework (June
1996; http:/www.epa.gov/OWOW/watershed/framework.html#6b) and NPDES
Watershed Strategy (U.S. Environmental Protection Agency. March 1994.
Watershed Protection--NPDES Watershed Strategy. Washington, D.C.). The
NPDES Watershed Strategy discusses integration of NPDES program
functions into a broader watershed protection approach and highlights
areas for coordination with stakeholders to promote implementation of
the approach. The NPDES Watershed Strategy is based on the following
principles:
Watershed protection approaches may vary in terms of
specific elements, timing, and resources, but all should share a common
emphasis and insistence on integrated actions, specific action items,
and measurable environmental and programmatic milestones.
Related activities within a basin or watershed must be
coordinated to achieve the greatest environmental benefit and most
effective level of stakeholder involvement.
Actions relating to restoration and protection of surface
water, ground water, and habitat within a basin should be based upon an
integrated decision-making process, a common information base, and a
common understanding of the roles, priorities, and responsibilities of
all stakeholders within a basin.
Staff and financial resources are limited and must be
allocated to address environmental priorities as effectively and
efficiently as possible.
Program requirements that interfere or conflict with
environmental priorities should be identified and revised to the extent
possible.
Accurate information and high quality data are necessary
for decision-making and should be collected on an incremental basis;
interim decisions should be made based on available data to prevent
further degradation and promote restoration of natural resources.
The watershed approach would be most successful if all stakeholders
are involved. In addition, within a geographic management unit
(watershed/basin), a cycle of activities and a schedule for
implementation must be established.
EPA recognizes that many States are coordinating their authorities,
programs, and decisionmaking using a watershed management approach to
achieve more efficient and better problem solving. The Agency will
continue to encourage the use of the watershed approach through
activities that include tailoring the EPA program to support this
direction; publishing case studies for States to use as examples;
creating a tools directory; undertaking other outreach efforts, such as
a quarterly newsletter (Watershed Events); including watershed
activities on the EPA Internet Home Page; training for permit writers
and the regulated community; and sponsoring conferences, such as
``Watershed 96.''
State representatives of the Storm Water Phase II FACA Subcommittee
supported watershed-based implementation strategies and controls and
noted the following:
(T)he future demands a new model for managing water resources,
based on well-defined geographic units such as basins or watersheds,
that recognizes all the interconnections within the watershed that
define the hydrologic cycle in that area, including surface and
groundwaters as well as wetlands. The management of any watershed
should reflect all of the things that make it unique, including
specific precipitation patterns, topography, soil and geological
characteristics, and land use.
A systems management approach would involve the development and
operation of a comprehensive water resource management program--though
ultimately it need not be limited to water resources--within the
specific geographic area encompassing the basin or watershed.
Components of such a comprehensive program would include water supply,
water quality, water conservation, flood protection, land use, and
protection of fish and wildlife resources. This can often be done
effectively through comprehensive watershed management and planning.
As our government policies transition to a systems-based,
comprehensive approach to managing water resources, we must introduce
increased flexibility and latitude into current programs so that cross-
categorical management of resources can flourish. Water resource
management policies should also recognize the significant regional
variance in the water resource. Management policies must be tailored to
local hydrologic and ecological conditions. Any national policy should
acknowledge unique regional and state characteristics and provide a
framework for development strategies consistent with the national
policy.
The States recognize that there are significant institutional
obstacles, and that the new model needs to be developed in an
evolutionary fashion. Substantial involvement of dischargers, users,
and the general public will be essential. It will require unprecedented
cooperation among many state and local entities, among state and
federal agencies, and between states in the case of watersheds crossing
state lines. Protection efforts should be coherent and coordinated to
make the most efficient use of scarce resources and minimize
inconsistency among federal, state, and local programs or agencies.
The FACA Committee is developing a recommended framework for
integrating urban wet weather discharges, including storm water
discharges, into the watershed approach that reflects the key
principles outlined in EPA's Watershed Approach Framework and NPDES
Watershed Strategy. The committee's recommendations are contained in a
draft policy entitled, A Watershed Alternative. This framework would
provide that all regulated discharges meet minimum requirements
regardless of their geographic location. Based on a review and
assessment of watershed conditions and a determination that water
quality objectives are not being met in a particular watershed,
watershed stakeholders would be able to choose to collectively pursue a
watershed approach to address identified water quality problems. A key
element of this watershed alternative is the development of a
comprehensive watershed plan that describes (1) who will coordinate
watershed planning and implementation, (2) the geographic area being
covered by the watershed approach, (3) the watershed stakeholders
participating in the planning and implementation effort, (4)
assessments of aquatic resources and existing or potential water
quality problems, (5) the coordinated watershed management activities
that will be implemented, (6) the financial plan and schedule for
completing the coordinated management activities, and (7) a mechanism
for accountability. Once this plan were approved by the applicable
regulatory authority(ies), relevant provisions of the watershed plan
would be incorporated into relevant regulatory and nonregulatory
mechanisms and progress in implementing the watershed plan would be
evaluated periodically.
The watershed alternative has numerous inherent incentives,
including greater opportunities to improve water quality and
environmental conditions, more equitable allocation of resources,
enhanced program efficiency and lower costs, improved coordination
among programs, an improved basis for
[[Page 1548]]
management decisions, an emphasis on local decisionmaking, greater
consistency and responsiveness, increased opportunities to use market-
based incentives, and improved public relations.
EPA's key principals are also reflected in today's proposed rule.
First, the Agency has structured the designation of additional sources
by the permitting authority to facilitate the consideration of
watershed impacts. The Agency also highly recommends that municipal
storm water discharges that would be designated under this proposal be
covered under general permits issued on a watershed-wide basis. Such
permits could also be written to address other sources in the watershed
as well. Where a comprehensive watershed plan has been developed, the
Agency believes the components of that plan should be reflected in all
permits issued to the parties addressed by the watershed plan.
Some stakeholders have raised concerns that the Agency is failing
to consider watershed priorities in determining which sources will be
designated and in the requirements to be imposed on such sources under
today's proposal. The Agency disagrees. The Agency has limited its
proposed designation to those sources generally believed to be of
significant concern to water quality. While encouraging designation of
additional sources based on considerations of water quality, including
considerations made on a watershed basis, the Agency also proposes to
allow a waiver of otherwise applicable requirements for some sources
(construction sites under 5 acres and small municipal separate storm
sewer systems serving less than 1,000 people) where the NPDES
permitting authority participates in implementing a watershed plan and
water quality is not impaired. Further, the Agency proposes flexible
requirements for permittees in allowing consideration of BMPs tailored
to the needs of the watershed. The Agency believes that this sort of
flexibility will generally ensure watershed protection while allowing
permitting authorities flexibility to tailor program implementation to
the needs of a particular watershed and its stakeholders.
II. Description of Proposed Program
A. Overview
1. Objectives EPA Seeks to Achieve in Today's Proposal
EPA seeks to achieve several objectives in today's proposed rule.
Under CWA section 402(p)(6), EPA is required to provide a comprehensive
storm water program that designates and controls additional sources of
storm water discharges to protect water quality. In addition, EPA is
required to address discharges of storm water from the activities
exempted under the 1990 storm water regulations that were remanded by
the Ninth Circuit Court of Appeals in NRDC v. EPA (9th Circuit, 1992)--
construction activities disturbing less than 5 acres and so-called
``light'' industrial activities not exposed to storm water (see
discussion of ``no exposure'' below). EPA is also seeking to address
the problem of so-called ``donut holes'' created by the existing NPDES
storm water program. Donut holes are municipal separate storm sewer
systems located within the urbanized areas that include systems covered
by the existing NPDES storm water program, but are not currently
addressed by the storm water program because of the particular drafting
of the existing regulations. In other words, donut holes are gaps in
the existing NPDES storm water program's regulatory scheme. EPA also is
trying to facilitate and promote watershed planning as a framework for
implementing water quality programs where possible.
Although the proposed program can be structured in various ways to
regulate the remaining unregulated sources of storm water to protect
water quality, EPA believes it can best achieve its objectives through
flexible innovations within the framework of the NPDES program. Unlike
the storm water regulations EPA promulgated in 1995, EPA no longer
proposes to designate all storm water discharges for nationwide
coverage under the NPDES program for storm water. The proposed
framework for today's proposed rule is one that would balance both
nationwide automatic designation and locally based designation.
Nationwide designation would apply 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. EPA is
proposing to designate the following sources on a nationwide basis:
storm water discharges from small municipal separate storm sewer
systems located in urbanized areas and construction activities that
result in land disturbance equal to or greater than 1 acre. As noted
under Section I.A.1, Studies and Assessments of Storm Water Runoff,
these two sources can cause significant water quality impacts.
Additional sources would not be covered on a nationwide basis 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 exceptions on a more local basis. Additional individual sources or
categories of storm water discharges could, however, be covered under
the program through a local, watershed-based designation process.
Permitting authorities may designate additional small municipal
separate storm sewer systems when they develop designation criteria and
apply these criteria to small municipal separate storm sewer systems
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 framework for today's proposal.
BILLING CODE 6560-55-P
[[Page 1549]]
[GRAPHIC] [TIFF OMITTED] TP09JA98.001
BILLING CODE 6560-55-C
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The framework for the proposal provides a significant degree of
flexibility. The provisions for nationwide designation of construction
and small municipal separate storm sewer systems in urbanized areas
allow for a waiver of applicable requirements based on appropriate
water quality conditions. The proposal would allow a permitting
authority to waive otherwise applicable requirements for a regulated
small municipal separate storm sewer system if the jurisdiction served
by the system includes a population of less than 1,000 persons and
meets additional water quality-based conditions. Water quality-based
conditions would be the basis for a waiver of requirements of
construction activities between 1 and 5 acres, as well. For
construction sources, the rule would provide significant flexibility
for waiving otherwise applicable regulatory requirements where a
permitting authority determines, based on water quality and watershed
considerations, that storm water controls are not needed. Coverage
would extend to municipal and construction sources outside the
nationwide designated classes or categories based on watershed and
case-by-case assessments. For the municipal program, today's proposal
would provide broad discretion to NPDES permitting authorities to
develop and implement criteria for designating small municipal separate
storm sewer systems outside of urbanized areas. Other storm water
discharges from unregulated industrial, commercial, and residential
sources would not be covered unless a permitting authority determines
on a case-by-case, or categorical, basis that controls would be needed
to protect water quality. EPA believes that the flexibility provided in
today's proposed rule would facilitate watershed planning.
2. General Requirements for Regulated Entities Under Today's Proposal
Today's proposal defines additional classes and categories of storm
water discharges for coverage under the NPDES program. Those
dischargers proposed to be regulated by today's proposed rule would be
required to seek coverage under an NPDES permit. Furthermore, all
NPDES-authorized States and Tribes would be required to implement these
provisions and make any necessary amendments to current State NPDES
regulations to ensure consistency with today's proposal. EPA would
remain the NPDES permitting authority for States and Tribes without
NPDES authorization.
EPA proposes to regulate the remaining unregulated point sources of
storm water under the NPDES permitting program for a variety of
reasons, primarily programmatic, but also legal. The primary reason for
regulating storm water under the NPDES program is for simplicity and
predictability. EPA envisions a ``seamless'' program, particularly for
regulating storm water discharges from municipal separate storm sewer
systems, regardless of the relative size of the source. Forty-three
jurisdictions (States and territories) administer the NPDES permit
program, providing an opportunity for expeditious implementation of a
comprehensive program to regulate storm water to protect water quality.
The NPDES program is a comparatively mature regulatory program, and
affected stakeholders are familiar with, if not accustomed to, how it
operates. Regulations under the NPDES program are not enforceable
against an affected entity until the effective date of a permit, thus
providing an opportunity to identify particularized concerns and tailor
permit conditions that are relevant and meaningful on an individualized
basis. The NPDES permitting authority periodically reviews the NPDES
permits to ensure that applicable requirements remain relevant and
ensure adequate protection of receiving waters; CWA section
402(b)(1)(B) describes the 5-year permit term. In addition, NPDES
permits are enforceable. Permittees, inspectors, and enforcement
authorities understand the individualized permit obligations and, over
the years, judicial precedents have established clear procedural
standards for the enforcement of those obligations. The NPDES program
also provides clear rules for citizen participation, not only in
permitting and compliance monitoring, but also in enforcement.
Legal considerations also affect the Agency's proposal to regulate
the remaining unregulated storm water under the NPDES permitting
program. When Congress enacted the point source storm water provisions
of section 402(p) in 1987, it also enacted programs for control of
nonpoint sources under section 319. The statute appears to suggest,
therefore, that EPA should control point sources under section 402(p)
with different, ``regulatory'' programs than the programs for
controlling nonpoint sources under section 319. While EPA fully
anticipates that States will provide ``reasonable assurances'' for the
control of nonpoint sources in a timely and effective manner, such
assurances are not yet fully developed in practice. Several States have
enacted laws that prescribe State regulation in a manner that is ``more
stringent'' than Federal regulation. While the CWA explicitly preserves
the authority for States to enact ``more stringent'' regulations to
control discharges, the Agency would be concerned that providing
maximum flexibility for States to establish ``non-NPDES'' programs
would leave regulatory authorities in many States in a quandary to
determine whether or not programs they would design are more or less
stringent than a Federal program. The NPDES program provides a useful
and recognized standard in these instances.
As noted earlier, the NPDES program has a proven record of reducing
and eliminating pollutant discharges. The NPDES program also provides
mechanisms to assure attainment and maintenance of water quality
standards. Given that regulations under section 402(p)(6) are to
regulate ``to protect water quality,'' the NPDES program provides a
natural fit. Notwithstanding the preceding, however, the Agency
recognizes the continuing imperative to assure that environmental
regulations accomplish statutory objectives in the least burdensome and
most cost-effective fashion. As explained further in this preamble, the
form and substance of NPDES permits to address the sources designated
in today's proposal would provide greater flexibility for the newly
covered sources than the existing ``standard'' NPDES permit.
Today's proposal would establish requirements for NPDES permitting
authorities, regulated small municipal separate storm sewer systems,
construction activities disturbing equal to or greater than 1 acre and
less than 5 acres of land, and other discharges designated by the
permitting authority based on local conditions.
Today's proposal includes some new requirements for NPDES
permitting authorities implementing the CWA section 402(p)(6) program.
As noted above, EPA is making a significant effort to build flexibility
into the program. At the same time, EPA is maintaining a level of
national consistency, as appropriate. Permitting authorities would be
required to generally ensure that the minimum requirements proposed
today would be addressed by the regulated community (e.g., permitting
authorities must ensure that permits issued to municipalities include
the minimum control measures established under the program). Permitting
authorities would also have the ability to make numerous decisions
about the program including who is regulated under the program (e.g.,
case-
[[Page 1551]]
by-case designations and waivers), what the requirements are for
regulated entities (e.g., waiving otherwise applicable provisions where
certain conditions are met and developing a list of regionally
appropriate, field-tested BMPs that it believes to be cost-effective),
and what the allocation of responsibilities is between regulated
entities.
The rule proposes to extend the municipal storm water program to
include the following: small municipal separate storm sewer systems
within urbanized areas (with the exception of tribally-owned systems
that serve less than 1,000 persons and any other system waived from the
requirements by the NPDES permitting authority), small municipal
separate storm sewer systems meeting the criteria (to be established by
the permitting authority) for designation, and any municipal separate
storm sewer system contributing substantially to the storm water
pollutant loadings of a regulated, physically interconnected municipal
separate storm sewer system. Small municipal separate storm sewer
systems include municipal, Tribal, State, and Federal facilities and
other systems located in an urbanized area that fall within the
definition of a municipal separate storm sewer system. These would
include, for example, State departments of transportation,
universities, and military bases.
Today's proposal would require all regulated small municipal
separate storm sewer systems to develop and implement a storm water
management program. Program components would include, at a minimum,
measures to address requirements concerning 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 would be implemented through NPDES permits. A municipality
would be required to submit to the NPDES permitting authority, either
in its 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 proposes to address all 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. Such sites, including
construction site activities disturbing less than 1 acre of land that
are designated by the permitting authority, would be required to
implement requirements set forth in the NPDES permit, which may
reference the requirements of a qualifying local program, issued to
cover such sites.
The rule also proposes to address certain other sources regulated
under the existing 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
proposes to maintain the existing deadline for seeking coverage under
an NPDES permit (August 7, 2001) (EPA is requesting comment on the
possibility of covering such sources in a single storm water permit for
the municipality as a whole. See section II.I.3. below.) The rule also
proposes to provide relief from NPDES storm water permitting
requirements for industrial and other sources that provide a written
certification of ``no exposure of industrial materials and activities
to storm water.''
3. Integration of Today's Proposal With the Existing Storm Water
Program
In developing today's proposal, members of both the FACA Committee
and the Storm Water Phase II FACA Subcommittee encouraged EPA to seek
opportunities to integrate, where possible, the proposed Phase II
requirements with existing Phase I requirements, thus facilitating a
``seamless,'' unified storm water program. EPA believes that this
objective is met by using the NPDES framework. This framework is
already applied to regulated sources under the existing NPDES storm
water program and would be extended to those sources that would be
designated under today's proposed rule. This approach would facilitate
program consistency, public access to information, and program
oversight.
EPA believes that this proposal provides consistency in terms of
program coverage and requirements for existing and newly proposed
sources. For example, today's proposal would include most of the so-
called donut holes--municipal separate storm sewer systems within
urbanized areas that contain systems covered by the existing NPDES
storm water program, but are not themselves addressed by the storm
water program. In addition, the minimum controls required in today's
proposal for regulated small municipal separate storm sewer systems
would be very similar to a number of the permit requirements for medium
and large municipal separate storm sewer systems under the existing
storm water program. As proposed, permit requirements for all regulated
municipal separate storm sewer systems (i.e., those under the existing
program and those proposed today) would require implementation of BMPs.
Furthermore, with regard to the development of 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 municipal separate storm sewer
systems covered by the existing and the proposed extension of the
existing NPDES storm water program. EPA requests comment on the
appropriateness of applying this approach to small municipal separate
storm sewer systems regulated under this rule.
EPA is planning to apply similar permit requirements to
construction sites below 5 acres as are applied to those above 5 acres.
A waiver provision applicable to certain circumstances is proposed. In
addition, today's rule proposes to 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
construction both above and below 5 acres.
4. General Permits
The proposal would recommend using general permits for all
dischargers that would be covered under today's proposal. 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 coverage.
Permitting authorities may, of course, require individual permits in
some cases to address specific concerns, including permit
noncompliance.
While general permits are probably most appropriately issued on a
watershed-wide basis for all storm water permittees designated in this
proposal, the Agency strongly recommends that general permits for
municipal sources, in particular, be issued on a watershed basis.
Permit conditions contoured to a specific watershed could reflect an
approved watershed plan, special provisions concerning program
implementation (e.g., allocation of responsibilities among permittees),
applicable water quality standards, including designated uses, and
timing of
[[Page 1552]]
implementation. Alternatively, the Agency recommends that municipal
general permits be issued to cover the regulated small municipal
separate storm sewer systems within urbanized areas. If the permitting
authority issues a State-wide general permit, the permitting authority
may include separate conditions tailored to individual watersheds or
urbanized areas.
As discussed in Section I, today's proposed rule would provide an
opportunity for regulated small municipal separate storm sewer systems
to become co-permittees with municipal separate storm sewer systems
covered under existing individual permits. EPA intends to consult with
the Storm Water Phase II FACA Subcommittee in developing its general
permits for the proposed program. The Agency would recommend that State
NPDES permitting authorities use the EPA general permit as a guide in
writing State-issued permits for newly regulated storm water sources.
Furthermore, within the context of this rule, EPA intends to use the
August 1, 1996, Interim Permitting Approach (see Section II.L.1. for
further description) for sources regulated under the NPDES storm water
program.
5. Tool Box
During the FACA process, many Storm Water Phase II FACA
Subcommittee representatives expressed an interest 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 is committed to having a preliminary
working tool box by the time the proposed rule is finalized in 1999;
EPA intends to have the tool box fully operational at the time of the
general permit. EPA also intends to update the tool box as resources
and data become available. The tool box would most likely include the
following six main components: fact sheets, guidances, an information
clearinghouse, training and outreach efforts, technical research, and
support for demonstration projects.
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 program from both inside and outside the Agency. Such
information may include 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
would develop 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
may also be included in, and made available through, an information
clearinghouse. Due to cost concerns, EPA is still considering whether
an information clearinghouse will be part of the tool box. EPA also
intends to provide training workshops at the regional level with the
expectation that the EPA regional offices then will assist States,
Tribes, and municipalities with understanding the storm water program
and will ensure that the regulated entities are aware of the
availability of the tool box materials.
EPA has many funding mechanisms currently available to support
activities related to storm water. These mechanisms will be included in
the tool box. Many activities funded under grants and loan programs
include programs in the nonpoint source area, storm water demonstration
projects, and wastewater construction projects. EPA has already
provided funding for numerous research efforts in these areas,
including a database of BMP effectiveness studies, 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 approach and management tool
for the information needed to evaluate the effectiveness of urban storm
water runoff BMPs nationwide. The long-term goal of the 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 is collecting and evaluating existing BMP
performance data, developing a BMP evaluation protocol, and designing
and creating a database. 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 gauging equipment), climatological characteristics,
watershed characteristics, hydrologic data, and constituent data. The
database will continue to grow as new BMP data become available. The
database software will be distributed by CD-ROM and will be accessible
through the Internet.
EPA and ASCE invite BMP designers, owners and operators to
participate in the 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. In addition, researchers planning to conduct BMP performance
evaluations in the future are requested to compile and collect BMP
reporting information according to a format being developed by ASCE.
For more information, please contact Eric Strassler, EPA Engineering
and Analysis Division, at 202-260-7150, e-mail:
[email protected].
EPA intends to promote research consistent with the Risk Management
Research Plan for Wet Weather Flows prepared by EPA's Office of
Research and Development. This plan supports the priority research
questions and needs of the Office of Water. Finalized in November 1996,
the plan will be updated annually. It includes strategic research
directions and identifies active and proposed projects for supporting
each research area.
6. Deadlines Established in Today's Proposal
Exhibit 2 outlines the various deadlines proposed in today's rule.
EPA believes that the dates proposed allow sufficient time for
completion of both the NPDES permitting authority's and the permittee's
program responsibilities. EPA requests comment on the appropriateness
of the proposed deadline dates.
[[Page 1553]]
Exhibit 2.--Today's Proposed Rule Deadlines
----------------------------------------------------------------------------------------------------------------
Activity Deadline date
----------------------------------------------------------------------------------------------------------------
Proposed Rule Becomes Final............ 3/1/99.
NPDES-Authorized States Modify NPDES 3/1/00.
Program.
NPDES-Authorized States Modify NPDES 3/1/01.
Program if Statutory Change is
Required.
Permitting Authority Issues A Menu of 3/1/01.
BMPs for Regulated Small Municipal
Separate Storm Sewer Systems (MS4s).
ISTEA Sources Submit Permit Application 8/7/01.
Permitting Authority Issues General 3/1/02.
Permit(s) (if this type of permit
coverage is selected).
Regulated Small MS4s Submit Permit a. 5/31/02.
Application:
a. If designated under Sec. b. 5/31/02.
122.32(a)(1) with 1990 Census as
``latest'' Census.
b. If designated under Sec. c. Within 60 days of notice.
122.32(a)(1) with 2000 Census as
``latest'' Census (2000 Census
calculations to be completed
approximately by August 2001).
c. If designated under Sec. d. Within 180 days of notice.
122.32(a)(2).
d. If designated under Secs.
122.26(a)(9)(i) (C) or (D).
Storm Water Discharges Associated With 5/31/02.
Other Activity Submit Permit
Application.
Permitting Authority Designates Small 5/31/02 or 3/1/04 (if a watershed plan is in place).
MS4s under Sec. 123.35(b)(2).
Regulated Small MS4s' Program Developed 2007.
and Implemented.
Reevaluation of the Proposed Rule by 3/1/12.
EPA.
Permitting Authority Determination on a Within 180 days.
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 proposing new regulations in a ``readable
regulation'' format. This reader-friendly, plain English approach is a
departure from traditional regulatory language and should enhance the
rule's readability. These plain English regulations use questions and
answers, ``you'' to identify the person who must comply, and ``must''
rather than ``shall.'' The legal implications of plain English are the
same. The word ``must'' indicates a requirement. Words like ``should,''
``could,'' or ``encourage'' indicate a recommendation or guidance. This
new format, which minimizes the layers of subparagraphs, should also
allow the reader to easily locate specific provisions of the
regulation. Language within parentheses in today's proposal is intended
as guidance. EPA requests comment on this new format and whether it
provides sufficient distinction between legal obligations and EPA
recommendations.
Some sections of today's proposed regulation are presented in the
traditional language and format because these sections are amending or
changing existing regulations. The readable regulation format was not
used in these existing provisions in an attempt to avoid any possible
confusion or disruption of the flow of the regulations.
C. Program Framework
EPA interprets CWA section 402(p)(6) to provide broad discretion in
establishing the structural framework for the designation of additional
sources, as well as the program to regulate those sources. The Agency
believes it has the authority to develop the section 402(p)(6) storm
water program either as part of the existing NPDES permit program or as
a stand alone non-NPDES program (i.e., through an ``authorization by
rule'' approach). Under either approach, the Agency would interpret
section 402(p)(6) as directing the Agency to publish regulations that
``regulate'' the remaining unregulated sources, specifically to
establish requirements that are federally enforceable under the CWA. At
the same time that Congress enacted section 402(p), it enacted CWA
section 319. Section 319(b)(2)(B) refers to ``nonregulatory or
regulatory programs for enforcement.'' The Agency interprets this
distinction as relevant for the purposes of interpreting the term
``regulate'' in section 402(p)(6). The Agency has considered many
options for the framework, as discussed in this section. The Agency
also notes that, although input from the Storm Water Phase II FACA
Subcommittee was instrumental in the development of today's proposal,
the subcommittee was unable to reach consensus on the structural
framework for implementation.
1. Today's Approach--The NPDES Program Approach
As discussed in Section II.A, Overview, EPA sought to achieve
certain goals in today's approach. EPA believes the best approach to
meet these goals is through the use of the NPDES program. One of the
specific goals that would be addressed through use of NPDES permits is
equitable treatment of all municipal separate storm sewer systems
within an urbanized area in order to solve the problem of donut holes.
The existence of donut holes creates an equity problem because some
similar discharges remain unregulated even though they cause the same
water quality impacts. EPA believes that covering the unregulated
discharges in these areas through the NPDES framework would provide the
best method, given that this approach would cover urbanized areas under
one single comprehensive and seamless regulatory program for storm
water. For example, today's proposal would allow for a municipality to
join as a co-permittee with a regulated municipality, referencing a
common storm water management program (see Section II.H.3, Municipal
Permit Requirements, for further discussion.) Similarly, construction
activities under the existing storm water program and under today's
proposed program covering 1 to 5 acres of disturbed land would be
subject to essentially the same program requirements. The NPDES program
approach, as proposed, is highly flexible in terms of a number of key
provisions that would facilitate and promote watershed planning and
sensitivity to local conditions. EPA made an intensive effort to
include flexibility in today's proposed rule, and examples abound
throughout the proposal. The following are some of the more significant
examples of the flexible NPDES approach being proposed: using NPDES
general permits for coverage of regulated sources on a watershed basis;
incorporating qualifying local programs in NPDES permit requirements;
selecting regionally appropriate BMPs
[[Page 1554]]
for municipalities; allowing minimum control measures to be implemented
by another governmental entity; and allowing permitting authorities to
waive otherwise applicable requirements for sources pursuant to
watershed/TMDL assessments. Furthermore, EPA sought to accommodate
State and Tribes seeking to coordinate the storm water program with
other State and Tribal programs, including those that focus on
watershed-based nonpoint source regulation.
EPA believes that a flexible approach must be in balance with the
need for the program to be enforceable and to hold the regulated
community accountable for fulfilling program requirements. As such, a
significant benefit of using an NPDES approach is that permits would be
enforceable under the CWA. Another concern for EPA and several Storm
Water Phase II FACA Subcommittee members was that the program ensures
citizen participation. Currently, the NPDES approach ensures citizen
participation throughout the permit issuance process, as well as in
enforcement proceedings.
In addition, the NPDES approach is suitable to cover all the
sources that would be potentially regulated under CWA section
402(p)(6), including facilities owned or operated by Federal, State, or
Tribal governments. Incorporating the section 402(p)(6) program into
the NPDES approach 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.
Some stakeholders shared concerns that the NPDES approach was
unnecessarily burdensome and costly. In response, EPA proposes
modifications to and clarifications about the NPDES program. EPA shares
some of the stakeholder concerns; other concerns are merely
misperceptions. EPA envisions that NPDES permitting authorities would
use general permits for the majority of discharges designated for
regulation under the comprehensive program. General permits should help
to minimize any administrative burden on NPDES permitting authorities
and expedite permit coverage for dischargers. The Agency also proposes
provisions that would recognize actions by States and their political
subdivisions in determining compliance with permit requirements. For
example, small municipalities could rely on efforts by States or
neighboring municipalities to satisfy permit obligations. This
flexibility would allow both the permittee/municipality and the State
to minimize unnecessary duplication. Another example from today's
proposal would be the incorporation by reference of existing programs
with locally developed standards for pollutant controls into NPDES
permits. This would be to the benefit of permittees who might otherwise
be subject to duplicative requirements by different levels of
government (local, State, and Federal.)
2. Alternatives Considered
EPA considered a variety of alternative approaches to structure the
proposed extension of the existing storm water program. Under the first
option, EPA would develop a completely new non-NPDES regulatory system.
Such an approach could include authorization of discharges ``by rule''
or some other type of permit program in which permits were not
developed in the same way as NPDES permits. Under a second option, EPA
would establish only a ``baseline'' scope of applicability for State
and Tribal programs; the only nationally applicable EPA action would be
the designation of sources. EPA would allow States and Tribes to use
existing water pollution control programs (NPDES or otherwise) to
regulate such designated sources. To the extent existing programs did
not cover EPA's baseline program, States and Tribes would establish
additional regulatory control mechanisms. A Storm Water Phase II FACA
Subcommittee work group analyzed these approaches and provided valuable
feedback to the Agency. A caucus of State representatives from the
Storm Water Phase II FACA Subcommittee submitted a third option. Under
their proposal, States and Tribes would have an option to develop an
individual storm water management program. (As an alternative under
this option, States and Tribes could choose to implement the program
developed by EPA.) The individual State or Tribal storm water
management program would use NPDES permits but would also rely on
enforceable non-permit mechanisms (e.g., if EPA promulgated a
regulation that ``deemed'' requirements under such non-permit
mechanisms to be ``an effluent limitation or other limitation under CWA
section 301''). Because section 402 is referenced in section 301(a),
non-permit mechanisms developed by States according to the
comprehensive program requirements of section 402(p)(6) would also
constitute effluent limitations under section 301. Under the States'
proposal, EPA would have to review and approve these programs to ensure
that they provide for the same water quality results as those
prescribed under the Federal program. Additionally, EPA would
periodically evaluate the management plans and could require the State
or Tribe to implement the Federal section 402(p)(6) program if the plan
became inadequate. The State caucus representatives of the Storm Water
Phase II FACA Subcommittee amplified this option in a discussion
intended for inclusion in this preamble and for public comment thereon
(see the next section entitled, State Alternative Program).
EPA believes the alternative approaches could provide many of the
same benefits discussed previously relating to today's proposal.
Specifically, EPA believes that the options could be designed to
provide adequate integration of the storm water programs,
enforceability, accountability, public participation, and coverage of
sources (e.g., facilities owned or operated by Federal, State, or
Tribal governments). The alternative approaches might also provide
opportunities to streamline the control mechanisms that the Agency has
not yet evaluated. Furthermore, the storm water management program
proposal allows States and Tribes the maximum amount of flexibility in
tailoring the section 402(p)(6) program to address their specific
environmental problems.
The Agency does have some concerns about the alternative proposals,
however. The alternatives establish new systems, which could cause a
great deal of confusion. As explained previously, EPA is not yet aware
of any such program currently in existence for regulation of storm
water. None of the alternatives would provide any level of national
consistency or predictability. This may be a special concern for
industrial stakeholders operating in multiple States nationwide. The
Agency has heard numerous concerns about inconsistencies in
requirements from different jurisdictions. While today's proposed
approach does not totally address this issue, the Agency at least
attempts to establish a minimum program for ensuring a certain level of
consistency nationwide.
In addition, EPA believes it would be very difficult to determine
whether a State or Tribe has developed an adequate individual program
that provides the same level of substantive control. The process of
approving these alternative programs to determine whether they provide
an equivalent or better level of control could take a great deal of
time and further delay controlling unregulated point source discharges
that are causing an adverse impact on water quality. Furthermore, if a
non-NPDES option was included in
[[Page 1555]]
the final rule, EPA would need to determine which, if any, programmatic
requirements of 40 CFR parts 122 et seq. should be applicable to State
non-NPDES programs. EPA believes it would need to address some of the
State program requirements from existing regulations including
conflicts of interest among governing bodies who approve permits
(consistent with CWA section 304(i)(D)), requirements for enforcement
authority and penalty provisions, confidentiality of permit application
information, EPA review of and objection to State permits, public
notice and public hearings for permit issuance, citizens appeal of
final-issued permits, and citizen intervention in enforcement
proceedings. These provisions are particularly important for ensuring
adequate enforcement and public participation, as well as integrity and
public confidence in the program. EPA seeks comment on how these issues
could be addressed in a non-NPDES program.
The Agency is seeking comment on today's proposal, as well as on
the alternatives considered. Comment is further sought on whether a
viable approach would be for EPA to adopt a State alternative approach
for part of today's proposed storm water program. For example, were it
to adopt a non-NPDES approach, EPA would need to determine what parts
of the State's non-NPDES program could be submitted for EPA approval.
It would seem that it is more prudent to specify particular parts of a
storm water program, rather than the program in its entirety, as
eligible for approval for a non-NPDES approach. Thus, a State or Tribe
could propose a non-NPDES framework for the construction component (1
or more and less than 5 acres of disturbed land) of its storm water
program. Likewise, a State or Tribe could propose a non-NPDES framework
for storm water runoff from regulated small municipalities located
outside of urbanized areas. Furthermore, another option could allow
States or Tribes to seek approvability for a non-NPDES approach solely
for sub-parts of the program, such as covering construction sites
between 3 and 5 acres under an NPDES program, while covering between 1
and 3 acres in a non-NPDES program. In the municipal program, a non-
NPDES program could be available for specific minimum control measures.
EPA would like comment on these options for program approvability.
a. State Alternative Non-NPDES Program
State representatives on the Storm Water Phase II FACA Subcommittee
have requested that EPA invite comment on an alternative program
framework to be available to States in addition to the NPDES State
storm water management program requirements in today's proposed rule.
Today's proposal would rely on the NPDES permit program to
establish a comprehensive program to regulate designated sources. EPA
believes, however, that section 402(p)(6) is subject to an
interpretation that would allow for a comprehensive program to regulate
designated sources through a regulatory program other than the NPDES
permit program (e.g., through authorization by rule). For a State to
qualify for a non-NPDES approach, it would probably have to decide to
take such an approach from the start, however.
State representatives have suggested that a process be identified
that would lead to the development of an alternative non-NPDES State
storm water management program under CWA section 402(p)(6) for States
wishing to take a more comprehensive approach than that of today's
proposal. Under the States' proposal, States, Territories, and Tribes
could elect either (1) to regulate the sources designated in today's
proposal under the NPDES permit program according to the provisions of
today's proposal (assuming the State, Territory, or Tribe is authorized
to administer the NPDES program) or (2) to develop an alternate State
storm water management program subject to public review and comment and
Federal approval. The two major features of the alternative program are
that it would be fully integrated into a State comprehensive water
quality management program and it would include specific non-NPDES
mechanisms for controlling storm water discharges. States would also
have the option of employing some combination of the above.
i. Alternative Overview. Similar to today's NPDES proposal, States
under the alternative proposal would need to specifically identify how
urban storm water management activities would be coordinated with other
water quality management activities, such as nonpoint source management
and TMDL development. In addition, as proposed, the State storm water
management program would be developed with involvement of
municipalities, industries, environmental groups, and other
stakeholders, much like the current NPDES process. Also, as with the
NPDES program, the alternative program would focus principally on
environmental results, rather than on the administrative or planning
process itself. States propose more opportunity for citizen involvement
in the initial development and implementation of the overall
alternative program than is currently envisioned by today's NPDES
proposal. In comparison with today's NPDES proposal, the alternative
might allow for less opportunity for citizen involvement in the details
of requirements imposed on dischargers (than is afforded under NPDES
permits).
ii. State-Proposed Program Criteria. In seeking proposal of an
alternative approach, State representatives on the Storm Water Phase II
FACA Subcommittee have suggested criteria for EPA approval of an
alternative State storm water management program. Such a program would
be required:
(1) To demonstrate that it would result in equivalent or better
protection of water quality and designated uses
(2) To provide assurances of implementation, including:
a. Legal authorities of participating state and local agencies
b. Resources to carry out implementation
c. Enforceable mechanisms for implementation measures, including
backup to voluntary measures
(3) To identify equivalent or better timeframes for implementation
(4) To allow equivalent or better public participation elements
(5) To provide for management of the same types of facilities in an
equivalent or better manner or provide for management of activities
that would result in equivalent or better protection
(6) To include objectives, measures, monitoring, and corrective action
mechanisms adequate to assure that the program is being implemented and
is effective
Other substantive considerations would include, at a minimum, a
description of the mechanism by which storm water sources are (or would
be) regulated; a description of the opportunities for public
participation, including in the development of regulatory and
nonregulatory mechanisms and enforcement; and a statement about the
legal authority of the State to administer such a program by an officer
of the State who is competent to provide such a statement.
In utilizing these criteria, the alternative program submission
would cover, to at least the same extent, sources and related
pollutants of concern designated in today's proposed rule (e.g.,
discharges from small municipal separate storm sewer systems
[[Page 1556]]
and from construction sites disturbing less than 5 acres, including
opportunity for waiver provisions). For a State to qualify for approval
of an alternative approach, the State program would need to cover
additional wet weather sources not specifically designated in today's
proposed rule as well. In addition, covered sources to be designated
under today's proposal and other additional sources identified by the
State alternative program would be expected to attain water quality
standards, including designated uses. One area of flexibility that EPA
foresees as a possibility under the alternative program relates to the
minimum control measures required in today's NPDES proposal.
Implementation of today's proposed minimum control measures in the
alternative approach would not be necessary as long as the alternative
program provided for control measures that addressed the same impacts
to the same extent as today's proposed minimum control measures are
intended to.
iii. Proposed Procedure for Approval and Periodic Review. If the
final rule were to allow States an option for an alternative State
storm water management program, States envision the need for both a
Federal approval procedure and periodic EPA review. States would need
to invest time, energy, and resources at the outset to develop such
alternative programs. More planning would be necessary for such a
submission than would otherwise be expected under today's proposal. In
addition, a State electing to develop an alternative storm water
management program might be required to evaluate, revise, and update
its water quality management program at fixed intervals. States
envision that, EPA, in conducting such reviews, would seek comments
from the community on the performance of the statewide storm water
management program. State representatives believe that this approach
would provide the public within a State with much more meaningful
involvement at the program level than is normally achieved through the
issuance of individual or general permits.
iv. Proposed Procedure for Disapproval. State representatives have
also suggested criteria for EPA use in the event that it becomes
necessary to withdraw approval of a State storm water management
program and require implementation of the federally prescribed NPDES
program in today's proposed rule. They have proposed the following
criteria:
(1) The State has not implemented its program or has ceased
implementation of the program;
(2) The State is implementing its program, but the program is not
effective in managing storm water from the same sources intended in the
NPDES alternative;
(3) EPA has notified a State of deficiencies in its program and the
State has not corrected them within 6 months, or 2 years if statutory
revisions are necessary. (EPA is not required to provide the State time
to make statutory revisions if the State legislature has already
removed the original necessary State statutory program authority.)
EPA invites comment on the appropriateness of this alternative
proposal. Specifically, comments are sought on the proposed alternative
approval, review, and disapproval processes as they relate to
requirements under 40 CFR Part 123. EPA invites comment on the
appropriateness of these substantive criteria, including the
appropriate level of specificity to ensure consistent application while
providing States with flexibility, as well as the need for other
substantive criteria. This would include enforceability of such an
alternative to ensure equivalency or better protection of water quality
as envisioned by the CWA and the need for national consistency in point
source control requirements. EPA further invites comment on whether
State processes for public participation would provide an adequate
opportunity for input from regulated sources, as well as from the
public in general.
In addition, the States have proposed that an alternative program
could utilize State efforts undertaken to comply with Part 130
regulations (40 CFR Part 130). Although EPA is not proposing to amend
the Part 130 regulations, EPA invites comment on how the existing Part
130 regulations could support an enforceable alternative State program.
For a more complete discussion of the Part 130 regulations, see Section
II.L.2, Total Maximum Daily Loads, of today's preamble.
3. Permits Versus Non-Permits
As noted previously, EPA proposes that the extension of the
existing storm water program under section 402(p)(6) be administered as
part of the NPDES permitting program (including the exemption for
discharges associated with industrial activity composed entirely of
storm water where there is ``no exposure'' to storm water). As such,
the extension of the existing storm water program would be implemented
through NPDES permits. NPDES permits are advantageous in many ways. As
explained more fully in EPA's April 1995 guidance, Policy Statement on
Scope of Discharge Authorization and Shield Associated with NPDES
Permits (U.S. Environmental Protection Agency. July 1, 1994 (revised
April 11, 1995). Memo: From Robert Perciasepe (Assistant Administrator
for Water), Steven A. Herman (Assistant Administrator for Enforcement),
and Jean C. Nelson (General Counsel) to Regional Administrators,
Regarding ``Policy Statement on Scope of Discharge Authorization and
Shield Associated with NPDES Permits.''), compliance with an NPDES
permit constitutes compliance with the CWA (see CWA section 402(k)).
Moreover, certain NPDES discharges qualify as ``federally permitted
releases'' under section 101(10) of the Comprehensive Environmental
Response, Compensation and Liability Act, also known as Superfund (see
42 U.S.C. 9601(10); 40 CFR 117.12). Additionally, permits generally
require an application or a notice of intent to be covered. 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 potential impacts to water
quality. The NPDES permitting process includes the public as a valuable
stakeholder and ensures that the public is included and information is
made publicly available. Furthermore, NPDES permits are enforceable
under the CWA by citizens and Federal, State, and Tribal governments,
thus ensuring adequate protection against adverse impacts on water
quality.
The Agency recognizes that using NPDES permits has some drawbacks.
Issuing individual NPDES permits can be burdensome on permitting
authorities and the regulated community. NPDES permits are only
effective for 5 years. The time spent issuing permits could restrict
resources to conduct public outreach, inspections, and enforcement.
Commenters have noted that the application process is costly and
confusing. To address a number of these problems, EPA encourages using
general permits for the majority of sources to be designated under this
proposal. 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. Furthermore, EPA is working to streamline the
permit
[[Page 1557]]
application/NOI process to reduce the burden on the regulated
community. EPA is seeking comment on today's proposed approach.
The Storm Water Phase II FACA Subcommittee work group that
considered the structural framework for the extension of the existing
storm water program under section 402(p)(6) also considered the
appropriate legal mechanism for implementation. The subcommittee
discussed numerous options and considered including self-implementing
rules or ``permits-by-rule.''
A self-implementing rule would be a regulation promulgated at the
Federal, State, or Tribal level. The basic principle would be that the
rule would spell out the specific requirements for dischargers. The
rule could impose the exact same restrictions and conditions as an
NPDES permit, but generally would be effective until modified by EPA, a
State, or a Tribe. EPA considered addressing the storm water program
under section 402(p)(6) directly by rule instead of through a
permitting program. This approach could reduce the burden on the
regulated community (e.g., by not requiring permit applications).
Although this approach would provide consistency across the nation, it
would not address site-specific problems very well or foster
coordination with authorized NPDES State programs. In discussing this
option, some stakeholders raised enforcement issues and the ability of
EPA, States, and Tribes to determine which discharges were subject to
the program. Although EPA has several programs with self-implementing
requirements (e.g., the sewage sludge program, Part 129 toxic standards
under the NPDES program, and categorical standards under the
pretreatment program), the Agency does not propose to take this
approach under section 402(p)(6). The Agency does, however, seek
comment on such an alternative.
D. Federal Role
Today's proposal describes EPA's approach to develop the extension
of 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 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
As discussed previously in the overview section, the storm water
program under CWA section 402(p)(6) would consist of the rule, tool
box, and permits. EPA's primary role would be to ensure timely
development and implementation of all components. Today's proposal 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
proposal, EPA would be required to assess the municipal storm water
program based on (1) evaluations of data from the NPDES municipal storm
water program, (2) research of water quality impacts on receiving
waters from storm water, and (3) research on BMP effectiveness. EPA
will attempt to seek adequate resources, within annual budgetary
constraints, to ensure that these evaluations, as well as the necessary
research, can be completed. (Section II.H, Municipal Role, provides a
more detailed discussion of this provision.)
2. Encourage Use of a Watershed Approach
EPA is promoting an integrated approach that focuses on public and
private sector efforts to address the highest priority problems within
hydrologically defined geographic areas. Today's proposal offers
flexibility for States and Tribes to use a watershed approach and
should facilitate watershed planning on the part of States and Tribes
implementing the program. Section I.H. discusses the watershed approach
in more depth.
3. Provide Financial Assistance
Another important role for the Federal government would be to
assist financially in developing and implementing the storm water
program under section 402(p)(6). EPA has no independent authority to
establish a funding mechanism. Although Congress did not establish a
fund to fully finance implementation of the proposed extension of the
existing NPDES storm water program under section 402(p)(6), numerous
Federal financing programs (administered by EPA and other Federal
agencies) could provide some financial assistance. These programs
include the CWA section 106 grant program, CWA section 104(b)(3) grant
program, State surface and ground water management programs under the
Safe Drinking Water Act, the environmental quality incentives program,
the conservation reserve program, the wetlands reserve program, and the
estuary management and Federal monitoring programs. Also, the Natural
Resources Conservation Service (NRCS) has some grants available to
assist in projects related to erosion and sediment controls. The Agency
anticipates that some of these programs would provide funds to help
develop and, in limited circumstances, implement the section 402(p)(6)
storm water program. Because some Federal funds are only available for
limited purposes, for example, nonpoint source control programs, and
because section 402(p)(6) describes a program for controlling point
source discharges of storm water, EPA solicits comment on suggestions
on structuring the final rule to maximize opportunities for Federal
financial assistance.
4. Implement the Program for Non-NPDES Authorized States, Tribes, and
Territories
Since today's proposed approach utilizes the NPDES framework, EPA
would be the permitting authority for several States, Tribes, and
Territories. As such, EPA would have the same responsibilities as any
other NPDES permitting authority--issuing permits, designating
additional sources, and taking appropriate enforcement actions--and
would seek to tailor the storm water program to the specific needs of
the State, Tribe, or Territory. EPA would also provide support and
oversight, including outreach, training, and technical assistance to
the regulated communities. See the discussions below related to the
NPDES permitting authority's responsibilities for today's proposed rule
provisions, and note that Section II.G. of today's preamble provides a
separate discussion.
5. Oversee State Programs
Under the NPDES program, EPA plays an oversight role for NPDES-
approved States and Tribes. In this role, EPA and the States or Tribes
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 inadequacies exist. This role would be
vitally important when States and Tribes make adjustments to develop,
implement, and enforce the new section 402(p)(6) proposed extension of
the existing NPDES storm water program. In addition, States maintain a
continuing planning process (CPP) under section 303(e) of the CWA,
which EPA periodically reviews to assess the program's achievements.
In its oversight role, EPA takes action to address States and
Tribes who have voluntarily sought NPDES authorization but are not
fulfilling their obligations under the NPDES program. If an NPDES-
authorized State or Tribe failed to implement an adequate NPDES storm
water program, for example, EPA would enter into extensive discussions
to
[[Page 1558]]
resolve outstanding issues. EPA has the authority to withdraw the
entire NPDES program (partial program withdrawal is not allowed under
the CWA) when resolution cannot be reached.
EPA is also working with the States and Tribes to improve nonpoint
source management programs and assessments to incorporate key program
elements. Nonpoint source program elements can include protecting
surface and ground water; establishing partnerships with public and
private partners; using a balanced approach incorporating Statewide and
watershed-abatement of existing impairments; preventing future
impairments; developing processes to address both impaired and
threatened waters; reviewing upgrades of all program components,
including program revisions on a 5-year cycle; addressing Federal land
management and activities inconsistent with State programs; and
managing State/Tribal nonpoint source management programs. In addition,
EPA has committed to help address nonpoint source pollution stemming
from Federal lands and activities.
In particular, EPA works with the States and Tribes to strengthen
their nonpoint source pollution programs to address 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. Through the FACA process, the Agency would continue
to work with States to ensure that the requirements of the proposed
extension of the existing storm water program under section 402(p)(6)
are consistent with elements of the nonpoint source management program.
In addition, EPA and NOAA have published programmatic and technical
guidance to address coastal nonpoint source pollution. Under the
existing coastal protection program, EPA and NOAA review State programs
and provide technical and programmatic assistance to help the coastal
States upgrade their Coastal Zone Management Programs. The Agency is
committed to assisting States in identifying sources of funding to
develop and implement State coastal nonpoint programs.
6. Comply With Applicable Requirements as a Discharger
Today's proposal covers federally owned or operated facilities in a
variety of ways. These facilities are generally areas where people
reside, such as a Federal prison, hospital, or military base. These
facilities could be included under the definition of a regulated small
municipal separate storm sewer system, which specifically includes
systems operated by the Federal facilities. For Federally owned
regulated small municipal separate storm sewer systems, the proposal
would require compliance with the application deadlines that apply to
regulated small municipal separate storm sewer systems generally. EPA
believes that all Federally owned municipal separate storm sewer
systems would serve populations less than 100,000. We invite comment on
the appropriateness of this assumption.
Federal facilities could also be included under the section
addressing storm water discharges associated with other activities,
including construction. In any case, discharges from these government-
owned facilities would 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
could result in enforcement actions. Federally owned and operated
facilities could 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 proposal sets forth an NPDES approach for implementing the
proposed extension of the existing storm water program under section
402(p)(6). The NPDES program is a voluntary federal program consistent
with the principals of federalism. Because most States are approved to
implement the NPDES program, they will tailor their storm water
programs to address their water quality needs and objectives.
Federally-recognized Tribes also have the opportunity to administer the
NPDES program. Several Tribes are currently seeking NPDES authorization
and, when approved, will also tailor the proposed extension of the
existing NPDES storm water program to address their local needs and
objectives. While EPA is proposing the basic framework for the section
402(p)(6) program, States and Tribes have an important role in fine-
tuning the program to address the water quality issues within their
jurisdictions. The basic framework would allow for adjustments based on
factors that vary geographically, including climate patterns and
terrain.
Where States or Tribes do not have NPDES authority, they are not
required to implement the storm water program, but they may still
participate in water quality protection through participating in the
CWA section 401 certification process (for any permits) and through
development of water quality standards and TMDLs when authorized to do
so.
1. Develop the Program
In developing the proposed extension of the NPDES existing storm
water program under section 402(p)(6), States and Tribes 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 and Tribes must revise their NPDES programs within
1 year or 2 years if statutory changes are necessary. EPA believes this
time period is appropriate for incorporating revisions to existing
NPDES programs because the basic NPDES program already addresses storm
water discharges from industrial and larger municipal sources.
EPA is considering modifying the 1 year timeframe to 2 years or 3
years if statutory changes are required, where a State or Tribe has a
fully developed and approved watershed program (including enforceable
nonpoint source controls) by the end of the first year. EPA supports
implementing the section 402(p)(6) proposed storm water program as part
of a watershed approach (see more detailed discussion in previous
section on watersheds) and believes it is appropriate to offer
institutional incentives as encouragement. EPA is specifically seeking
comment on this issue.
A State or Tribal NPDES program must meet the requirements of
section 402(b) or conform to the guidelines issued under section
304(i)(2) of the CWA. Today's proposal under Sec. 123.25 adds specific
cross references to the section 402(p)(6) program components to ensure
that States and Tribes adequately address these. Furthermore, EPA is
proposing Sec. 123.35, which is discussed more fully in Section II.G,
NPDES Permitting Authority's Role for the CWA section 402(p)(6)
Municipal Program.
In tailoring the proposed extension of the existing NPDES storm
water program to accommodate their needs, States and Tribes should
coordinate and utilize the data collected under several programs,
including water quality management programs, TMDL programs, and water
quality monitoring programs. All States and Tribes have water quality
standards that consist of designated uses, criteria, an antidegradation
policy, and other implementation policies and procedures. Water quality
management programs are geared to achieving these goals and must be
updated every 3 years. In addition, States are required to submit a
prioritized ranking of waters
[[Page 1559]]
requiring TMDLs. (See Sections II.L.1 and II.L.2 for more information
on water quality standards and TMDLs, respectively) States and
interstate agencies monitor for contaminants in ambient water, fish
tissue, and specific point sources. In addition, they conduct intensive
monitoring in watersheds (or at specific sites within a watershed) to
develop efficient control strategies for point and nonpoint sources.
CWA section 305(b) Reports summarize this information and must be
submitted to EPA every 2 years. It is critical that States and Tribes
evaluate existing monitoring programs, revise them as needed to ensure
that meaningful data are being collected, and share information with
the local communities. (See Section II.L.4 for additional information
on monitoring.)
2. Comply With Applicable Requirements as a Discharger
Today's proposal would cover State or Tribally owned or operated
separate storm water 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 could be included under the
definition of a regulated small municipal separate storm sewer system,
which specifically includes systems operated by State departments of
transportation. Alternatively, they could be included under the section
addressing storm water discharges associated with other activities,
including construction. In any case, discharges from these government-
owned facilities would need to comply with all applicable NPDES
requirements. Failure to comply could result in enforcement actions.
State or Tribal facilities could 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 and Tribes have an ongoing
obligation to share information with EPA on a periodic basis. This
dialogue is particularly important in the 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. EPA would continue to
use the FACA process in developing materials related to the section
402(p)(6) program and input from States and Tribes throughout this
process would be critical.
F. Tribal Role
1. Background
a. EPA's Indian Policy
EPA is committed to the nine principles outlined in its 1984 Indian
Policy, which include working with Tribes in a government-to-government
relationship, recognizing Tribal sovereignty, and dealing with the
Tribal government as the primary party for decisionmaking and
management of environmental issues on the Indian reservations,
consistent with EPA standards and regulations (U.S. Environmental
Protection Agency, American Indian Environmental Office. 1996. Working
Effectively With Tribal Governments. Participant Manual, Interim Final,
U.S. EPA Training Seminar). EPA has affirmed and carried forward its
commitment to the 1984 Indian Policy in many ways. In this regard, on
March 14, 1994, EPA established the American Indian Environmental
Office and Tribal Operations Committee. EPA believes that the approach
in today's proposal is consistent with the principles of the policy.
Further, today's proposal has been developed with the participation of
the EPA Indian Office, noted above.
In addition to storm water, the 1987 CWA amendments specifically
focus on ``Indian Tribes.'' Under section 518, EPA may treat Indian
Tribes in the same manner as States for the purposes of certain
provisions of the CWA, including section 402 (National Pollutant
Discharge Elimination System) and section 303 (water quality standards
and implementation plans). Section 518(e) establishes a number of
criteria for the treatment of an Indian Tribe in the same manner as a
State. These criteria are discussed in a Federal regulation regarding
Tribal eligibility for administering NPDES and State sludge management
programs (see 58 FR 67966, December 22, 1993; see also 59 FR 64339,
December 14, 1994). Upon meeting the criteria, a Tribe seeking
authorization to administer one of the CWA water quality programs would
acquire Treatment in the Same Manner as a State status for that
program. Under EPA's final regulation, the Tribe's water quality or
sludge management program authority could extend to lands within a
``Federal Indian reservation.'' The CWA section 518(h)(1) uses the term
``Federal Indian reservation'' to define the territorial limits for
Tribal authority for CWA purposes. The preambles to EPA regulations,
including NPDES program regulations, more fully explain the term
Federal Indian reservation. Most notably, EPA has clarified that it
considers ``trust lands,'' which were validly set apart for the use of
Indians, to be ``within a reservation'' for purposes of the CWA (e.g.,
58 FR 67970).
Once authorized as the permitting/program authority, a Tribe
(instead of EPA) may operate the NPDES and sludge management programs
on its reservations. Otherwise, EPA is generally the permitting/program
authority within Indian country. In any case, the Tribe may also seek
authority to operate a CWA section 303 water quality standards program.
Tribes with approval to operate a CWA section 303 water quality
standards program may also issue certifications under CWA section 401.
b. Existing NPDES Regulations for Storm Water
The existing NPDES regulations for storm water discharges
associated with industrial activities extend coverage to private,
State, and federally owned industrial facilities located on Indian
reservations. Further, the NPDES regulations cover industrial
facilities owned or operated by a Tribe with a population of more than
100,000 people within the reservation and cover all Tribally owned or
operated airports, power plants, and uncontrolled sanitary landfills.
The NPDES regulations for storm water associated with industrial
activity established October 1, 1992, as the deadline to apply for
NPDES permit coverage. EPA issued baseline NPDES storm water general
permits covering industrial and construction activities in September
1992 and a multisector NPDES storm water general permit covering a
number of industrial categories in September 1995, as revised. Many
industrial facilities covered under the NPDES regulations for
industrial activities, including construction, and located on Indian
reservations are included in the applicability sections of these
general permits and can seek general permit coverage for satisfying
program requirements.
Existing storm water permit application regulations address storm
water discharges from large and medium municipal separate storm sewer
systems (Sec. 122.26(a)(1)). Regulations at Sec. 122.2 define the term
``municipality'' to include ``an Indian Tribe or an authorized Indian
Tribal organization.'' Consequently, the criteria used by the NPDES
permitting authority for coverage of municipal dischargers extends to
separate storm sewer systems that are Tribally owned or operated. At
this time, no Indian reservations are covered under the existing
municipal
[[Page 1560]]
NPDES storm water program. Thus, the appendices to the definitions of
large and medium separate storm sewer systems (Part 122, Appendices F-
I) list no reservations for automatic coverage. Likewise, EPA has not
yet designated an Indian reservation for coverage based on other
factors to be considered under CWA section 402(p)(2)(E).
2. Today's Proposal
The current proposed regulation for the extension of the existing
NPDES program for storm water would cover two types of dischargers
located on reservations. First, the proposal would designate storm
water discharges from any regulated small municipal separate storm
sewer system, including Tribally owned or operated systems. Second, the
proposal would regulate discharges associated with construction
activity disturbing between one and five acres of land, including sites
located on reservations. Owners or operators in each of these
categories of regulated activity would need to apply for coverage under
an NPDES permit within 3 years and 90 days from the date of publication
of the 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 this proposal, a Tribal governmental entity may regulate
storm water discharges on its reservation in two ways--as either an
NPDES-authorized Tribe or a regulated ``municipality.'' If a Tribe is
already authorized to operate the NPDES program, EPA would require the
Tribe to implement today's proposed regulations for the NPDES program
for storm water, as it does for authorized States, for covered
dischargers located on the Indian reservation. (As discussed above, a
Tribe may seek NPDES authorization from EPA to operate the NPDES
program in the same manner as a State.) For an outline of the role and
responsibilities of the permitting authority in the storm water
program, see the proposed Sec. 123.35 (and Section II.G. of today's
preamble) and existing Sec. 123.25(a).
Under today's proposed rule, a Tribe would be a regulated
``municipality'' for NPDES program purposes in two ways, and,
therefore, be required to implement the six minimum control measures to
the extent allowable under Federal law. (EPA recognizes that tribal
regulation of non-members on fee lands within Federal Indian
Reservations raises complex legal questions. See 58 FR 67966 and 59 FR
64339. Thus, the Agency invites comment that would assist the Agency in
developing final rule language to recognize that Tribes with MS4s
proposed for regulation under today's proposal would only need to
implement the municipal measures proposed in section 122.34 to the
extent such Tribes have authority under federal Indian law.) If the
Indian reservation were located within an ``urbanized area,'' as
defined in Sec. 122.32(a)(1) of today's proposed rule, the Tribe could
be an owner or operator of a regulated small municipal separate storm
sewer system (only the urbanized area portion of the reservation would
be regulated under an NPDES permit). As discussed below, Tribal owners
or operators of regulated small municipal separate storm sewer
systems--serving a population under 1,000 within the urbanized area
portion of the reservation--would be exempted from the proposed storm
water regulation. Tribes located outside an urbanized area would not
automatically be covered, but would be able to request designation as a
regulated small municipal separate storm sewer system from EPA.
EPA believes that only a few Tribes located in urbanized areas
would meet the criteria to be regulated small municipal separate storm
sewer systems. 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 proposal. In December 1996, EPA developed a listing of
federally recognized American Indian Areas located 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 municipal separate storm sewer system that is already
covered by the existing storm water regulations (``Phase I'').
There are 27 Tribes on this list; 20 are outside of Oklahoma and 7
are in Oklahoma. EPA recognizes that the list could have errors and
invites comment on its accuracy. The applicability of CWA section 518
to Tribes located in Oklahoma would be determined on a case-by-case
basis because of unique historical and legal considerations particular
to that State. In authorization of the Oklahoma NPDES program, EPA
retained jurisdiction to regulate discharges in ``Indian Country'' (61
FR 65049, December 10, 1996). In the cases of the 20 Tribes outside of
Oklahoma, Tribal populations within urbanized areas range from very
small numbers to more than 32,000. In the case of the seven Oklahoma
Tribes, the population numbers are much larger. It is unlikely,
however, that large populations fall within areas that would be
determined to be an Indian reservation, as defined in section 518. In
the cases of the 20 Tribes outside of Oklahoma, 9 Tribes have
populations less than 1,000 and, thus, would be waived from proposed
requirements for the municipal program. Eight Tribes have a population
between 1,000 and 10,000, and 3 have a population above 10,000.
As mentioned previously, EPA proposes to exempt from the proposed
municipal program those Tribally owned small municipal separate storm
sewer systems in urbanized areas that serve populations equal to or
less than 1,000 persons. As a practical matter, EPA believes that it
may be unlikely that a Tribe with such a small population would have
the technical, administrative, and governmental capability, including
the staff, to implement a storm water management program. Unlike
similarly situated political subdivisions of States, these Tribes in
urbanized areas lack the opportunity for support from States. Moreover,
EPA anticipates that a Tribe of this size might consider cooperative
arrangements with surrounding local governmental entities regarding
storm water program implementation. The nine exempt Tribes in urbanized
areas (populations below 1,000) include:
Augustine Band of Cahuilla Mission of Indians of the
Augustine Reservation, CA.
Cabazon Band of Cahuilla Mission of Indians of the Cabazon
Reservation, CA.
Redding Rancheria of California.
Seminole Tribe of Florida, Dania, Big Cypress and Brighton
Reservations.
Penobscot Tribe of Maine.
Shakopee Mdewakanton Sioux Community of Minnesota (Prior
Lake).
Las Vegas Tribe of Paiute Indians of the Las Vegas Indian
Colony, NV.
Reno-Sparks Indian Colony, NV.
Ysleta del Sur Pueblo of Texas.
These nine Tribes in urbanized areas would not be subject to permit
requirements under today's proposal, unless EPA subsequently and
specifically designated the discharges from their storm water systems
as a water quality problem. It is important to note that this is a
preliminary list of exempted Tribes--it may be the case that additional
tribally-owned small
[[Page 1561]]
municipal separate storm sewer systems would be eligible for the
exemption based on the population in the portion of the reservation
that is located within the urbanized area. EPA seeks comment on any
additional Tribes listed in Appendix 1 that may qualify for this
proposed exemption.
Outside of urbanized areas, non-authorized Tribes would be subject
to potential designation by EPA based on the criteria established for
designating all other small municipal separate storm sewer systems. A
Tribe not otherwise covered by the proposed extension of the existing
NPDES storm water program would also be able to request designation for
coverage by EPA. In both cases, a Tribe would need to comply with all
terms, limitations, and conditions of the applicable municipal NPDES
permit. EPA designation and NPDES permit coverage would allow a Tribe
to operate a federally recognized ``municipal'' storm water management
program and extend Federal recognition to requirements the Tribe would
place on dischargers of storm water into the Tribe's separate storm
sewer system. This federal regulation could result in federal
enforcement of the Tribal program. Moreover, the designation for NPDES
coverage would provide an opportunity for a Tribe to enhance its role
in the regulation of storm water discharges within its reservation
without having to undertake the entire NPDES program and its existing
requirements.
During the public comment period following today's proposal, EPA
plans to notify each of the Tribes in urbanized areas that are or may
be impacted by this proposed regulation and will engage in a discussion
of the impact of the regulation on these Tribes. EPA invites comment
regarding the appropriateness of its approach to Tribes in urbanized
areas, specifically the proposed exemption for Tribal municipal
separate storm sewer systems serving populations under 1,000 people.
3. Other Relevant Issues
During the Storm Water Phase II FACA Subcommittee process, the
Tribal representative asked how EPA would apply the NPDES program with
respect to non-federally recognized Indian reservations and Tribes. At
present, EPA interprets section 518 of the CWA as applying only to
federally recognized Tribes and Indian reservations and as not
applicable to non-federally recognized Indian reservations and Tribes.
EPA regional offices will deal with this issue on a case-by-case basis
when it is brought to their attention. In addition, a State
representative requested EPA to clarify the meaning of ``ownership of a
Tribal municipal separate storm sewer system.'' In response, EPA notes
that an Indian tribe or an authorized Indian Tribal organization is a
municipality under section 502(4) of the CWA, unless a Tribe is treated
as a State under section 518(e) of the CWA. ``Indian Tribe'' means any
Indian Tribe, band, group, or community recognized by the Secretary of
the Interior and exercising governmental authority over a Federal
Indian reservation.
G. NPDES Permitting Authority's Role for the CWA Section 402(p)(6)
Municipal Program
As noted previously, the NPDES permitting authority can be EPA or
an authorized State or an authorized Tribe. For clarity, the following
discussion describes the role of the NPDES permitting authority under
today's proposal.
1. Comply With Other Requirements
NPDES permitting authorities would need to perform certain duties
to implement the CWA section 402(p)(6) program. EPA is proposing
Sec. 123.35(a) to emphasize that permitting authorities have existing
obligations under the NPDES program with which they must comply.
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
A new Sec. 123.35(b) 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 of today's proposed
rule. NPDES permitting authorities would be required to develop a
process, as well as criteria, to designate municipal sources and the
authority to designate a small municipal separate storm sewer system
where the otherwise applicable requirements have been waived under
proposed Sec. 122.33(b) if circumstances change. EPA is proposing that
EPA may make designations if an NPDES-approved State or Tribe fails to
do so.
NPDES permitting authorities could also designate areas that should
be included in the storm water program (as regulated small municipal
separate storm sewer systems) but are not located in an ``urbanized
area'' and, therefore, would not be designated automatically. Such
areas would 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 adversely impacted areas while protecting areas 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
(see Section I.H. of today's preamble for further discussion).
a. Develop Designation Criteria
Under a new Sec. 123.35(b), the NPDES permitting authority would
need to 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
habitat and biological impacts. These criteria would need to be applied
to all municipal separate storm sewer systems located outside of an
urbanized area with a population of at least 10,000 and a population
density of at least 1,000. EPA estimates a total of 583 incorporated
places and 2 municipios in Puerto Rico (Arroyo and Fajardo) fall within
this 10,000 population/1,000 density subset and would need to be
examined for potential designation.
EPA would recommend that the NPDES permitting authority consider,
in a balanced manner, certain locally-focused criteria for designating
any incorporated place, county, or place under the jurisdiction of a
governmental entity located outside of an urbanized area on the basis
of other significant water quality impacts. EPA proposes to recommend
consideration of criteria that would include 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 control of water
quality concerns by other programs. The proposed 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.
Discharge to sensitive waters: The potential impacts of
storm water runoff depend, in part, on the sensitivity of the receiving
waters. For example, cold water fisheries, such as trout streams, show
greater levels of impairment from
[[Page 1562]]
poor erosion and sediment control programs than do other fisheries that
are less dependent on the stream substrate. EPA recommends that
permitting authorities identify, in coordination with Federal, State,
and local agencies, and perhaps prioritize, designations with regard to
the sensitivity of the resource. Sensitive waters generally include
public drinking water intakes and their designated protection areas;
swimming beaches and waters in which swimming occurs; shellfish beds;
designated Outstanding National Resource Waters; National Marine
Sanctuaries; waters within Federal, State, and local parks; and waters
containing threatened or endangered species and their habitat, as well
as other waters so designated.
High growth or growth potential: To protect watersheds and
their receiving waters from nearly certain adverse impacts, EPA
proposes to recommend that areas of high growth or growth potential
should also be identified and included in the designation criteria.
Using this factor could minimize future restoration or retrofitting
costs. Growth potential can be measured in various ways, including
projected building starts, comprehensive plans, zoning maps, bond
ratings, and the condition of infrastructure and building vacancies.
EPA would recommend that, for any given 10-year period, discharges from
municipal separate storm sewer systems in areas with localized
population growth rates of more than 10 percent should be evaluated for
designation. Members of the Storm Water Phase II FACA Subcommittee
questioned whether a 1 percent threshold (10 percent over a 10-year
period) for ``high'' growth was reasonable. According to EPA
calculations based on Census data from 1980 to 1990, the average rate
of growth in the United States during that 10-year period was more than
4 percent. For the same period, the average rate of growth within
urbanized areas was 15.7 percent and the average for outside of
urbanized areas was just more than 1 percent. EPA believes that these
calculations help to support the statement that a growth percentage
that is more than 10 times the national average for areas outside of
urbanized areas is indeed a high rate of growth for these areas and
should be a basis for designation of municipal storm water systems.
High population density: Population density is related to
the level of human activity, which has been shown to be directly linked
to levels of impervious land surfaces. Therefore, EPA recommends ``high
population density'' as one criterion for designation of municipal
sources. Even areas with relatively low population densities (i.e.,
less than two residential units per acre) can have 10 to 20 percent
impervious area (Schueler, T. 1987. Controlling Urban Runoff: A
Practical Manual for Planning & Designing Urban BMPs. Metropolitan
Washington Council of Governments). Macroinvertebrate diversity becomes
poor when impervious land exceeds 10 to 15 percent (Klein, 1979). Since
this study, extensive research from around the country has found this
threshold to be consistent with other studies (Schueler, T. 1995.
Environmental Land Planning Series: Site Planning for Urban Stream
Protection. Prepared for Metropolitan Washington Council of
Governments.). Further, higher density residential areas (i.e., two to
ten residential units per acre) have been correlated with as much as 35
percent imperviousness. By recommending this criterion, EPA does not
aim to encourage lower density development and urban sprawl but rather
good urban design and development patterns.
Contiguity to an urbanized area: The areas closely outside
of an urbanized area have a good potential for future growth and may
also have significant impacts on a neighboring regulated municipality
that is within the urbanized area. This designation criterion would
allow for an extension of the seamless coverage provided by the
regulation of urbanized areas where necessary. The proposed rule also
captures this concept in Sec. 123.35(b)(4).
Significant contributor of pollutants to waters of the
United States: This criterion is one of the basic tenets of designation
and is meant to capture all significantly contributing sources in an
effort to have both comprehensive and equitable coverage (see CWA
section 402(p)(2)(E), 40 CFR 122.26(a)(5)). It also aids in developing
a watershed approach.
Ineffective control of water quality concerns by other
programs: EPA proposes to recommend that NPDES permitting authorities
carefully consider whether the storm water runoff from a potentially
designated area is effectively addressed under other regulations or
programs, such as CZARA and other nonpoint source programs. For
example, an area covered under the National Estuary Program (NEP) under
CWA section 320 is required to develop a Comprehensive Conservation and
Management Plan (CCMP) for managing the estuarine watershed. The CCMP
addresses three general resource areas: water and sediment quality,
living resources, and land use and water resources. The permitting
authority could determine that the NEP comprehensively addresses
impacts to water quality from storm water discharges for certain
systems and, therefore, the systems would not need to be designated
under the CWA section 402(p)(6) program.
These criteria are meant to be taken in the aggregate, with a great
deal of flexibility as to how each would 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 the owner or operator of a small
municipal separate sewer system to qualify for designation, nor would a
system necessarily be designated on the basis of one or two criteria
alone. EPA plans to provide comprehensive guidance to more fully
develop its recommendations for appropriate criteria, as well as offer
detailed information on how the criteria could be applied and what
standards could be used. EPA seeks comment on additional designation
criteria, as well as the validity and applicability of the proposed
criteria.
EPA believes that the application of the recommended designation
criteria, when considered as a composite, would provide 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.
b. Apply Designation Criteria
After customizing the designation criteria for local geography, the
permitting authority would have to apply such criteria, at a minimum,
to any incorporated place, county, or place under the jurisdiction of a
governmental entity (including but not limited to Tribal or Territorial
governments) located outside of an urbanized area that has both a
population of at least 10,000 and a population density of 1,000 people
per square mile or greater (see proposed Sec. 123.35(b)(2)). If the
NPDES permitting authority determines that the place or county meets
the criteria, they would need to designate all small municipal separate
storm sewer systems
[[Page 1563]]
located in the place or county as regulated small municipal separate
storm sewer systems under the NPDES storm water program within 3 years
and 90 days of publication of the final rule. Alternatively, the NPDES
authority could 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 proposed
Sec. 123.35(b)(3)). The Agency seeks to provide incentives for
watershed-based designations.
The timeframe of 3 years and 90 days would allow States and Tribes
up to 2 years to make any necessary statutory changes and receive
program approval from EPA, an additional year to develop their general
permit and designation criteria, and then 90 days for a regulated
entity to submit its individual application or Notice of Intent (NOI)
under a general permit. Assuming a March 1, 1999, final rule, the
resulting deadline would be May 31, 2002. EPA believes this would be an
adequate timeframe and would provide significant guidance to NPDES
permitting authorities on the responsibilities to be completed during
this period. If an NPDES-authorized State or Tribe does not develop and
apply designation criteria, then EPA might do so.
EPA believes it has adequate authority to apply a State's
designation criteria (or to develop and apply designation criteria) to
designate sources in an authorized NPDES State. Such authority would
derive from the text of section 402(p)(6), which provides for the
designation of sources other than those already regulated under section
402(p)(2). EPA does not believe that section 402(c)(1), which requires
EPA to suspend issuance of Federal NPDES permits in an authorized
State, would preclude EPA designation of particular small municipal
separate storm sewer systems (based on subsequently-developed criteria
applicable in a particular State) after promulgation of today's
proposed rule because designation of sources is independent of (and
precedes) the issuance of permits. In addition, as discussed later in
Section II.I.4. entitled, Residual Designation Authority, EPA believes
that section 402(p)(6) provides the Agency with authority to
subsequently designate individual sources under today's proposed rule.
Today's approach for designation by EPA, even in authorized NPDES
States, would also be consistent with the authority currently available
to the Agency under the existing storm water regulations at 40 CFR
122.26(a)(1)(v). Similarly, the third party petition process for small
municipal separate storm sewer systems (including expeditious deadlines
for acting on such petitions) is consistent with the existing storm
water regulations at 40 CFR 122.26(f) (4) & (5). EPA solicits comment
on the proposed designation approach.
It is important to note that NPDES permitting authorities could
designate any owner or operator of a municipal separate storm sewer
system, including one below 10,000 in population and 1,000 in density.
EPA established the 10,000/1,000 threshold primarily for prioritization
purposes based on the likelihood of adverse water quality impacts at
these population and population 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 a Storm Water Phase II FACA Subcommittee work group's
discussion concerning the definition of a regulated small municipal
separate storm sewer system.
EPA has considered the request from some Storm Water Phase II FACA
Subcommittee members that interim deadlines be established for
development of designation criteria and believes that the designation
deadline identified in today's proposed 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 Municipal Separate Storm Sewer
Systems
In addition to applying criteria on a local basis for potential
designation, the NPDES permitting authority would be required to
designate any owner or operator of a municipal separate storm sewer
system that contributes substantially to the storm water pollutant
loadings of a physically interconnected municipal separate storm sewer
system that is regulated by the NPDES storm water program (see proposed
Sec. 123.35(b)(4)). To be ``physically interconnected,'' the municipal
separate storm sewer system, including roads with drainage systems and
municipal streets, of one entity would be physically connected directly
to the municipal separate storm sewer system of another entity. This
provision would apply to all municipal separate storm sewer systems
located outside of an urbanized area. EPA added this section in
recognition of the concerns of local government representatives on the
Storm Water Phase II FACA Subcommittee that a local government should
not have to shoulder total responsibility for a storm water program
when storm water discharges from another municipality are also
contributing pollutants or adversely affecting water quality. This
provision would also help to provide some consistency among
municipalities and 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. The
municipal caucus raised an additional concern relating to sheet runoff
from one adjoining jurisdiction to another, thereby contributing to the
discharges of a neighboring municipal separate storm sewer system. EPA
would like comment on the extent to which this problem may exist and
ways in which it could be addressed. EPA also welcomes comment on this
proposed designation provision.
Today's proposal does not include interim deadlines for identifying
physically interconnected municipal separate storm sewer systems. EPA
believes that this determination would occur on a case-by-case basis
where deadlines would only work to limit the permitting authority's
ability to identify such systems. However, in accordance with the
deadlines identified in Sec. 123.35(b)(3) of today's proposal, EPA
encourages the permitting authority to make that determination 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.
d. Address Public Petition for Designation
Today's proposal would recognize the existing opportunity for the
public to petition the permitting authority for designation of a point
source to be regulated to protect water quality, as contained in
existing NPDES regulations (see 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 proposed
Sec. 123.35(c)). NPDES permitting authorities would have to make a
final
[[Page 1564]]
determination on any petition within 180 days after receiving the
petition (see proposed Sec. 123.35(c)). EPA believes that setting a
limit of 180 days balances the public's need for a final determination
within a finite period of time and the NPDES permitting authority's
need to control its workload. EPA is also proposing that if an NPDES-
approved State or Tribe fails to act 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.
The Storm Water Phase II FACA Subcommittee provided EPA with
extensive feedback on today's proposed approach. Several commenters
have questioned the justification for the use of urbanized areas or the
designation criteria selected by EPA as guidance to the NPDES
permitting authority (see Sec. 123.35(b)(1)). Municipal members of the
subcommittee noted that the proposed rule could result in inequities
among local governments and would not cover all contributors of
pollutants to receiving waters. Some subcommittee representatives
expressed concern that the proposed rule would impede the watershed
approach due to its blanket coverage within urbanized areas but only
specific designation outside of urbanized areas. Today's proposed rule
addresses the problem of perceived inequities through the provision
that any municipal separate storm sewer system can be designated by the
permitting authority if found to be significantly contributing
pollutants to the waters of the United States or contributing to an
exceedance of water quality standards. EPA believes that the proposed
approach, which provides for the designation of sources to be regulated
based on local conditions, would facilitate watershed planning.
EPA relies on data summarized in the NURP study and in the CWA
section 305(b) reports to support an approach for targeted designation
outside of urbanized areas. EPA has developed 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
and were revised in response to recommendations from the subcommittee.
EPA invites comment on this issue. EPA would be particularly interested
in data submitted on storm water discharges and associated pollutants
of concern.
3. Provide Waivers
EPA received comments from numerous State representatives that the
proposal should recognize the efforts of existing State programs to
address the significant concerns that potentially impact watersheds. In
response, the Agency is proposing to provide some flexibility under
Sec. 122.33(b) that allows NPDES permitting authorities to waive
otherwise applicable requirements for certain regulated small municipal
sources. Such waivers could be granted in cases where the jurisdiction
served by the regulated small municipal separate storm sewer system
includes a population of less than 1,000 persons, its discharges are
not contributing substantially to the storm water pollutant loadings of
a physically interconnected regulated municipal separate storm sewer
system, and the owner or operator of the small municipal separate storm
sewer system has certified that storm water controls are not needed
based on (1) wasteload allocations that are part of TMDLs that address
the pollutants of concern, or (2) a comprehensive watershed plan,
implemented for the waterbody, that includes the equivalents of TMDLs
and addresses the pollutants of concern. If such a waiver is granted,
the TMDLs or watershed plan would need to demonstrate with reasonable
assurance that load reductions take place pursuant to CWA section
303(d). It is important to note that EPA will continue to require
States to comply with their TMDL implementation schedules.
Where a State is the NPDES permitting authority, the permitting
authority would be responsible for the development of the TMDLs or
their equivalent determination as part of a watershed plan as well as
the assessment of the extent a small municipal separate storm sewer
system's discharge is contributing pollutants to a neighboring
regulated system. In states where EPA is the permitting authority, EPA
would use a State's watershed plan and TMDLs, where available. From
these assessments, the permitting authority could make its
determination regarding wasteload allocations and might determine that
storm water controls are not required for certain small municipal
separate storm sewer systems. Once these determinations are made, the
owner or operator of the regulated small municipal separate storm sewer
system, in seeking a waiver from the otherwise applicable requirements
under today's proposal, would be responsible for certifying on a form
provided by the NPDES permitting authority that they are covered by
TMDLs or a watershed plan that indicates that discharges from their
particular system are not having an adverse impact on water quality
(i.e., they were not assigned wasteload allocations under TMDLs) and,
therefore, implementation of storm water controls is not necessary and
the waiver provision requirements have been met. Since the municipal
waiver is indefinite, the owner or operator would not need to re-
certify at the beginning of each permit term. EPA encourages the
permitting authorities to make their waiver determinations as soon as
possible in an attempt to avoid having the owners or operators of
regulated small municipal separate storm sewer systems apply for a
permit and begin to develop a program, but then later be waived from
the applicable requirements. EPA seeks comment from permitting
authorities on how they envision the process of implementing municipal
waivers under today's proposed rule. Specifically, EPA would like
comment on how the program could operate on a basis of self-
certification for waivers.
The NPDES permitting authority could, at any time, mandate
compliance with program requirements from a previously waived regulated
small municipal separate storm sewer system if circumstances change.
For example, a waiver could be withdrawn in circumstances in which the
permitting authority later determines that a storm water discharge to a
small stream would cause adverse impacts to water quality resulting in
a violation of water quality standards. A ``change in circumstances''
could involve receipt of new information by the permitting authority.
EPA invites comments on concerns that the permitting authority
could improperly grant waivers in an effort to provide relief to
regulated entities based on concerns unrelated to water quality. EPA is
also concerned that a permitting authority could redirect resources
from other environmental programs in order to develop a watershed
approach that promotes the issuance of the greatest number of waivers
possible.
EPA also invites comment on the option of broadening the universe
of potential waivers by waiving the requirements of all small municipal
separate storm sewer systems that have a population below 5,000, rather
than 1,000, and meet the same criteria as in today's proposal.
An option not proposed by EPA today is a waiver based on low
population or low population density alone. EPA
[[Page 1565]]
considered a waiver option based on a simple population threshold. This
option would have automatically waived all places within urbanized
areas with a population of 1,000 persons or below. EPA found it
difficult to justify a particular threshold number without allowing for
more flexibility or additional criteria in order to determine if storm
water controls were necessary. This option also did not fully account
for water quality impacts and would create arbitrary donut holes, some
of which could have significant impacts on water quality and should be
regulated. Small entity representatives commented, however, that
municipalities with less than 1,000 persons may lack the technical
capacity to certify that their discharges are not contributing to
adverse water quality impacts in areas where a TMDL or comprehensive
watershed plan has not been developed by the permitting authority. This
concern was shared by the Federal Small Business Advocacy Review Panel
(see Section VII. below). EPA is thus requesting comment on the option
of waiving coverage for all municipalities with less than 1,000 people
(including those located in urbanized areas) unless the permitting
authority determines that they should be required based on significant
adverse water quality impacts.
In addition to waivers, the Agency is also considering possible
approaches for providing incentives for local decisionmaking that would
limit the adverse water quality impact associated with uncontrolled
growth in a watershed. In situations where there are special controls
or incentives (e.g. transferable development rights, traditional
neighborhood development ordinances) in place directing development
toward compact/mixed use development and away from wetlands, open
space, or other protected lands, it may be possible to provide some
relief to municipalities in terms of implementation of the proposed
minimum control measures in areas of infill, or compact mixed use, the
relief would pertain to minimum control measures concerning
construction and new infill development or redevelopment. Where TMDLs
are done in a watershed, the use of such controls or incentives by
municipalities might be considered as the basis for the TMDLs. EPA
solicits comment on this approach and any other recommendations for the
use of such incentives.
4. Issue Permits
NPDES permitting authorities have a number of responsibilities
regarding the permit process. The Agency is proposing Secs. 123.35(d)
through (g) to ensure a certain level of consistency for permits, yet
providing numerous opportunities for flexibility. NPDES permitting
authorities must issue NPDES permits to cover municipal sources that
would be regulated under Sec. 122.32 of today's proposed rule, unless
waived under Sec. 122.33(b). EPA encourages permitting authorities to
use general permits as the vehicle for permitting and regulating small
municipal separate storm sewer systems. The Agency notes, however, that
some owners or operators may wish to take advantage of the option to
join as a co-permittee with a municipality regulated under the existing
NPDES storm water program.
Today's proposal includes a provision, Sec. 123.35(f), that
requires NPDES permitting authorities to include the requirements in
proposed Sec. 122.34 including as modified in accordance with
Secs. 122.33(a)(3), 122.34(c), 122.35(b)) for NPDES permits issued for
regulated small municipal separate storm sewer systems. See Section
II.H.3.a, Minimum Control Measures, for more details on the actual
requirements.
In an attempt to avoid duplication of effort, EPA is specifically
proposing in Sec. 122.34(c) to allow NPDES permitting authorities to
include permit provisions that incorporate by reference qualifying
local, Tribal, or State municipal storm water management program
requirements that address one or more of the minimum controls of
proposed Sec. 122.34(b). For a local, Tribal, or State program to
``qualify,'' it would need to impose, at a minimum, the relevant
requirements of Sec. 122.34(b). A regulated small municipal separate
storm sewer system would still need to submit an application, either an
individual application or an NOI under a general permit, but would
follow the requirements of the qualifying local, Tribal, or State
program instead. The Agency invites comment on this approach.
Under Sec. 122.35(b), NPDES permitting authorities might also
recognize existing responsibilities among governmental entities for the
minimum control measures in an NPDES small municipal storm water
permit. For example, the permit might allow for the State to be
responsible for addressing construction site runoff and require that
the municipalities 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.
In Sec. 123.35(e), EPA is proposing that NPDES permitting
authorities specify a time period of up to 5 years from the issuance
date of an NPDES permit for regulated small municipal separate storm
sewer system owners or operators to fully develop and implement their
storm water programs. EPA believes this time period is adequate. 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.
Under proposed Sec. 123.35(g), if an NPDES permitting authority
issues a general permit to authorize storm water discharges from
regulated small municipal separate storm sewer systems, the NPDES
permitting authority would also need to provide or issue a menu of
regionally appropriate and field-tested BMPs that the permitting
authority determines to be cost-effective. The regulated small
municipal separate storm sewer systems could choose to either select
from this menu or select other BMPs that they feel are appropriate. The
purpose of this menu is to provide small municipal separate storm sewer
systems with additional guidance to assist them in implementing their
storm water program. The menu would be further elaborated upon in
guidance materials provided as part of the tool box (for further
discussion regarding the tool box see Section II.A.5.). The menu itself
is not intended to replace more comprehensive BMP guidance materials.
Separate guidance documents that discuss the results from EPA-sponsored
nationwide general studies on the construction, operation and
maintenance of BMPs would be provided as part of the tool box efforts.
The permitting authority may include this menu in the general
permit when it is issued. This menu would need to be issued within two
years of the publication of the final rule. This deadline tracks the
amount of time that the State permitting authority would have to make
any necessary regulatory or statutory changes to their program to
accommodate the rule requirements. If an NPDES-approved State or Tribe
failed to provide or issue this menu within two years of the
publication of the final rule, EPA would be able to do so. Failure of
the State to issue the menu of BMPs would not affect the legal status
of the general permit. Measurable goals identified in a small municipal
storm sewer system's NOI, or individual application, would not be
considered a condition of the NPDES permit unless, and until, the
permitting authority or EPA provided or issued the menu of
[[Page 1566]]
BMPs. The issuance of the menu of BMPs would be critical to assure
protection of water quality since it triggers the permittee's
requirement to meet narrative performance standards.
5. Support and Oversee the Local Programs
NPDES permitting authorities would be responsible for supporting
and overseeing the local municipal programs. EPA is proposing
Sec. 123.35(h) to highlight issues associated with these
responsibilities.
To the extent possible, NPDES permitting authorities should provide
financial assistance to local municipalities, which 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 possible. In lieu of actual dollars, NPDES
permitting authorities could provide cost-cutting assistance in a
number of ways. For example, NPDES permitting authorities could develop
outreach materials for municipalities to distribute or the NPDES
permitting authority could actually distribute the materials. Another
option would be to implement an erosion and sediment control program
across an entire State (or Tribal land), thus alleviating the need for
the municipality to implement its own program. Obviously, NPDES
permitting authorities would need to balance the need for site-specific
controls, which could be best handled by a local municipality, with the
need to offer financial relief. EPA, States, Tribes, and municipalities
should work as a team in making these kinds of decisions.
NPDES permitting authorities would be responsible for overseeing
the local programs. They would need to 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. Another important role for NPDES permitting
authorities would be to ensure adequate legal authority at the local
level so that municipalities could implement their part 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 the CWA section 402(p)(6) program,
EPA recommends that States and Tribes coordinate all of their water
programs, including the continuing planning process (CPP), the existing
storm water program, the CZARA program, and nonpoint source programs.
In addition, NPDES permitting authorities would be encouraged to
use a brief (e.g., two-page) reporting format to facilitate compiling
and analyzing data from submitted reports under proposed Sec. 122.34.
EPA would develop a model form for this purpose.
H. Municipal Role
1. Scope of Today's Proposal
The Agency has selected for today's proposal an equitable and
comprehensive four-pronged approach for the designation and coverage of
municipal sources. First, the approach would define for automatic
coverage the sources believed to be of most concern. Second, the
approach would designate sources that meet a set of objective criteria
used to measure the potential for water quality impacts. Third, the
approach would designate on a case-by-case basis sources that
``contribute substantially to the storm water pollutant loadings of a
physically-interconnected [regulated] municipal separate storm sewer
system.'' Finally, the approach would designate on a case-by-case
basis, upon petition, sources that ``contribute to a violation of a
water quality standard or are a significant contributor of
pollutants.''
As explained earlier, today's proposed rule would automatically
designate for regulation small municipal separate storm sewer systems
located in urbanized areas and would require that NPDES permitting
authorities examine for potential designation, at a minimum, a
particular subset of small municipal separate storm sewer systems
located outside of urbanized areas. Any small municipal separate storm
sewer system automatically designated by the proposed rule or
designated by the permitting authority under today's proposed rule
would be defined as a ``regulated'' small municipal separate storm
sewer system. Today's proposal also includes a provision that would
allow for a waiver from the otherwise applicable requirements for some
regulated small municipal separate storm sewer systems, where
warranted, based on a comprehensive water quality-based assessment.
In today's proposed rule, all regulated small municipal separate
storm sewer systems would need to establish a storm water program that
meets the requirements of six minimum control measures, unless the
system qualifies for, and the NPDES permitting authority grants, a
waiver. These minimum control measures would be 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 proposal would allow for
a great deal of flexibility in how an owner or operator of a regulated
small municipal separate storm sewer system would be 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 could incorporate
by reference qualifying State, Tribal, or local programs in the NPDES
general permit and could recognize existing responsibilities among
different governmental entities for the implementation of minimum
control measures. In addition, a regulated small municipal separate
storm sewer system could participate in the storm water management
program of an adjoining regulated medium or large municipal separate
storm sewer system and could arrange to have another governmental
entity implement a minimum control measure for them.
2. Municipal Definition
This section explains which small municipal separate storm sewer
systems would be regulated under today's proposed rule. This section
also proposes several definitions of terms used to describe the
applicability of the proposed program requirements. For one
particularly important definition, the definition of an ``urbanized
area,'' the discussion includes case studies and a map as examples.
This section concludes with a discussion of the three alternatives EPA
considered for determining which small municipal separate storm sewer
systems would be covered by today's proposed rule.
Regulatory Language in Today's Proposal
The CWA does not define the term ``municipal separate storm
sewer.'' EPA has exercised its discretion to define the scope of
municipal systems consistent with its existing regulations. EPA
[[Page 1567]]
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 122.26'' (see 40 CFR 122.26(b)(8)(i)). Today's
proposed rule adds to this definition ``the United States'' as a
potential owner or operator of a municipal separate storm sewer. This
addition is meant 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 municipal separate storm sewer systems. Federal
facilities may be like other municipal separate storm sewer systems due
to similar residential populations and road systems; therefore,
anticipated storm water discharges would also be similar.
The existing municipal permit application regulations define
``medium'' and ``large'' municipal separate storm sewer systems 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 40 CFR 122.26(b)(4) and 122.26(b)(7)). In
today's proposed rule, these regulations have been revised to define
all medium and large municipal separate storm sewer systems as those
meeting the above population thresholds according to the 1990 Decennial
Census. The decision to ``freeze'' the definition of medium and large
municipal separate storm sewer systems as of the 1990 Census was based
on (1) a concern with deadlines, (2) an understanding that the
permitting authority could always require more from owners or operators
of municipal separate storm sewer systems serving ``newly over
100,000'' populations, and (3) the Agency's intention to merge the
Phase I existing and Phase II proposed programs into a single seamless
storm water program (see Secs. 122.26(b)(4), (b)(7) and (b)(16)).
In today's proposed rule, owners or operators of small municipal
separate sewer systems may be regulated under the NPDES program for
storm water. Small municipal separate sewer systems are ``all municipal
separate storm sewer systems that are not designated as a ``large'' or
``medium'' municipal separate storm sewer system, pursuant to 40 CFR
122.26(b)(4) and (b)(7), or designated under 40 CFR 122.26(a)(1)(v).''
Small municipal separate storm sewer systems include, but are not
limited to, systems operated by local governments (including
``municipios''), State departments of transportation, and State,
Tribal, and federal facilities. The term ``State, Tribal and federal
facilities'' includes, but is not limited to, military installations,
penitentiaries, universities and similar institutions with separate
storm sewers draining areas. Municipal systems that were designated
under 40 CFR 122.26(a)(1)(v) will continue to be regulated under the
existing storm water program and, therefore, are not addressed under
today's proposed rule.
In today's proposed rule (see Secs. 122.32(a)(1) and 122.32(a)(2)),
EPA defines ``regulated small municipal separate storm sewer systems''
to include all municipal separate storm sewers that are located in:
(1) An incorporated place, county (only the portion located in an
urbanized area), or other place under the jurisdiction of a
governmental entity (including but not limited to Tribal or Territorial
governments) located in an urbanized area, as determined by the latest
Decennial Census by the Bureau of the Census (see 55 FR 42592, October
22, 1990), except for Federal Indian reservations where the population
within the urbanized area is under 1,000 persons.
(2) An incorporated place, county, or other place under the
jurisdiction of a governmental entity other than those described in (1)
above that is designated by the NPDES permitting authority. The NPDES
permitting authority may designate any municipal separate storm sewer
system located outside of an urbanized area. See Section II.G, NPDES
Permitting Authority Role for the CWA section 402(p)(6) Municipal
Program, for more details on this process.
Definitions of Key Terms and Phrases
The Bureau of the Census definition of ``incorporated place,''
adopted by EPA for purposes of today's proposal, is any place reported
to the Bureau as legally in existence under the laws of the respective
State as a city, borough, town, or village, with certain exceptions.
(U.S. Department of Commerce, Bureau of the Census. 1994. Geographic
Areas Reference Manual.) Because these Bureau of the Census exceptions
would be included within the term ``county'' (see definition below),
they would not impact the application of today's definition of a
regulated small municipal separate storm sewer system in any way.
The Bureau of the Census definition of ``county,'' adopted by EPA
for the purposes of today's proposal, is ``the primary legal
subdivision of every State except Alaska and Louisiana.'' (USDC, 1994)
For the purposes of today's proposed rule, the term ``county'' also
includes Louisiana's county equivalent known as a parish and Alaska's
county equivalent, which is an organized borough. A county's
unincorporated territory includes all minor civil divisions and census-
designated places but excludes all incorporated places. Therefore, any
area that is not an incorporated place would be included within the
definition of ``county,'' with the exception of Tribal or Territorial
areas.
The phrase ``place under the jurisdiction of a governmental
entity'' includes, but is not limited to, places within the
jurisdiction of Tribes and Territorial governments. EPA is proposing
this language in order to include governmental entities that are
located within an urbanized area but whose government structure may not
include incorporated places or counties. For example, Federal Indian
reservations are neither incorporated places nor counties, but are
sovereign entities, and Puerto Rico has ``municipios'' as their primary
local government. The term ``Tribes'' includes any Indian Tribe, band,
group, or community recognized by the Secretary of the Interior and
exercising governmental authority over a Federal Indian reservation (40
CFR 122.2). ``Territorial governments'' include the following U.S.
territories: the District of Columbia, the Commonwealth of Puerto Rico,
American Samoa, Guam, the Virgin Islands of the United States, and the
Commonwealth of the Northern Mariana Islands. ``Municipio'' means a
Puerto Rico division which has legally established boundaries and
constitutes a governmental unit. ``Pueblo'' or ``ciudad'' means the
barrio or group of barrios which are considered the municipio center of
government.
``Federal Indian reservation'' means all land within the limits of
any Indian reservation or rancheria under the jurisdiction of the U.S.
Government, notwithstanding the issuance of any patent, and including
rights-of-way running through the reservation (40 CFR 122.2; see also
Section II.F. of today's preamble and section 518 of the CWA).
Urbanized Areas Definition
The Bureau of the Census definition of ``urbanized area,'' adopted
by EPA for
[[Page 1568]]
the purposes of today's proposed rule, is as follows:
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 ``densely settled surrounding territory'' adjacent to the
place consists of the following:
1. Territory made up of one or more contiguous census blocks
having a population density of at least 1,000 people per square mile
provided that it is:
a. Contiguous with and directly connected by road to other
qualifying territory, or
b. Noncontiguous with other qualifying territory, and:
(1) Within 1 1/2 road miles of the main body of the urbanized
area and connected to it by one or more nonqualifying census blocks
that [a] are adjacent to the connecting road and [b] together with
the outlying qualifying territory have a total population density of
at least 500 people per square mile, or
(2) Separated by water or other undevelopable territory from the
main body of the urbanized area, but within 5 road miles of the main
body of the urbanized area, as long as the 5 miles include no more
than 1 1/2 miles of otherwise nonqualifying developable territory.
2. A place containing territory qualifying on the basis of
criterion 1 [above] will be included in the urbanized area in its
entirety (or partially, if the place is an extended city) if that
qualifying territory includes at least 50 percent of the population
of the place. If the place does not contain any territory qualifying
on the basis of the above criterion, or if that qualifying territory
includes less than 50 percent of the place's population, the place
is excluded in its entirety.
3. Other territory with a population density of less than 1,000
persons per square mile, provided that it:
a. Eliminates an enclave of no more than 5 square miles in the
territory otherwise qualifying for the urbanized area when the
surrounding territory qualifies on the basis of population density,
or
b. Closes an indentation in the boundary of the territory
otherwise qualifying for the urbanized area when the contiguous
territory qualifies on the basis of population density, provided
that the indentation is no more than 1 mile across the open end, has
a depth at least two times greater than the distance across the open
end, and encompasses no more than 5 square miles.
(55 FR 42592, October 22, 1990)
The full definition of an ``urbanized area'' has been included
primarily for informational purposes. Because the Bureau of the Census
determines urbanized areas based on the latest decennial census, the
owner or operator of a municipal separate storm sewer system does not
need to make any calculations to determine eligibility as a regulated
small municipal separate storm sewer system. The Bureau of the Census
provides detailed maps and comprehensive listings of all political
entities within a given urbanized area. For a more detailed description
of the treatment of urbanized areas for purposes of today's proposal,
see the following discussion entitled, Nationwide Designation. Also,
see Appendix 3 for a listing of urbanized areas of the United States
and Puerto Rico.
a. Nationwide (``Automatic'') Designation
In today's proposed rule, all small municipal separate storm sewer
systems located in an incorporated place, county, or other place under
the jurisdiction of a governmental entity that is included within an
urbanized area would be automatically designated as ``regulated'' small
municipal separate sewer systems under today's proposed storm water
program, provided that they were not previously designated into the
existing storm water program. Unlike medium and large municipal
separate storm sewer systems under the existing storm water
regulations, not all small municipal separate storm sewer systems would
be designated under today's proposal and, therefore, a distinction is
made in the rule between ``small'' municipal separate storm sewer
systems and ``regulated small'' municipal separate storm sewer systems.
EPA estimates that this automatic designation would include
approximately 3,500 incorporated places and counties (about 16% of all
incorporated places and counties nationwide), 41 municipios (more than
50% of all municipios in Puerto Rico), and 27 Tribes (although 9 of
these Tribes would be exempted and there are other special
considerations--see Section II.F, Tribal Role). In addition, as
previously discussed, this definition would include State, Tribal, and
Federal highways and facilities located within urbanized areas.
It is important to note that if a county or Federal Indian
reservation is only partially included in an urbanized area, only the
urbanized portion of the county or Federal Indian reservation would be
regulated. Although rare, even if an incorporated place is only
partially included in the urbanized area, then the entire place is
regulated. The regulation of counties is meant to capture all
unincorporated areas located within the urbanized area in an effort to
create a seamless program by avoiding the creation of unregulated areas
surrounded by regulated areas, sometimes referred to as ``donut holes''
in the regulatory scheme. For example, if an urbanized area contains a
regulated medium or large municipal separate sewer system that has
within its boundaries some incorporated places that were originally
excluded from the storm water program due to the population threshold
of 100,000, most of these previously unregulated donut holes would now
be defined as regulated small municipal separate sewer systems under
today's proposed rule and would be covered by the NPDES program for
storm water.
In Puerto Rico, EPA is proposing to regulate the entire municipio
where the total population is equal to or greater than 100,000. Those
municipios include Bayamon, Caguas, Carolina, Mayaguez, Ponce, and San
Juan. For the other municipios that are located within an urbanized
area and have populations of less than 100,000, only the pueblo will be
regulated.
i. Urbanized Area Description. 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.
An ``urbanized area'' comprises one or more places--central
place(s)--and the adjacent densely settled surrounding area--urban
fringe--consisting of (1) incorporated places, (2) census designated
places, and (3) county nonplace territory that together have a minimum
population of 50,000. ``Central places'' include both incorporated and
census-designated places. ``County nonplace territory'' is the area of
the county that does not include incorporated or census-designated
places. (It is important to note that ``county'' as defined for the
purposes of today's proposed rule includes census-designated places).
The urban fringe is a contiguous area with an average population
density of at least 1,000 persons per square mile at its perimeter (see
full ``urbanized area'' definition above).
The basic unit for delineating the urbanized area boundary is the
census block. Census blocks are based on visible physical boundaries,
such as the city block, when possible or on invisible political
boundaries when not. In a
[[Page 1569]]
larger sense, the urbanized area determination is not based on
political boundaries for counties or Federal Indian reservations but is
for ``places.''
Place--A place is included in its entirety whether or not
all of its census blocks meet the urbanized area definition. Therefore,
this part of the urbanized area determination is based on political
boundaries. However, it should be noted that in rare cases (128
places), a place is not included in its entirety, but rather is only
partly included within the urbanized area, due to the existence of
large expanses of vacant or very sparsely populated territory within
its incorporated area. (Such ``extended cities,'' as they are called,
are most common in North Carolina due to their unique annexation laws.)
County/Federal Indian reservation--A county is included in
its entirety only if all of its census blocks, based on the county's
unincorporated area, meet the urbanized area definition. Unlike a
place, a county is often ``split'' into urbanized and non-urbanized
portions, with no regard for political boundaries. Under today's
proposed rule, only the urbanized portion of a ``split county'' would
be covered. The same case applies to Federal Indian reservations.
Most owners or operators of municipal separate storm sewer systems
would not need to independently determine the status of coverage under
today's proposal. Most likely, a list of the places, counties, and
other places under the jurisdiction of a governmental entity within an
urbanized area would be published with the general permit. If not, they
can contact their permitting authority or the Bureau of the Census to
find out if their storm sewer systems are within an urbanized area. In
addition, the necessary information should be available on the Bureau
of the Census Internet Home Page (see http://www.census.gov/). 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. Appendix 6 to this preamble provides a list of
incorporated places and counties proposed to be automatically
designated as part of today's proposed rule.
Additional designations based on subsequent census years would 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 (incorporated place, county, or other place) determined by the
Bureau of the Census to be included within an urbanized area as of the
1990 Census would not later be excluded from the urbanized area as of
the 2000 Census due to a possible change in the Bureau of the Census'
urbanized area definition. However, it is important to note that even
if this situation were to occur, a small municipal separate storm sewer
system once automatically designated into the NPDES program for storm
water under an urbanized area calculation for any given Census year
would remain regulated regardless of the results of subsequent
urbanized area calculations.
Appendix 2 is a simplified urbanized area illustration to help
demonstrate the concept of urbanized areas in relation to today's
proposed rule. The ``urbanized area'' is the shaded area that includes
within its boundaries incorporated places, a portion of a Federal
Indian reservation, an entire county, and portions of three other
counties. Any and all owners and operators of small municipal separate
storm sewer systems located in the shaded area would be covered by the
proposed rule. Any small municipal separate storm sewers located
outside of the shaded area would be subject to potential designation by
the permitting authority.
ii. Urbanized Area Profiles. To further illustrate the concept of
urbanized areas, this section highlights two urbanized areas and their
relationship to the NPDES storm water program. The first case study is
the Milwaukee, Wisconsin, urbanized area, which already includes medium
and large municipal separate storm sewer systems and would also include
regulated small municipal separate storm sewer systems under today's
proposed rule. The second case study is the Myrtle Beach, South
Carolina, urbanized area, which would include only regulated small
municipal separate storm sewer systems. Neither urbanized area has
within its boundaries a Federal Indian reservation.
Case Study 1: Milwaukee, WI (total urbanized area
population = 1,226,293)
The Milwaukee, Wisconsin, urbanized area has at its core the large
municipal separate storm sewer system of Milwaukee, which is contained
within the county of Milwaukee. The urbanized area extends beyond the
boundaries of the city of Milwaukee into the county of Milwaukee and
the four surrounding counties of Racine, Wauklesha, Washington, and
Ozaukee. The county of Milwaukee is entirely within the urbanized area,
while the other four counties are only partially within it. A total of
five counties would be included in the storm water program, but only
the municipal separate storm sewer systems in the urbanized portions of
the counties would be automatically designated. In addition to the five
counties, 38 incorporated places are within the urbanized area and
would also be automatically designated as regulated small municipal
separate storm sewer systems under today's proposal: River Hills
Village, Mequon, Germantown, Lannon, Sturtevant, Wind Point, Big Bend,
Pewaukee, Bayside, North Bay, Butler, West Milwaukee, Thiensville,
Elmwood Park, Elm Grove, Sussex, Fox Point, Hales Corners, Cedarburg,
St. Francis, Grafton, Oak Creek, Brown Deer, Glendale, Greendale,
Cudahy, Shorewood, Whitefish Bay, Franklin, Menomonee Falls, New
Berlin, Brookfield, Greenfield, South Milwaukee, Wauwataso, Waukesha,
West Allis, City of Racine. The result is a pattern where a regulated
medium or large municipal separate storm sewer system core is
surrounded by regulated small municipal separate storm sewer systems
located within unincorporated areas (counties) and incorporated places.
Each owner or operator of a municipal separate storm sewer system in
these areas would be responsible for obtaining an NPDES permit for the
discharges from their system.
Case Study 2: Myrtle Beach, SC (total urbanized area
population = 58,384)
The Myrtle Beach, South Carolina, urbanized area does not include a
medium or large municipal separate storm sewer system. The entire
urbanized area, with Myrtle Beach at its core, would meet the
definition of a regulated small municipal separate storm sewer system.
The Myrtle Beach urbanized area spreads into two counties, Harry and
Georgetown counties, and covers only two incorporated places, Myrtle
Beach and Surfside Beach. As was the case in the Milwaukee example, the
counties of Harry and Georgetown are only partially
[[Page 1570]]
within the urbanized area. All owners or operators of municipal
separate sewer systems located in the urbanized portions of Harry and
Georgetown counties and in the two incorporated places would be
included under the NPDES storm water program as regulated small
municipal separate storm sewer systems, resulting in blanket coverage
by the storm water program with no unregulated ``donut holes.''
iii. Rationale for Using Urbanized Areas. EPA proposes using
urbanized areas to automatically designate regulated small municipal
separate storm sewer systems 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) this approach would target present and
future growth areas as a preventative measure to help ensure water
quality protection, (3) the determination of urbanized areas by the
Bureau of the Census allows owners or operators of small municipal
separate storm sewer systems to quickly determine whether they are
included in the NPDES storm water program as a regulated small
municipal separate storm sewer system, and (4) the blanket coverage
within the urbanized area encourages the watershed approach and
addresses the problem of ``donut-holes,'' where unregulated areas are
surrounded by regulated areas. (Donut hole areas present a problem due
to their contributing uncontrolled impacts on neighboring regulated
communities and local waters.)
One drawback to the proposed approach is that it would divide some
counties into regulated areas and nonregulated areas. Such ``split''
counties could have difficulty focusing efforts, such as public
education and the maintenance and management of infrastructure on just
the regulated areas. One commenter suggested that in the case of a
``split'' county, only the incorporated areas within the urbanized
portion of the county should be regulated, not the entire urbanized
portion of the county. EPA would prefer, however, to create a seamless
program that does not create donut holes as this suggestion would do,
but rather includes all of the municipal separate storm sewer systems
within the urbanized area. EPA is attempting to eliminate the existence
of donut hole areas because municipal separate storm sewer system
discharge sources within them could contribute to water quality
impairment and could adversely affect the storm water management
efforts of the neighboring regulated communities. Furthermore, as noted
previously, including the entire urbanized portion of a county would
promote partnerships in watershed efforts to improve local water
quality.
b. Municipal Designation by the Permitting Authority
Today's proposed rule would also allow NPDES permitting authorities
to designate areas that should be included in the storm water program
as regulated small municipal separate storm sewer systems but do not
qualify under the regulatory ``urbanized areas'' definition. The
proposed rule requires, at a minimum, that a set of designation
criteria be applied to all small municipal separate storm sewer systems
within a jurisdiction that includes a population of at least 10,000 and
a population density of at least 1,000. Appendix 7 to this preamble
provides a list of incorporated places and counties proposed to be
potentially designated as part of today's proposed rule. In addition,
the owner or operator of any small municipal separate storm sewer
system may be the subject of a petition to the NPDES permitting
authority for designation. See Section II.G, NPDES Permitting
Authority's Role for the CWA section 402(p)(6) Municipal Program, for
more details on the designation and petition processes. EPA believes
that the approach of combining nationwide and local designation to
determine municipal coverage in today's proposed rule balances the
potential for significant impacts on water quality with local watershed
protection and planning efforts. The Agency solicits comments on this
approach and possible alternatives.
c. Waiving the Requirements for Regulated Small Municipal Separate
Storm Sewer Systems
Today's proposed rule would include some flexibility in the
nationwide coverage of all small municipal separate storm sewer systems
located in urbanized areas by providing the NPDES permitting authority
with the discretion to waive the otherwise applicable requirements of a
regulated small municipal separate storm sewer system serving less than
1,000 people where assessments of local conditions and watersheds
warrant such a waiver. Note that even if a regulated small municipal
separate storm sewer system had requirements waived, it could
subsequently be brought back into the program if circumstances change.
See Section II.G, NPDES Permitting Authority's Role for the CWA section
402(p)(6) Municipal Program, for more details on this process.
i. Combined Sewer Systems. The definition of ``municipal separate
storm sewer systems'' 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, 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 storm water, nor
will they be subject to today's proposed regulations. EPA addresses
combined sewer systems and CSOs in its National Combined Sewer Overflow
(CSO) Control Policy that was 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 BAT/BCT limits; municipal separate storm
sewer systems are subject to MEP.
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 system within that
municipality would be included in the NPDES storm water program and
subject to today's proposed rule. If the municipality is not located in
an urbanized area, then the NPDES permitting authority would have
discretion as to whether the separate storm sewer system is subject to
today's
[[Page 1571]]
proposed rule. Under today's proposed rule, the NPDES permitting
authority would use the same process to designate for coverage a
municipal separate storm sewer system where the municipality is also
served by a combined sewer system, as it would for municipalities that
are served only by a separate storm sewer system. The Agency 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 requirements more efficiently. EPA seeks comment on ways to
achieve such a unified program.
d. Designation Alternatives Considered--Preliminary Options
In developing the proposed approach, EPA considered several
alternative approaches for designation. Three of the primary options
considered are discussed below, in no particular order. EPA seeks
comment on all three of these options and welcomes ideas for other
alternative options for determining the definition of a regulated small
municipal separate storm sewer system.
i. Designation Option 1. One option EPA considered was the proposal
suggested by the Storm Water Phase II FACA Subcommittee's Municipal De
Minimis Work Group. Under this option, all municipal separate storm
sewer systems would be included in the NPDES permit program, unless the
system is aboveground, or underground and serving an area with a
population density of less than 1,000. Local governments with no
underground storm drain systems would be excluded, unless the NPDES
permitting authority determined that storm drainage from aboveground
(e.g., open drainage ditches) is within the control of the local
government and that pollution from runoff from such drains is causing
impairment to beneficial uses or exceedances of water quality standards
in a permanent water body. This option would also exclude local
governments with underground storm drains if they had a density of less
than 1,000 persons/square mile (or some other criteria, such as
building starts, rainfall, or percentage of imperviousness, if such
parameters are proven better indicators of storm water pollution),
unless:
The NPDES authority finds that runoff from the local
government drainage system is contributing to the impairment of
beneficial uses or exceedances of water quality standards in a
permanent waterbody. (The Municipal De Minimis Work Group purposely
used the term ``permanent water body,'' and not the term ``waters of
the United States,'' because they did not want intermittent streams,
seasonal wetlands, etc. to be included. However, they did not define
exactly what they envisioned to be a ``permanent water body.'') Any
person could petition the NPDES authority to make or verify such a
finding.
Pollution from runoff from the local government drainage
system either directly discharges to an adjacent municipality covered
by these requirements or significantly contributes to the pollution
from runoff that would otherwise be attributable to an adjacent
municipality covered by these requirements.
While EPA believes that this option concerning aboveground/
underground systems for densities of less than 1,000 persons has merit,
the Storm Water Phase II FACA Subcommittee could not resolve issues
associated with defining and quantifying the different types of ditches
and drainage systems on a nationwide basis. The work group assumed that
aboveground systems would consist primarily of vegetated ditches.
However, enough data are not available to either prove or disprove this
assumption. The work group found vegetated ditches highly desirable and
worthy of exemption because of the benefits of natural management of
storm water that they can provide. The pervious and contoured surface
of vegetated ditches allows the water to percolate, resulting in an
overall decrease in velocity and volume of flow and pollutant levels.
However, these systems have variable removal efficiencies for
pollutants and can potentially contribute additional pollutants to
storm water runoff. Due to the variability of the types of aboveground
system surfaces and the lack of data, EPA chose not to propose this
option as its own. In addition, EPA had significant concerns about the
number of smaller municipalities that would be permitted under such an
approach, even though they might not contribute to significant water
quality impacts. Under the approach selected for today's proposed rule,
EPA believes that only those municipalities likely to contribute to
significant water quality impacts would be designated into the storm
water program.
ii. Designation Option 2. Another option, which was suggested by
several members of the Storm Water Phase II FACA Subcommittee, would
require all small municipal separate storm sewer systems to be
regulated under the NPDES program for storm water and to implement the
six minimum measures as described in today's approach, unless the owner
or operator of the system could prove that the system is not causing
adverse water quality impacts and not contributing to pollutant loads
in the watershed. One commenter suggested the use of this approach with
an automatic exemption based on objective criteria, such as low
population and proximity to waters of the United States.
EPA acknowledges that this approach has advantages. It would
guarantee that the areas of most concern are regulated, create a
seamless storm water program without donut holes, avoid disputes over
designation, and promote a watershed-based program because all sources
in a watershed would already be in the program. In addition, its simple
blanket coverage would create less confusion over whether an owner or
operator of a municipal separate storm sewer system is in or out of the
storm water program, and the burden for exclusion would be on the owner
or operator of the municipal separate sewer system, not the permitting
authority. Overall, this option best addresses the cumulative impact of
all activities within a watershed that create environmental problems.
By including only particular sources within a watershed, as is the case
with the other options, the potential environmental benefits of the
storm water program could be limited.
Although this option might appropriately address issues of fairness
and simplicity, it fails to target the areas of greatest concern (i.e.,
areas causing significant water quality impacts) and instead would
regulate all areas regardless of impacts, unless an exemption was
approved. This approach, by including a universe of approximately
19,289 incorporated places and 17,796 minor civil divisions located in
3,141 counties, in addition to Tribal lands and Territories, could
regulate many more entities than the current proposal, resulting in
higher costs than today's proposal for all involved. The exemption
process, which could apply to thousands of municipalities, would
require them to spend valuable time and resources trying to prove that
they have little or no impact on water quality, while the permitting
authority would be saddled with the additional burden of processing and
evaluating such requests. It may be the case that the administrative
burden for a storm water program of this size, and the potential
overregulation, would not justify the full coverage it would provide.
Furthermore, it would also be difficult to justify an automatic
exemption based solely on the criteria of population size and proximity
to waters of the United States. Total population (as opposed to
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population density) is not a good measure of storm water impacts
because it lacks an indication of where and how the population is
distributed, both of which are significant factors addressed in today's
proposal. For example, an area with high population could be less
urbanized with fewer impacts on water quality than a place with lower
population due to the size of the area involved in each. EPA
anticipates extreme difficulty in determining and justifying a
particular population threshold without also considering other factors
that would help to both account for the variability of local conditions
and indicate whether or not there are significant water quality
impacts. Furthermore, a population threshold would still result in
donut holes. Similar problems could be associated with the second
criterion of ``proximity to waters of the United States.'' It is an
important consideration but not much more telling than total population
due to the variety of local conditions that could or could not make
this criterion a significant factor in the determination of real or
potential water quality impacts. Therefore, even the tandem use of
these two criteria could lack enough information to make an informed
and justifiable decision on an exemption. For the reasons discussed
above, EPA chose not to propose this option.
iii. Designation Option 3. To satisfy CWA section 402(p)(5)(C), EPA
recommended the approach outlined in President Clinton's Clean Water
Initiative. This approach was similar to today's proposed approach in
that the NPDES permitting authority would issue system-wide NPDES
permits for all municipal separate storm sewer systems in census-
designated urbanized areas. This option would require storm water
management programs for municipal separate storm sewer systems in the
138 urbanized areas in which a medium or large municipal separate sewer
system is located. At a minimum, the programs would address non-storm
water discharges into storm sewers and storm water runoff from growth
and development and significant redevelopment. NPDES permitting
authorities would be encouraged to implement watershed approaches and
more comprehensive program requirements where necessary and
appropriate. In the remaining 267 census-designated urbanized areas
(containing only small municipal separate storm sewer systems),
municipal storm water management programs would be less stringent and
required to focus only on controlling non-storm water discharges into
storm sewers and storm water runoff from growth, development, and
significant redevelopment activities.
By focusing on census-designated urbanized areas, many of the
sources of greatest concern would be addressed, while also providing a
clear definition of who is included in the storm water program.
However, the tiered permitting requirements of this approach could
create unnecessary confusion. EPA would not want to require regulated
small municipal separate storm sewer systems in urbanized areas with a
medium or large municipal separate storm sewer system to do more than
those in urbanized areas without a medium or large municipal separate
storm sewer system. Rather, EPA envisions progress toward a seamless,
unified, and comprehensive NPDES storm water program with equivalent
program requirements as the best approach. If this alternative option
was adopted, three varying levels of requirements (the existing
requirements plus two tiers for small municipal separate sewer systems)
would eventually need to be unified instead of just two, as found under
today's proposal. Although primarily concerned with growth associated
with urbanized areas, this approach is also limited by its reliance on
non-NPDES programs for addressing sources beyond urbanized areas.
Environmental and municipal representatives on the Storm Water Phase II
FACA Subcommittee agreed that any sources that are significant
contributors of pollutants should be considered for regulation directly
under an NPDES permit, including those outside of urbanized areas. For
these reasons, EPA did not present this option as the lead option.
3. Municipal Permit Requirements
EPA is proposing that all owners or operators of regulated small
municipal separate storm sewer systems, as defined at Sec. 122.32, must
seek coverage under an NPDES permit. EPA intends that the vast majority
of discharges from these sources would be authorized under general
permits issued by the NPDES permitting authority. These NPDES general
permits would provide specific instructions for how to seek coverage,
including application requirements. Typically, such application
requirements would be satisfied by the submission of an NOI to be
covered by the general permit.
For cases in which an NPDES general permit is not available or the
NPDES permitting authority requests that an owner or operator be
covered under an individual NPDES permit, EPA is proposing simplified
individual permit application requirements at Sec. 122.33. Under the
simplified individual permit application requirements, the owner or
operator would submit an application to the NPDES permitting authority
that includes the information required under Sec. 122.21(f), an
estimate of square mileage served by the separate storm sewer system,
and any additional information that the NPDES permitting authority
requests. 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.
Today's proposal also would allow an owner or operator of a
regulated small municipal separate storm sewer system to join as a co-
permittee in an existing NPDES permit issued to an adjoining medium or
large municipal separate storm sewer system or designated source under
the existing storm water program through a modification of that
municipal separate storm sewer system's permit. This co-permittee
provision would only apply if agreed to by all co-permittees. Under a
co-permittee arrangement, the owner or operator of the regulated small
system would need to comply with the applicable requirements of
Sec. 122.26 and the terms and conditions of the applicable permit, but
would not be required to fulfill all the permit application
requirements applicable to medium and large systems and permit
condition requirements applicable to regulated small systems.
Specifically, the regulated small system owner or operator would not be
required to comply with the permit condition requirements of
Sec. 122.34 of today's proposal or 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 owner or operator of the regulated small system 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 municipality's existing plan. An
owner or operator pursuing this option would need to describe in the
permit modification request how the adjoining municipality's storm
water program addresses or would need to be supplemented in order to
adequately address discharges from the municipal separate storm sewer
system. The request would also need to explain the
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role of the owner or operator in coordinating local storm water
activities and describe the resources available to accomplish the plan.
EPA believes that this approach would support the goal of an
integrated and coordinated national storm water program. Regulated
small system owners or operators could take advantage of existing
programs to ease the burden of creating their own from scratch. The
proposal would allow them to conduct activities that are coordinated on
a regional basis. For medium and large system owners or operators, this
approach would promote the use of regional and watershed-based planning
as an implementation framework for the storm water program and would
create opportunities for sharing the resource and cost burden of the
program with participating entities. EPA is particularly interested in
comments regarding the actual implementation of this application
provision. For instance, whether the provision contains the appropriate
subsections of Sec. 122.26(d) and whether the process as set forth
creates an incentive to use this alternative for permit coverage.
In today's notice, EPA is proposing certain minimum control
measures for all NPDES permits issued to regulated small municipal
separate storm sewer systems, with the exception of joint co-
permittees, as noted previously, to ensure equity and consistency among
owners or operators. Any NPDES permit issued under this program would,
at a minimum, require the owner or operator to develop, implement, and
enforce a storm water management program designed to reduce the
discharge of pollutants from a regulated system to the maximum extent
practicable (MEP) and protect water quality (see MEP discussion in the
following section). Narrative effluent limitations requiring
implementation of BMPs would generally be considered the most
appropriate form of effluent limitations when designed to satisfy
technology requirements, including reductions of pollutants to the
maximum extent practicable, and water quality-based requirements of the
CWA. Examples of narrative effluent limitations include no floatables
in storm water discharges and no visible sheen on waterbodies.
In the first two to three rounds of permit issuance, EPA envisions
that implementation of the minimum measures and BMP-based program would
be the extent of the storm water permit requirements for the large
majority of regulated small municipal separate storm sewer systems. EPA
assumes that a regulated small municipal separate storm sewer system
implementing BMPs to satisfy the six minimum control measures would
meet applicable water quality standards, because, though uncontrolled
urban storm water continues to present a significant water quality
problem, the six measures represent a significant level of control if
properly implemented. EPA believes that the implementation of any
controls, but particularly the six minimum measures identified in
today's proposal, should significantly reduce pollutants in urban storm
water compared to existing levels. If after implementing the six
minimum control measures there is still a water quality problem
associated with discharges from the municipal separate storm sewer
system, the municipality would 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 would take two to
three permit terms. During this time, EPA would revisit the regulations
for the municipal storm water program. If additional specific measures
to protect water quality were imposed, they would likely be the result
of an assessment based on TMDLs, or the equivalent of TMDLs, where the
proper allocations would be made to all contributing sources. EPA
believes that the municipality'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 assume wasteload reductions.
Narrative effluent limitations requiring implementation of 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 water quality-based
requirements of the Clean Water Act. See Section II.L, Water Quality
Issues, for further discussion of this approach to permitting,
consistent with EPA's interim permitting guidance.
The municipal caucus was concerned that a requirement to meet water
quality standards would be interpreted by a permitting authority as a
requirement to include water quality-based numeric limitations in
municipal storm water permits. Municipal representatives believe that
in many cases it would not be possible to develop a storm water program
that would result in the attainment of numeric limitations, except at
considerable cost. Today's proposal addresses this concern, as
discussed above.
As part of this program, the owner or operator would be required to
identify and submit to the NPDES permitting authority, either in an NOI
to be covered under a general permit or in an individual permit
application, the BMPs to be implemented and the measurable goals for
each of the minimum control measures discussed in Section II.H.3.a.,
Program Requirements--Minimum Control Measures.
The term ``measurable goals'' is derived from negotiations among
FACA representatives. Section 402(p)(6) of the CWA states that the
program to regulate additional storm water discharges may include
performance standards, guidelines, guidance, and management practices
as appropriate. Discussions among FACA representatives resulted in the
use of the term ``measurable goals.'' On the one hand, environmental
representatives wanted to include performance standards as conditions
of NPDES permits as a means of providing for specific, tangible
activities to be undertaken within the municipal storm water management
program. On the other hand, municipal representatives opposed the
inclusion of performance standards, asserting that they were counter
productive because they could encourage an owner or operator of a
municipal separate storm sewer system to avoid risks associated with
setting any standard that it felt it could not achieve with certainty.
Out of this discussion, a compromise was reached in the use of the term
``measurable goals'' and the process embodied in the proposed rule.
This process sets the issuance of a menu of regionally-appropriate BMPs
as the conditions precedent to ``measurable goals'' becoming permit
conditions. Some storm water management plans developed to meet
requirements of the existing storm water program include provisions
similar to the concept of ``measurable goals'' proposed today.
Specifically, some municipal storm water management plans include, for
example, inspection of or cleaning of a fixed number of storm drain
inlets per year and a survey of all municipal right-of-ways to identify
illicit connections to the municipal separate storm sewer system.
Currently, existing permit application regulations for municipal
separate storm sewer systems require identification and implementation
of BMPS and not necessarily measurable goals, much less performance
standards.
Qualifying State, Tribal, or local programs that meet the
requirements of one or more of the minimum control measures could be
incorporated by
[[Page 1574]]
reference into the NPDES municipal separate storm sewer system general
permit. For more information regarding the general permit NOI or
individual permit application, see Section II.H.3.b., Application
Requirements.
Maximum Extent Practicable
Maximum extent practicable (MEP) is a technology-based control
standard currently used in the existing municipal storm water program
against which permit writers and permittees assess whether or not an
adequate level of control has been proposed in the storm water
management program. The Urban Wet Weather Flows Federal Advisory
Committee recommended to EPA that MEP be applied to all permits issued
to municipal separate storm sewer systems, including those proposed to
be regulated today, to achieve greater cooperation and consistency,
reduce conflicts and confusion, and improve economies of scale in the
efforts of municipalities to manage storm water pollution.
In today's proposal, NPDES permits issued for regulated small
municipal separate storm sewer systems, whether in the form of general
or individual permits, would require the owner or operator to develop,
implement, and enforce a storm water management program designed to
reduce the discharge of pollutants to the maximum extent practicable.
The permittee would be expected to reduce the pollutants to the MEP
through implementation of the following minimum control measures:
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.
Under today's proposed approach, MEP would be determined through a
series of steps associated with identification and implementation of
the minimum control measures. In issuing the general permit, for
example, the NPDES permitting authority would establish requirements
for each of the minimum control measures and require municipalities to
identify the BMPs to be performed and measurable goals to be achieved.
Permittees would then be required to identify the BMPs and associated
measurable goals for addressing each of the minimum control measures in
their NOIs.
Upon receipt of the NOI from a municipality, the NPDES permitting
authority would then have the opportunity to review the NOI to verify
that the identified BMPs and measurable goals would meet the MEP
requirement and, if necessary, could ask the permittee to revise the
mix of BMPs to better reflect the requirement. A similar procedure
could be established for a small municipal separate storm sewer system
that is a co-permittee with a municipal separate storm sewer system
that is already regulated in an individual NPDES permit. This process
would be followed by actual program implementation by the municipality.
Under the proposed approach, implementation of BMPs consistent with
storm water management program requirements at Sec. 122.34 and permit
provisions at Sec. 122.33 would constitute compliance with the standard
of ``reducing pollutants to the maximum extent practicable.''
The pollutant reductions that represent MEP may be different for
each municipality, given the unique storm water concerns that may exist
and the differing possible remedies. Therefore, each permittee would
determine the specific details in each of the six minimum control
measures that represent MEP through an evaluative process. In this
process, permittees and permit writers would evaluate the proposed
storm water management controls to determine whether reduction of
pollutants to the MEP could be achieved with the identified BMPs. EPA
envisions that this evaluative process would consider such factors as
conditions of receiving waters, specific local concerns, and other
aspects included in a comprehensive watershed plan. The FACA Committee
is currently working to identify evaluative MEP criteria. Suggestions
have included: (1) The effectiveness to address the pollutant(s) of
concern, (2) public acceptance, (3) cost, (4) technical feasibility,
and (5) compliance with Federal, State and local laws and regulations.
Prior to permit issuance, EPA plans to develop additional policy
and technical guidance on the process of evaluating MEP for municipal
separate storm sewer system permits based upon the recommendations
received from the FACA Committee. This guidance would be applicable to
both medium and large systems (addressed by existing requirements), as
well as those addressed by today's proposal. It is important to note
that States implementing their own NPDES programs may develop more
stringent requirements than those proposed in today's rule. In any
event, additional elaboration of the MEP determination process is not
necessary prior to issuance of the final rule, because MEP is
determined on a permit-by-permit basis.
a. Program Requirements--Minimum Control Measures
i. Public Education and Outreach on Storm Water Impacts. EPA is
proposing that any NPDES permit issued to regulated small municipal
separate storm sewer systems would require the owner or operator to
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 waterbodies and the
steps to reduce storm water pollution. The State, EPA, environmental
organizations or other public interest or trade organizations could
provide materials, subject to the approval of the owner or operator of
the municipal system. The materials or outreach programs should inform
individuals and households about steps that can be taken to reduce
storm water pollution, such as ensuring proper septic system
maintenance, limiting the use and runoff of garden chemicals to
appropriate amounts, properly disposing of used motor oil or household
hazardous wastes, and becoming involved in local stream restoration
activities. EPA would encourage individuals to participate in
activities coordinated by youth service organizations, conservation
corps, or other citizen groups. Other possible outreach materials could
encourage citizens to participate in the municipal program by
performing such services as roadside litter pickup and storm drain
stenciling or highlight the potential public health risks to children
if exposed to pollution when playing near storm drains. In addition,
some of the materials or outreach programs should be directed toward
targeted groups of commercial, industrial, and institutional entities
likely to have significant storm water impacts to explain their impacts
on storm water pollution (e.g., information to restaurants on the
impact of grease clogging storm drains and to garages on the impacts of
used oil discharges). The owner or operator is encouraged to tailor the
outreach program to address the viewpoints and concerns of all
communities, particularly minority and disadvantaged communities, as
well as children.
EPA believes that as the public gains a greater understanding of
the municipally developed program, the municipality is likely to gain
more support for the program (including funding initiatives). In
addition, compliance with the program would probably be greater if the
public
[[Page 1575]]
understands the personal responsibilities expected of them and others.
Well-informed citizens could even 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. The public outreach provision has been tailored to respond
to specific concerns raised in the course of the FACA process. For
example, municipal representatives advocated the inclusion of language
that would clarify that use of educational materials from outside
groups, such as trade associations and environmental groups, would be
subject to the approval of the municipality. Also, the above-referenced
language addressing environmental justice concerns was in response to
input from Storm Water Phase II FACA Subcommittee members.
Municipalities would be encouraged to enter into partnerships with
their States in fulfilling the public education requirement. It may be
much more cost-effective to utilize a State education program instead
of numerous municipalities developing their own. Municipalities would
also be encouraged to work with other organizations (e.g.,
environmental and nonprofit groups and industry) that might be able to
assist in fulfilling this requirement. Many of these kinds of
organizations already have educational materials, and the groups could
work together to educate the public.
EPA requests comment on the appropriateness of the specified
requirements for public education and outreach.
ii. Public Involvement/Participation. Public involvement is an
integral part of the municipal storm water program. The Agency believes
that the public can provide valuable input and assistance to the
municipality's storm water program. The Agency, therefore, is proposing
that the public play an active role in the development and
implementation of the municipality's storm water management program.
The municipal storm water management program would need to include
a public participation program that complies with applicable State and
local public notice requirements. The public should participate as a
partner in developing, implementing, and reviewing the storm water
management 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. The public participation process should
engage all economic and ethnic groups.
Early and frequent public involvement can shorten implementation
schedules and broaden public support for a program. One challenge
associated with public involvement is addressing conflicting
viewpoints. Another challenge is in engaging the public in the public
meeting and program design process. Nevertheless, EPA strongly believes
that the overall benefits of an aggressive and inclusive program,
including involvement of low-income and minority communities, is an
essential component of a State, Tribal, Federal, and municipal storm
water management program.
Public participation ensures a more successful storm water program
by providing valuable expertise and a conduit to other programs and
governments, which would be of primary importance if the municipal
storm water program is to be implemented on a watershed basis. The
public could act as volunteers in all aspects of the program, thus
saving municipal resources. Another recognized benefit is that members
of the public are less likely to raise legal challenges to a
municipality's storm water program if they have been involved in the
decisionmaking process and program development and, therefore, are
partially responsible for the program themselves. Section II.K.
provides further discussion on public involvement.
EPA requests comment on the appropriateness of the specified
requirements for public involvement/participation.
iii. Illicit Discharge Detection and Elimination. Discharges from
storm water drainage systems often include wastes and wastewater from
non-storm water sources. 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, D.C. 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, permits for large and medium
municipal separate storm sewer systems are to include an effective
prohibition against non-storm water discharges into their storm sewers
(see CWA section 402(p)(3)(B)(ii)). Further, EPA believes that in
implementing municipal storm water management plans under these
permits, large and medium municipalities generally found their illicit
discharge detection and elimination programs to be cost-effective.
In today's proposal, any NPDES permit issued to an owner or
operator of a regulated small municipal separate storm sewer system
would, at a minimum, require that owner or operator to develop and
implement an illicit discharge detection and elimination program.
Inclusion of this measure for municipal storm water programs for
regulated small municipalities would be consistent with the ``effective
prohibition'' requirement for large and medium municipal separate storm
sewer systems. Under such a program, the owner or operator would be
required to demonstrate awareness of the system using maps or other
existing documents. The owner or operator would also be required to
develop (if not already completed) a storm sewer system map (or
equivalent) showing the location of major pipes, outfalls, and
topography. The map should identify areas of concentrated activities
likely to be a source of storm water pollution, if the data already
exist. To ensure the effectiveness of this measure, the owner or
operator would be required to effectively prohibit through ordinance,
order, or similar means (for nongovernmental owners or operators of
municipal separate storm sewer systems), to the extent allowable under
State or Tribal law, illicit discharges into the separate storm sewer
system and implement appropriate enforcement procedures and actions as
needed. This measure would also require the owner or operator to
develop
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and implement a plan to detect and address illicit discharges
(including illegal dumping) to the system. Finally, the measure would
require the owner or operator to inform public employees, businesses,
and the general public of hazards associated with illegal discharges
and improper disposal of waste. These informational actions could
include storm drain stenciling; a program to promote, publicize, and
facilitate public reporting of illicit connections or discharges; and
distribution of 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 seeks comment regarding the prohibition and enforcement
provision for this minimum measure and specifically requests comment
regarding the implications of specifying that the owner or operator
would have to implement the appropriate prohibition and enforcement
procedures ``to the extent allowable under State or Tribal law.''
Concerns have been raised that by qualifying prohibition and
enforcement procedures in this manner, the owner or operator could
altogether ignore this minimum measure where appropriate authority did
not exist. Municipalities have pointed out, however, that they cannot
legally exceed the authority granted them under State law, which varies
considerably from one state to another.
The illicit discharge detection and elimination program would not
necessarily need to address all types of non-storm water discharges. As
with the existing municipal application requirements, the following
categories of non-storm water discharges or flows would only need to be
addressed in the municipal storm water program where such discharges
are identified as significant contributors of pollutants: water line
flushing, landscape irrigation, diverted stream flows, rising ground
waters, uncontaminated ground water infiltration (as defined at 40 CFR
35.2005(20)) to separate storm sewers, 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. The program should
address discharges or flows from fire fighting where such discharges or
flows are identified as significant sources of pollutants.
The existing storm water permit application requirements at
Sec. 122.26(d), contain two sets of application requirements regarding
illicit discharges that EPA does not propose to require of regulated
small municipal separate storm sewer systems. Specifically, EPA does
not propose to require regulated small system owners or operators to
describe procedures to prevent, contain, and respond to spills that
could discharge into the municipal separate storm sewer and controls to
limit infiltration of seepage from municipal sanitary sewers to
municipal separate storm sewer systems where necessary. This is
pursuant to comments received from municipal representatives on the
Storm Water Phase II FACA Subcommittee. EPA anticipates that these
procedures are already effectuated through the implementation of
existing municipal programs, such as emergency response teams and
operation of the wastewater treatment system.
EPA requests comment on the appropriateness of the specified
requirements for illicit discharge detection and elimination.
iv. Construction Site Storm Water Runoff Control. Over a short
period of time, storm water discharges from construction site activity
can contribute more pollutants, including sediment, to a receiving
stream than had been deposited over several decades. Storm water runoff
from construction sites can include pollutants other than sediment,
such as phosphorus and nitrogen from fertilizer, pesticides, petroleum
derivatives, construction chemicals, and solid wastes that may become
mobilized when land surfaces are disturbed. Generally, properly
implemented construction site ordinances are effective in reducing
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 discharges of storm water. Not all construction site
owners or operators properly maintain BMPs. For example, sediment traps
and sediment basins may fill up and silt fencing may break or be
overtopped.
Today's proposed rule would require owners or operators of
regulated small municipal separate storm sewer systems to develop,
implement, and enforce a pollutant control program to reduce pollutants
in storm water runoff from construction activities that result in land
disturbance of 1 or more acres to their municipal separate storm sewer
systems as a part of their storm water management program. The owner or
operator would need to use an ordinance or other regulatory mechanism
that controls erosion and sediment to the maximum extent practicable
and allowable under State, Tribal, or local law. The program also would
need to ensure control of other waste at construction sites that could
adversely impact water quality. This waste could include discarded
building materials, concrete truck washout, and sanitary waste. The
program would need to include, at a minimum, requirements for
construction site owners or operators to implement appropriate BMPs,
such as silt fences, temporary detention ponds and hay bales;
provisions for pre-construction review of site management plans;
procedures for receipt and consideration of information provided by the
public; regular inspections during construction; and penalties to
ensure compliance.
Today's proposal includes the program requirement to establish
procedures for the receipt and consideration of information provided by
the public in response to stakeholder concerns regarding public
involvement and public access to information. This requirement further
reinforces the public participation component of the municipal program
by establishing a formal process for considering and responding to
public inquiries regarding construction activities. Some stakeholders
have expressed concern regarding the proposed site management plan
provision, which would establish requirements for review but not for
approval of such plans. EPA requests comment on expanding this
provision to require both review and approval of construction site
storm water plans. EPA also invites comment on the basic program
components.
In conjunction with these requirements, EPA is also proposing to
add Sec. 122.44(s) which would allow the NPDES permit issued to
regulated construction sites (described under Sec. 122.26(b)(15)(i)) to
incorporate by reference qualifying State, Tribal, or local erosion and
sediment control program requirements. A qualifying State, Tribal, or
local erosion and sediment control program would be one that meets the
requirements of a municipal NPDES separate storm sewer permit or a
program otherwise approved by the NPDES permitting authority for
programs operating outside geographic boundaries of a permitted
municipal separate storm sewer system. The NPDES permitting authority's
approval of such programs would need to assure compliance with the
minimum construction site control program requirements described above.
The permitting authority could also include,
[[Page 1577]]
by reference in a general permit, those State, Tribal, or local
requirements that meet the standard of best available technology (BAT)
for those construction site storm water discharges identified at
Sec. 122.26(b)(14)(x) (i.e., sites disturbing more than 5 acres of
land), including clearing, grading, and excavation activities. As a
result of this provision, such local requirements would, in effect,
provide the construction site erosion and sediment control requirements
of the NPDES permit. Construction site owners and operators would be
subject to only one set of erosion and sediment control requirements,
thereby eliminating duplication. At the same time, noncompliance with
the referenced local requirements would be considered noncompliance
with the NPDES permit and would be federally enforceable.
EPA developed the ``incorporation by reference'' approach, which is
similar to implementation efforts designed by the State of Michigan, to
avoid duplication of effort in the development of regulatory
requirements by different levels of government. Michigan relies on
localities to develop substantive controls for storm water discharges
associated with construction activities on a localized basis. 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.'')
EPA acknowledges that many owners or operators of small municipal
separate storm sewer systems already administer local erosion and
sediment control programs. EPA believes that today's proposed approach
would recognize a municipality's flexibility in developing practical
procedures to control construction site discharges from within its
jurisdiction, while still requiring an NPDES permit to ensure an
appropriate base level of water quality protection. Moreover, the
Agency also believes that there is an appropriate role for the
permitting authority as well as citizens groups in ensuring that
construction site owners/operators comply with the requirements of an
NPDES permit. Finally, EPA contemplates that there would be some permit
provisions, such as requirements for site management plans, that are
not typically required by local erosion and sediment control programs
which would be required as one of the requirements of a construction
general permit. Therefore, the Agency believes that the proposed dual
approach of local controls and NPDES permitting most effectively
ensures implementation of appropriate storm water control measures at
construction sites while minimizing redundant controls. EPA solicits
comment on this ``incorporation by reference'' approach.
Today's proposal for permit requirements for regulated construction
sites (described under Sec. 122.26(b)(15)(i)) would include developing
a storm water pollution prevention plan (SWPPP). However, the current
proposal for the municipal program minimum measure for construction
site storm water control runoff does not contain an equivalent
requirement--leaving a gap between the two areas of the proposal that
address regulation of construction. EPA asks for comment as to the
effect of this potential regulatory gap and whether the municipal
program for construction should be made to include a requirement for
developing a SWPPP. Specifically, EPA asks for comment on the effect
this may have on the applicability of the provision allowing for an
NPDES permit to incorporate by reference a qualifying local erosion and
sediment control program. Currently, the proposal defines a local
program as ``qualifying'' if it meets the minimum program requirements
established in Sec. 122.34(b)(4). EPA is concerned as to whether this
raises a potential inequitable regulatory scheme where certain
construction sites would need to be covered under a SWPPP because they
are outside a covered municipality while nearby construction sites
would not need SWPPP coverage because they are within a municipality
that has a construction program that meets Sec. 122.34(b)(4)
requirements. EPA intends to facilitate the broadest application of the
Sec. 122.44(s) provision to avoid duplication of programmatic
requirements and paperwork redundancy and seeks comment on a means to
best achieve this goal.
In discussions with the Storm Water Phase II FACA Subcommittee, EPA
considered structuring the permit requirements for the municipal
construction program around five control principles that were to
underlie the development of eight program elements to be implemented by
the owner or operators of the municipal separate storm sewer system.
The five principles were use of good site planning, minimization of
soil movement, capture of sediment to the greatest degree possible,
good housekeeping practices, and mitigation of the impacts of post-
construction storm water discharges. The eight elements include a
program description; coordination mechanisms with existing programs;
requirements for nonstructural and structural BMPs; priorities for site
inspections; educational and training measures; exemption of some
construction activities due to limited impact; incentives, awards, or
streamlining mechanisms available to developers; and description of
staff and resources. Under this approach, any local program that
incorporated these principles and elements into its storm water program
would have been considered a ``qualifying'' local program that met
Federal requirements. The elements suggested were modified from current
requirements found at 40 CFR 122.26(d)(2)(iv)(D).
After in-depth discussion with all stakeholders, many of these
elements were considered to be more appropriate as guidance than as
regulatory requirements for small municipal systems. Some stakeholders
expressed concerns about the applicability and interpretation of the
five control principles and eight program elements on a national level,
specifically that a single, national specification would be unworkable.
Therefore, EPA is proposing regulatory text intended to build on the
fundamental aspects of the existing NPDES program for municipal storm
water, while streamlining and improving certain aspects of the program
applicable to owners or operators of regulated small municipal separate
storm sewer systems.
EPA requests comment on the appropriateness of the specified
requirements for construction site control.
v. Post-Construction Storm Water Management in New Development and
Redevelopment. The Nationwide Urban Runoff Program 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 the
discharge of pollutants after the discharge enters a storm sewer system
is often more expensive and less efficient than preventing or reducing
the discharge of pollutants at the source.
[[Page 1578]]
Increased human activity associated with development often results in
increased discharges of pollutants. In addition, sediment and debris
transport and deposition can directly impair aquatic life. If the
involved parties consider water quality impacts from the beginning
stages of projects, new development and possibly redevelopment allow
opportunities for more water quality sensitive projects. 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 local
governments 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, EPA is proposing that owners or operators of
regulated small municipal separate storm sewer systems develop,
implement, and enforce a program that includes a plan to address storm
water runoff from new development and redevelopment projects to their
municipal separate storm sewer systems using site-appropriate and cost-
effective structural and non-structural BMPs, as appropriate. The
program would need to ensure that controls are in place that would
prevent or minimize water quality impacts. The program should ensure
adequate long-term operation and maintenance of BMPs. EPA would address
questions regarding responsibility for long-term BMP operation and
maintenance in guidance materials. 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 intends to provide guidance to owners or operators of municipal
systems and permitting authorities on appropriate planning
considerations, structural and non-structural controls, and post-
construction operation and maintenance of BMPs. Guidance materials
would also address questions regarding responsibility for long-term
operation and maintenance of storm water controls. EPA also intends to
present a broad menu of options as guidance allowing for flexibility to
accommodate local conditions. EPA proposes to recommend that
municipalities establish requirements for the use of cost-effective
BMPs that minimize water quality impacts and attempt to maintain pre-
development runoff conditions. In other words, post-development
conditions should not be different from pre-development conditions in a
way that adversely affects water quality. The municipal program should
include structural and/or non-structural BMPs. EPA encourages locally-
based watershed planning and the use of preventative measures,
including non-structural BMPs, which are generally lower in cost than
structural BMPs, to minimize water quality impacts. Non-structural BMPs
are preventative actions that involve management and source controls.
Examples of non-structural BMPs include policies and ordinances that
result in protection of natural resources and prevention of runoff.
These include requirements to limit growth to identified areas, protect
sensitive areas such as wetlands and riparian areas, minimize
imperviousness, maintain open space, and minimize disturbance of soils
and vegetation.
Examples of structural BMPs include storage practices (wet ponds
and extended-detention outlet structures), filtration practices
(grassed swales, sand filters and filter strips), and infiltration
practices (infiltration basins, infiltration trenches, and porous
pavement). System owners or 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. Since storm
water technologies are constantly being improved, EPA recommends that
municipal requirements be responsive to these changes.
EPA requests comment on the appropriateness of the specified
requirements for post-construction storm water management in new
development and redevelopment.
vi. Pollution Prevention/Good Housekeeping for Municipal
Operations. In today's proposal, any NPDES permit issued to an owner or
operator of a regulated small municipal separate storm sewer system
must, at a minimum, require the owner or operator to develop and
implement a cost-effective operation and maintenance/training program
with the ultimate goal of preventing or reducing pollutant runoff from
municipal operations. EPA would encourage the owner or operator to
consider the following in developing such a program: (1) Maintenance
activities, maintenance schedules, and long-term inspection procedures
for structural and other storm water controls to reduce floatables and
other pollutants discharged from the separate storm sewers; (2)
controls for reducing or eliminating the discharge of pollutants from
streets, roads, highways, municipal parking lots, maintenance and
storage yards, and waste transfer stations--including programs that
promote recycling and pesticide use minimization; (3) procedures for
the proper disposal of waste removed from the separate storm sewer
systems and areas listed above in (2), including dredge spoil,
accumulated sediments, floatables, and other debris; and (4) ways to
ensure that new flood management projects assess the impacts on water
quality and examine existing projects for incorporation of additional
water quality protection devices or practices. In general, the
requirement to develop and implement an operation and maintenance
program, including local government employee training, is meant to
ensure that municipal activities are performed in the most appropriate
way to minimize contamination of storm water discharges, rather than
requiring the municipality to undertake new activities.
Proper operation and maintenance of the municipal separate storm
sewer system and the storm water pollution control structures is
essential to the success of the management program overall. The
effective performance of this program measure would hinge on the proper
maintenance of the BMPs utilized. Without proper maintenance, BMP
performance declines significantly over time, with rates of decline
varying by BMP type and site conditions. 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 activities to restore the
integrity of infiltration control BMPs such as replacing upper levels
of gravel; dredging of detention ponds; and repair of outlet structure
integrity. Non-structural BMPs could also require maintenance over
time. For example, educational materials might need to be updated
periodically.
EPA intends that controls for discharges from maintenance and
storage yards listed above include controls for discharges from salt/
sand storage locations and snow disposal areas operated by the
municipality. EPA encourages coordination with flood control managers
for the purpose of identifying and addressing the environmental impacts
of existing and proposed flood management activities.
[[Page 1579]]
Using existing storm water pollution prevention training materials
that could be available from the NPDES authorities or from other
organizations whose materials are approved by the local government, the
program would need to include local government employee training
addressing these prevention measures in government operations (such as
park, golf course and open space maintenance; fleet maintenance;
planning, building oversight and storm water system maintenance). In
developing this minimum program element, the Agency sought to identify
existing practices and training as a means to avoid duplication of
efforts and reduce overall costs. EPA also sought to emphasize those
practices or programs designed and undertaken by municipalities to
address non-storm water problems but also that have storm water
pollution prevention benefits. In addition, EPA designed this municipal
program measure intending to create a streamlined version of the permit
application requirements for medium and large municipal separate storm
sewer systems described at 40 CFR 122.26(d)(2)(iv). The streamlined
approach is intended to provide more flexibility for these smaller
municipalities. Today's proposed requirements provide for a consistent
approach to control pollutants from operation and maintenance among
medium, large, and regulated small municipal separate storm sewer
systems.
By implementing a cost-effective operation and maintenance program,
the municipal storm system owner or operator would serve as a model for
the regulated community. Furthermore, the establishment of a long-term
training and maintenance program could result in cost savings for the
owner or operator by minimizing possible damage to the system from
floatables and other debris and, consequently, reducing the need for
repairs.
The proposed minimum measure, which originated with members of the
Storm Water Phase II FACA Subcommittee, is similar to the requirements
of the existing storm water program. EPA requests comment on the
appropriateness of the specified requirements for pollution prevention/
good housekeeping for municipal operations.
vii. Satisfaction of Minimum Measure Obligations. Today's proposal
would allow regulated small system owners or operators to satisfy their
NPDES permit obligations for a minimum control measure by having
another governmental or other entity perform the measure under the
following circumstances: The other entity is implementing the control
measure; the particular control measure (or component thereof) is at
least as stringent as the corresponding NPDES permit requirements; and
the owner or operator has requested, and the other entity has agreed to
accept responsibility for, implementation of a particular control
measure (or measures) on behalf of, and to satisfy, the owner or
operator's municipal permit obligations. The owner or operator would
need to specify in the Sec. 122.34(f)(3) reports submitted to the NPDES
permitting authority when the owner or operator relies on another
person to satisfy the permit obligations. The owner or operator would
remain responsible for compliance with the permit obligations if the
entity fails to implement the control measure (or component thereof).
Therefore, EPA would encourage the owner or operator to enter into a
legally binding agreement with that entity to minimize any uncertainty
regarding compliance with the NPDES permit.
In addition to the permittee-coordinated arrangement, today's
proposal also includes a provision that would allow the NPDES
permitting authority to recognize existing responsibilities among
governmental entities for the control measures in an NPDES permit. For
example, a State may have an existing erosion and sediment control
program that adequately addresses construction site discharges to
regulated small municipal separate storm sewer systems. The NPDES
permitting authority in that State could draft the NPDES permit
conditions such that the State is responsible for the construction site
storm water discharge control minimum measure. Assuming that no other
existing programs meet the requirements of the other minimum control
measures, the municipality would be responsible for implementing those
remaining minimum measures. Where the NPDES permitting authority
recognizes existing responsibilities for one or more of the minimum
control measures in an NPDES permit, these responsibilities would be
waived from a regulated small system's storm water management plan and
would remain waived as long as the other governmental entity implements
the measure consistent with the proposed municipal program permit
requirements at Sec. 122.34(b). When the NPDES permitting authority
recognizes an existing responsibility in an NPDES permit, the permittee
would not be obligated to notify the other governmental entity about
the arrangement. Instead, EPA anticipates it would be the
responsibility of the NPDES permitting authority to do so.
b. Application Requirements, Including Notice of Intent
As part of the municipal program, the owner or operator of a
regulated small municipal separate storm sewer system would be required
to identify and submit to the NPDES permitting authority, either in a
notice of intent (NOI) to be covered under a general permit or in an
individual permit application, the BMPs that the owner or operator
would implement and the measurable goals for the minimum control
measures discussed previously. In reviewing NOIs submitted by the
owners or operators of municipal systems, the NPDES permitting
authority would need to pay particular attention to the BMPs and
measurable goals identified for municipal separate storm sewer systems
that are located in impaired watersheds. Where specific measurable
goals to satisfy minimum control measures in paragraphs (b)(3) through
(b)(6) of Sec. 122.34 (illicit discharges detection and elimination,
construction site storm water runoff control, post-construction storm
water management in new development and redevelopment, pollution
prevention/good housekeeping for municipal operations) are identified
in an NOI, these goals would not constitute a condition of the NPDES
permit, unless EPA or the State has provided or issued a menu of
regionally appropriate, field-tested BMPs that it believes to be cost-
effective. EPA has limited this provision to only four of the minimum
control measures because the Agency does not believe that
municipalities need the kind of technical assistance in developing
measurable goals for public education and outreach or public
involvement that might be essential in determining measurable goals for
the other four minimum control measures. Measurable goals for the two
minimum control measures of public education and outreach and public
involvement would be required and would be enforceable permit
conditions even without the issuance of the menu of BMPs. In the
general permit NOI or individual permit application, the owner or
operator would also be required to identify the month and year in which
the owner or operator would start and would aim to complete each of the
minimum control measures or indicate the frequency of the action.
The NPDES permitting authority would specify a time period (of up
to five years) for the owner or operator to
[[Page 1580]]
fully develop and implement the program. The owner or operator would
also be required to identify in the general permit NOI or individual
permit application the person or persons responsible for implementing
or coordinating the municipal storm water program. EPA intends to
provide guidance on the development of BMPs and measurable goals. EPA
would later modify, update, and supplement this guidance based on the
assessments of the municipal storm water program and research conducted
over the next 13 years.
EPA seeks comment on certain permit application provisions
identified in today's proposed rule. First, EPA seeks comment on the
potential implications of linking the enforceability of measurable
goals identified in an NOI to EPA/State issuance of a menu of
regionally appropriate BMPs. EPA also requests comment on the procedure
for issuing a regionally appropriate menu of BMPs. For example, the
menu could be developed and published concurrently with the general
permit or prior to or after issuance of the general permit.
Furthermore, commenters have raised concerns that if measurable goals
become enforceable permit conditions without a menu of BMPs first being
issued, the owner or operator of the municipal system would only
propose easily attainable goals that might not achieve higher levels of
water quality protection. Conversely, municipalities are concerned that
measurable goals not become enforceable permit requirements until the
permitting authority determines that they are, in fact, achievable
through the use of cost-effective BMPs. EPA seeks comment on these
concerns. Finally, EPA seeks 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 need to facilitate computer tracking.
c. Evaluation and Assessment
Under today's approach, owners or operators would be 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 owner or operator is
meeting the requirements of the minimum control measures identified in
today's proposal. The NPDES permitting authority would be responsible
for determining whether any monitoring needs to be conducted and could
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 municipal storm sewer
systems. 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, increased flooding frequency, and fish
assemblage. (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 would be
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 would take advantage of existing monitoring
programs undertaken by a variety of governmental and nongovernmental
entities. Many States may already have a monitoring program in effect
on a watershed basis. The ITFM report is included in the docket for
this proposal (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 would have a role in
supporting group monitoring activities--including federal agencies,
State agencies, the public, and various classes or categories of point
source dischargers. It is possible that some regulated small municipal
separate storm sewer systems would need to contribute to such
monitoring efforts. EPA expects, however, that their participation in
monitoring activities would be relatively limited. For purposes of
today's proposal, EPA recommends that, in general, small municipalities
not be required to conduct in the first permit term any additional
monitoring beyond any they 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 municipal separate storm sewer systems. EPA expects
that such monitoring would only be done in several discrete locations
for relatively few pollutants of concern. EPA does not anticipate
``end-of-pipe'' monitoring requirements for regulated small municipal
separate storm sewer systems. EPA seeks comment on this approach,
particularly from the perspective of dischargers other than small
municipalities, on the sharing of responsibility for the support of
monitoring activities.
i. Recordkeeping. The NPDES permitting authority would be required
to include at least the minimum appropriate recordkeeping conditions in
each permit. Additionally, the NPDES permitting authority could specify
that permittees develop, maintain, and/or submit other records to
determine compliance with permit conditions. The owner or operator
would need to keep these records for at least 3 years but would not be
required to submit records to the NPDES permitting authority unless
specifically directed to do so. The owner or operator would be required
to 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 owner or
operator would also be able to assess a reasonable charge for copying
and to establish advance notice requirements, not to exceed 2 business
days, for members of the public.
ii. Reporting. Under today's proposal, the owner or operator of a
regulated small municipal separate storm sewer system would be required
to submit annual reports to the NPDES permitting authority for the
first permit term. For subsequent permit terms, the owner or operator
would need to submit reports in years 2 and 4 unless the NPDES
permitting authority required more frequent reports. EPA determined
that annual reports would be needed during the first 5-year permit term
to help permitting authorities in track and assess the development of
municipal programs, which should be well
[[Page 1581]]
established by the end of the initial term. Information contained in
these reports could be used to respond to public inquiries.
The report would need to 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 or goals that apply to the program
elements.
The NPDES permitting authority would be encouraged to use a brief
(e.g., two-page) reporting format to facilitate compiling and analyzing
the data from submitted reports. The permitting authority would use the
reports in evaluating compliance with permit conditions and, where
necessary, would modify the permit conditions to address changed
conditions. EPA requests comment on the appropriate content of the
reports and the timing of the submittal.
iii. Permit-As-A-Shield. Section 122.36 describes the NPDES
``permit-as-a-shield'' coverage offered by section 402(k) of the CWA.
Section 402(k) provides that compliance with an NPDES permit would be
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, issued on July 1, 1994, and
revised by EPA's policy memorandum on the same subject issued on April
11,1995, provides additional information on this matter.
d. Other Applicable NPDES Requirements
Any NPDES permit issued to an owner or operator of a regulated
small municipal separate storm sewer system would also need to include
other applicable NPDES permit requirements and standard conditions,
specifically those requirements and conditions at 40 CFR 122.41 through
122.49 (EPA recognizes that reporting requirements for regulated small
municipal separate storm sewer systems would be governed by proposed
Sec. 122.34 and not the existing requirements for medium and large
municipal separate storm sewer systems 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 Standards,
provides more information. Members of the municipal caucus expressed
considerable concern that imposing these conditions would, in effect,
undermine the intent of the program developed in consultation with the
Storm Water Phase II FACA Subcommittee--to develop a program with a
simplified set of permit requirements based on the implementation of
BMPs. EPA does not believe that this is a concern. 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 would be met by the specific approach outlined in today's
proposal for the implementation of BMPs as the most appropriate form of
effluent limitations to satisfy technology requirements and water
quality-based requirements (see the introduction to Section II.H.3,
Municipal Permit Requirements, Section II.H.3.g, Reevaluation of Rule,
and the discussion of the Interim Permitting Policy in Section
II.L.1.a. below).
e. 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 appropriate State or local law. Compliance with a
permit issued pursuant to section 402 of the Clean Water Act would be
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).
f. Deadlines
Under Sec. 122.32(a)(1) of today's proposed rule, which
automatically designates all small municipal separate storm sewers
located in an ``urbanized area,'' owners or operators of regulated
small municipal separate storm sewer systems would need to seek
coverage under an NPDES permit within 3 years and 90 days from the date
of publication of the final rule. Assuming a March 1, 1999, final rule,
the resulting deadline would be May 31, 2002--this allows 90 days after
the issuance of a general permit to submit the NOI. Owners or operators
of regulated small municipal separate storm sewer systems that choose
to be a co-permittee with an adjoining municipality or other
governmental entity with an existing NPDES storm water permit would
need to apply for a modification of that permit by May 31, 2002--
allowing for 90 days as well. EPA recognizes that the use of the
``latest'' Decennial Census by the Bureau of the Census as a basis for
nationwide designation raises an issue regarding applicable deadlines
for municipalities brought into the program due to 2000 Census
calculations. EPA proposes that small municipal separate storm sewer
systems that are automatically designated as of the 2000 Census would
need to seek coverage under an NPDES permit within 3 years and 90 days
from the date of publication of the final rule. Since the official
Bureau of the Census urbanized area calculation for the 2000 Census is
expected to be published by August 2001, this proposed deadline would
allow the affected municipalities to have approximately 9 months notice
to prepare for compliance under the applicable permit. EPA invites
comment on this proposed deadline for municipalities affected by the
2000 Census. EPA also seeks comment on the appropriateness of the range
of time allowed for regulated small municipal separate storm sewer
systems to prepare an NOI or permit application, which varies from 3
years and 90 days (if automatically designated by the 1990 Census) to
60 days (if designated by the NPDES permitting authority under proposed
Sec. 122.32(a)(2)), with 9 months in between (if automatically
designated by the 2000 Census).
As stated above, owners or operators of regulated small municipal
separate storm sewer systems designated by the NPDES permitting
authority on a local basis under Sec. 122.32(a)(2) would need to seek
coverage under an NPDES permit within 60 days of notice, unless the
NPDES permitting authority specifies a later date. EPA seeks comment
specifically on whether 60 days provides adequate time for the
preparation of an NOI or permit application or if a 90 day time period
would be more appropriate.
g. Reevaluation of Rule
The municipal caucus of the Storm Water Phase II FACA Subcommittee
asked EPA to demonstrate its commitment to revisit today's proposed
rule as it applies to municipal separate
[[Page 1582]]
storm sewer systems and make changes where necessary after evaluating
the storm water program and researching the effectiveness of municipal
BMPs. Today, EPA is proposing Sec. 122.37 to commit the Agency to
revisit the regulations for the municipal storm water program, at
Secs. 122.32 through 122.26 and 123.35, after completion of the first
two permit terms. The Agency 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, during this time would be critical to EPA's
storm water program evaluation. The Agency does not intend to change
today's proposed 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, the Agency might also consider changes from consensus-based
stakeholder requests for newly regulated municipal systems. EPA would
apply the August 1, 1996, Interim Permitting Approach to today's
proposed program during this interim period and would encourage all
permitting authorities to use this approach in storm water permits for
newly regulated municipal systems and in determining municipal
requirements under a TMDL approach. After careful consideration of the
data, EPA would make modifications as necessary. EPA is seeking comment
on the proposal to re-evaluate the rule after 13 years from the date of
publication of the final rule (i.e., following the completion of the
first two permit terms).
In addition, proposed Sec. 122.37 states that EPA strongly
recommends that no additional requirements beyond the minimum control
measures be imposed on regulated municipal separate storm water systems
without the agreement of the affected municipal separate storm water
system, except where adequate information exists in approved TMDLs or
equivalents of TMDLs to develop more specific measures to protect water
quality or until EPA's comprehensive evaluation is completed. The
wasteload allocations that form part of approved TMDLs or equivalents
of TMDLs would constitute ``adequate information to develop more
specific conditions or limitations to meet water quality standards.''
EPA regulations at 40 CFR 122.44(d)(1)(vii) currently require that
effluent limits in NPDES permits be consistent with assumptions and
requirements of any available wasteload allocations for the discharge
contained in EPA-approved TMDLs. Consequently, where wasteload
allocations have been established for a municipal storm water source in
approved TMDLs, the permit would need to include terms and conditions
consistent with the assumptions and requirements of the wasteload
allocations. These terms and conditions might include non-numeric
requirements, such as implementation of BMPs coupled with some means to
monitor effectiveness, if they are consistent with the assumptions and
requirements of the conditions of the wasteload allocations.
I. Other Designated Storm Water Discharges
1. Background
Under section 402(p)(6), EPA is proposing to regulate categories of
storm water discharges in addition to the municipal separate storm
sewer systems described earlier. The proposal would designate certain
construction activities for regulation as ``storm water discharges
associated with other activity.'' Specifically, such discharges would
include storm water discharges from construction sites disturbing equal
to or greater than 1 acre and less than 5 acres, unless the NPDES
permitting authority waives the application requirements.
Today's action also would maintain the existing application
deadline from the August 7, 1995, rule for municipally owned or
operated sources of industrial storm water exempted from the October 1,
1994, compliance deadline by the Intermodal Surface Transportation and
Efficiency Act of 1991 (and the Water Resources Development Act of
1992). The proposed regulation, including application deadlines, for
each of these classes is further explained below.
2. Construction
Today's proposal to regulate certain storm water discharges from
construction sites 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
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 exemption to EPA for further proceedings (966
F.2d at 1310). 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.
EPA responded to the 9th Circuit's request for further proceedings
by consulting with the Storm Water Phase II FACA Subcommittee regarding
possible approaches for addressing the remanded provision. Although the
Subcommittee was not able to reach consensus on any of the issues
relating to the construction remand, Subcommittee members provided
considerable feedback concerning a variety of possible approaches.
Today's proposal represents the Agency's effort to balance the concerns
raised by various subcommittee representatives. This proposal would
designate discharges from construction activities that disturb between
1 and 5 acres as ``discharges associated with other activity'' under
section 402(p)(6), rather than as ``discharges associated with
industrial activity'' under 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 proposing to rely on a size threshold in tandem
with provisions that allow for designations and waivers based on
potential for ``predicted water quality impairments'' to regulate such
construction sites under section 402(p)(6) for the sake of simplicity
and certainty and, most importantly, to protect water quality
consistent with the mandate of section 402(p)(6). The proposal would
include extended application deadlines for this new category of
dischargers under the authority of section 402(p)(6) (see *
122.26(e)(1)(iii)). The proposed designation would also be consistent
with EPA's earlier proposal to regulate this category of discharges as
``discharges associated with industrial activity'' (55 FR 48035-36).
Today's proposal would designate storm water discharges from
certain construction sites under 5 acres for regulation based on the
authorities of section 402(p)(6) because such sources should be
regulated to protect water quality. Section I.A.1., under Construction
Site Runoff, provides a detailed discussion of water quality
[[Page 1583]]
impacts resulting from construction site storm water runoff. Under
section 402(p)(6), such designation also carries with it ``expeditious
deadlines,'' which are important to ensure a nationally consistent
timeperiod for the development and implementation of a program to
regulate these sources. EPA invites comment on how the Agency should
codify this proposed designation, as well as the statutory basis upon
which EPA should rely for regulation of storm water discharges from
construction sites less than 5 acres.
The proposed regulatory changes for storm water construction
activities are not proposed in the same ``question and answer'' format
as the other regulations proposed because ``storm water discharges
associated with other activity'' would be included as a new category of
dischargers in the NPDES regulations for storm water.
a. Scope
The definition of ``storm water discharges associated with other
activity'' would include construction activities, including clearing,
grading, and excavating activities, that result in the disturbance of
equal to or greater than 1 acre and less than 5 acres (see new language
at Sec. 122.26(b)(15)). Such activities might include road building;
construction of residential houses, office buildings, or industrial
buildings; or demolition activity. Sites disturbing less than 1 acre
would be included if they were part of a ``larger common plan of
development or sale'' with a planned disturbance of equal to or greater
than 1 and 5 acres. A ``larger common plan of development or sale''
would mean a contiguous area where multiple separate and distinct
construction activities might be occurring 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)(A)). Such sites would be
required to seek coverage under an NPDES permit regardless of the
number of lots in the larger plan because designation for permit
coverage would be based on the total amount of disturbed land area.
This proposed designation attempts to address the potential cumulative
effects of numerous construction activities concentrated in a given
area. These requirements would not apply to agricultural or
silvicultural activities, which are exempt from NPDES permit
requirements under 40 CFR 122.3.
Although all construction sites less than 5 acres could have a
significant water quality impact cumulatively, EPA today is proposing
to require that only construction sites that disturb land equal to or
greater than 1 acre seek coverage under an NPDES permit. Categorical
regulation of construction below this 1-acre threshold would overwhelm
the resources of permitting authorities. The NPDES permitting authority
could, however, designate for regulation those construction activities
that disturb below 1 acre of land if a watershed or other local
assessment indicated the need to do so. Furthermore, the permitting
authority could designate any other construction activity ``based on
the potential for adverse impact on water quality or for significant
contribution of pollutants'' (see new Sec. 122.26(a)(9)(i)(D) and
Sec. 122.26(b)(15)(i)(B)).
The proposed 1-acre threshold is based on a balanced consideration
of recommendations from numerous stakeholders participating in the
Storm Water Phase II FACA Subcommittee process. In today's proposed
rule, EPA is attempting to regulate additional construction sites to
better protect the nation's waters, while remaining sensitive to a
concern that the Agency not regulate construction sites that might not
have adverse water quality impacts. EPA believes that today's proposal
would successfully accomplish this objective by coupling a 1-acre
threshold that includes waiver options for sites that have been
determined not to impact water quality with the provision that allows
the designation authority to include sites below 1 acre that do impact
water quality. Specifically, construction activity equal to or greater
than 1 acre and less than 5 acres would be automatically designated
except in those circumstances where owner or operator certifies that
any of three specific waiver circumstances (described below) would
apply. As mentioned previously, construction activity that disturbs
less than 1 acre would not be automatically designated, but the NPDES
permitting authority could designate such areas for permitting where
there is reason to believe that impacts to water quality are likely to
occur from activity on these sites. For example, if a trout hatchery
area is located downstream from the proposed less than 1-acre site, the
permitting authority would likely want to control the construction
activity's impact on trout egg survival. EPA believes that coupling
categorical designations with waivers would be necessary to address the
challenge of providing a technical justification for a nationwide size
threshold considering the hydrologic, climatologic, geographic, and
geologic variations nationwide. EPA invites comment regarding this
approach.
EPA also examined alternative size thresholds, including 0.5 acre,
1 acre, and 2 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 construction sites of
differing sizes varies nationwide, depending on the local
climatological, geological, geographical, and hydrological influences.
In the interest of nationwide consistency, EPA does not propose to
allow permitting authorities to set their own size thresholds. By
selecting the 1 acre size threshold coupled with waivers and
designation, EPA sought to make the regulation consistent on a national
basis and to also provide permitting authorities with the opportunity
to further designate those activities causing water quality impairments
regardless of site size. Thus, oversight of discharges from
construction site activities less than 5 acres would be consistent on a
national basis and would ultimately allow local authorities to address
those activities causing water quality impairment regardless of any
cutoff or threshold acreage.
b. Waivers
Under the proposal, NPDES permitting authorities would have the
option of providing a waiver to construction site owners or operators
from permit requirements in three circumstances. The first waiver would
be based on ``low predicted rainfall potential.'' The permitting
authority would determine which times of year, if any, the waiver
opportunity would be available for construction sites based on a table
of R values 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. Copies
may be obtained from USDA-ARS, Southwest Watershed Research Center,
2000 East Allen Road, Tucson, AZ 85719.). These tables summarize
average periodic rainfall data on a geographic basis throughout the
United States. The second waiver would be based on ``low predicted soil
loss.'' Under this waiver, the permittee would apply the Revised
Universal Soil Loss Equation (RUSLE) to determine whether or not the
second waiver would be available. The third waiver would be based on a
consideration of ambient water quality. This waiver would be available
after
[[Page 1584]]
development and implementation of TMDLs for the pollutants of concern
from storm water discharges associated with construction site storm
water runoff. This waiver would also be available after development and
implementation of a TMDL-like allocation process in water bodies that
are not impaired. Note that TMDLs are only required for water bodies
listed under CWA section 303(d).
The first waiver would be time-sensitive and would be dependent on
when during the year a construction activity takes place, how long it
lasts, and the expected rainfall during that time. The waiver is
intended to exempt the requirements for a permit when and where the
permitting authority expects negligible rainfall. EPA anticipates that
this waiver opportunity would respond to concerns about the requirement
for a permit when it does not rain, especially in the arid western
States. Under this waiver provision, the permitting authority could
identify timeperiods when construction activity could be waived from
permitting requirements where the rainfall erosivity factor (``R'' in
the Revised Universal Soil Loss Equation (RUSLE)) is less than two
during the period of construction activity for specific areas of the
State. EPA believes that those areas receiving negligible rainfall
during certain times of the year are unlikely to have storm water
events that would adversely impact receiving streams and, consequently,
BMPs would not be necessary on those smaller sites. This waiver would
be most applicable to the arid regions of the country where the
occurrence of rainfall follows a cyclic pattern--between no rain and
extremely heavy rain. Review of rainfall records for these areas
indicates that there are periods (up to 6 months) during which the
number of events and quantity of rain are low enough that storm water
runoff from small sites is predicted to be minimal. Default conditions
that were included in this examination consisted of slope length (300
feet), slope steepness (3%), soil type (silt), no natural cover
material, and no erosion control practices in place.
The second option for a waiver would be based on ``low predicted
soil loss'' and would be available where application of the RUSLE by
the permittee indicated negligible predicted soil loss. Developed
initially by the USDA as a predictive tool to evaluate the potential
for soil loss from agricultural lands at various times of the year and
on a regional basis, the Universal Soil Loss Equation (USLE) was
identified as a technique which could be useful in predicting
construction site soil losses in the early 1970s (Wischmeir and Meyer,
1973). USLE is a widely used and easily accessible equation which
predicts soil loss from four variables; rainfall erosivity, soil
erodibility, length of slope, and steepness of slope. A refinement of
USLE is reflected in the Revised Universal Soil Loss Equation (RUSLE),
which provides a broader range of data within the individual variable.
Several permitting authorities have recommended the utilization of the
USLE or RUSLE for predicting construction site soil losses in their
guidance documents that support implementation of the existing storm
water program.
Today, EPA is proposing a modified use of the equation for purposes
of predicting soil erosion rates from small construction sites using
the RUSLE. The equation comprises the variables rainfall erosivity (R),
soil erodibility (K), slope length (L), slope steepness (S), cover-
management factor (C), and the support practice factor (P). The
equation is:
A-RKLSCP
where A is the average soil erosion rate in tons per acre per year.
This waiver provision would be applicable on a case-by-case basis where
the annual soil loss rate for the period of construction for a site
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
equation, assuming the constants of no ground cover and no runoff
controls in place. For the purposes of today's proposal, RUSLE would be
used to predict where storm water discharges associated with
construction activity (i.e., soil disturbance through clearing,
grading, and excavating would not be expected to adversely affect water
quality.)
The third waiver would be available where the State (or EPA) has
completed either wasteload allocations that are part of TMDLs that
address the pollutants of concern or a comprehensive watershed plan,
implemented for the water body, in which the equivalents of TMDLs have
been done as part of the watershed plan addressing the pollutants of
concern from construction activities. The permitting authority would
need to reflect relevant components of the comprehensive watershed plan
or TMDLs in NPDES permits. The watershed plan, or TMDLs, would need to
demonstrate with reasonable assurance that load reductions take place
pursuant to CWA section 303(d) and that such discharge does not cause
or have a potential to cause water quality impacts. In determining this
waiver, EPA (if the NPDES permitting authority) might rely on a State's
wasteload allocations that are part of TMDLs or a State's comprehensive
watershed plan in which the equivalents of TMDLs has been done as part
of the watershed plan. To qualify for this waiver option, the owner or
operator would need to certify that the construction activity will take
place, and storm water discharges will occur, within an area covered
either by the TMDLs or comprehensive watershed plan. By using the term
``comprehensive watershed plan,'' EPA recognizes that TMDLs address
``impaired waters'' and that there may be TMDL-like activities on
waters that are not found to be ``impaired.'' It is expected that when
TMDLs are done there may be a determination, in some cases, that
certain classes of sources such as small construction sites would not
have to control their contribution of pollutants of concern to the
waterbody in order for it to be in attainment (i.e., these sources are
not assigned wasteload allocations) and, therefore, implementation of
storm water controls would not be necessary under today's proposed
storm water program.
EPA is continuing to review technical information to determine
whether the waiver thresholds for rainfall erosivity and annual soil
loss are the appropriate thresholds. The agency is also interested in
comment regarding the feasibility of these waiver provisions. For
example, concerns have been raised that application of the second
waiver (case-by-case basis where the annual soil loss rate for the
period of construction for a site would be less than 2 tons/acre/year)
might not sufficiently protect sensitive ecosystems or species. Impacts
from fine sediment could be heightened for coral reef systems or for
extremely oligotrophic systems, such as Lake Tahoe in Nevada or Crater
Lake in Oregon (see the general discussion of construction impacts in
Section I.A.1., Construction Site Runoff). In addition, concerns have
been raised that the second waiver provision would be too complicated
and, thus, misapplied because the variables and assumptions in the
RUSLE would be misinterpreted or misrepresented. EPA encourages the
submission of data and other information that could ensure a waiver
process that is fair and easily applied while providing sufficient
protection for sensitive ecosystems.
Preliminary comments on the proposed waiver provisions also raised
a process issue regarding how a permittee would qualify for a waiver.
Today's proposal includes a certification process whereby the
[[Page 1585]]
permittee would certify to the NPDES permitting authority that it meets
the particular waiver criteria or waiver requirements applicable in a
particular State or watershed (see proposed
Sec. 122.26(b)(15)(i)(A)(1)-(3)). EPA invites comment on such a
certification process and requests comment on any other similar process
that could reduce the waiver processing burden for the NPDES permitting
authority and the permittee while ensuring that waivers are granted
only for those circumstances applicable under one of the three waiver
options.
EPA also seeks comment from permitting authorities on how they
envision the process of implementing waivers for construction activity
based on TMDLs or TMDL-type assessments under watershed plans.
EPA invites comment on concerns that waivers might be improperly
utilized in an effort to provide relief to regulated entities for
reasons unrelated to water quality. In particular, concerns have been
raised that an NPDES permitting authority might redirect resources from
other environmental programs in order to develop a watershed approach
that promotes the issuance of the greatest possible number of waivers.
In addition to waivers, the Agency is also considering possible
approaches for providing incentives for local decisionmaking that would
limit the adverse water quality impact associated with uncontrolled
growth in a watershed. In situations where there are special controls
or incentives (e.g. transferable development rights, traditional
neighborhood development ordinances) in place directing development
toward compact/mixed use development and away from wetlands, open
space, or other protected lands, it may be possible to provide some
relief to small construction sites in areas of less dense development,
provided that the average development densities are very low (e.g.,
less than one unit per 25 acres). In addition, relief from requirements
may also be appropriate where redevelopment construction replaces
existing development and the new development results in a net water
quality benefit. This type of incentive could be a consideration in
development of TMDLs by State or local authorities. Based on a TMDL
that recognizes that the discharges from areas of less development do
not cause or have potential to cause water quality impacts, relief from
small construction site permitting requirements could be granted. EPA
solicits comment on this approach and any other recommendations for the
use of such incentives.
c. Permit Process and Administration
As with any owner or operator of a point source discharge, the
operator of the construction site would be responsible for applying for
the NPDES permit as required by Sec. 122.21(b). The operator of a
construction activity would be 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. If more than one party meets these
criteria, then each party involved would need to be a co-permittee with
any other operators. The operators could be the owner, the developer,
the general contractor, or individual contractors.
As mentioned previously, the Agency has proposed extended
application deadlines for small construction sites at
Sec. 122.26(e)(1)(iii). EPA also considered whether NOIs should be
required of construction sites less than 5 acres. Requiring an NOI
allows for greater accountability by, and tracking of, dischargers. It
allows for better outreach to the regulated community, uses an existing
and familiar mechanism, and is consistent with the existing
requirements for construction activities. EPA recognizes, however, the
paperwork burden for both the regulated community and regulators. The
Agency is proposing not to specify the NOI requirements for NPDES
general permits for storm water at Sec. 122.28 to address the storm
water discharges from construction activities proposed to be regulated
at Sec. 122.26(b)(15). EPA believes that this approach would provide
the NPDES permitting authority with the discretion to decide whether or
not to require NOIs for construction activity less than 5 acres. Thus,
the proposal would increase flexibility for the permitting authority
regarding program implementation. The Agency invites comment on whether
NOI submission should be a requirement for general permits for
construction activity less than 5 acres.
EPA expects that the vast majority of discharges of storm water
associated with other activity identified in Sec. 122.26(b)(15) would
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 sites would be found at Sec. 122.26(c)(1)(ii). Except for
application deadlines and NOIs under general permits, the permit
application requirements would be identical to those applicable to
storm water discharges associated with industrial activity under the
existing NPDES storm water program. EPA proposes to revise Sec. 122.26
accordingly. For any discharges of storm water associated with other
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)
would need to be submitted to the Director by 3 years and 90 days after
issuance of the final rule. All regulated sources would be required to
seek coverage under an NPDES permit regardless of whether they
discharge directly to waters of the United States or through a
municipal separate storm sewer system to waters of the United States.
The Storm Water Phase II FACA Subcommittee also identified issues
regarding linear construction projects (e.g., roads, highways,
pipelines) that cross several jurisdictions. Some Subcommittee members
were concerned about having to comply with multiple sets of
requirements from various jurisdictions, including multiple local
governments and States. Because EPA cannot issue NPDES permits in
States authorized to implement the NPDES program and because EPA cannot
preempt other more stringent local and State requirements, EPA is
limited in its options to address these concerns. EPA believes that the
option for incorporating by reference the local or State requirements
(see discussion in Section II.I.2.d., Cross-Referencing State/Local
Erosion and Sediment Control Programs) would limit the administrative
burden on the operator responsible for discharges from linear
construction projects. The operator could implement the most
comprehensive of the various requirements for the whole project to
avoid differing requirements for different sections of the project. In
addition, EPA notes that discharges of dredged or fill material into
waters of the United States that are regulated under section 404 of the
CWA do not require NPDES permits (40 CFR 122.3(b)).
On a similar note, one comment or requested exemptions for
``routine maintenance'' activities such as repairing potholes, clearing
out drainage ditches, and maintaining fire breaks, because these
activities often involve rights-of-way extending across multiple
regulatory jurisdictions. The commenter suggested that, at most, these
activities by required to adhere to generic best
[[Page 1586]]
management practices. The Agency is interested in comments on how such
an exemption would work, what the criteria for such an exemption would
be, and the appropriate BMPs for such sites.
EPA also invites comment on recordkeeping requirements for today's
proposed rule regarding construction. The NPDES program requires that
the entity submitting the NOI keep its records on file for three years.
Given that some smaller construction activities may last less than a
year, some recommendations suggest that this file retention requirement
be modified or deleted for such sites. EPA invites comment on
appropriate and reasonable recordkeeping requirements.
d. Cross-Referencing State/Local Erosion and Sediment Control Programs
In developing the permit requirements for designated 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. As previously discussed in the
Construction Site Storm Water Runoff Control discussion (see Section
II.H.3.a., Minimum Control Measures), the Agency is proposing to allow
permitting authorities to incorporate by reference the requirements of
qualifying State, Tribal, or local erosion and sediment control
programs. The NPDES permitting authority would, of course, retain the
authority to deny coverage under the general NPDES permit, disapprove
inclusion of alternative requirements in the general permit, and could
require that designated general permit applicants apply for an
individual NPDES permit.
EPA envisions that this incorporation by reference approach would
apply not only to the proposed newly regulated storm water discharges
from construction sites between 1 and 5 acres, but also to discharges
from larger construction sites already covered by the existing storm
water regulations provided the program meets best available technology
(BAT) requirements. Under existing regulations, storm water discharges
``associated with industrial activity'' are subject to the same
technology-based standards as any other discharge under the CWA (except
publicly owned treatment works and municipal separate storm sewer
systems) (see CWA section 402(p)(3)(A)). The Agency invites comment on
whether the imposition of controls designed to satisfy the proposed
Sec. 122.34(b) would assure compliance with CWA section 402(p)(3)(A)
for discharges from construction sites over 5 acres. Note that the
Agency does not intend that incorporation by reference of qualifying
programs would relieve construction site discharges ``associated with
industrial activity'' from the applicable requirements of CWA section
301.
EPA believes that this approach would best balance the need for
consideration of specific local requirements and local implementation
with the need for Federal and citizen oversight, and would extend
supplemental NPDES requirements to construction sites. EPA solicits
comment on this approach.
In a somewhat different context, municipal representatives
recommended that construction activities undertaken by municipalities
be covered by the municipal storm water permit rather than under a
separate, distinct storm water permit for construction activity. The
Agency agrees that this would be a reasonable approach. The Agency
explored several possible ways to make such an approach possible during
the development of today's proposal, and feels that there are some
options that could achieve program objectives. One option would be to
simply relieve municipalities that would be covered under today's
proposal of requirements to submit an NOI for the general permit
covering construction activity. Under this option, municipalities would
still be subject to both types of permit, but would be relieved of the
paperwork associated with filing NOIs. This option might require a
revision to existing 122.28(b)(2)(v). Another option to address this
concern would be to issue individual permits to municipalities seeking
such a ``one-stop shopping'' approach that would include provisions
covering the municipal storm water program and construction activity
conducted by the municipality. Under such an option, municipalities
might need to submit individual permit applications and the NPDES
permitting authority might have to issue many more municipal permits.
Under a third option, the general permit issued to small municipalities
would include municipal storm water program requirements as well as
construction site discharge components. This option would result in the
issuance of a more complex general permit than EPA currently envisions
for small municipalities. This complexity could be minimized, however,
by organizing the general permit into distinct modules, one dealing
with the six minimum measures, one with municipal construction, and
possibly one with municipal industrial facilities (see Section II.I.3,
``Other Sources'' below). Alternatively, municipal general permits
could potentially reference provisions included in construction general
permits. As a practical matter, the controls for municipally-owned or
operated construction would presumably dovetail with the requirements
of the municipal minimum control measure for construction, at least for
sites between 1 and 5 acres (construction less than 5 acres would have
to meet BAT). The Agency seeks further input on these possible
approaches and others that could be considered. Specifically, how would
such an approach work, what would the permit look like, who would be
covered, and what would be the responsibilities of covered
municipalities.
In a similar vein, industrial representatives recommended that
construction activities undertaken by permitted industrial storm water
facilities be covered by the industrial storm water permit. Again, the
Agency agrees with the concept. One option contemplated by the Agency
would be to include in industrial storm water permits requirements for
construction undertaken by permitted industrial facilities. Another
option would be to cross-reference construction general permit
provisions in industrial general permits. The Agency seeks comment on
these possible approaches and others that could be considered.
e. Alternative Approaches
As previously discussed, EPA also examined size thresholds other
than one acre for regulation. Although a range of size thresholds was
mentioned in stakeholder comments, no data were offered to support such
alternatives. The Agency solicits comments that would assist the Agency
in making an informed decision as to an appropriate threshold related
to environmental effect. Alternatively, the Agency also solicits
comment on an approach by which only those construction sites located
within urbanized areas would be automatically subject to permitting
requirements. Under such an alternative, small construction sites
outside urbanized areas would not be required to be covered by an NPDES
permit unless specifically designated by the permitting authority on a
case-by-case basis.
Some stakeholders asked EPA to consider allowing storm water
discharges associated with construction activities between 1 and 5
acres to be regulated solely under municipal storm water programs where
discharges to a municipal separate storm sewer system
[[Page 1587]]
are subject to a permit, rather than requiring construction site
discharges to be subject to both NPDES permit requirements and
municipal program requirements. Under such an approach, construction
sites would only be subject to the requirements and oversight of a
qualifying local program. The Agency has described the ``incorporation
by reference'' approach of today's proposal and the rationale for the
proposed approach elsewhere in this preamble. If EPA adopted this
``qualifying local program'' alternative, construction site operators
in qualifying municipalities would not be subject to the requirements
of an NPDES permit. The Agency solicits comment on this particular
alternative and seeks input specifically on the effectiveness of local
erosion and sediment control programs in the absence of NPDES permits
incorporating such local programs. The Agency also solicits comment on
the appropriate qualifications to establish for municipalities to
qualify under such an alternative.
EPA considered several other alternatives for controlling
construction storm water discharges on sites less than 5 acres,
including state/local implementation only, Federal requirements/
guidelines for local erosion and sediment control programs, and State-
developed requirements. Small entity representatives recommended that
EPA only establish a voluntary program based on EPA guidance, and
perhaps including incentives for small site operators. This would
effectively translate into a program which would not require such sites
to be covered by an NPDES permit unless they were specifically
designated by the permitting authority on a case-by-case basis. One
commenter raised concerns that small site operators may lack the
resources to put together a good site plan, which would likely be
required under the proposed approach. EPA seeks comment on these
alternatives, as well, including comment on how such programs have
worked where they have been in effect.
In evaluating options to administer the storm water control program
for discharges from construction sites, EPA considered an owner or
operator certification program that would have allowed the owner or
operator, or authorized representative, of a construction firm to apply
for coverage once for all the firm's activities in one jurisdiction for
the term of the NPDES permit. Focusing on operators in the
``construction industry'' (regardless of the size of the construction
site) would have more closely paralleled the existing storm water
program for discharges ``associated with industrial activity.'' This
option would have allowed for the coverage of each site by submittal of
one NOI, thereby reducing the paperwork burden substantially without
sacrificing accountability. This option would have applied to all
regulated construction site discharges, regardless of size. Homeowners
who performed construction activities on their own property would have
been exempt from the requirements for a permit under this option. This
option would have focused instead on the construction ``industry.''
This option also would have resulted in a different proposal for
municipal programs to control construction site discharges. Concerns
with this option included issues regarding: identification of the
responsible parties onsite (e.g., whether all parties could reasonably
be held responsible for all permit conditions) and site-by-site
identification of construction discharges for tracking compliance with
permit conditions. Such a change also would have affected operators
discharging storm water from existing, larger regulated construction
sites by restructuring the entire regulatory scheme to focus on the
``industry'' of construction site operators, thus creating significant
confusion among regulated entities and disruption in regulatory
processes. Nonetheless, EPA invites comment on the option to establish
what would amount to an NPDES-based ``licensing'' program for
construction site operators within an NPDES jurisdiction (usually
within State or Tribal boundaries).
Industrial stakeholders recommended that the regulation of
construction site discharges under section 402(p)(6) should distinguish
between ``low intensity'' small construction and ``high intensity''
small construction. While EPA proposes case-by-case waiver
opportunities for small construction discharges (i.e., the second
waiver opportunity for predicted soil loss of less than 2 tons/acre/
year), the industrial commenters recommended that the designation of
small construction site discharges categorically distinguish and exempt
``low intensity'' construction activity from the provisions of the
proposed rule. The commenters recommended that construction activities
include intense levels of clearing, grading and excavating associated
with projects which meet the following criteria: clearing, grading and
excavation activities with a duration in excess of six months; and
construction of single or multiple story office or industrial buildings
with a grade slab in excess of 15,000 square feet; or road building
(does not include construction of wooden roads for access to remote
locations); or construction of a residential home that is part of a
larger common plan of development or sale. Under the industrial
proposal, such ``high intensity'' small construction would be subject
to Federal storm water regulations. The default, ``low intensity''
construction activity would not.
Today's proposal does not incorporate these suggestions because the
Agency believes that regulation of storm water to protect water quality
relates more to the disturbance of land surfaces (i.e., on a two
dimensional, roughly horizontal plane) rather than to the activity or
reason for the land disturbance. EPA proposes to regulate storm water
discharges associated with construction activity from smaller sites,
not the construction activity itself. EPA would consider this option in
the final rule, however, if public comments demonstrate that a ``low
intensity'' exclusion would relate to the intensity of the surface
disturbance. The second waiver opportunity EPA proposes today does
relate to the intensity of surface disturbance, and necessarily
accounts for regional variation. The Agency, therefore, invites comment
on how to define applicability provision to exclude ``low intensity''
surface disturbances associated with construction activity and still
provide a simple, workable regulation that accounts for regional
variability.
EPA believes the approach proposed in this proposal would provide
EPA and the States with a more manageable program than the other
alternatives discussed. The proposed approach should offer flexibility
to State and local governments in managing their storm water programs
with little or no interruption in the consistency of current
environmental management and would assure appropriate tracking and
enforcement mechanisms. EPA requests comment on the appropriateness of
the scope and requirements of this part of today's proposed storm water
program.
3. Other Sources
In the National Water Quality Inventory, 1994 Report to Congress
submitted by EPA pursuant to 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
[[Page 1588]]
of the unregulated storm water discharges. Therefore, EPA is not
proposing to designate any additional unregulated point sources of
storm water on a nationwide, categorical basis. Instead, EPA is
designating a category of sources to 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 to Congress. EPA's efforts to
identify sources and categories of unregulated storm water discharges
for potential designation for regulation under today's proposal 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 Storm Water
Discharges Potentially Addressed by Phase II of the NPDES Storm Water
Program, EPA 833-K-94-002). 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,
which were not classified according to environmental impacts, 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 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., treatment works with a design flow of less than 1
million gallons per day, and 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 to
Congress. 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 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 to Congress). 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. Based on input from the Storm Water Phase II
FACA Subcommittee, 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 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 be contaminated with
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.
Therefore, today's proposal does not propose to designate any
additional industrial or commercial category of sources. Rather,
today's proposal would encourage control of storm water discharges from
Groups A and B through self-initiated, voluntary BMPs, unless the
discharge (or category of discharges) is individually or locally
designated as described in the following section. The necessary data to
support designation could be available on a local, regional, or
watershed basis and would allow the NPDES permitting authority to
designate a category of sources or individual sources on a case-by-case
basis. If sufficient nationwide data become available in the future,
EPA could at that time designate additional categories of industrial or
commercial sources on a national basis.
EPA requests comment on the three-pronged analysis used to assess
the need to designate additional industrial or commercial sources and
invites suggestions regarding watershed-based designation. EPA also
requests information regarding any available
[[Page 1589]]
national or local data on the potential water quality impacts of other
currently unregulated point sources of storm water.
Finally, storm water discharges from facilities exempted by the
Intermodal Surface Transportation and Efficiency Act of 1991
(discharges from industrial activities other than power plants,
airports, and uncontrolled sanitary landfills that are owned or
operated by municipalities of less than 100,000 people) were also
identified as potential sources for designation under today's proposal.
These facilities discharge storm water in the same manner (and are
expected to use identical processes and materials) as the industrial
facilities regulated under the existing regulations. As such, these
facilities would pose similar water quality threats. The extended
moratorium for these facilities was necessary to allow municipalities
additional time to comply with NPDES requirements. EPA proposes to
maintain August 7, 2001, as the NPDES permit application deadline for
such municipally owned or operated facilities discharging industrial
storm water. General permits are available in States where EPA issues
permits and should already be available for such sources in most NPDES-
authorized States. Based on advice and recommendations of small entity
representatives, EPA also invites comment on whether permit
authorization for these discharges could be combined with permit
authorization for other discharges from the municipal separate storm
sewer system.
Municipal representatives recommended to EPA that permit
requirements for municipally-owned or operated industrial facilities be
included in municipal storm water permits (this recommendation could be
extended to cover municipally-owned construction activities, as well).
As such, municipalities would be covered by a single permit, rather
than by two or more separate permits. The Agency agrees with the
recommendation and is considering options to implement it. One option
would be to include relevant industrial storm water controls in the
municipal storm water permits for the types of industrial facilities
typically owned or operated by municipalities. Another option would be
to cross-reference industrial storm water permit requirements in
municipal storm water permits. A third option would be to design an
additional minimum control measure for municipal storm water programs
that would address municipally-owned or operated industrial facilities.
The Agency seeks input on these options and suggestions as to any
additional options. The Agency also seeks comment on any implementation
issues associated with this recommended approach.
4. Residual Designation Authority
The NPDES permitting authority's existing designation authority, as
well as the petition provisions would be retained. The proposed rule
contains two provisions related to designation authority at
Secs. 122.26(a)(9)(i)(C) and (D). Subsection (C) would add designation
authority where storm water controls are needed for the discharge based
upon wasteload allocations that are part of TMDLs that address the
pollutants of concern or upon a comprehensive watershed plan
implemented for the waterbody that includes the equivalents of TMDLs
and addresses the pollutants of concern. EPA intends that the NPDES
permitting authority would have discretion in the matter of
designations based on existing TMDLs under subsection (C) and would
invite comment on the implementation of existing TMDLs as the basis for
designation under today's proposed storm water program. Subsection (D)
would carry forward residual designation authority under Sec. 122.26(g)
of the existing regulations. Under today's proposal, EPA and authorized
States would continue to exercise the authority to designate remaining
unregulated discharges composed entirely of storm water for regulation
on a case-by-case basis (see proposed Secs. 122.26(b)(15) and 123.35).
The standard for designation would be the same as under the existing
NPDES regulations for storm water. Individual sources would be subject
to regulation if EPA or the State, as the case may be, determines that
the storm water discharge 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 402(p). In
today's proposed rule, EPA believes, as Congress did in drafting
section 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. EPA does envision,
however, that preservation of such regulatory authority would be
necessary to subsequently address a source (or sources) of storm water
discharges of concern on a localized or regional basis. As States and
EPA implement TMDLs, for example, permitting authorities might need to
designate some of the point sources of storm water not subject to
regulation on categorical basis nationwide in order to assure progress
toward compliance with water quality standards in the watershed. EPA
intends that the TMDL-based waiver would be available prospectively,
applying to future construction sites. This raises an issue of how this
waiver provision could be applied to such sites.
One of the industrial stakeholders on the Storm Water Phase II FACA
Subcommittee 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 section
402(p)(1) eliminated the significance of the 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
section 402(p)(2)(E). The stakeholder further argued that EPA's
authority to designate sources for regulation under section 402(p)(6)
is limited to storm water discharges other than those described under
section 402(p)(2). Because section 402(p)(2)(E) describes individually
designated discharges, the stakeholder concluded that regulations under
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 may 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 section 402(p)(2)(E).
Under 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 section 402(p)(6) requires designation of a ``category'' of
sources, EPA would 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 NPDES
permitting authority has designated the source for regulation under
section 402(p)(2)(E) to date, then section 402(p)(6) provides EPA with
authority to designate such sources.
The Agency would make this designation of a category of ``not yet
identified'' sources in order to ensure that sources that should be
regulated based on local concerns could be
[[Page 1590]]
regulated even if data does not exist to support nationwide regulation
of such sources. EPA does not believe that the language in section
402(p) should be interpreted to preclude States from exercising
designation authority under this category after promulgation of a final
rule because any such designation (and subsequent regulation of
designated sources) would be within the ``scope'' of the NPDES program.
EPA also believes that sources regulated pursuant to a State
designation would be 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'' would be within the scope of the
Federal program because today's proposal would recognize the need for
such post promulgation designations of unregulated point sources of
storm water. Such regulation would be ``more stringent'' than the
Federal program rather than ``greater in scope of coverage'' (40 CFR
123.1(h)).
In addition, EPA does not interpret the congressional direction in
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 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. The CWA does expressly provide affirmative limitations on the
regulation of certain pollutant sources through the point source
control program in section 502(14), which excludes agricultural storm
water and return flows from irrigated agriculture from the definition
of point source, and section 402(l), which again 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. EPA does not interpret 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 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 requirements.
Finally, EPA evaluated the proposal under which owners or operators
of regulated small, medium, and large municipal separate storm sewer
systems would be responsible for controlling discharges from industrial
and other facilities into their systems in lieu of requiring NPDES
permit coverage for the individual facilities. EPA does not propose
this framework due to concerns with administrative and technical burden
on the municipalities, as well as concerns about such an
intergovernmental mandate. EPA does, however, request comments on this
approach.
J. Conditional Exemption for ``No Exposure'' of Industrial Activities
and Materials to Storm Water
1. Background
As noted previously, the 9th Circuit remanded to EPA for further
rulemaking a portion of the definition of ``storm water discharge
associated with industrial activity'' that exempted the category of
industrial activity identified as ``light industry'' (NRDC v. EPA, 966
F.2d 1292, 1305 [9th Cir. 1992]). In addition to the rulemaking
conducted under section 402(p)(6) on August 7, 1995, today's proposal
also responds to that remand. In the 1990 storm water regulations, EPA
exempted facilities in the category from the requirement for an NPDES
permit if the industrial materials or activities were not ``exposed''
to storm water (see 40 CFR 122.26(b)(14) [introductory text]). The
Agency has 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 (966 F.2d at 1305). 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'' (966 F.2d at 1305). Second, the court concluded that
the exemption impermissibly ``altered the statutory scheme'' for
permitting because the exemption relied on the unverified judgement 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 (966 F.2d at 1305).
Under today's proposal, the Agency responds to both of the bases
for the court's remand. First, the exemption from permitting based on
``no exposure'' applies to all industrial categories listed in the
existing storm water regulations, regardless of the type of industry.
The court's opinion rejected EPA's distinction between light industry
and other industry, but it did not preclude an interpretation that
treats ``non-exposed'' industrial facilities in the same fashion.
Presuming that an industrial facility adequately precludes exposure of
industrial materials and activities to storm water, EPA proposes to
treat 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 would not be required
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, EPA proposes that the permitting exemption be
conditional. The person responsible for a point source discharge from a
``no exposure'' industrial source must meet the conditions of the
exemption and provide a certification pursuant to 40 CFR 122.22 for
tracking and accountability purposes. EPA believes today's proposal,
therefore, is fully consistent with the direction provided by the
court.
A major objective of the FACA Committee at the outset (August
1995), was to streamline and reinvent certain troublesome or
problematic aspects of the existing storm water permitting program. 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
[[Page 1591]]
no risk to storm water contamination. Such dischargers could have no
industrial sources of storm water contamination on the industrial plant
site, yet they are still required to acquire an NPDES storm water
permit and meet all permitting requirements. Examples of such
facilities would be 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.
Committee members advised EPA that the existing storm water program
needed to be revised to allow such facilities to seek an exemption from
the NPDES storm water permitting requirements. Committee members agreed
that such an exemption should also provide a strong incentive for other
industrial facilities that might conduct some industrial activities
outdoors exposed to rainfall and runoff 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
exemption provision could be a valuable incentive for storm water
pollution prevention.
Over approximately 2 years, the Phase I Improvement Work Group of
the FACA Committee developed and recommended to EPA the concept of a
no-exposure incentive provision, which EPA is proposing by making a
change to the existing storm water rules and adding a new storm water
rule provision, including a no-exposure certification process as
discussed below.
EPA relied upon the no-exposure concept developed by the FACA
Committee in developing today's proposal regarding ``no exposure.'' EPA
proposes to incorporate the recommendations of the committee by
deleting the sentence regarding ``no exposure'' for the facilities in
Sec. 122.26(b)(14)(xi) and adding a new section--Sec. 122.26(g)
Conditional Exemption for No Exposure of Industrial Activities to Storm
Water. In accordance with the committee's recommendations, the proposed
no-exposure provision refers to all classes of industrial and other
facilities discharging storm water that would be defined under existing
Sec. 122.26(b)(14), except construction defined under existing
Sec. 122.26(b)(14)(x) and proposed Sec. 122.26(b)(15)(i) and sources
individually designated under Secs. 122.26(a)(1)(v),
122.26(a)(9)(i)(B),(C), & (D) and 122.26(g)(3). Thus, proposed
Sec. 122.26(g) would make all classes of industrial facilities eligible
for exemption from the identification as ``associated with industrial
activity'' under the existing regulations.
Today's proposal represents a significant expansion in the scope of
the no-exposure provision originally promulgated in the 1990 rule for
only light industry. The intent of this proposal is to provide
industrial facilities that are entirely indoors a simplified method of
complying with the CWA. This could include facilities that are located
within a larger 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.
Although the FACA Committee agreed in principle to the basic
concept of this exemption, committee members could not resolve two
significant issues related to the actual implementation of the concept.
The first issue relates to how to account for storm water runoff from
parking lots, roof tops, lawns, and other non-industrial areas of an
industrial facility. These types of storm water discharges, which may
contain pollutants or which may result in excess 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.''
The second issue involves an industrial facility that achieves 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), which results in a significant
increase in storm water volume flowing off the industrial facility and
thus causes adverse receiving water impacts simply due to the increased
quantity of storm water flow. Although discussed extensively, the FACA
Committee was not able to reach a consensus recommendation on how to
fully address these two remaining issues.
From the perspective of the environmental groups on the committee,
excessive storm water flows from an industrial site and pollutants from
non-industrial areas of the site are potentially a significant cause of
receiving water impairment and, as such, should not be allowed to occur
as a result of achieving no exposure and gaining an exemption from an
NPDES storm water permit. Environmental groups believe that storm water
discharges from impervious areas at an industrial facility are
generally more frequent, and many of them larger, than discharges from
the preexisting natural surfaces. These discharges will contain
pollutants typical of commercial areas, streets, 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. The environmental groups
believe that these storm water discharges should be permitted in the
same way that residential and commercial storm water discharges are
permitted and that, otherwise, these discharges--their volume alone
often destructive of aquatic life and habitat, and containing
conventional pollutants as well--would escape the control required
under the CWA.
The industry representatives support streamlining the existing
storm water permitting program by exempting no-exposure facilities.
They believe that creating this exemption, however, does not create in
EPA the authority to regulate other activities not subject to the
existing storm water program. Industry representatives point out that
since 1990, the NPDES storm water permitting program has excluded
administrative buildings, parking lots, and other non-industrial areas
from permitting or other regulatory requirements. The industry
representatives also reserved the right to address the legal authority
provided by Congress to EPA to regulate the amount of storm water
discharged from these areas. Industry representatives 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 exemption.
Municipal representatives believe that EPA has no authority under
any existing legal framework to regulate flow. Developing federal
parameters for the control of flow would result in federal intrusion
into land use planning, an authority that they claim is solely within
the purview of State government and their political subdivisions. Local
governments are aware of the impact that flows have on receiving waters
and, as has been well documented, take the appropriate steps to
ameliorate negative results within the context of locally developed and
agreed upon long-term land use plans. Under no circumstances will local
governments agree to share or cede this authority with or to federal
agencies or departments.
Given the lack of consensus by the FACA Committee on these two
remaining key issues, EPA is soliciting public comment on potential
ways to address these issues, if possible, in the context of the
proposed no-exposure exemption.
In an effort to address the second issue the FACA Committee
recommended that the no-exposure 5-year certification form (discussed
below) should be modified to add an additional question that asks the
facility operator to provide information
[[Page 1592]]
indicating if large amounts of impervious surfaces were created to
qualify for the no-exposure exemption. To respond to the question, a
series of four boxes would be checked by the facility operator
indicating approximately how much impervious area was created, if any,
to achieve no exposure. These boxes would be (1) none, (2) less than 1
acre, (3) 1 to 5 acres, and (4) more than 5 acres. This question would
provide additional information that would help the NPDES permitting
authority determine whether or not an NPDES storm water permit should
be required for the facility.
In order to be covered under the no-exposure provision, EPA
proposes that an owner or operator of an otherwise regulated facility
would need to submit to the NPDES permitting authority the no exposure
form certifying that the facility meets the no-exposure requirements
(see Appendix 4 for the Draft No Exposure Certification Form). This
requirement would apply across all categories of industrial activity
covered by the existing program, except discharges associated with
construction activity, and would include those facilities currently in
Sec. 122.26(b)(14)(xi) (''light industry'') that are not permitted
based upon a claim of ``no exposure.'' The category (xi) ``light''
industrial facilities that claim to have no exposure of materials to
storm water are not required under the existing regulations to submit
any type of form to the permitting authority, but would need to submit
a certification under today's proposal. The facility would need to
allow the NPDES permitting authority or operator of a municipal
separate storm sewer system (where there is a storm water discharge to
the municipal system) to inspect the facility and to make such
inspection reports publicly available, upon request. In addition, based
on committee recommendations, EPA proposes that the certification would
require only minimal amounts of information from the facility claiming
the no-exposure exemption. The NPDES permitting authority would
maintain a simple registration list that should impose minimal
administrative burden, but that would allow for tracking of industrial
facilities claiming the exemption.
EPA envisions the NPDES storm water program to be implemented
primarily through general permits and the no exposure certification to
be submitted at the ``beginning'' of each permit term. However, EPA
invites comment on situations that may affect the timing of submission
of the no exposure certification, for example, in cases where a
facility's process water and storm water are covered under an
individual permit.
2. Definition of ``No Exposure''
For purposes of this section, ``no exposure'' would mean that all
industrial materials or activities are protected by storm resistant
sheltering so that they are not exposed to rain, snow, snowmelt, or
runoff. Industrial materials or activities would refer to those
activities or materials described under Sec. 122.26(b)(14) (e.g.,
material handling equipment, industrial machinery, raw materials,
intermediate products, byproducts, or industrial waste products,
however packaged). Barrels, drums, dumpsters, and other packaging
containing industrial wastes are inherently prone to leak and therefore
could be a source of exposure, thereby precluding the facility from
qualifying for the exemption.
The FACA Committee held lengthy discussions on the definition of no
exposure pertaining to barrels, drums, dumpsters, and other packaging
containers. The committee could not agree on whether barrels, drums,
dumpsters, and other packaging containers that are outdoors should
trigger the disqualification of an industrial facility from the no-
exposure exemption. One perspective expressed was that any such
containers that are stored outdoors should constitute exposure and the
need for a permit, whether or not they are leaking. The opposing
perspective was that containers should be allowed to be stored outdoors
and not be considered exposure as long as they were not actually
leaking. The committee also discussed the concept of ``potential to
leak'' as a trigger for exposure, but could not agree on this approach.
Therefore, EPA is soliciting public comment on this issue and the
approach proposed in today's rule.
The term ``storm resistant shelter'' is intended 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. For purposes of this provision,
emissions from roof stacks/vents that are regulated and in compliance
under other environmental protection programs and that do not cause
storm water contamination would be considered not exposed. EPA requests
comment on the scope of roof stacks/vents that would be covered by this
provision. EPA welcomes, in particular, any suggestions as to ways in
which this provision might be narrowed so as to focus on significant
stack emissions that could result in identifiable levels of storm water
contamination. Visible ``track out'' (i.e., pollutants carried on the
tires of vehicles) or windblown raw materials would be deemed
``exposed.'' Leaking pipes containing contaminants exposed to storm
water would be deemed ``exposed,'' as would past sources of storm water
contamination that remain onsite. General refuse and trash, not of an
industrial nature, would not be considered exposed industrial
materials.
While the intent of this provision is to promote permanent no
exposure, EPA understands that certain machinery, such as trucks, could
pass between buildings and, during passage, would be exposed to rain
and snow. Adequately maintained mobile equipment (e.g., trucks,
automobiles, trailers, or other such general purpose vehicles found at
the industrial site that are not industrial machinery or material
handling equipment 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 would not prevent a
facility from being able to certify no exposure under this provision.
Similarly, trucks or other vehicles located at vehicle maintenance
facilities awaiting maintenance, as defined at 40 CFR
122.26(b)(14)(viii), that are not leaking contaminants or are not
otherwise a source of industrial pollutants, would not be considered
exposed.
In addition, EPA recognizes that other instances could occur where
permanent no exposure of industrial activities or materials is not
possible and, therefore, is proposing that under such conditions,
materials and activities be covered with temporary covers, such as
tarps, between periods of permanent enclosure. This proposal would not
specify every such situation, instead EPA intends that permitting
authorities would address this issue on a case-by-case basis.
Permitting authorities could determine the circumstances under which
temporary structures would or would not meet the requirements of this
section. Until permitting authorities determined otherwise, temporary
coverage of industrial materials or activities would be allowable under
this section during facility renovation or construction, provided the
temporary cover achieved 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.
While the intent of this proposal would be to reduce the regulatory
[[Page 1593]]
burdens on industrial facilities and government agencies, the FACA
Committee suggested that the NPDES permitting authority should consider
a compliance assessment program to ensure that facilities that have
availed themselves of this no-exposure option meet the applicable
requirements. Inspections would be conducted at the discretion of the
NPDES permitting authority and would likely be coordinated with other
facility inspections. EPA expects, however, that the permitting
authority would conduct inspections when it became aware of potential
water quality impacts possibly caused by the facility's storm water
discharges or when requested to do so by affected members of the
public. The intent of this provision would be that the 5-year no-
exposure certification be fully available to, and enforceable by,
appropriate federal and State authorities under the CWA. Private
citizens could 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.
The FACA Committee recommended that the certifying party not allow
any actions taken to qualify for this provision to result in a net
environmental detriment. The phrase ``no net environmental detriment,''
however, seemed too imprecise a phrase to use within this context.
Therefore, EPA is proposing to implement this recommendation by
requiring that actions taken to qualify for this provision shall not
interfere with the attainment or maintenance of water quality
standards, including designated uses. Permitting authorities would be
able, where necessary, to make a determination by evaluating the
activities changed at the industrial site to achieve no exposure and
assess whether these changes adversely impact, or have the potential to
impact, water quality standards, including designated uses. EPA
anticipates that most efforts to achieve no exposure would employ
simple good housekeeping and contaminant cleanup activities. Other
efforts could involve moving materials and industrial activities
indoors into existing buildings or structures.
In very limited cases, industrial operators could make major
changes at a site to achieve no exposure. These efforts could 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 were undertaken
to achieve no exposure that increase the impervious area of the site,
the facility operator would need to provide information on this in the
certification form discussed above. Using this information, 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 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 could determine the need for the facility to
obtain coverage under an individual permit or a general permit to
ensure that appropriate actions are taken to address water quality
impacts.
Another issue that the FACA Committee discussed but was unable to
reach consensus on was whether or not the facility operator should bear
the burden of determining whether the activities undertaken to achieve
no exposure impact, or have the potential to impact, water quality
standards, or whether the NPDES permitting authority should be
responsible for making that determination. Some members of the FACA
Committee indicated that facility operators are not sufficiently
trained to conduct water quality impact assessments, nor privy to the
necessary information, and, therefore, would not be able to make these
determinations. Similarly, these members highlighted that under the
existing NPDES permitting program, the NPDES permitting authority
appears to have this responsibility (see 40 CFR 122.44(d)). Other
committee members explained that only the facility operator would know
exactly what changes were made at the industrial site to achieve no
exposure and, therefore, should make the determination. Other committee
members were concerned that these determinations would place an
extensive burden on permitting authorities. In today's proposed rule,
the NPDES permitting authority would have the primary responsibility
for determining potential or actual water quality impacts; however,
this determination would be based upon specific information that the
operator would be required to provide. Given the differing opinions
expressed by committee members regarding this provision, EPA is also
inviting public comment on this aspect of the no exposure incentive.
EPA envisions that general permits would be used to implement the
program and that the owner or operator would submit a written
certification to the permitting authority once every 5 years at the
``beginning'' of the permit term or prior to commencing discharges
during a permit term. Upon request, the owner or operator would also
need to submit a copy of the certification to the municipality in which
the facility is located. EPA invites comment on situations that may
affect the timing of submission of the certification. For example, some
States are transitioning toward ``specific'' general permits (industry
or watershed-based), and to the extent possible, to individual
permits--making it likely that more than one general permit may be
applicable to a given facility and raising an issue as to when to
submit a ``no exposure'' certification.
Once a facility operator has established that the facility meets
the definition of no exposure, it would be imperative that the operator
of the facility maintains the no-exposure condition. Failure to do so
would result in the unauthorized discharge of pollutants to waters of
the United States, which could result in penalties under the CWA. Where
a facility operator determines that exposure would occur in the future
due to some anticipated change at the facility, the operator would need
to submit an application and acquire storm water permit coverage prior
to such discharge to avoid such penalties.
3. Options Considered
In the course of the ``no-exposure dialogue,'' the FACA Committee
considered a number of options for implementing the no-exposure
provision, including regulating qualifying industrial facilities by (1)
an NPDES general permit for no-exposure facilities, (2) a no-exposure
permit by rule, (3) a modification of the definition of ``storm water
associated with industrial activity'' such that industrial facilities
without exposure could instead be covered under the requirements of a
new or different storm water program, and (4) a watershed approach to
no exposure. The FACA Committee did not fully support any of these
options.
Some committee members thought that options 1 and 2 provided little
incentive to achieve no exposure. However, Option 1 was considered the
most enforceable, and Option 2 was
[[Page 1594]]
considered to have the advantage of enforceability and potential for
reduced administrative burden.
Under Option 3, the definition of ``discharge associated with
industrial activity'' at Sec. 122.26(b)(14) would be modified such that
facilities with no exposure could lose their status as ``storm water
discharges associated with industrial activity'' under the existing
regulations. Rather, these facilities would become storm water
dischargers under today's proposed rule and would be required to do
whatever the final section 402(p)(6) regulation required. This option
would not track, however, the proposed requirements of today's rule
because the rule would not impose any requirements on undesignated
sources. EPA anticipates that permitted sources would be expected to
comply with requirements similar to those for industrial facilities
permitted under the existing storm water program. Option 4 had
virtually no support.
K. Public Involvement/Public Role
The Phase II Subcommittee discussed the appropriate role of the
public in successful implementation of a municipal storm water program.
The Subcommittee generally agreed that a successful municipal storm
water program requires an educated and actively involved public.
Although efforts to educate and involve the public consume limited
staff and financial resources, the benefits are numerous. An educated
public increases program compliance from residents and businesses as
they realize their individual and collective responsibility for
protecting water resources. For instance, an educated and motivated
public could reduce pollutant loadings by limiting the use of garden
chemicals. Moreover, an educated public is more likely to understand
the environmental benefits of a municipal storm water program and,
therefore, may be more willing to fund such a program. 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 decisionmaking 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. 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 may undertake several
roles in the municipal storm water program to help ensure a beneficial
and workable program for all involved. The public is encouraged to
contact the NPDES permitting authority or local municipal separate
storm sewer operator for information on the municipal storm water
program and ways to participate. Such information may also be available
from local environmental or other public advocacy groups.
EPA is inviting comment regarding the appropriate role of the
public in a municipal storm water program, and the best approach that
EPA can take in the final regulation to provide appropriate recognition
of this role and involvement. The advantages of active public
involvement include reduced pollutant loadings, increased program
support, and vigilant protection of waterbodies. Some examples of such
involvement follow. First of all, the public may be subject to local
storm water program requirements, guidelines, and financial costs. For
example, the public could be subject to a local ordinance that
prohibits dumping used oil down storm sewers. In addition, members of
the public might choose to participate as actively involved partners in
program planning, development, and implementation (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, report suspected violators to the
municipal, State, or Tribal authorities), aid in the development and
distribution of educational materials, and provide public training
activities. In addition, the public could protect waterbodies 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.
In such situations, members of the public would be strongly encouraged,
however, to resolve any disagreements or concerns directly with the
parties involved, either informally or through any available
alternative dispute resolution process.
The public could 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 would be
encouraged to consider the set of designation criteria developed for
the evaluation of the small municipal separate storm sewer systems
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. The NPDES
permitting authority must make a final determination within 180 days of
receiving a petition.
Public involvement and participation pose challenges, however. 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 decisionmaking process. Nevertheless,
EPA believes the public is vital to the long-term success of the
municipal storm water program and strongly encourages public
involvement and participation.
In response to comments from the Storm Water Phase II FACA
Subcommittee, EPA believes it is important for the public to seek
administrative remedies before filing civil suit under section 505 of
the CWA. EPA also received comments stressing 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, as a federal agency it cannot take a position on the
appropriate mechanism or level for such funding.
L. Water Quality Issues
The CWA combines a technology-based approach with a water quality-
based approach to ``restore and maintain the chemical, physical, and
biological integrity of the Nation's waters . . . .'' EPA and most
States issue NPDES permits to point source discharges of pollutants to
meet the technology-based and water quality-based requirements of the
act. Technology-based requirements are the minimum level of control and
are generally applicable nationwide. When the technology-based controls
are not sufficient for the waterbody to support the water quality
standards that States or Tribes adopted for their waters, the CWA
requires development of more stringent permit limits and control
programs to ensure compliance with water quality standards.
1. Water Quality Standards
Water quality standards are the cornerstone of a State's or Tribe's
water quality management program. States and Tribes adopt water quality
standards for waters within their jurisdictions. Water quality
standards define a use for a waterbody and describe the specific water
quality criteria to achieve that use. Examples of designated uses are
recreation and protection of aquatic life. Water quality criteria can
include chemical, physical,
[[Page 1595]]
or biological parameters, expressed as either numeric limits or
narrative statements. The water quality standards also contain
antidegradation policies to protect existing uses and high quality
water. The antidegradation policy ensures that water quality
improvements are conserved, maintained, and protected. States and
Tribes review their water quality standards every 3 years and, if
appropriate, revise them. Water quality standards provide the goals for
the waterbody, serve as the regulatory basis of water quality
management programs, and are benchmarks by which success is ultimately
gauged for a given waterbody or watershed.
EPA recognizes that urban runoff is not the only contributor of
pollutants and other stressors to urban waterways. Controls on urban
runoff, however, represent an opportunity to prevent or capture a
significant portion of the pollutants that are causing or contributing
to violations of water quality standards, including impairment of
designated uses. Storm Water Phase II FACA Subcommittee municipal
representatives expressed concern that municipalities not be liable for
loadings attributable to other sources. Today's proposal contains
provisions that establish a BMP-based program with measurable goals
that must meet the standard of MEP and protect water quality. In the
first two to three rounds of storm water permits, EPA envisions that
this would be the extent of the municipal requirements for a large
majority of regulated entities. If additional specific measures to
protect water quality were imposed, they would likely be the result of
an assessment based on TMDLs, or the equivalent of TMDLs, where the
proper allocations would be made to all contributing sources. EPA
believes that the municipality'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 assume wasteload reductions.
a. Permitting Policy
As a result of today's proposed regulation, NPDES general permits
that would be issued to owners or operators of regulated small
municipal separate storm sewer systems, as well as storm water
discharges associated with other activity, will be the primary
mechanism used to implement these requirements. As is the case in the
issuance of any NPDES permit, the permitting authority would use its
NPDES program requirements, including 40 CFR 122.44 in establishing
appropriate permit terms. EPA intends to issue NPDES permits consistent
with the August 1, 1996, Interim Permitting Approach guidance (61 FR
43761, November 6, 1996.) This guidance describes the interim
permitting approach as follows:
In response to recent questions regarding the type of water
quality-based effluent limitations that are most appropriate for
National Pollutant Discharge Elimination System (NPDES) storm water
permits, the Environmental Protection Agency (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.
EPA would encourage authorized States and Tribes to adopt policies
similar to the Interim Permitting Approach when developing its storm
water program. For a discussion of appropriate monitoring activities,
see Section II.L.4. below.
2. Total Maximum Daily Loads
A TMDL analysis includes the determination of the relative
contributions of pollutants from point, nonpoint, and natural
background sources, including a margin of safety of pollutants that can
be discharged to a water quality-limited waterbody to meet water
quality standards. More specifically, an allowable TMDL is defined as
the sum of the individual wasteload allocations for existing and future
point sources (including storm water) and load allocations for existing
and future nonpoint sources (including diffuse runoff and agricultural
storm water) and natural background materials with a margin of safety
incorporated to account for uncertainty in the analysis. TMDLs are
required in the CWA section 303(d)(1) for waters that will not achieve
water quality standards after implementation of technology-based
controls. These provisions have been codified in 40 CFR 130.7.
The Part 130 regulations were designed to implement CWA sections
106, 205(g), 205(j), 208, 303, and 305, which address ambient water
quality monitoring and planning for implementation, including funding
and periodic reporting of ambient water quality for the development of
a national inventory. Section 130.5 describes a continuing water
quality planning process designed to implement CWA section 303(e). Of
particular significance for an alternative State storm water management
program described above are the provisions of Sec. 130.6, which
describes water quality management planning under sections 208 and 303.
The water quality management regulations specify some of the elements
of water quality management, including provisions for point and
nonpoint source management and control. The nonpoint source management
elements include, for example, regulatory and nonregulatory programs,
activities, and BMPs for a variety of sources, including urban storm
water (see 40 CFR 130.6(c)(4)(iii)(G)). State representatives have
suggested that requirements for State storm water management under
section 402(p)(6) could derive from, and be developed through, these
water quality management provisions of Part 130. EPA is not proposing
any amendments to the Part 130 regulations at this time, but is
inviting comment on how the existing Part 130 regulations could be used
to support the proposed
[[Page 1596]]
State alternative program described in this proposal.
TMDL analyses include estimates of loadings from storm water
discharges. Load reductions obtained through the implementation of BMPs
required in the NPDES program for storm water should be reflected in
the TMDL analysis. Through the TMDL analysis, the relative contribution
of storm water discharges within a watershed will be determined.
EPA has formed a Federal Advisory Committee to provide advice to
EPA on identifying water quality-limited waterbodies, establishing
TMDLs for them as appropriate, and developing appropriate watershed
protection programs for these impaired waters in accordance with
section 303(d). The committee operates under the auspices of the
National Advisory Council for Environmental Policy and Technology
(NACEPT).
3. Anti-Backsliding
In general, the term ``anti-backsliding'' refers to statutory and
regulatory provisions at CWA sections 303(d)(4) and 402(o) and 40 CFR
122.44(l) that prohibit the renewal, reissuance, or modification of an
existing NPDES permit to contain effluent limits, permit terms,
limitations and conditions, or standards that are less stringent than
those established in the previous permit. There are, however,
exceptions to this prohibition (known as ``antibacksliding
exceptions''), which are also presented in sections 303(d)(4), 402(o)
and 40 CFR 122.44(l).
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
antibacksliding 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.
4. Monitoring
EPA encourages States to provide a multiyear monitoring strategy in
their CWA section 106 grant application to provide the framework for
State/EPA agreement on the States' annual work plans. The strategy
should include both ambient and program-specific monitoring activities
for nonpoint sources, lakes, estuaries, wetlands, and wet weather
surveys. States should also include monitoring for NPDES, TMDL, and
section 305(b) activities. Finally, the State should describe how these
activities were integrated to provide all information necessary to
support the State water quality management programs. Specific elements
recommended for State monitoring program work plans include
identification of indicators to be used to measure progress toward
goals and reference conditions for baselines; identification of methods
used; identification of water quality problems; sampling and laboratory
analytical support with a field manual and quality assurance/quality
control (QA/QC) plans; provisions for data storage, management, and
sharing; training and support for all involved persons, including
volunteer reporting through the section 305(b) process; and annual
program evaluation.
As part of EPA's efforts to further implementation of urban wet
weather programs using a watershed approach, the Agency is working to
develop a practical approach to monitoring that would provide
meaningful results. Under today's approach, assessment, evaluation, and
recordkeeping requirements beyond those required by the NPDES
regulations would be left to the discretion of the NPDES permitting
authority. The NPDES permitting authority (EPA or the authorized State
or Tribe) would determine monitoring requirements in accordance with
State or Tribe monitoring plans appropriate to the watershed. For
purposes of today's proposal, EPA recommends that, in general, small
municipalities not be required to conduct in the first permit term any
additional monitoring beyond any they 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 municipal separate storm sewer systems. However,
EPA encourages participation in monitoring programs appropriate to
watershed protection. The permitting authority may wish to consult the
recommendations made in the report prepared by the Intergovernmental
Task Force on Monitoring Water Quality (ITFM). For further discussion
regarding monitoring activities and the ITFM report, see Section
II.H.3.c, Evaluation and Assessment.
EPA and the FACA Committee have developed a paper entitled
``Watershed Assessment: A Critical Tool for Stakeholders'' (November 7,
1997) which is intended to supplement a draft watershed-based policy
statement entitled ``A Watershed Alternative.'' The policy approach
described in the Watershed Alternative would promote a watershed-based
assessment as an essential element of watershed-based programs for
protecting water quality. The Watershed Assessment paper amplifies this
element, describing varying levels of resources and stakeholder needs
for developing watershed assessment plans. It also acknowledges the
importance of designing each assessment plan to address specific
stakeholder interests. The paper states that each plan should include
unique assessment goals and objectives, selected baseline, sampling
methods, procedures for analysis, record keeping and reporting, and
schedules for periodic evaluation. Additionally, the paper sets out the
various roles and responsibilities of stakeholders. Also, it contains
an expansive bibliography that gives resource managers suggested
references to aid them in carrying out each stage of the watershed
assessment plan.
III. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. EPA
prepared an Information Collection Request (ICR) document (ICR
No.1820.01), a copy of which may be obtained from Sandy Farmer, OPPE
Regulatory Information Division; U.S. Environmental Protection Agency
(2137); 401 M Street, S.W.; Washington, D.C. 20460, or by calling (202)
260-2740.
Information collection requirements under this proposed rule would
include requirements to submit an NPDES permit application or notice
for coverage under an NPDES general permit, as well as to comply with
applicable recordkeeping and reporting requirements. Under the proposed
rule, certain construction sites under 5 acres and small regulated
municipal separate storm sewer systems would be required to retain
records of data used to complete their NPDES permit applications or
NOIs. In addition, small regulated municipal separate storm sewer
systems would be required to submit annual reports in the first permit
term and reports in years 2 and 4 in subsequent permit terms.
Under the proposed rule, the owners or operators of regulated small
municipal separate storm sewer systems would be required to submit
reports containing information which the permitting authority could use
to assess
[[Page 1597]]
the effectiveness of individual storm water programs. This information
could be further used at the time of permit renewal to ensure that
appropriate measures would be taken by the owner or operator to revise
its storm water program as needed. Information that might be contained
in the reports includes monitoring data, and a self-assessment of
progress toward pollutant reduction or programmatic goals which were
established as permit conditions. Compliance with the applicable
information collection requirements imposed under this proposed rule
would be mandatory, pursuant to section 402.
Exhibit 3 presents annual and average total burden and cost
estimates for Phase II respondents (for 3 years under the Paperwork
Reduction Act). Burden means the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
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 3.--Annual and Average Annual Total Burden Estimates for Phase II Respondents
[For 3 years under the Paperwork Reduction Act]
----------------------------------------------------------------------------------------------------------------
Estimated
Projected burden hours Projected Projected
Activity respondents per annual burden annual cost
per year respondent (Hrs)\1\ ($)\1\
----------------------------------------------------------------------------------------------------------------
I. Construction Sources:
Notice of Intent................................. 95,889 1.0 95,889 $2,876,670
Development of SWPPPs............................ 95,889 14.6 1,399,979 47,361,303
Individual Application........................... 0 9.1 0 0
Recordkeeping.................................... 95,889 0.1 9,589 211,243
Notice of Termination............................ 95,889 0.5 47,945 765,674
----------------------------------------------------------
Annual Subtotal.............................. ........... ............ 1,554,361 51,214,890
II. Small Regulated Municipalities:
Notice of Intent................................. 4,154 40 166,160 4,341,761
Individual Application........................... 0 88.2 0 0
Co-Applicant Application......................... 0 146 0 0
Retention of Records............................. 4,154 1 4,154 108,544
Annual Report Preparation and Submittal.......... 4,154 21 87,234 2,279,424
----------------------------------------------------------
Year 1 Subtotal.............................. ........... ............ 257,548 6,729,729
----------------------------------------------------------
Years 2 and 3 Annual Subtotal (i.e., not
including applications)\2\.................. ........... ............ 91,388 2,387,968
----------------------------------------------------------
Average Annual Burden and Cost\3\............ ........... ............ 146,775 3,835,222
==========================================================
Average Annual Program Total\4\.............. ........... ............ 1,701,135 55,050,112
----------------------------------------------------------------------------------------------------------------
\1\ Totals may not add because of rounding.
\2\ Retention of Records (4,154) + Annual Report Preparation and Submittal (87,234) = Years 2 and 3 Annual
Subtotal (91,388).
\3\ Average annual cost for the municipal component of the program is calculated by taking the year 1 subtotal
(i.e., applications plus retention of records and annual report preparation and submittal; $6,729,729) plus
the average total for each of the years 2 and 3 (recordkeeping plus annual report preparation and submittal,
i.e., 2 x $2,387,968), which equals $11,505,665. This is divided by 3 (the number of years the ICR is valid)
to equal $3,835,222.
\4\ Burden total calculated as the sum of the construction source annual subtotal plus the municipal average
annual burden. Cost total calculated as the sum of the construction source annual subtotal and the municipal
average annual cost.
Given the requirements of today's proposed regulation, there would
be no capital and no operations and maintenance costs associated with
information collection requirements of the rule. Similarly, there would
be no capital/startup or operating and maintenance costs associated
with the information collection requirements of the rule.
The government burden associated with the proposed extension of the
existing storm water program would 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 acting as the NPDES permitting authority in
States, Tribes, and Territories that are not authorized to administer
the NPDES program. As of May 1997, 42 States and the Virgin Islands had
NPDES authority. EPA estimates that 96,962 construction starts and
3,749 small municipal separate storm sewer systems would be regulated
within authorized governmental entities. EPA estimates that 18,815
construction starts and 405 small municipal separate storm sewer
systems would be regulated in non-authorized States, Tribes, and
Territories.
The estimated burden that would be imposed upon authorized
governmental entities and the Federal government is estimated to be
241,282 hours for authorized States and 38,933 for the Federal
government, for a total of 280,215. This estimate is based on the
average time that governments would expend to carry out the following
activities: review, respond to, and enter a construction NOI into a
data base (1 hour); review and enter a Notice of Termination (NOT) into
a data base (0.5 hours); process permit applications from owners or
operators of regulated small municipal separate storm sewer systems
using the NOI (4 hours); issue permits to regulated small municipal
separate storm sewer systems (160 hours); and review annual reports
submitted by
[[Page 1598]]
regulated small municipal separate storm sewer systems (30 hours).
Today's proposed rule also would include a conditional exemption
from the existing storm water permit application requirements for
industrial facilities that can certify that their industrial materials
or activities have no exposure to storm water. This exemption would be
conditioned upon the owner or operator certifying that their facility
meets the no exposure requirements. Because the information collection
burden associated with this certification, as well as the reduced
information collection requirements associated with becoming exempt
from the existing storm water permit regulations, are being developed
at this time but are most appropriately considered as part of the
existing storm water regulations, the incremental change in information
collection burden associated with the no exposure requirements has been
estimated in a separate section of the economic analysis accompanying
today's proposed storm water rule.
The proposed no exposure provision would expand the applicability
of the ``no exposure'' exemption to more industrial entities than
currently contemplated. Under the existing rule, permit application
requirements are reserved for storm water discharges associated with
light industrial materials and activities identified under
Sec. 122.26(b)(14)(xi) if those materials and activities have no
exposure to storm water. Today's proposed rule would expand the
applicability of the ``no exposure'' exemption to include all
industrial activity regulated under Sec. 122.26(b)(14) (except category
(x), construction). The proposed no exposure provision would be applied
through the use of a written certification process, thus representing a
slight burden increase for ``light'' industries with no exposure. There
would be both new costs and cost savings. The new costs would relate to
the certification requirement and State and Federal implementation
costs. The new cost savings would be based on relief from all existing
compliance requirements for those industrial facilities that qualify.
The net impact of the proposed no exposure provision for regulated
industrial facilities would be an annual net savings ranging from $89
million to $2,499 million. The total cost to Federal and State
governments would range from $0.6 to $1.1 million annually.
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.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including the use of
automated collection techniques. Comments are specifically requested on
the potential to shorten the recordkeeping period for construction
activity less than 5 acres to less than the proposed 3 years. Send
comments on the ICR to ``ATTN: Storm Water Proposed Rule ICR Comment
Clerk--W-97-15, Water Docket, Mail Code 4101, EPA; 401 M Street, SW,
Washington, D.C. 20460'' and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street,
NW, Washington, D.C. 20503, marked ``Attention: Desk Officer for EPA.''
Include the ICR number in any correspondence. Because OMB is required
to make a decision concerning the ICR between 30 and 60 days after
January 9, 1998, a comment to OMB is best assured of having its full
effect if OMB receives it by February 9, 1998. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
IV. Executive Order 12866
Under Executive Order 12866 of September 30, 1993: Regulatory
Planning and Review, (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:
(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''
because it could have an annual effect on the economy of $100 million
or more. 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.
EPA developed detailed cost estimates for the incremental
requirements imposed under today's proposed regulation and the
regulatory options considered and applied these estimates to the
potentially regulated universe of storm water sources designated under
today's proposal. These estimates, including descriptions of the
methodology and assumptions used, are described in detail in the
Economic Analysis of the Storm Water Phase II Proposed Rule, which is
included in the record of this rulemaking. Exhibit 4 summarizes the
low-high cost range associated with the basic elements of the proposed
rule.
Exhibit 4.--Comparison of Annual Compliance Cost Estimates
[Millions of 1997 Dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
No
regulation August 7, September 30, February 13, Proposed phase
of phase II 1995, final Plan B 1996 draft 1997 draft II rule
sources rule proposed rule proposed rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Construction............................................... $0 $278-$976 $261-$914 $177-$683 $115-$476 $115-$476
Municipal.................................................. 0 701-3,085 388-2,236 23-393 23-393 23-393
Industrial................................................. 0 1,218-74,824 0 46-2,632 46-2,632 0
--------------------------------------------------------------------------------------------
Total Cost............................................. 0 2,197-78,885 649-3,150 246-3,708 184-3,501 138-869
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 1599]]
In interpreting these costs, a number of caveats should be born in
mind. The primary component of the municipal costs is the
implementation of the six minimum measures. These were estimated from a
sample of 21 permit applications for Phase I municipalities. Cost
categories from these applications corresponding to the six required
Phase II minimum measures were identified and used to calculate, for
each measure, the percent of municipalities that would incur costs for
that measure, and for those that would, a range of per capita costs.
Municipalities that did not show costs for a particular measure on
their permit application were assumed to already have programs in place
to comply with that measure, and thus incur no additional costs. Also,
per capita costs that were more than two standard deviations above or
one standard deviation below the mean were dropped because they were
not representative of most cities. This evaluation was done separately
for the first permit cycle and the second and third permit cycles. In
estimating the costs for the second and third permit cycles, cost
elements were dropped that would be expected to occur only once, such
as development of municipal ordinances, or assessment of appropriate
O&M requirements for municipal operations. The first, second, and third
permit cycle costs were then combined to get an average annual cost
over the first 15 years of the program.
The estimated percentages of affected municipalities and the range
of per capita costs for each of the six minimum measures are presented
in Exhibit 5.
Exhibit 5.--Percentage of Municipalities Affected and Range of Per
Capita Costs for Six Minimum Measures
------------------------------------------------------------------------
Percent of
municipalities Low end of High end of
Measure expected to range of range of
incur costs per capita per capita
(percent) costs costs
------------------------------------------------------------------------
First Permit Cycle:
Public Education......... 39 $0.02 $0.34
Public Involvement....... 100 0.19 0.20
Illicit Discharge D&E.... 90 0.04 2.61
Const Site SW Runoff
Control.................. 83 0.04 1.59
Post Construction SW Mgt. 4 1.09 1.09
PP/GH of Municipal Ops... 71 0.01 2.00
2nd and 3rd Permit Cycles:
Public Education......... 39 0.01 0.34
Public Involvement....... 100 0.12 0.12
Illicit Discharge D&E.... 73 0.04 2.17
Const Site SW Runoff
Control.................. 80 0.01 0.83
Post Construction SW Mgt. 4 1.09 1.09
PP/GH of Municipal Ops... 67 0.01 1.08
------------------------------------------------------------------------
Concerns have been raised that using data from Phase I permit
applications to calculate Phase II costs may lead to either an
understatement or overstatement of these costs. Since Phase II
communities are smaller and less densely populated, they will probably
have fewer structures to maintain, systems to map, and connections to
inspect for illicit discharges than Phase I municipalities, although
whether this is also true on a per capita basis is not clear. They may
also be able to coordinate with nearby Phase I programs for some
measures, such as public education. However, to the extent that there
are significant fixed costs and economies of scale associated with
implementation of the measures, the per capita costs for Phase II
municipalities may be higher than those for Phase I municipalities.
Also, it is not clear whether the costs listed on permit applications
represent the entire compliance costs for the Phase I municipalities
sampled. EPA requests comment on its methodology of using estimated
costs from Phase I permit applications to project per capita costs for
Phase II municipalities. EPA especially requests any data that might
provide a better indication of actual compliance costs for these types
of measures for smaller municipalities.
EPA also requests comment on its projection that compliance costs
will be lower in the 2nd and 3rd permit cycles. This projection is
based on the fact that some program elements, such as development of
municipal ordinances and identification of illicit connections, will
only have to be done once, in the first permit cycle. However, concern
has been raised that there may be counteracting tendencies for
subsequent permit cycle costs to be higher, such as population growth
and more areas being classified as urbanized areas.
Concern has also been expressed that it may not be appropriate to
apply the percentages of Phase I municipalities that apparently
incurred costs for implementation of each measure to the estimation of
Phase II costs. Because Phase II municipalities are smaller, they may
be less likely than Phase I municipalities to already have adequate
storm water programs in place and thus be more likely to incur
additional costs as a result of this rule. As a sensitivity analysis,
EPA has estimated the municipal costs under the assumption that 100
percent of covered Phase II municipalities would incur costs for each
measure. Under this assumption the municipal costs for the first permit
cycle would range from $110 million to $690 million with a mean of $238
million; second and third permit cycles would range from $98 million to
$494 million with a mean of $209 million. EPA requests comment on its
projections of the percentage of Phase II municipalities expected to
incur costs for each measure, and any data that might help refine these
estimates for the final rule.
To estimate costs to owner/operators of small construction sites,
EPA first gathered national data on building permits issued over 15
years. Over the period from 1980 to 1994, there was a 1.3 percent
average annual increase in the number of building permits issued. This
growth rate was used to project total building starts through the year
2015. To estimate what percentage of these starts would be between 1
and 5 acres, EPA used more detailed data from
[[Page 1600]]
Prince George's County, Maryland to determine for each category of
building permit (residential, commercial, etc.) what percentage was
between 1 and 5 acres and applied these percentages to the national
totals. Of the projected 645,709 building sites for the year 2000, EPA
estimated that 22 percent, or 140,485 would be between 1 and 5 acres,
based on the Prince George's County (PGC) data. EPA recognizes that PGC
may not be representative of the entire country and requests any data
that commenters may have that might be used to develop a better
estimate of the number of construction sites between 1 and 5 acres.
EPA next estimated the number of sites located in States that
already require permits for sites between 1 and 5 acres, and removed
these from its cost calculations because sites in these States would
not be expected to incur additional costs, beyond those already
involved in State permitting. This removed 19 percent of the estimated
sites between 1 and 5 acres, leaving a projected 111,357 sites in the
year 2000 that would be expected to incur incremental costs as a result
of this rule. Finally, EPA estimated the percentage of these sites that
are already subject to local sediment and erosion control (SEC)
requirements. Based on a survey of 113 localities, EPA estimated that
37 percent of sites between 1 and 5 acres, or 41,202 in the year 2000,
would already be subject to local controls and would thus not incur
incremental costs to implement SEC measures. EPA estimates that these
sites would incur costs for the preparation of Notices of Intent,
Notices of Termination, and Storm Water Pollution Prevention Plans
only, while the remaining 70,155 sites would incur costs for
implementation of SEC controls as well. EPA notes that sites in coastal
areas subject to the Coastal Zone Act Reauthorization Amendments of
1990 (CZARA) would be required to implement sediment and erosion
controls even without the proposed rule. SEC costs for sites in those
areas should thus not be considered incremental costs of this rule.
However, because EPA is not sure how much overlap exists between
coastal zone areas, States that already have permitting programs for
small construction sites, and localities that already have SEC
requirements, EPA did not remove additional sites from the rule costs
specifically because they were located in areas subject to CZARA (note,
for example, that most State permitting programs are in such areas).
EPA requests comment on its procedure for adjusting the number of sites
subject to incremental costs to account for programs and requirements
already in place.
The proposed rule would allow the NPDES permitting authority to
waive applicability of requirements to storm water discharges from
small construction sites based on three different criteria. In the
economic analysis the Agency has projected that 15 percent of the
construction sites that would be covered by today's proposal would be
eligible to receive such waivers. Based on an informal survey of
individuals familiar with the construction industry, EPA believes the
percentage of sites eligible for waivers would probably fall between 5
and 25 percent. If the number of sites eligible for waivers were 25
percent, rather than the 15 percent used in the EA, projected
compliance costs for small construction sites would be correspondingly
lower. Similarly, if only 5 percent of sites turned out to be eligible
for waivers, compliance costs would be correspondingly higher. The
construction cost analysis does not include any costs for the
preparation and submission of waiver applications, but the agency
believes these costs will be negligible. EPA solicits comments and data
on its assumptions regarding construction waivers.
Because today's proposed rule provides a significant degree of
flexibility to the NPDES permitting authority and designated sources
proposed for regulation, the actual costs of implementing today's
proposed storm water rule depend greatly on how the NPDES permitting
authority and regulated sources implement the program. To some extent,
this flexibility is reflected in the broad ranges of costs. EPA
believes that because of the significant flexibility provided by the
proposed rule, the low to middle ranges of costs are most
representative of the actual costs likely to be incurred.
Estimates of monetized benefits associated with today's proposed
regulation were derived using an aggregate, ``top-down'' approach.
Under this approach, the underlying data and assumptions were geared to
a national scale (e.g., national value of the commercial fishery and
nationwide beach visit data). EPA chose this approach because research
indicated that, given the variability of local situations and the
scarcity of data on both local conditions and on extrapolation methods,
a bottom-up approach was not deemed to be feasible at this time.
Nevertheless, information from more geographically confined studies
provided important data that support such a monetized benefit analysis.
In addition, local and regional experiences also verified some of the
impacts and benefits that EPA had estimated at a national level.
The basic methodology for the top-down approach was as follows. For
each of the various categories of financial, recreational, and health
benefits, EPA first estimated the total value if all surface waters of
the United States were cleaned up to a level that supported their
designated uses. Next, using information on the degree and causes of
water quality impairment from EPA's 1994 and 1996 Section 305(b)
National Water Quality Inventory Report to Congress, EPA estimated the
portion of total impairment (and thus total benefits) attributable to
storm water runoff. Although it varied by benefit category, generally
between 5 and 10 percent of total water quality impairment was found to
be attributable to either urban or construction storm water runoff.
Finally, EPA determined the share of storm water benefits that should
be attributed to the Phase II rule specifically.
One consequence of the approach used to estimate monetized benefits
is that, unlike the cost analysis, the benefits analysis only provides
monetized estimates of the benefits associated with today's proposed
regulatory alternative. To account for the fact that any storm water
control may not be 100-percent effective, EPA estimated the
effectiveness of the storm water BMPs proposed in today's rule and
applied these estimates to the total monetized benefits of the
proposal. Due to the uncertainty regarding effectiveness of different
BMPs, as well as that regarding the appropriate share of storm water
benefits to allocate to each of EPA's wet weather programs, EPA
developed three scenarios to estimate proposal benefits. In Scenario 1
(high benefits scenario), it was assumed that Phase II BMPs would be 90
percent effective in controlling pollution from storm water runoff,
that \5/7\ of health benefits should be allocated to storm water
programs (Phases I and II) and \2/7\ should be allocated to EPA's
sanitary sewer overflow (SSO) program, and that most municipal storm
water benefits should be allocated 50 percent to Phase I and 50 percent
to Phase II. The exceptions were benefits for avoided costs of building
or replacing water storage capacity, 75 percent of which were to be
allocated to Phase II, and benefits for avoided costs of freshwater
navigational dredging, 25 percent of which were allocated to Phase II.
In Scenario 2 (medium benefits scenario), it was assumed that Phase II
BMPs would be 80 percent effective, that all
[[Page 1601]]
health benefits should be allocated to storm water programs, and again,
that most municipal storm water benefits should be allocated evenly
between Phases I and II, with the same two exceptions. In Scenario 3
(low benefits scenario), it was assumed that Phase II BMPs would be
only 60 percent effective, that all health benefits should be allocated
to storm water programs, and that all municipal storm water benefits,
including those for avoided costs of building or replacing water
storage capacity and freshwater navigational dredging, should be
allocated evenly between Phases I and II. In Scenario 1, all water
storage replacement and navigational dredging costs were allocated to
storm water programs (Phases I and II), while in Scenarios 2 and 3, 96
percent of these benefits were allocated to storm water programs and 4
percent to other wet weather programs. In all three scenarios, 40
percent of storm water construction benefits were allocated to Phase
II. The Economic Analysis document accompanying today's action provides
a detailed description of the basis rationale for each of these
scenarios.
Exhibit 6 summarizes annual benefits attributed to the proposed
Phase II rule.
Exhibit 6.--Summary of Total Annual Monetized Benefits from
Implementation of the Proposed Storm Water Rule
[Millions of 1997 Dollars]
------------------------------------------------------------------------
Scenario 1 Scenario 2 Scenario 3
Benefits category annual annual annual
value value value
------------------------------------------------------------------------
Municipal Benefits............... $114-$379 $100-$333 $66-$222
Construction Benefits............ 61-195 53-169 40-127
--------------------------------------
Total........................ 175-574 153-502 106-349
------------------------------------------------------------------------
EPA was able to develop a partial monetary estimate of expected
benefits for today's storm water proposed rule for municipal and
construction benefits. Summing the monetized benefits for each of the
scenarios across these categories results in total benefits ranging
from approximately $106 million to $574 million (1997 $) annually for
the proposed rule.
EPA is requesting comment on several aspects of its benefits
estimation methodology. The largest single category of estimated
benefits is avoided costs of building or replacing water storage
capacity (reservoirs) lost to sediment deposition. EPA estimates that
an average of 820,000 acre feet of storage capacity is lost to
pollution sources each year. EPA further estimates that \1/3\ of this
capacity will be replaced by building new reservoirs, at a cost of $420
to $1500 per acre foot, and \2/3\ of this capacity will be restored by
dredging, at a cost of roughly $3,500 to $11,000 per acre foot. This
yields annual water storage replacement costs of $2 to $6 billion
annually. EPA estimates that roughly 8 percent of these costs (or $170
to $510 million) are attributable to storm water runoff. EPA allocated
75 percent of the benefits from avoiding these costs in Scenarios 1 and
2 to Phase II, because it believes that most reservoirs are likely to
be outside of densely populated Phase I areas. In Scenario 3, these
benefits are allocated evenly between Phases I and II. Concern has been
expressed that these benefits estimates may be too high, especially
given that the total amount actually spent on navigational dredging
attributable to pollution sources annually is only $180 million (to
remove 83 million cubic yards), compared to the $2 to $6 billion that
EPA estimates would be required to replace the estimated 1.3 billion
cubic yards of water storage capacity lost to pollution sources
annually. On the other hand, the temporary nature and intermittent
frequency of reservoir dredging and the frequent need to deploy and
remove heavy equipment and dispose of spoil often in confined areas,
may elevate costs on a per cubic yard basis for reservoirs versus
navigational dredging. EPA has no data on the actual amount spent on
water storage capacity replacement. EPA thus requests comment on its
methodology for estimating these avoided costs, on its allocation of
these avoided costs between Phases I and II, and any data that would
allow it to refine these estimates for the final rule. EPA also
requests comment on whether it would be appropriate to discount these
benefits, and by how much, given that much of the actual replacement of
lost storage capacity may not occur for several decades. EPA further
notes that many other categories of benefits may also entail
significant lags and requests comment on the appropriateness of
discounting benefits to account for these lags generally.
EPA is also requesting comment on its methodology for estimating
marine recreational and commercial benefits for fishing and swimming.
Specifically, the current estimates are based on the degree of
estuarine impairment attributable to storm water, although EPA
recognizes that a significant share of marine fishing and swimming
occurs in open coastal waters rather than estuaries. EPA has assumed
that full restoration of these resources would result in a 20 percent
increase in their value, based roughly on the degree of estuarine
impairment. A concern has been raised that the degree of impairment in
open coastal waters may be significantly different than that of
estuaries, and the value of full restoration of open coastal resources
correspondingly changed. Concern has also been raised that the current
estimates do not account for the substitutability of resources, but
rather assume that the total amount of current marine fishing and
swimming is limited by the availability of unimpaired estuarine and
coastal areas. EPA requests comment on its methodology for estimating
these benefits, and any data, especially on the degree of impairment of
open coastal waters or the fraction of marine fishing and swimming that
occurs in such waters, that would allow it to refine these estimates
for the final rule.
As a sensitivity analysis, EPA also performed an alternative
benefits estimate using a different ``bottoms-up'' approach based on
its Clean Water Act Effects Model. The modeling approach examined
impacts of all wet weather events together: SSOs, CSOs (Combined Sewer
Overflows) and storm water Phase I and II. This would provide an upper
bound estimates for storm water control. (For this analysis, it was
possible to break out CSOs as separate data exists for these events.)
Changes in water quality relate to changes in how humans use the
resource. This analysis estimated
[[Page 1602]]
changes to water quality based on assumptions about the level of
control EPA would expect from the CWA's wet weather programs. Next, the
Agency estimated the changes in human use and enjoyment of the
resource. The Agency applied ``willingness-to-pay (WTP)'' values from
Mitchell/Carson (1993) contingent valuation survey results, which
estimates the amount of money people are willing to pay for water
quality improvement. (Mitchell/Carson estimates include values for
recreation use as well as nonuse values.)
The model examined three different wet-weather programs under three
loadings reduction scenarios based on differences in such factors as
average annual rainfall in different hydrologic regions and changes in
removals. For each of these scenarios EPA further estimated low, medium
and high values to account for wide ranges in variability. The
following discussion of results is based on medium values in these
three scenarios.
The results of this analysis show a range of monetized benefit of
$1 to $7 billion for all urban wet weather programs. The results of the
modeling did not split out storm water impacts from SSO impacts.
Applying the percentages used in the top down approach (\5/7\ storm
water, \2/7\ SSO), EPA derived an estimate for storm water Phase II.
Using the medium results, averaged between the low and the high
estimates, benefit estimates for the proposed rule fall within a range
of $526 million to $3.56 billion. The wide range of these estimates is
due to the very flexible nature of the proposal, which would provide
communities with a wide range of options to consider for control of
storm water.
There are additional benefits to storm water control that cannot be
quantified or monetized. The estimate of monetized benefits presented
here may thus understate the true value of storm water controls because
it may omit additional numerous mechanisms 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, option existence values, cultural values, and
biodiversity benefits. The estimates of freshwater recreational
benefits included in the monetized benefits analysis are based on the
Mitchell/Carson ``willingness-to-pay'' study. Mitchell/Carson estimates
the value people are willing to pay to restore all of the nation's
waters to fishable/swimmable quality, and thus presumably already
includes associated ``non-use'' values. However, EPA believes there are
non-use values that are not captured in the Mitchell/Carson estimates
and thus not included in the monetized benefits estimates.
These environmental and health benefits are also important. Another
benefit that EPA did not specifically monetize is the benefits of flood
control to the extent that Phase II storm water controls reduce
downstream flooding. In addition, the Agency relied on a
geographically-limited data set (Santa Monica Bay, California) to
measure the benefits of illness avoided due to storm water controls.
A significant category of benefits that the Agency could not
specifically monetize is ecological benefits. Urbanization can
adversely affect water quality by increasing the amount of sediment,
nutrients, metals and other pollutants associated with land disturbance
and development. Not only is there a dramatic increase in the volume of
water runoff but there may also be a substantial decrease in that
water's quality due to stream scour, runoff and dispersion of toxic
pollutants, and oversiltation. The higher flow volumes in the tributary
streams and channels create a ``domino'' effect of ecological impacts.
Erosion of stream banks and incision of the stream floor result in
sediment movement and eventually buildup in downstream environments.
Sediment covers the stream bed, smothers fish eggs and spawning
grounds, interferes with hatching, and can clog the gills and filter
systems of fish and aquatic invertebrates. This latter effect can
result in retarded growth, systemic disfunction, or asphyxiation.
Subsequent loss of aquatic life has a ripple effect up the food chain.
High nutrient levels often lead to eutrophication of the aquatic
system. This entails the blue/green surface algae bloom, water
discoloration, and depressed levels of dissolved oxygen. Heavy metals
can have toxic effects on aquatic life. Heavy metals in the water
column and sediments have been connected with respiratory problems in
fish and often destroy or infect the insect populations which serve as
the primary food source for many fish species. High bacteria levels
from animal excrement and carcasses, septic runoff or illegal dumping
by motor homes and others affect critical estuarine habitats which are
the nation's most productive finfish, oyster, clam and shrimp
fisheries. EPA requests comment on the extent to which additional
consideration of these ecological benefits is needed and appropriate
methodologies for quantifying and monetizing them.
Exhibit 7 compares the estimated national annual monetized total
benefits associated with the proposed storm water regulations with the
monetized costs associated with the proposed regulation. Because EPA is
uncertain of the exact monetized benefit, the benefits for each
scenario have been compared to costs. The net total benefits (social
benefits less social costs) for the three benefits scenarios range from
positive $34 million in Scenario 1 to negative $531 million in Scenario
3.
Exhibit 7.--Comparison of Total Annual Monetized Benefits to Total Annual Costs for the Proposed Phase II Storm
Water Rule
[Millions of 1997 Dollars]
----------------------------------------------------------------------------------------------------------------
Benefit categories Scenario 1 value Scenario 2 value Scenario 3 value
----------------------------------------------------------------------------------------------------------------
Financial Benefits.................................. $93-$267 $80-$228 $51-$144
Recreational Benefits............................... $81-$304 $72-$271 $54-$203
Health Benefits..................................... $1-$3 $1-$3 $1-$2
$175-$574 $153-$502 $106-$349
Cost categories Value (Low-High)
Compliance Costs.................................... .................. $138-$869 ..................
Administration Costs................................ .................. $3-$11 ..................
-----------------------------------------------------------
Total Monetized Costs........................... .................. $141-$880 ..................
===========================================================
Net Monetized Benefits.......................... $34-$(306) $12-$(378) $35-$(531)
----------------------------------------------------------------------------------------------------------------
[[Page 1603]]
The proposed storm water rule includes a provision that would allow
owners or operators of facilities with existing discharges associated
with industrial activity to certify that if significant materials or
industrial activities are not exposed to storm water the owners or
operators could apply for an exemption from the requirements of the
NPDES permitting program. This provision is included in today's
proposed storm water rule but would only apply to sources regulated
under existing rules. Therefore, EPA has decided not to factor the
costs savings associated with this exemption into the costs analysis
for today's proposed rule. Rather, the cost savings associated with
this exemption is addressed separately in the Economic Analysis.
V. Unfunded Mandates Reform Act/Executive Order 12875
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, Tribal, and local
governments and the private sector. Under UMRA section 202, 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, Tribal, and local 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 written statement
is needed, UMRA section 205 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. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
UMRA section 203 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 proposed rule contains a Federal
mandate that may result in expenditures of $100 million or more for
State, Tribal, and local governments, in the aggregate, or the private
sector in any 1 year. Accordingly, under UMRA section 202, EPA has
prepared a written statement, which is summarized below.
A. UMRA Section 202 Written Statement
EPA proposes today's storm water regulation pursuant to the
specific mandate of Clean Water Act Sec. 402(p)(6), as well as sections
301, 308, 402, and 501. (33 U.S.C. Secs. 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 a separate document in the
administrative record, EPA describes the qualitative and monetized
benefits associated with the proposed storm water rule and then
compares the monetized benefits with the estimated costs for the
proposed rule. The Agency also developed a partial monetary estimate of
expected benefits for the proposed rule for financial benefits,
recreational benefits, and health benefits. Summing the monetized
benefits, for each of the scenarios, across these categories results in
total benefits ranging from approximately $106 million to $574 million
(1997 $) annually for the proposed rule. Because EPA is uncertain of
the exact monetized benefit, three benefit scenarios were created and
compared to costs for the proposed regulation.
In that document, EPA reviewed the potential for this proposed rule
to have a significant effect on the economy or upon unemployment and
determined that the unemployment impacts will be minimal, if any at
all.
First, the proposed rule does not address industries involved in
production, but rather small municipal separate storm sewer systems and
construction sites under 5 acres. Second, flexibility within the
proposed rule would allow municipalities to tailor proposed individual
municipal storm water program requirements to their needs and financial
position. Finally, discussions with representatives within the
construction industry indicate that construction costs would likely be
passed on to consumers. EPA believes that these same reasons would
result in the proposed rule having minimal or no unemployment impacts.
EPA also assessed the social costs of the proposed regulation and
estimates the total social costs of the proposed rule to range from
approximately $141 million to $878 million annually (1997 $). The
proposed rule would not have the potential to increase costs for
industrial manufacturers and producers because the proposed rule does
address storm water discharges from other types of industrial
facilities.
B. Description of Intergovernmental Consultation
Consistent with the intergovernmental consultation provisions of
section 204 of the UMRA and Executive Order 12875, Enhancing the
Intergovernmental Partnership, EPA consulted with elected
representatives of various levels of government in a variety of ways.
First, EPA provided States, local, and tribal governments and the
private sector with the opportunity to comment on alternative
approaches to the proposed regulations through publishing a notice
requesting information and public comment on the approach for the CWA
section 402(p)(6) regulations in the Federal Register on September 9,
1992 (57 FR 41344). This notice presented a full range of regulatory
alternatives under each issue in an attempt to illustrate, and obtain
input on, the regulation of unregulated sources to protect water
quality. Approximately 43 percent of the more than 130 comments
received came from municipalities and 24 percent from State or Federal
agencies. These comments provided the genesis for many of the
provisions in the proposed storm water rule, including reliance on the
NPDES program framework (including general permits), providing State
and local governments flexibility in selecting additional sources
requiring regulation on a localized basis, focusing on high priority
polluters and providing certain exemptions for facilities that do not
pollute, focusing on pollution prevention and best management
practices, and incorporating watershed-based concerns in targeting.
Second, 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 again allowed participants an
opportunity to provide input into the CWA section 402(p)(6) program
development process. The proposed rule reflects several of the key
concerns identified in these groups, including provisions that provide
flexibility to the States and to other
[[Page 1604]]
permitting authorities to select sources to be controlled in a manner
consistent with criteria developed by EPA.
Finally, EPA established the Urban Wet Weather Flows Advisory
Committee (FACA), including a Storm Water Phase II Subcommittee.
Consistent with the Federal Advisory Committee Act, the membership of
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. The Storm Water Phase II Subcommittee met approximately every
other month between September 1995 and June 1997. In addition to
meetings, conference calls, and correspondence, Subcommittee members
were provided three opportunities to comment in writing on preliminary
draft approaches and actual drafts of the proposed rule and preamble.
Ultimately, the 32 Subcommittee members recommended many of the
portions making up the regulatory framework in the proposed rule.
C. Selection of the Least Costly, Most Cost-Effective or Least
Burdensome Alternative That Achieves the Objectives of the Statute
The proposed regulation is based on a ``flexible'' NPDES program
alternative. This alternative evolved over time and incorporates
aspects of each of the other alternatives in order to respond to
concerns presented by the various interests represented in the Storm
Water Phase II Subcommittee. A primary characteristic of the proposed
rule is the flexibility it offers both the permitting authority and the
sources proposed for regulation (small MS4s and small construction
sites), such as general permits, best management practices suited to
specific locations, and allowing MS4s to develop their own program
goals. EPA developed detailed cost estimates for the incremental
requirements imposed under the proposed regulation, and for each of the
alternatives, and applied these estimates to the potentially regulated
universe of remaining unregulated point sources of storm water. The
Agency compared the estimated annual range of costs imposed under the
proposed regulation and other major options considered. The range of
values for each option included the costs for compliance including
paperwork requirements for the owners and operators of small
construction sites, industrial facilities, and MS4s and administrative
costs for State and Federal NPDES permitting authorities.
Because the proposed rule provides a significant degree of
flexibility to the permitting authority and sources proposed for
regulation, the actual costs of implementing the proposed storm water
rule are highly dependent on how the program is implemented by the
permitting authority and the sources proposed for regulations. To some
extent, this flexibility is reflected in the broad ranges of costs. EPA
believes that because of the significant flexibility provided by the
proposed rule, the low to middle ranges of costs are most
representative of the actual costs likely to be incurred. In the
administrative record supporting today's proposal, EPA estimated ranges
of costs associated with six different options for today's proposal.
For each option, EPA estimate a cost range. From the highest of the
high estimates to the lowest of the low, the cost range varied between
no cost and $79 billion dollars. The least costly, most cost-effective
or least burdensome option is the ``no regulation'' option. This
option, however, would not achieve the objectives of CWA section
402(p)(6) because remaining unregulated point sources of storm water
need to be regulated to protect water quality. The remaining option
that is both the least costly, most cost-effective or least burdensome
and accomplishes the objectives of the rule is the proposed rule in its
current form. Today's proposal represents the lowest cost range option
(between $106 million to $574 million dollars).
Although Congress did not establish a fund to fully finance
implementation of the proposed extension of the existing NPDES storm
water program under section 402(p)(6), numerous Federal financing
programs (administered by EPA and other Federal agencies) could provide
some financial assistance. These programs include CWA section 106 grant
program CWA section 104(b)(3) grant program, State surface and ground
water management programs under the Safe Drinking Water Act, the
environmental quality incentives program, the conservation reserve
program, the wetlands reserve program, and the estuary management and
Federal monitoring programs. Also, the Natural Resources Conservation
Service (NRCS) has some grants available to assist in projects related
to erosion and sediment controls.
D. Small Government Agency Plan
In developing the proposed rule, EPA consulted with small
governments pursuant to its interim plan established under UMRA section
203 to address impacts of regulatory requirements in the rule that
might significantly or uniquely affect small governments. Though
today's proposal would expand the NPDES program (with modifications) to
certain municipal separate storm sewer systems serving populations
below 100,000 people and though many systems are owned by small
governments, EPA does not think the proposed rule might significantly
or uniquely affect small governments. As explained in the Regulatory
Flexibility Act section of the preamble, EPA today certifies that the
proposed rule will not have a significant impact on small governmental
jurisdictions. In addition, the proposed requirements would not have a
unique impact on small governments because larger governments would
also be affected. Notwithstanding this finding, the Agency sought to
provide elected officials of small governments (and their
representatives) with an opportunity for early and meaningful
participation through FACA process. In addition, EPA is committed to
providing guidance for the operators of the municipal separate storm
sewer systems (which would likely include small governments) developed
in conjunction with the Storm Water Phase II FACA Subcommittee.
As mentioned previously, 43 percent of the comments received on the
September 9, 1992, notice were from municipal governments. In addition,
the following groups participated as members of the Storm Water Phase
II FACA Subcommittee: the Conference of Mayors, the National League of
Cities, the National Association of Towns and Townships, the National
Association of Counties, the CSO Partnership, the Water Environment
Federation, and the Association of Metropolitan Sewerage Agencies.
Through such participation and exchange, EPA notified potentially
affected small governments of requirements under consideration, allowed
officials of affected small governments to have meaningful and timely
input into the development of regulatory proposals, and will inform,
educate, and advise small governments on compliance with the regulatory
requirements. The Agency is also undertaking efforts to develop a
``tool box'' of aids (e.g., fact sheets, guidance, information
clearinghouse, training, education, research, and pilot programs) to be
made available to regulated entities and permitting authorities to
facilitate implementation of today's proposed regulation.
[[Page 1605]]
VI. Executive Order 12898
Executive Order 12898 established a Federal policy for
incorporating environmental justice into Federal agency missions by
directing agencies to identify and address in their programs, policies,
and activities, as appropriate, the disproportionately high and adverse
human health or environmental effects on minority and low-income
populations. EPA ensured proper consideration of environmental justice
concerns during the section 402(p)(6) rulemaking by selecting a
balanced FACA membership and specifically inviting a representative of
the Environmental Justice Information Center to participate on the
Storm Water Phase II FACA Subcommittee. EPA examined the potential
impact of today's proposed storm water rule on minority and low-income
populations and worked to develop a proposed rule that would address
environmental justice concerns. Discussions with the Storm Water Phase
II FACA Subcommittee contributed to these efforts.
Three aspects of today's proposed storm water regulation would
support environmental justice objectives. First, the proposed rule
would result in improvements in water quality in the areas around small
municipalities and certain industries that impact water quality. These
improvements would benefit all persons living in or using these areas,
including minority populations and low-income populations. Second, the
proposed rule would provide a high degree of flexibility to the NPDES
permitting authority to address high priority contaminated storm water
discharges based on community input and public participation. This
ability to focus program requirements on priority needs or areas should
serve as an additional tool to address environmental justice concerns.
Third, the proposed rule specifies that public education and outreach
programs required of small municipal separate storm sewer systems
should be tailored to address the concerns of all communities,
particularly minority and disadvantaged communities, as well as
children. The proposed rule also specifies that compliance with
required public involvement and participation requirements should
include efforts to engage all economic and ethnic groups.
In addition, partly in consideration of the executive order, EPA
proposes to exempt Tribes in urbanized areas with populations of less
than 1,000 from the requirements of today's proposed rule.
VII. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA), whenever EPA is required to publish notice of general
rulemaking, EPA must prepare an initial regulatory flexibility analysis
(IRFA) describing the economic impact of the proposal on small
entities, unless the Administrator certifies that a proposed rule will
not have a ``significant economic impact on a substantial number of
small entities.'' After consideration of the economic impacts of
today's proposed rule on small entities, the Administrator certifies
that the proposed rule will not have a significant economic impact on a
substantial number of small entities. Notwithstanding today's
certification, EPA has prepared an IRFA. In addition, prior to
determining that today's proposal should be certified, EPA convened a
Small Business Advocacy Review Panel under the RFA, as amended by the
Small Business Regulatory Fairness Act (SBREFA), to evaluate and
minimize the potential impacts of the proposed rule on small entities.
A. Economic Impact on Small Entities
EPA assessed the potential economic impact of today's proposed
storm water regulation on small entities. As the first step in its
evaluation, EPA identified those small entities potentially affected by
the proposal. In identifying these small entities, EPA used the
definitions of small businesses, small governmental jurisdictions
(e.g., municipalities), and small organizations (e.g., nonprofit
organizations) established by the RFA. Based on data from the 1990 U.S.
Census, EPA estimated that a total of 3,614 small governmental
jurisdictions (specifically, municipalities) would be affected by the
proposed rule. In addition, 11 Indian Tribes, as small governmental
jurisdictions who own/operate municipal separate storm sewer systems,
would also be affected. Next, EPA estimated that 187,610 construction
firms in Standard Industrial Classification (SIC) Code 15 would be
subject to the proposal, if adopted. EPA recognizes, however, that this
number may over-estimate the number of small businesses subject to the
proposal. The data do not permit the Agency to distinguish between
small construction firms whose activities include land clearing and
site preparation--the proposal's requirements would apply to such
operations--and those small construction firms that do not prepare
sites. Finally, the proposed rule would not apply to any small not-for-
profit organizations.
In the next step of the Agency's evaluation, EPA analyzed the
potential economic impact of the proposed rule on the small entities it
had identified as likely to be subject to the proposed rule. In the
case of those small municipalities that would be affected if the
proposal is adopted, EPA evaluated the potential impact using a
``revenue test.'' Under this test, EPA looked at the total annual cost
of complying with the proposed requirements in relation to total annual
municipal revenues. EPA calculated total annual compliance cost based
on mean costs ($2.67 per capita and $555 per municipality) and the
population reported in the 1990 Census. EPA estimated annual revenues
based on data 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).
Based on this evaluation, the Administrator certifies that today's
proposed storm water rule will not have a significant economic impact
on a substantial number of small municipalities. Estimated compliance
costs represent more than 1 percent of estimated revenues for only 62
municipalities of the affected small municipalities--approximately 1.7
percent of small municipalities--and less than 3 percent of estimated
revenues for all but 4 municipalities--approximately 0.1 percent of
affected small municipalities. In both absolute and relative terms, the
impact is not significant.
EPA also assessed the potential impact of the rule on Indian Tribes
using the same revenue test applied to municipalities. However, revenue
per capita for tribal governments was not available. Therefore, EPA
used the State-specific municipal per capita revenue estimates by size
category and adjusted these estimates downward based on the ratio of
per capita income on the reservation to per capita income for the
State. EPA then multiplied the adjusted estimates of per capita revenue
by the reservation population and conducted the screening analysis in
the same manner as for municipalities (assuming annual compliance costs
of $2.67 per capita and $555 per reservation). EPA assumed that all
Tribes with populations between 1,000 and 100,000 would have to comply
with the rule and Tribes in Oklahoma would
[[Page 1606]]
not be regulated.\5\ Estimated compliance costs represent more than 1
percent of total estimated revenues for only 2 Indian Tribes. The
remaining 9 Indian Tribes have compliance costs less than 1 percent of
estimated revenues. The Administrator therefore certifies that this
rule will not have a significant economic impact on a substantial
number of small governmental jurisdictions regardless of whether the
municipal and tribal impacts are analyzed separately or combined.
---------------------------------------------------------------------------
\5\ The determination of applicability to Oklahoma Tribes would
be done on a case-by-case basis. In authorization of the Oklahoma
NPDES program, EPA retained jurisdiction to regulate discharges in
Indian Country (61 FR 65049, 12/10/96). However, EPA believes it is
unlikely that large populations of Oklahoma Tribes would fall within
areas that would be determined to be a Federal Indian Reservation,
and thus, subject to regulation (see preamble).
---------------------------------------------------------------------------
For small businesses, in most instances, EPA evaluates the
potential impact by using a ``sales test.'' Under a sales test, EPA
compares the cost of complying with proposed requirements to a small
business' total annual sales. In developing the inputs to this test,
EPA calculated the compliance costs based on ``unit costs'' (i.e.,
compliance costs per single-family home) rather than costs per
developer/contractor because of the uncertainties associated with
estimating how many units an ``average'' developer/contractor might
develop or build in a typical year. Therefore, EPA's analysis was not
exactly a ``sales test,'' but was developed to derive the kind of
results that are comparable to results from a sales test. EPA
approximated the sales test by estimating compliance costs for single-
family homes under various scenarios and comparing those costs with the
median sales price of a single-family home. The results of this
approximation show that the cost of complying with the proposed rule
will not exceed 1 percent of the average sales price of a single family
home for an array of the most likely economic and regulatory scenarios.
EPA reached this conclusion after controlling for sites of different
size and the changes in compliance costs per site (i.e., single family
home) that depend upon the need to implement erosion and sediment
controls as a result of the proposed rule.
Because of the absence of data to specifically assess compliance
costs per developer/contractor as a percentage of total annual sales
(i.e., a very direct estimate of the impact on potentially affected
small businesses), EPA performed additional market analysis to examine
the ability of potentially affected firms to pass along regulatory
costs to buyers for single-family homes constructed using the storm
water control program proposed today. Obviously, if the small
construction companies that would be subject to the proposal are able
to pass the costs of compliance, either completely or partially, on to
their purchasers, then the proposed rule's impact is significantly
reduced. EPA conducted this supplemental analysis using available data
and published economic literature. The analysis evaluated the potential
effects of complying with this proposed rule on the market for single-
family houses for both the short and long term including potential
changes in the price and sales of single-family homes. The Agency
assessed the effect on average monthly mortgage rates for a range of
potential interest rates. EPA has concluded that the costs to site
developers and 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 including most potentially affected small firms
that are actively participating in this market. EPA's analysis projects
the impact of the rule on small site developers and building
contractors will be minimal because these companies are expected to
pass regulatory costs on to home buyers without a significant impact on
sales. Based on this assessment, the Administrator also certifies that
the proposal will not have a significant economic impact on a
substantial number of small businesses.
B. SBREFA Panel Process
As previously explained earlier in the preamble, EPA has conducted
an extensive outreach effort in developing today's storm water
proposal. EPA held a number of public and expert meetings to assist in
preparing the proposal, and the Agency established a FACA Committee
specifically to provide a forum for addressing storm water issues.
EPA also convened a Small Business Advocacy Review Panel
(``Panel''), as described in RFA section 609, in June 1997. Because
EPA's economic assessment was incomplete, the Agency was not initially
certain whether the proposed rule would have a significant economic
impact on a substantial number of small entities. A number of small
entity representatives were actively involved with EPA through the FACA
process, and were, therefore, broadly knowledgeable about the proposal
under development. 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 this group
(as well as to representatives from the Office of Management and Budget
and the Small Business Administration) and also conducted two telephone
conference calls and an all-day meeting at EPA Headquarters in May of
1997. With this preliminary work complete, in June 1997, EPA formally
convened the interagency Panel, comprising representatives from the
Office of Management and Budget, the Small Business Administration,
EPA's Office of Water and EPA's Small Business Advocacy Chair. The
Panel received written comments from representatives based on their
involvement in the earlier meetings, and invited additional comments to
be submitted during the term of the Panel itself.
Consistent with RFA requirements, the Panel evaluated the assembled
materials and small-entity comments on issues related to: (1) a
description and number of small entities to which the proposed rule
would apply; (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 proposed rule; and (4) regulatory
alternatives that would minimize any significant economic impact of the
proposed rule on small entities that would also accomplish 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. The Report noted that, because of
the extensive outreach conducted by the Agency, and due to the Agency's
responsiveness in addressing stakeholder concerns, small entity
representatives raised fewer concerns than might otherwise have been
expected. A copy of the Report is included in the docket for this
proposed rule. Notwithstanding today's certification that the proposed
rule will not have a significant economic impact on a substantial
number of small entities, the Agency has incorporated many of the
Panel's recommendations into today's proposal.
The Panel acknowledged and commended EPA's efforts prior to its
Report to work with stakeholders, including small entities, through the
Storm Water Phase II FACA Subcommittee. As discussed in the Background
section of this preamble (Section I.F. The FACA Committee
[[Page 1607]]
Effort) the subcommittee provided extensive input in the development of
today's proposal. The Agency also provided FACA members with copies of
the Economic Analysis of the proposal, which includes the initial
regulatory flexibility analysis. EPA has sought to build upon the
recommendations made by members of the federal advisory committee and
has responded to numerous issues raised by them concerning the scope,
method, and timing of the program outlined in today's proposal. The
SBREFA Panel stated that, because of the extensive outreach conducted
by the Agency and the Agency's 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 Storm Water Phase II FACA Subcommittee, as well
as the Panel Report, the proposal includes a number of provisions
designed to minimize any significant impact of the proposed rule on
small entities as explained below and in Appendix 5 of today's notice.
Municipal representatives commented to the Panel that small
municipal separate storm sewers systems in urbanized areas serving less
than 1,000 people might lack the capacity to certify that their
discharges do not have significant adverse water quality impacts. EPA
responded that the technical basis for such certification would
generally be produced by the permitting authority, in the form of a
TMDL or watershed plan. The Panel was concerned, however, that in the
absence of a TMDL or watershed plan developed by other parties (i.e.,
States or EPA), municipalities under 1,000 would have difficulty taking
advantage of this waiver provision. The Panel recommended that EPA
invite comment on this issue, and EPA has done so (Section II.G.3,
NPDES Permitting Authority's Role--Provide Waivers).
Municipal representatives also suggested to the Panel that small
municipal separate storm sewer systems serving less than 1,000 people
in urbanized areas should be automatically exempt, just as EPA is
proposing to exempt systems operated by Tribes of less than 1,000. As
further explained in Section F., Tribal Role, EPA believes that the
situations of very small Tribes are not comparable to those of small
municipalities because Tribes cannot generally rely on administrative
support from a State permitting authority in the way municipalities
can. Based on the positions taken by OMB and SBA in the Report,
however, EPA has agreed to request comment on this issue as well.
Other small business representatives also questioned the Panel
about the proposed comprehensive program to regulate construction
activities that result in the land disturbance of 1 acre up to 5 acres.
The Panel recommended that EPA revise the preamble to the proposed rule
to invite comment on alternatives to the proposed requirements,
including a discussion of the concerns expressed by small entity
representatives and their specific suggestions for addressing them. The
Agency has included the suggested alternatives in its discussion of
construction requirements in this preamble, in Section II. I. Other
Designated Storm Water Discharges.
Both municipal and industrial representatives commented to the
Panel that, to avoid redundance, requirements for construction
activities undertaken by municipalities or industrial facilities should
be incorporated within their respective permits (provided that the
permits detail sediment and erosion controls). Similarly, municipal
representatives commented that requirements for industrial facilities
operated by municipalities should be covered under municipal storm
water permits. The Panel recommended that EPA explore and request
comment on these ideas in the preamble of the proposed rule. The Panel
reported that these options may be appropriate for municipalities or
industrial facilities with individually-issued NPDES permits, but may
be difficult to administer under NPDES general permits. The Agency has
discussed and solicited comment on the first two of these options--
condensing construction requirements into a single municipal or
industrial storm water permit--as part of the preamble discussion of
construction requirements, in Section II.I. Other Designated Storm
Water Discharges. The Agency has discussed and solicited comment on the
third of these options--condensing industrial storm water requirements
for municipally owned or operated industrial facilities into a single
municipal storm water permit--in the preamble as part of the discussion
of industrial requirements, in Section II.I.3. Other Sources.
The Panel also received comments on a preliminary draft of the
revisions to the existing storm water rules providing relief to parties
certifying ``no exposure'' to rainfall events that could produce storm
water runoff. Commenters indicated that, as drafted, the provision
would preclude such certification (and thus deny appropriate exemption
from permitting requirements) to certain deserving facilities. Such
facilities include those that undergo a ``temporary operational
change'' or that maintain vehicles outdoors without generating
pollution. The Panel recommended that the Agency discuss these comments
with the Urban Wet Weather Flows FACA Committee and revise the proposal
as far as possible to allow all facilities preventing the actual
discharge of pollutants to make use of the ``no exposure'' EPA complied
with that recommendation as well.
In addition to looking for ways to redesign today's proposal to
limit its impacts on small entities, the Agency has been working with
the Storm Water Phase II Subcommittee to develop considerable support
for implementation through the ``tool box'' approach discussed in the
Section II.A.5. of this preamble. The tool box would include fact
sheets, guidances, an information clearinghouse, training and outreach
efforts, technical research, and support for demonstration projects.
EPA's outreach to small entities covered by this proposal and its
accommodation of their legitimate needs have been aggressive and highly
responsive. The Agency actively invites comments on all aspects of the
proposal and its impacts on small entities so that the final rule will
reflect the most auspicious balance between necessary environmental
protection and appropriate respect for the genuine limitations of small
entities in understanding and complying with applicable requirements.
VIII. National Technology Transfer and Advancement Act
Under Sec. 12(d) of the National Technology Transfer and
Advancement Act, the Agency is required 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, business practices,
management systems practices, etc.) that are developed or adopted by
voluntary consensus standard bodies. Where available and potentially
applicable voluntary consensus standards are not used by EPA, the Act
requires the Agency to provide Congress, through the Office of
Management and Budget, an explanation of the reasons for not using such
standards.
Today's proposed rule would not even prescribe nationally
applicable substantive control standards, either for construction site
storm water or municipal storm sewers. Such control standards would be
developed on a
[[Page 1608]]
State or local basis. Thus, as a threshold matter, the concept of
``technical standards'' would not apply to the regulatory activities
proposed today.
EPA requests comment on these findings. If a commenter believes
that today's rule relies on technical standards, the Agency also
solicits information about the identification and possible use of any
potentially applicable voluntary consensus standards for the final
rule.
List of Subjects in 40 CFR Parts 122 and 123
Environmental protection, Administrative procedure, Water pollution
control.
Dated: December 15, 1997.
Carol M. Browner,
Administrator.
Appendices to the Preamble
Appendix 1 to Preamble--Federally-Recognized American Indian Areas Located in Bureau of the Census Urbanized
Areas
[Based on 1990 Census data]
----------------------------------------------------------------------------------------------------------------
State American Indian area Urbanized area
----------------------------------------------------------------------------------------------------------------
AZ................ Pascua Yacqui Reservation (pt.), Pascua Tuscon, AZ (Phase I).
Yacqui Tribe of Arizona.
AZ................ Salt River Reservation (pt.), Salt River Pima- Phoenix, AZ (Phase I).
Maricopa Indian Community of the Salt River
Reservation, California.
AZ................ San Xavier Reservation (pt.), Tohono O'odham Tucson, AZ (Phase I).
Nation of Arizona (formerly known as the
Papago Tribe of the Sells, Gila Bend & San
Xavier Reservation).
CA................ Augustine Reservation, Augustine Band of Indio-Coachella, CA (Phase I).
Cahuilla Mission of Indians of the Augustine
Reservation, CA.
CA................ Cabazon Reservation, Cabazon Band of Cahuilla Indio-Coachella, CA (Phase I).
Mission Indians of the Cabazon Reservation,
CA.
CA................ Fort Yuma (Quechan) (pt.), Quechan Tribe of Yuma, AZ-CA.
the Fort Yuma Indian Reservation, California
and 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 (Phase I).
Florida, Dania, Big Cypress and Brighton
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 (pt.), Bangor, ME.
Penobscot Tribe of Maine.
MN................ Shakopee Community, Shakopee Mdewakanton Minneapolis-St. Paul, MN (Phase I).
Sioux Community of Minnesota (Prior Lake).
NM................ Sandia Pueblo (pt.), Pueblo of Sandia, New Albuquerque, NM (Phase I).
Mexico.
NV................ Las Vegas Colony, Las Vegas Tribe of Paiute Las Vegas, NV (Phase I).
Indians of the Las Vegas Indian 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-CitizensBand of Potawatomi Oklahoma City, OK (Phase I).
TJSA (pt.), Absentee-Shawnee Tribe of
Indians of Oklahoma, Citizen Potawatomi
Nation, Oklahoma.
OK................ Cherokee TJSA 9 (pt.), Cherokee Nation of Ft. Smith, AR-OK; Tulsa, OK (Phase I).
Oklahoma, United Keetoowah Band of Cherokee
Indians of Oklahoma.
OK................ Cheyenne-Arapaho TJSA (pt.), Cheyenne-Arapaho Oklahoma City, OK (Phase I).
Tribes of Oklahoma.
OK................ Choctaw TJSA (pt.), Choctaw Nation of Ft. Smith, AR-OK (Phase I).
Oklahoma.
OK................ Creek TJSA (pt.), Alabama-Quassarte Tribal Tulsa, OK (Phase I).
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, Apache Lawton, OK.
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 Sur El Paso, TX-NM (Phase I).
Pueblo of Texas.
WA................ Muckleshoot Reservation and Trust Lands Seattle, WA (Phase I).
(pt.), Muckleshoot Indian Tribe of the
Muckleshoot Reservation.
WA................ Puyallup Reservation and Trust Lands (pt.), Tacoma, WA (Phase I).
Puyallup Tribe of the Puyallup Reservation,
WA.
WA................ Yakima Reservation (pt.), Confederated Tribes Yakima, WA.
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.
``(Phase I)'' indicates that the urbanized area includes a medium or large MS4 currently regulated under the
existing NPDES storm water program (i.e. Phase I).
The first line under ``American Indian Area'' is the name of the reservation/colony/rancheria as it appears in
the Bureau of the Census data. Under this first line, the names of the tribes included in the AIA are listed
as they appear on the Bureau of Indian Affairs' list of Federally Recognized Indian Tribes. [Federal Register:
Nov. 13, 1996, Vol. 66, No. 220, pgs. 58211-58216]
Information for Tribal Jurisdiction Statistical Areas (TSJAs) in Oklahoma was also included in the table. These
areas 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.
Sources: Mike Radcliffe, Geography Division, Bureau of the Census.
1990 Census of Population and Housing, Summary Population and Housing Characteristics, United States. Tables 9
& 10. [1990 CPH-1-1].
Federal Register: Nov. 13, 1996, Vol. 66, No. 220, pgs. 58211-58216.
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Appendix 3 to Preamble--Urbanized Areas of the United States and Puerto
Rico (based on 1990 Census data)
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
Slidell
Maine
Bangor
[[Page 1611]]
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, RI
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
Chattanooga, TN--GA
Clarksville, TN--KY
Jackson
Johnson City
[[Page 1612]]
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
Appendix 4 to Preamble
Checklist for No-Exposure Certification for NPDES Storm Water
Permitting
Instructions--EPA Form XXX-X
Who May File a No-Exposure Certification
In accordance with the Clean Water Act, all industrial
facilities that discharge storm water meeting the definition of
storm water associated with industrial activity must apply for
coverage under a National Pollutant Discharge Elimination System
(NPDES) permit. However, permit coverage is not required at
facilities that can certify a ``no-exposure'' condition exists. This
document may be used to certify that at the facility described
herein, a condition of no-exposure exists. This certification is
under the auspices of the EPA only and must be made at least once
every five years. Should the industrial activity change such that a
condition of no-exposure no longer exists, this certification is no
longer valid and coverage under an NPDES storm water permit must be
sought.
Definition of No-Exposure
No-exposure exists at an industrial facility when all industrial
materials or activities, including, but not limited to, material
handling equipment, industrial machinery, raw materials,
intermediate products, by-products or waste products, however
packaged, are protected by a storm-resistant shelter so as not to be
exposed to rain, snow, snowmelt, or runoff. Adequately maintained
mobile equipment (trucks, automobiles, trailers or other such
general purpose vehicles found at the industrial site which
themselves are not industrial machinery or material handling
equipment and which are not leaking contaminants or are not
otherwise a source of industrial pollutants) may be exposed to
precipitation or runoff.
Completing the Form
You must type or print in the spaces provided only. One form
must be completed for each facility or site for which you are
seeking to certify no-exposure.
Section I. Facility Operator Information
Provide the legal name (no colloquial names) of the person,
firm, public organization, or any other entity that operates the
facility or site described in this certification. The name of the
operator may or may not be the same as the name of the facility. The
operator is the legal entity that controls the facility's operation,
rather than the plant or site manager. Enter the complete address
(P.O. Box numbers OK) and telephone number of the operator.
Section II. Facility/Site Location Information
Enter the facility's or site's official or legal name and
complete street address (directional address OK if no street address
exists). Do not provide a P.O. Box number as the street address. In
addition, provide the latitude and longitude of the facility to the
nearest 15 seconds of the approximate center of the site (if you do
not know your site's latitude and longitude, call 1-800-USA-MAPS).
Section III. Exposure Checklist
Circle ``Yes'' or ``No'' as appropriate to describe conditions
at your facility. For the purposes of this document, ``material'' is
defined as any raw material, intermediate product, finished product,
by-product or waste product, however packaged. ``Material handling
activities'', by definition, include storage, loading and/or
unloading, transportation or conveyance of a raw material,
intermediate product, finished product, by-product or waste product.
Interpretation of Results
If you answer ``Yes'' to ANY of questions a. through r. in
Section III, a potential for exposure exists at your site and you
cannot certify a no-exposure condition exists. You must obtain (or
already have) coverage under an NPDES Storm Water permit. After
obtaining permit coverage, you can institute modifications to
eliminate the potential for a discharge of storm water exposed to
industrial activity, and then claim no-exposure and terminate
coverage under the existing permit.
Section IV. Certification
Federal statutes provide for severe penalties for submitting
false information on this application form. Federal regulations
require this application to be signed as follows:
For a corporation: by a responsible corporate officer, which
means: (i) president, secretary, treasurer, or vice-president of the
corporation in charge of a principal business function, or any other
person who performs similar policy or decision making functions, or
(ii) the manager of one or more manufacturing, production, or
operating
[[Page 1613]]
facilities employing more than 250 persons or having gross annual
sales or expenditures exceeding $25 million (in second-quarter 1980
dollars) if authority to sign documents has been assigned or
delegated to the manager in accordance with corporate procedures
[note, wording subject to change as a result of NPDES streamlining,
rnd. II];
For a partnership or sole proprietorship: by a general partner
or the proprietor; or
For a municipality, State, Federal, or other public facility: by
either a principal executive officer or ranking elected official.
Where To File This Form
Mail the completed form to:
XXXXXXXXXXXXXXX
XXXXXXXXXXXXXXX
U.S. Environmental Protection Agency (4203)
401 M St. SW
Washington, DC 20460
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Appendix 5 to Preamble--Regulatory Flexibility for Small Entities
A. Regulatory Flexibility for Municipal Storm Sewer Systems (MS4s)
Different Compliance, Reporting, or Timetables That Are Responsive to
Resources of Small Entities
NPDES permitting authority would issue general permits instead
of requiring individual permits. This flexibility would avoid the
high application costs and administrative burden associated with
individual permits.
NPDES permitting authority could specify a time period of up to
five years for small MS4s to fully develop and implement their
program.
Analytic monitoring would not be required.
After the first permit term and subsequent permit terms,
submittal of a summary report would only be required in years two
and four. Phase I municipalities are currently required to submit a
detailed report each year.
Brief reporting format encouraged to facilitate compiling and
analyzing data from submitted reports. EPA would develop a model
form for this purpose.
Clarifying, Consolidating, or Simplifying Compliance and Reporting
Requirements
The proposed rule would avoid duplication in permit requirements
by allowing the NPDES permitting authority to incorporate by
reference State, Tribal, or local programs under a NPDES general
permit. Compliance with these programs would be considered
compliance with the NPDES general permit.
The proposed rule would allow the NPDES permitting authority to
recognize existing responsibilities among different municipal
entities to satisfy obligations for the minimum control measures.
For example, a State program may address construction site storm
water runoff. Municipalities would be relieved of that obligation
and would only be responsible for the remaining minimum control
measures.
The proposed rule would allow 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 would need to be met:
1. The particular control measure (or component thereof) is
equivalent to what the NPDES permit requires,
2. The other entity is implementing the control measure, and
3. The small MS4 has requested, and the other entity has agreed
to accept responsibility for implementation of the control measure
on your behalf and to satisfy your permit obligation.
The proposed rule would allow a covered small MS4 to ``piggy-
back'' on to the storm water management program of an adjoining
Phase I MS4. A small MS4 would be 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 proposed rule would accommodate the use of the watershed
approach through NPDES general permits that could be issued on a
watershed basis. A municipality could develop measures that are
tailored to meet their watershed requirements. Municipalities' storm
water management program could tie into watershed-wide plans.
Performance Rather Than Design Standards for Small Entities
Small governmental jurisdictions whose MS4s are covered by this
proposed rule would be 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 1616]]
4. Construction site storm water runoff control for sites of one
or more acre.
5. Post-construction storm water management in new development
and redevelopment for sites of one or more acre.
6. Pollution prevention/good housekeeping for municipal
operations.
EPA would provide guidance and would recommend, but not mandate,
certain BMPs for some of the minimum control measures listed above.
Small governmental jurisdictions would identify the measurable
goals for each of the minimum control measures listed above. In
their reports to the NPDES permitting authority, the small MS4s
would need to evaluate their progress towards achievement of their
identified measurable goals.
Waivers for Small Entities From Coverage
The proposed rule would waiver from coverage Indian Tribes
located within an urbanized area and whose population is less than
or equal to 1,000 people.
The proposed rule would allow the permitting authority to waive
from coverage MS4s owned or operated by small governmental
jurisdictions located within an urbanized area and serving a
population less than or equal to 1,000 people where the permitting
authority determines:
1. Implementation of a TMDL that addresses the pollutants of
concern, or
2. Implementation of a comprehensive watershed plan for the
water body.
B. Regulatory Flexibility for Construction Activities
Different Compliance, Reporting, or Timetables That Are Responsive to
Resources of Small Entities
The proposed rule would give the relevant Director of the NPDES
permitting program 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. Currently, all
construction sites disturbing greater than 5 acres must submit an
NOI.
Clarifying, Consolidating, or Simplifying Compliance and Reporting
Requirements
The proposed rule would avoid 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 would be considered compliance with the NPDES general
permit.
Performance Rather Than Design Standards for Small Entities
The operator of a covered construction activity would select 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 the revised
Universal Soil Loss Equation. Universal Soil Loss Equation (USLE)
(A) Default/Low-Risk Exemption: When rainfall energy factor (R
from Universal Soil Loss Equation) is less than 2 during periods of
construction activity, a permit would not be required.
(B) Case-by-Case Determination: A permit would not be required
for sites having an annual soil loss less than 2 tons/acre/year.
The NPDES permitting authority could waive from coverage
construction activities disturbing from 1 acre up to 5 acres of land
where the permitting authority determines that storm water controls
are not needed based on:
1. Implementation of a TMDL that addresses the pollutants of
concern, or
2. Implementation of a comprehensive watershed plan for the
water body.
C. Regulatory Flexibility for Industrial/Commercial Facilities
Waivers for Small Entities From Coverage
The proposed rule would provide a ``no-exposure'' waiver
provision for Phase I industrial/commercial facilities. Those
facilities seeking this provision would simply need to complete a
self-certification form.
Appendix 6 of Preamble--Incorporated Places and Counties Proposed To Be
Automatically Designated Under the Storm Water Phase II Proposed Rule
(From the 1990 Census of Population and Housing--U.S. Census Bureau)
(This List May Change With the Decennial Census)
AL Anniston
AL Attalla
AL Auburn
AL Autauga County
AL Blue Mountain
AL Calhoun County
AL Colbert County
AL Dale County
AL Decatur
AL Dothan
AL Etowah County
AL Flint City
AL Florence
AL Gadsden
AL Glencoe
AL Grimes
AL Hartselle
AL Hobson City
AL Hokes Bluff
AL Houston County
AL Kinsey
AL Lauderdale County
AL Lee County
AL Madison County
AL Midland City
AL Montgomery County
AL Morgan County
AL Muscle Shoals
AL Napier Field
AL Northport
AL Opelika
AL Oxford
AL Phenix City
AL Prattville
AL Priceville
AL Rainbow City
AL Russell County
AL Sheffield
AL Southside
AL Sylvan Springs
AL Talladega County
AL Tuscaloosa
AL Tuscaloosa County
AL Tuscumbia
AL Weaver
AZ Apache Junction
AZ Chandler
AZ El Mirage
AZ Gilbert
AZ Guadalupe
AZ Maricopa County
AZ Oro Valley
AZ Paradise Valley
AZ Peoria
AZ Pinal County
AZ South Tucson
AZ Surprise
AZ Tolleson
AZ Youngtown
AZ Yuma
AZ Yuma County
AR Alexander
AR Barling
AR Benton County
AR Cammack Village
AR Crawford County
AR Crittenden County
AR Farmington
AR Fayetteville
AR Fort Smith
AR Greenland
AR Jacksonville
AR Jefferson County
AR Johnson
AR Marion
AR Miller County
AR North Little Rock
AR Pine Bluff
AR Pulaski County
AR Saline County
AR Shannon Hills
AR Sherwood
AR Springdale
AR Sunset
AR Texarkana
AR Van Buren
AR Washington County
AR West Memphis
AR White Hall
CA Apple Valley
CA Belvedere
CA Benicia
CA Brentwood
CA Butte County
CA Capitola
CA Carmel-by-the-Sea
CA Carpinteria
CA Ceres
CA Chico
CA Compton
CA Corte Madera
CA Cotati
CA Davis
CA Del Rey Oaks
CA Fairfax
CA Hesperia
CA Imperial County
CA Lakewood
CA Lancaster
CA Larkspur
CA Lodi
CA Lompoc
CA Marin County
CA Marina
CA Marysville
CA Merced
CA Merced County
CA Mill Valley
CA Monterey
CA Monterey County
CA Morgan Hill
[[Page 1617]]
CA Napa
CA Napa County
CA Novato
CA Pacific Grove
CA Palm Desert
CA Palmdale
CA Piedmont
CA Redding
CA Rocklin
CA Rohnert Park
CA Roseville
CA Ross
CA San Anselmo
CA San Buenaventura (Ventura)
CA San Francisco
CA San Joaquin County
CA San Luis Obispo
CA San Luis Obispo County
CA San Rafael
CA Sand City
CA Santa Barbara
CA Santa Barbara County
CA Santa Cruz
CA Santa Cruz County
CA Santa Maria
CA Sausalito
CA Scotts Valley
CA Seaside
CA Shasta County
CA Solano County
CA Sonoma County
CA Stanislaus County
CA Sutter County
CA Tiburon
CA Tulare County
CA Vacaville
CA Victorville
CA Villa Park
CA Visalia
CA Watsonville
CA West Sacramento
CA Yolo County
CA Yuba City
CA Yuba County
CO Adams County
CO Arvada
CO Boulder
CO Boulder County
CO Bow Mar
CO Broomfield
CO Cherry Hills Village
CO Columbine Valley
CO Commerce City
CO Douglas County
CO Edgewater
CO El Paso County
CO Englewood
CO Evans
CO Federal Heights
CO Fort Collins
CO Fountain
CO Garden City
CO Glendale
CO Golden
CO Grand Junction
CO Greeley
CO Greenwood Village
CO Jefferson County
CO La Salle
CO Lakeside
CO Larimer County
CO Littleton
CO Longmont
CO Manitou Springs
CO Mesa County
CO Mountain View
CO Northglenn
CO Pueblo
CO Pueblo County
CO Sheridan
CO Thornton
CO Weld County
CO Westminster
CO Wheat Ridge
CT Ansonia
CT Bridgeport
CT Bristol
CT Danbury
CT Derby
CT Fairfield County
CT Groton
CT Hartford
CT Hartford County
CT Litchfield County
CT Meriden
CT Middlesex County
CT Middletown
CT Milford
CT Naugatuck
CT New Britain
CT New Haven
CT New Haven County
CT New London
CT New London County
CT Norwalk
CT Norwich
CT Shelton
CT Tolland County
CT Waterbury
CT West Haven
CT Windham County
CT Woodmont
DE Camden
DE Dover
DE Kent County
DE Newark
DE Wyoming
FL Alachua County
FL Baldwin
FL Bay County
FL Belleair Shore
FL Biscayne Park
FL Brevard County
FL Callaway
FL Cape Canaveral
FL Cedar Grove
FL Charlotte County
FL Cinco Bayou
FL Clay County
FL Cocoa
FL Cocoa Beach
FL Collier County
FL Daytona Beach
FL Daytona Beach Shores
FL Destin
FL Edgewater
FL El Portal
FL FLorida City
FL Fort Pierce
FL Fort Walton Beach
FL Gainesville
FL Gulf Breeze
FL Hernando County
FL Hillsboro Beach
FL Holly Hill
FL Indialantic
FL Indian Harbour Beach
FL Indian River County
FL Indian River Shores
FL Indian Shores
FL Kissimmee
FL Lazy Lake
FL Lynn Haven
FL Malabar
FL Marion County
FL Martin County
FL Mary Esther
FL Melbourne
FL Melbourne Beach
FL Melbourne Village
FL Naples
FL New Smyrna Beach
FL Niceville
FL Ocala
FL Ocean Breeze Park
FL Okaloosa County
FL Orange Park
FL Ormond Beach
FL Osceola County
FL Palm Bay
FL Panama City
FL Parker
FL Ponce Inlet
FL Port Orange
FL Port St. Lucie
FL Punta Gorda
FL Rockledge
FL Santa Rosa County
FL Satellite Beach
FL Sewall's Point
FL Shalimar
FL South Daytona
FL Springfield
FL St. Johns County
FL St. Lucie
FL St. Lucie County
FL Stuart
FL Sweetwater
FL Titusville
FL Valparaiso
FL Vero Beach
FL Virginia Gardens
FL Volusia County
FL Walton County
FL Weeki Wachee
FL West Melbourne
FL Windermere
GA Albany
GA Athens
GA Bartow County
GA Bibb City
GA Brunswick
GA Catoosa County
GA Centerville
GA Chattahoochee County
GA Cherokee County
GA Chickamauga
GA Clarke County
GA Columbia County
GA Columbus
GA Conyers
GA Dade County
GA Dougherty County
GA Douglas County
GA Douglasville
GA Fayette County
GA Floyd County
GA Fort Oglethorpe
GA Glynn County
GA Grovetown
GA Henry County
GA Houston County
GA Jones County
GA Lee County
GA Lookout Mountain
GA Mountain Park
GA Oconee County
[[Page 1618]]
GA Payne
GA Rockdale County
GA Rome
GA Rossville
GA Stockbridge
GA Vernonburg
GA Walker County
GA Warner Robins
GA Winterville
GA Woodstock
ID Ada County
ID Ammon
ID Bannock County
ID Bonneville County
ID Chubbuck
ID Garden City
ID IDaho Falls
ID Iona
ID Pocatello
IL Addison
IL Algonquin
IL Alorton
IL Alsip
IL Alton
IL Antioch
IL Arlington Heights
IL Aroma Park
IL Aurora
IL Bannockburn
IL Barrington
IL Bartlett
IL Bartonville
IL Batavia
IL Beach Park
IL Bedford Park
IL Belleville
IL Bellevue
IL Bellwood
IL Bensenville
IL Berkeley
IL Berwyn
IL Bethalto
IL Bloomingdale
IL Bloomington
IL Blue Island
IL Bolingbrook
IL Bourbonnais
IL Bradley
IL Bridgeview
IL Broadview
IL Brookfield
IL Brooklyn
IL Buffalo Grove
IL Burbank
IL Burnham
IL Burr Ridge
IL Cahokia
IL Calumet City
IL Calumet Park
IL Carbon Cliff
IL Carol Stream
IL Carpentersville
IL Cary
IL Caseyville
IL Centreville
IL Champaign
IL Champaign County
IL Cherry Valley
IL Chicago
IL Chicago Heights
IL Chicago Ridge
IL Cicero
IL Clarendon Hills
IL Coal Valley
IL Collinsville
IL Colona
IL Columbia
IL Cook County
IL Country Club Hills
IL Countryside
IL Crest Hill
IL Crestwood
IL Crete
IL Creve Coeur
IL Crystal Lake
IL Darien
IL Decatur
IL Deer Park
IL Deerfield
IL Des Plaines
IL Dixmoor
IL Dolton
IL Downers Grove
IL Dupo
IL DuPage County
IL East Alton
IL East Dubuque
IL East Dundee
IL East Hazel Crest
IL East Moline
IL East Peoria
IL East St. Louis
IL Edwardsville
IL Elgin
IL Elk Grove Village
IL Elmhurst
IL Elmwood Park
IL Evanston
IL Evergreen Park
IL Fairmont City
IL Fairview Heights
IL Flossmoor
IL Ford Heights
IL Forest Park
IL Forest View
IL Forsyth
IL Fox Lake
IL Fox River Grove
IL Frankfort
IL Franklin Park
IL Geneva
IL Gilberts
IL Glen Carbon
IL Glen Ellyn
IL Glencoe
IL Glendale Heights
IL Glenview
IL Glenwood
IL Golf
IL Grandview
IL Granite City
IL Grayslake
IL Green Oaks
IL Green Rock
IL Gurnee
IL Hainesville
IL Hampton
IL Hanover Park
IL Harristown
IL Hartford
IL Harvey
IL Harwood Heights
IL Hawthorn Woods
IL Hazel Crest
IL Henry County
IL Hickory Hills
IL Highland Park
IL Highwood
IL Hillside
IL Hinsdale
IL Hodgkins
IL Hoffman Estates
IL Hometown
IL Homewood
IL Indian Creek
IL Indian Head Park
IL Inverness
IL Itasca
IL Jerome
IL Jo Daviess County
IL Joliet
IL Justice
IL Kane County
IL Kankakee
IL Kankakee County
IL Kendall County
IL Kenilworth
IL Kildeer
IL La Grange
IL La Grange Park
IL Lake in the Hills
IL Lake Barrington
IL Lake Bluff
IL Lake County
IL Lake Forest
IL Lake Villa
IL Lake Zurich
IL Lakemoor
IL Lakewood
IL Lansing
IL Leland Grove
IL Libertyville
IL Lincolnshire
IL Lincolnwood
IL Lindenhurst
IL Lisle
IL Lockport
IL Lombard
IL Long Grove
IL Loves Park
IL Lynwood
IL Lyons
IL Machesney Park
IL Macon County
IL Madison
IL Madison County
IL Markham
IL Marquette Heights
IL Maryville
IL Matteson
IL Maywood
IL McCook
IL McCullom Lake
IL McHenry
IL McHenry County
IL McLean County
IL Melrose Park
IL Merrionette Park
IL Midlothian
IL Milan
IL Moline
IL Monroe County
IL Montgomery
IL Morton
IL Morton Grove
IL Mount Prospect
IL Mount Zion
IL Mundelein
IL Naperville
IL National City
IL New Lenox
IL New Millford
IL Niles
IL Normal
IL Norridge
IL North Aurora
IL North Barrington
IL North Chicago
[[Page 1619]]
IL North Pekin
IL North Riverside
IL Northbrook
IL Northfield
IL Northlake
IL Norwood
IL O'Fallon
IL Oak Brook
IL Oak Forest
IL Oak Grove
IL Oak Lawn
IL Oak Park
IL Oakbrook Terrace
IL Oakwood Hills
IL Olympia Fields
IL Orland Hills
IL Orland Park
IL Oswego
IL Palatine
IL Palos Heights
IL Palos Hills
IL Palos Park
IL Park City
IL Park Forest
IL Park Ridge
IL Pekin
IL Peoria
IL Peoria County
IL Peoria Heights
IL Phoenix
IL Plainfield
IL Pontoon Beach
IL Posen
IL Prospect Heights
IL Richton Park
IL River Forest
IL River Grove
IL Riverdale
IL Riverside
IL Riverwoods
IL Robbins
IL Rock Island
IL Rock Island County
IL Rockdale
IL Rockton
IL Rolling Meadows
IL Romeoville
IL Roscoe
IL Roselle
IL Rosemont
IL Round Lake
IL Round Lake Beach
IL Round Lake Heights
IL Round Lake Park
IL Roxana
IL Sangamon County
IL Sauget
IL Sauk Village
IL Savoy
IL Schaumburg
IL Schiller Park
IL Shiloh
IL Shorewood
IL Silvis
IL Skokie
IL Sleepy Hollow
IL South Beloit
IL South Chicago Heights
IL South Elgin
IL South Holland
IL South Roxana
IL Southern View
IL Springfield
IL St. Charles
IL St. Clair County
IL Steger
IL Stickney
IL Stone Park
IL Streamwood
IL Summit
IL Sunnyside
IL Swansea
IL Tazewell County
IL Thornton
IL Tinley Park
IL Tower Lakes
IL Troy
IL University Park
IL Urbana
IL Venice
IL Vernon Hills
IL Villa Park
IL Warrenville
IL Washington
IL Washington Park
IL Waukegan
IL West Chicago
IL West Dundee
IL Westchester
IL Western Springs
IL Westmont
IL Wheaton
IL Wheeling
IL Will County
IL Willow Springs
IL Willowbrook
IL Wilmette
IL Winfield
IL Winnebago County
IL Winnetka
IL Winthrop Harbor
IL Wood Dale
IL Wood River
IL Woodridge
IL Worth
IL Zion
IN Allen County
IN Anderson
IN Beech Grove
IN Bloomington
IN Boone County
IN Carmel
IN Castleton
IN Chesterfield
IN Chesterton
IN Clark County
IN Clarksville
IN Clermont
IN Country Club Heights
IN Crown Point
IN Crows Nest
IN Cumberland
IN Daleville
IN Delaware County
IN Dyer
IN East Chicago
IN Edgewood
IN Elkhart
IN Elkhart County
IN Evansville
IN Fishers
IN Floyd County
IN Gary
IN Goshen
IN Greenwood
IN Griffith
IN Hamilton County
IN Hammond
IN Hancock County
IN Hendricks County
IN Highland
IN Hobart
IN Homecroft
IN Howard County
IN Indian Village
IN Jeffersonville
IN Johnson County
IN Kokomo
IN Lafayette
IN Lake County
IN Lake Station
IN Lawrence
IN Madison County
IN Meridian Hills
IN Merrillville
IN Mishawaka
IN Monroe County
IN Muncie
IN Munster
IN New Albany
IN New Chicago
IN New Haven
IN New Whiteland
IN Newburgh
IN North Crows Nest
IN Ogden Dunes
IN Osceola
IN Portage
IN Porter
IN Porter County
IN River Forest
IN Rocky Ripple
IN Roseland
IN Schererville
IN Seelyville
IN Sellersburg
IN Selma
IN South Bend
IN Southport
IN Speedway
IN Spring Hill
IN St. John
IN St. Joseph County
IN Terre Haute
IN Tippecanoe County
IN Vanderburgh County
IN Vigo County
IN Warren Park
IN Warrick County
IN West Lafayette
IN West Terre Haute
IN Westfield
IN Whiteland
IN Whiting
IN Williams Creek
IN Woodlawn Heights
IN Wynnedale
IN Yorktown
IN Zionsville
IA Altoona
IA Asbury
IA Bettendorf
IA Black Hawk County
IA Buffalo
IA Carter Lake
IA Cedar Falls
IA Clive
IA Coralville
IA Council Bluffs
IA Dubuque
IA Dubuque County
IA Elk Run Heights
IA Evansdale
IA Hiawatha
IA Iowa City
IA Johnson County
IA Johnston
IA Le Claire
[[Page 1620]]
IA Linn County
IA Marion
IA Norwalk
IA Panorama Park
IA Pleasant Hill
IA Polk County
IA Pottawattamie County
IA Raymond
IA Riverdale
IA Robins
IA Scott County
IA Sergeant Bluff
IA Sioux City
IA University Heights
IA Urbandale
IA Warren County
IA Waterloo
IA West Des Moines
IA Windsor Heights
KS Bel Aire
KS Countryside
KS Doniphan County
KS Douglas County
KS Eastborough
KS Elwood
KS Fairway
KS Haysville
KS Johnson County
KS Kechi
KS Lake Quivira
KS Lawrence
KS Leawood
KS Lenexa
KS Merriam
KS Mission
KS Mission Hills
KS Mission Woods
KS Olathe
KS Park City
KS Prairie Village
KS Roeland Park
KS Sedgwick County
KS Shawnee
KS Shawnee County
KS Westwood
KS Westwood Hills
KY Alexandria
KY Anchorage
KY Ashland
KY Audubon Park
KY Bancroft
KY Barbourmeade
KY Beechwood Village
KY Bellefonte
KY Bellemeade
KY Bellevue
KY Bellewood
KY Blue Ridge Manor
KY Boone County
KY Boyd County
KY Briarwood
KY Broad Fields
KY Broeck Pointe
KY Bromley
KY Brownsboro Farm
KY Brownsboro Village
KY Bullitt County
KY Cambridge
KY Campbell County
KY Catlettsburg
KY Cherrywood Village
KY Christian County
KY Cold Spring
KY Covington
KY Creekside
KY Crescent Park
KY Crescent Springs
KY Crestview
KY Crestview Hills
KY Crossgate
KY Daviess County
KY Dayton
KY Douglass Hills
KY Druid Hills
KY Edgewood
KY Elsmere
KY Erlanger
KY Fairmeade
KY Fairview
KY Flatwoods
KY Florence
KY Forest Hills
KY Fort Mitchell
KY Fort Thomas
KY Fort Wright
KY Fox Chase
KY Glenview
KY Glenview Hills
KY Glenview Manor
KY Goose Creek
KY Graymoor-Devondale
KY Green Spring
KY Greenup County
KY Hebron Estates
KY Henderson
KY Henderson County
KY Hickory Hill
KY Highland Heights
KY Hills and Dales
KY Hillview
KY Hollow Creek
KY Hollyvilla
KY Houston Acres
KY Hunters Hollow
KY Hurstbourne
KY Hurstbourne Acres
KY Independence
KY Indian Hills
KY Indian Hills Cherokee Section
KY Jeffersontown
KY Jessamine County
KY Keeneland
KY Kenton County
KY Kenton Vale
KY Kingsley
KY Lakeside Park
KY Langdon Place
KY Latonia Lakes
KY Lincolnshire
KY Ludlow
KY Lyndon
KY Lynnview
KY Manor Creek
KY Maryhill Estates
KY Meadow Vale
KY Meadowbrook Farm
KY Meadowview Estates
KY Melbourne
KY Middletown
KY Minor Lane Heights
KY Mockingbird Valley
KY Moorland
KY Murray Hill
KY Newport
KY Norbourne Estates
KY Northfield
KY Norwood
KY Oak Grove
KY Old Brownsboro Place
KY Owensboro
KY Park Hills
KY Parkway Village
KY Pioneer Village
KY Plantation
KY Plymouth Village
KY Poplar Hills
KY Prospect
KY Raceland
KY Richlawn
KY Riverwood
KY Robinswood
KY Rolling Fields
KY Rolling Hills
KY Russell
KY Seneca Gardens
KY Shively
KY Silver Grove
KY South Park View
KY Southgate
KY Spring Mill
KY Spring Valley
KY Springlee
KY St. Matthews
KY St. Regis Park
KY Strathmoor Gardens
KY Strathmoor Manor
KY Strathmoor Village
KY Sycamore
KY Taylor Mill
KY Ten Broeck
KY Thornhill
KY Villa Hills
KY Watterson Park
KY Wellington
KY West Buechel
KY Westwood
KY Whipps Millgate
KY Wilder
KY Wildwood
KY Winding Falls
KY Windy Hills
KY Woodland Hills
KY Woodlawn
KY Woodlawn Park
KY Worthington
KY Wurtland
LA Alexandria
LA Baker
LA Ball
LA Bossier City
LA Bossier Parish
LA Broussard
LA Caddo Parish
LA Calcasieu Parish
LA Carencro
LA Denham Springs
LA East Baton Rouge Parish
LA Houma
LA Lafayette
LA Lafayette Parish
LA Lafourche Parish
LA Lake Charles
LA Livingston Parish
LA Monroe
LA Ouachita Parish
LA Pineville
LA Plaquemines Parish
LA Port Allen
LA Rapides Parish
LA Richwood
LA Scott
LA Slidell
LA St. Bernard Parish
LA St. Charles Parish
LA St. Tammany Parish
LA Sulphur
LA Terrebonne Parish
LA West Baton Rouge Parish
[[Page 1621]]
LA West Monroe
LA Westlake
LA Zachary
ME Androscoggin County
ME Auburn
ME Bangor
ME Brewer
ME Cumberland County
ME Lewiston
ME Old Town
ME Penobscot County
ME Portland
ME South Portland
ME Westbrook
ME York County
MD Allegany County
MD Annapolis
MD Bel Air
MD Berwyn Heights
MD Bladensburg
MD Bowie
MD Brentwood
MD Brookeville
MD Capitol Heights
MD Cecil County
MD Cheverly
MD Chevy Chase
MD Chevy Chase Section Five
MD Chevy Chase Section Three
MD Chevy Chase Village
MD College Park
MD Colmar Manor
MD Cottage City
MD Cumberland
MD District Heights
MD Edmonston
MD Elkton
MD Fairmount Heights
MD Forest Heights
MD Frederick
MD Frostburg
MD Funkstown
MD Gaithersburg
MD Garrett Park
MD Glen Echo
MD Glenarden
MD Greenbelt
MD Hagerstown
MD Highland Beach
MD Hyattsville
MD Kensington
MD Landover Hills
MD Laurel
MD Martin's Additions
MD Morningside
MD Mount Rainier
MD New Carrollton
MD North Brentwood
MD Riverdale
MD Rockville
MD Seat Pleasant
MD Smithsburg
MD Somerset
MD Takoma Park
MD University Park
MD Walkersville
MD Washington Grove
MD Williamsport
MA Attleboro
MA Barnstable County
MA Berkshire County
MA Beverly
MA Bristol County
MA Brockton
MA Cambridge
MA Chelsea
MA Chicopee
MA Essex County
MA Everett
MA Fall River
MA Fitchburg
MA Gloucester
MA Hampden County
MA Hampshire County
MA Haverhill
MA Holyoke
MA Lawrence
MA Leominster
MA Lowell
MA Lynn
MA Malden
MA Marlborough
MA Medford
MA Melrose
MA Middlesex County
MA New Bedford
MA Newton
MA Norfolk County
MA Northampton
MA Peabody
MA Pittsfield
MA Plymouth County
MA Quincy
MA Revere
MA Salem
MA Somerville
MA Springfield
MA Suffolk County
MA Taunton
MA Waltham
MA Westfield
MA Woburn
MA Worcester County
MI Allegan County
MI Allen Park
MI Auburn Hills
MI Battle Creek
MI Bay City
MI Bay County
MI Belleville
MI Benton Harbor
MI Berkley
MI Berrien County
MI Beverly Hills
MI Bingham Farms
MI Birmingham
MI Bloomfield Hills
MI Burton
MI Calhoun County
MI Cass County
MI Center Line
MI Clarkston
MI Clawson
MI Clinton County
MI Clio
MI Davison
MI Dearborn
MI Dearborn Heights
MI Detroit
MI East Detroit
MI East Grand Rapids
MI East Lansing
MI Eaton County
MI Ecorse
MI Essexville
MI Farmington
MI Farmington Hills
MI Ferndale
MI Flat Rock
MI Flushing
MI Franklin
MI Fraser
MI Garden City
MI Genesee County
MI Gibraltar
MI Grand Blanc
MI Grandville
MI Grosse Pointe
MI Grosse Pointe Farms
MI Grosse Pointe Park
MI Grosse Pointe Shores
MI Grosse Pointe Woods
MI Hamtramck
MI Harper Woods
MI Hazel Park
MI Highland Park
MI Holland
MI Hudsonville
MI Huntington Woods
MI Ingham County
MI Inkster
MI Jackson
MI Jackson County
MI Kalamazoo
MI Kalamazoo County
MI Keego Harbor
MI Kent County
MI Kentwood
MI Lake Angelus
MI Lansing
MI Lathrup Village
MI Lincoln Park
MI Livonia
MI Macomb County
MI Madison Heights
MI Marysville
MI Melvindale
MI Monroe County
MI Mount Clemens
MI Mount Morris
MI Muskegon
MI Muskegon County
MI Muskegon Heights
MI New Baltimore
MI Niles
MI North Muskegon
MI Northville
MI Norton Shores
MI Novi
MI Oak Park
MI Oakland County
MI Orchard Lake Village
MI Ottawa County
MI Parchment
MI Pleasant Ridge
MI Plymouth
MI Pontiac
MI Port Huron
MI Portage
MI River Rouge
MI Riverview
MI Rochester
MI Rochester Hills
MI Rockwood
MI Romulus
MI Roosevelt Park
MI Roseville
MI Royal Oak
MI Saginaw
MI Saginaw County
MI Shoreham
MI South Rockwood
MI Southfield
MI Southgate
MI Springfield
MI St. Clair
MI St. Clair County
[[Page 1622]]
MI St. Clair Shores
MI St. Joseph
MI Stevensville
MI Swartz Creek
MI Sylvan Lake
MI Taylor
MI Trenton
MI Troy
MI Utica
MI Walker
MI Walled Lake
MI Washtenaw County
MI Wayne
MI Wayne County
MI Westland
MI Wixom
MI Wolverine Lake
MI Woodhaven
MI Wyandotte
MI Wyoming
MI Ypsilanti
MI Zeeland
MI Zilwaukee
MN Andover
MN Anoka
MN Apple Valley
MN Arden Hills
MN Benton County
MN Birchwood Village
MN Blaine
MN Bloomington
MN Brooklyn Center
MN Brooklyn Park
MN Burnsville
MN Champlin
MN Chanhassen
MN Circle Pines
MN Clay County
MN Coon Rapids
MN Cottage Grove
MN Crystal
MN Dayton
MN Deephaven
MN Dilworth
MN Duluth
MN Eagan
MN East Grand Forks
MN Eden Prairie
MN Excelsior
MN Falcon Heights
MN Farmington
MN Fridley
MN Gem Lake
MN Golden Valley
MN Greenwood
MN Ham Lake
MN Hennepin County
MN Hermantown
MN Hilltop
MN Hopkins
MN Houston County
MN Inver Grove Heights
MN La Crescent
MN Lake Elmo
MN Lakeville
MN Landfall
MN Lauderdale
MN Lexington
MN Lilydale
MN Lino Lakes
MN Little Canada
MN Long Lake
MN Loretto
MN Mahtomedi
MN Maple Grove
MN Maple Plain
MN Maplewood
MN Medicine Lake
MN Medina
MN Mendota
MN Mendota Heights
MN Minnetonka
MN Minnetonka Beach
MN Minnetrista
MN Moorhead
MN Mound
MN Mounds View
MN New Brighton
MN New Hope
MN Newport
MN North Oaks
MN North St. Paul
MN Oakdale
MN Olmsted County
MN Orono
MN Osseo
MN Plymouth
MN Prior Lake
MN Proctor
MN Ramsey
MN Ramsey County
MN Robbinsdale
MN Rochester
MN Rosemount
MN Roseville
MN Sartell
MN Sauk Rapids
MN Savage
MN Scott County
MN Sherburne County
MN Shoreview
MN Shorewood
MN South St. Paul
MN Spring Lake Park
MN Spring Park
MN St. Anthony
MN St. Cloud
MN St. Louis County
MN St. Paul Park
MN Stearns County
MN Sunfish Lake
MN Tonka Bay
MN Vadnais Heights
MN Victoria
MN Waite Park
MN WA County
MN Wayzata
MN West St. Paul
MN White Bear Lake
MN Willernie
MN Woodbury
MN Woodland
MS Bay St. Louis
MS Biloxi
MS Brandon
MS Clinton
MS D'Iberville
MS DeSoto County
MS Flowood
MS Forrest County
MS Gautier
MS Gulfport
MS Hancock County
MS Harrison County
MS Hattiesburg
MS Hinds County
MS Horn Lake
MS Jackson County
MS Lamar County
MS Long Beach
MS Madison
MS Madison County
MS Moss Point
MS Ocean Springs
MS Pascagoula
MS Pass Christian
MS Pearl
MS Petal
MS Rankin County
MS Richland
MS Ridgeland
MS Southaven
MS Waveland
MO Airport Drive
MO Andrew County
MO Arnold
MO Avondale
MO Ballwin
MO Battlefield
MO Bel-Nor
MO Bel-Ridge
MO Bella Villa
MO Bellefontaine Neighbors
MO Bellerive
MO Belton
MO Berkeley
MO Beverly Hills
MO Birmingham
MO Black Jack
MO Blue Springs
MO Boone County
MO Breckenridge Hills
MO Brentwood
MO Bridgeton
MO Buchanan County
MO Calverton Park
MO Carl Junction
MO Carterville
MO Cass County
MO Charlack
MO Chesterfield
MO Clarkson Valley
MO Claycomo
MO Clayton
MO Cliff Village
MO Columbia
MO Cool Valley
MO Cottleville
MO Country Club
MO Country Club Hills
MO Country Life Acres
MO Crestwood
MO Creve Coeur
MO Crystal Lake Park
MO Dellwood
MO Dennis Acres
MO Des Peres
MO Duquesne
MO Edmundson
MO Ellisville
MO Fenton
MO Ferguson
MO Flordell Hills
MO Florissant
MO Frontenac
MO Gladstone
MO Glen Echo Park
MO Glenaire
MO Glendale
MO Grandview
MO Grantwood Village
MO Greendale
MO Greene County
MO Hanley Hills
MO Hazelwood
MO Hillsdale
MO Houston Lake
MO Huntleigh
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MO Iron Gates
MO Jackson County
MO Jasper County
MO Jefferson County
MO Jennings
MO Joplin
MO Kimmswick
MO Kinloch
MO Kirkwood
MO Ladue
MO Lake St.Louis
MO Lake Tapawingo
MO Lake Waukomis
MO Lakeshire
MO Leawood
MO Lee's Summit
MO Liberty
MO Mac Kenzie
MO Manchester
MO Maplewood
MO Marlborough
MO Maryland Heights
MO Moline Acres
MO Normandy
MO North KS City
MO Northmoor
MO Northwoods
MO Norwood Court
MO O'Fallon
MO Oakland
MO Oakland Park
MO Oaks
MO Oakview
MO Oakwood
MO Oakwood Park
MO Olivette
MO Overland
MO Pagedale
MO Parkdale
MO Parkville
MO Pasadena Hills
MO Pasadena Park
MO Pine Lawn
MO Platte County
MO Platte Woods
MO Pleasant Valley
MO Randolph
MO Raymore
MO Raytown
MO Redings Mill
MO Richmond Heights
MO Riverside
MO Riverview
MO Rock Hill
MO Saginaw
MO Shoal Creek Drive
MO Shrewsbury
MO Silver Creek
MO St. Ann
MO St. Charles
MO St. Charles County
MO St. George
MO St. John
MO St. Joseph
MO St. Louis
MO St. Louis County
MO St. Peters
MO Sugar Creek
MO Sunset Hills
MO Sycamore Hills
MO Town and Country
MO Twin Oaks
MO Unity Village
MO University City
MO Uplands Park
MO Valley Park
MO Velda Village
MO Velda Village Hills
MO Vinita Park
MO Vinita Terrace
MO Warson Woods
MO Weatherby Lake
MO Webb City
MO Webster Groves
MO Wellston
MO Westwood
MO Wilbur Park
MO Winchester
MO Woodson Terrace
MT Billings
MT Cascade County
MT Great Falls
MT Missoula
MT Missoula County
MT Yellowstone County
NE Bellevue
NE Boys Town
NE Dakota County
NE Douglas County
NE La Vista
NE Lancaster County
NE Papillion
NE Ralston
NE Sarpy County
NE South Sioux City
NH Dover
NH Hillsborough County
NH Manchester
NH Merrimack County
NH Nashua
NH Portsmouth
NH Rochester
NH Rockingham County
NH Somersworth
NH Strafford County
NJ Absecon
NJ Allendale
NJ Allenhurst
NJ Alpha
NJ Alpine
NJ Asbury Park
NJ Atlantic City
NJ Atlantic County
NJ Atlantic Highlands
NJ Audubon
NJ Audubon Park
NJ Avon-by-the-Sea
NJ Barrington
NJ Bay Head
NJ Bayonne
NJ Beachwood
NJ Bellmawr
NJ Belmar
NJ Bergen County
NJ Bergenfield
NJ Berlin
NJ Bernardsville
NJ Beverly
NJ Bloomingdale
NJ Bogota
NJ Boonton
NJ Bordentown
NJ Bound Brook
NJ Bradley Beach
NJ Brielle
NJ Brigantine
NJ Brooklawn
NJ Buena
NJ Burlington
NJ Burlington County
NJ Butler
NJ Camden
NJ Camden County
NJ Cape May County
NJ Carlstadt
NJ Carteret
NJ Chatham
NJ Chesilhurst
NJ Clayton
NJ Clementon
NJ Cliffside Park
NJ Clifton
NJ Closter
NJ Collingswood
NJ Cresskill
NJ Cumberland County
NJ Deal
NJ Demarest
NJ Dover
NJ Dumont
NJ Dunellen
NJ East Newark
NJ East Orange
NJ East Rutherford
NJ Eatontown
NJ Edgewater
NJ Elizabeth
NJ Elmwood Park
NJ Emerson
NJ Englewood
NJ Englewood Cliffs
NJ Englishtown
NJ Essex County
NJ Fair Haven
NJ Fair Lawn
NJ Fairview
NJ Fanwood
NJ Fieldsboro
NJ Florham Park
NJ Fort Lee
NJ Franklin Lakes
NJ Freehold
NJ Garfield
NJ Garwood
NJ Gibbsboro
NJ Glassboro
NJ Glen Rock
NJ Gloucester City
NJ Gloucester County
NJ Guttenberg
NJ Hackensack
NJ Haddon Heights
NJ Haddonfield
NJ Haledon
NJ Harrington Park
NJ Harrison
NJ Hasbrouck Heights
NJ Haworth
NJ Hawthorne
NJ Helmetta
NJ Hi-Nella
NJ Highland Park
NJ Highlands
NJ Hillsdale
NJ Ho-Ho-Kus
NJ Hoboken
NJ Hopatcong
NJ Hudson County
NJ Hunterdon County
NJ Interlaken
NJ Island Heights
NJ Jamesburg
NJ Jersey City
NJ Keansburg
NJ Kearny
NJ Kenilworth
NJ Keyport
[[Page 1624]]
NJ Kinnelon
NJ Lakehurst
NJ Laurel Springs
NJ Lavallette
NJ Lawnside
NJ Leonia
NJ Lincoln Park
NJ Linden
NJ Lindenwold
NJ Linwood
NJ Little Ferry
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NJ Loch Arbour
NJ Lodi
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NJ Longport
NJ Madison
NJ Magnolia
NJ Manasquan
NJ Mantoloking
NJ Manville
NJ Margate City
NJ Matawan
NJ Maywood
NJ Medford Lakes
NJ Mendham
NJ Mercer County
NJ Merchantville
NJ Metuchen
NJ Middlesex
NJ Middlesex County
NJ Midland Park
NJ Millstone
NJ Milltown
NJ Millville
NJ Monmouth Beach
NJ Monmouth County
NJ Montvale
NJ Moonachie
NJ Morris County
NJ Morris Plains
NJ Morristown
NJ Mount Arlington
NJ Mount Ephraim
NJ Mountain Lakes
NJ Mountainside
NJ National Park
NJ Neptune City
NJ Netcong
NJ New Brunswick
NJ New Milford
NJ New Providence
NJ Newark
NJ Newfield
NJ North Arlington
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NJ North Plainfield
NJ Northfield
NJ Northvale
NJ Norwood
NJ Oakland
NJ Oaklyn
NJ Ocean City
NJ Ocean County
NJ Ocean Gate
NJ Oceanport
NJ Old Tappan
NJ Oradell
NJ Palisades Park
NJ Palmyra
NJ Paramus
NJ Park Ridge
NJ Passaic
NJ Passaic County
NJ Paterson
NJ Paulsboro
NJ Pennington
NJ Penns Grove
NJ Perth Amboy
NJ Phillipsburg
NJ Pine Beach
NJ Pine Hill
NJ Pine Valley
NJ Pitman
NJ Plainfield
NJ Pleasantville
NJ Point Pleasant
NJ Point Pleasant Beach
NJ Pompton Lakes
NJ Prospect Park
NJ Rahway
NJ Ramsey
NJ Raritan
NJ Red Bank
NJ Ridgefield
NJ Ridgefield Park
NJ Ridgewood
NJ Ringwood
NJ River Edge
NJ Riverdale
NJ Riverton
NJ Rockaway
NJ Rockleigh
NJ Roseland
NJ Roselle
NJ Roselle Park
NJ Rumson
NJ Runnemede
NJ Rutherford
NJ Saddle River
NJ Salem County
NJ Sayreville
NJ Sea Bright
NJ Sea Girt
NJ Seaside Heights
NJ Seaside Park
NJ Secaucus
NJ Shrewsbury
NJ Somerdale
NJ Somers Point
NJ Somerset County
NJ Somerville
NJ South Amboy
NJ South Belmar
NJ South Bound Brook
NJ South Plainfield
NJ South River
NJ South Toms River
NJ Spotswood
NJ Spring Lake
NJ Spring Lake Heights
NJ Stanhope
NJ Stratford
NJ Summit
NJ Sussex County
NJ Tavistock
NJ Tenafly
NJ Teterboro
NJ Tinton Falls
NJ Totowa
NJ Trenton
NJ Union Beach
NJ Union City
NJ Union County
NJ Upper Saddle River
NJ Ventnor City
NJ Victory Gardens
NJ Vineland
NJ Waldwick
NJ Wallington
NJ Wanaque
NJ Warren County
NJ Watchung
NJ Wenonah
NJ West Long Branch
NJ West NY
NJ West Paterson
NJ Westfield
NJ Westville
NJ Westwood
NJ Wharton
NJ Wood-Ridge
NJ Woodbury
NJ Woodbury Heights
NJ Woodcliff Lake
NJ Woodlynne
NM Bernalillo County
NM Corrales
NM Dona Ana County
NM Las Cruces
NM Los Ranchos de Albuquerque
NM Mesilla
NM Rio Rancho
NM Santa Fe
NM Santa Fe County
NM Sunland Park
NY Albany
NY Albany County
NY Amityville
NY Ardsley
NY Atlantic Beach
NY Babylon
NY Baldwinsville
NY Baxter Estates
NY Bayville
NY Beacon
NY Belle Terre
NY Bellerose
NY Bellport
NY Binghamton
NY Blasdell
NY Briarcliff Manor
NY Brightwaters
NY Bronxville
NY Brookville
NY Broome County
NY Buchanan
NY Buffalo
NY Camillus
NY Cayuga Heights
NY Cedarhurst
NY Chemung County
NY Chestnut Ridge
NY Clayville
NY Clinton
NY Cohoes
NY Colonie
NY Cornwall on Hudson
NY Croton-on-Hudson
NY Depew
NY Dobbs Ferry
NY Dutchess County
NY East Hills
NY East Rochester
NY East Rockaway
NY East Syracuse
NY East Williston
NY Elmira
NY Elmira Heights
NY Elmsford
NY Endicott
NY Erie County
NY Fairport
NY Farmingdale
NY Fayetteville
NY Fishkill
NY Floral Park
NY Flower Hill
[[Page 1625]]
NY Fort Edward
NY Freeport
NY Garden City
NY Glen Cove
NY Glens Falls
NY Grand View-on-Hudson
NY Great Neck
NY Great Neck Estates
NY Great Neck Plaza
NY Green Island
NY Hamburg
NY Harrison
NY Hastings-on-Hudson
NY Haverstraw
NY Hempstead
NY Herkimer County
NY Hewlett Bay Park
NY Hewlett Harbor
NY Hewlett Neck
NY Hillburn
NY Horseheads
NY Hudson Falls
NY Huntington Bay
NY Irvington
NY Island Park
NY Islandia
NY Ithaca
NY Johnson City
NY Kenmore
NY Kensington
NY Kings Point
NY Lackawanna
NY Lake Grove
NY Lake Success
NY Lancaster
NY Lansing
NY Larchmont
NY Lattingtown
NY Lawrence
NY Lewiston
NY Lindenhurst
NY Liverpool
NY Lloyd Harbor
NY Long Beach
NY Lynbrook
NY Malverne
NY Mamaroneck
NY Manlius
NY Manorhaven
NY Massapequa Park
NY Matinecock
NY Menands
NY Mill Neck
NY Mineola
NY Minoa
NY Monroe County
NY Montebello
NY Mount Kisco
NY Mount Vernon
NY Munsey Park
NY Muttontown
NY Nassau County
NY New Hartford
NY New Hempstead
NY New Hyde Park
NY New Rochelle
NY New Square
NY NY Mills
NY Newburgh
NY Niagara County
NY Niagara Falls
NY North Hills
NY North Syracuse
NY North Tarrytown
NY North Tonawanda
NY Northport
NY Nyack
NY Old Brookville
NY Old Westbury
NY Oneida County
NY Onondaga County
NY Orange County
NY Orchard Park
NY Oriskany
NY Ossining
NY Oswego County
NY Patchogue
NY Peekskill
NY Pelham
NY Pelham Manor
NY Phoenix
NY Piermont
NY Pittsford
NY Plandome
NY Plandome Heights
NY Plandome Manor
NY Pleasantville
NY Pomona
NY Poquott
NY Port Chester
NY Port Dickinson
NY Port Jefferson
NY Port WA North
NY Poughkeepsie
NY Putnam County
NY Rensselaer
NY Rensselaer County
NY Rochester
NY Rockland County
NY Rockville Centre
NY Rome
NY Roslyn
NY Roslyn Estates
NY Roslyn Harbor
NY Russell Gardens
NY Rye
NY Rye Brook
NY Saddle Rock
NY Sands Point
NY Saratoga County
NY Scarsdale
NY Schenectady
NY Schenectady County
NY Scotia
NY Sea Cliff
NY Shoreham
NY Sloan
NY Sloatsburg
NY Solvay
NY South Floral Park
NY South Glens Falls
NY South Nyack
NY Spencerport
NY Spring Valley
NY Stewart Manor
NY Suffern
NY Suffolk County
NY Syracuse
NY Tarrytown
NY Thomaston
NY Tioga County
NY Tompkins County
NY Tonawanda
NY Troy
NY Tuckahoe
NY Ulster County
NY Upper Brookville
NY Upper Nyack
NY Utica
NY Valley Stream
NY Village of the Branch
NY Wappingers Falls
NY Warren County
NY Washington County
NY Waterford
NY Watervliet
NY Webster
NY Wesley Hills
NY West Haverstraw
NY Westbury
NY Westchester County
NY White Plains
NY Whitesboro
NY Williamsville
NY Williston Park
NY Woodsburgh
NY Yonkers
NY Yorkville
NC Alamance County
NC Apex
NC Archdale
NC Asheville
NC Belmont
NC Belville
NC Bessemer City
NC Biltmore Forest
NC Black Mountain
NC Brookford
NC Brunswick County
NC Buncombe County
NC Burke County
NC Burlington
NC Cabarrus County
NC Carrboro
NC Cary
NC Catawba County
NC Chapel Hill
NC China Grove
NC Clemmons
NC Concord
NC Conover
NC Cramerton
NC Dallas
NC Davidson County
NC Durham County
NC Edgecombe County
NC Elon College
NC Fletcher
NC Forsyth County
NC Garner
NC Gaston County
NC Gastonia
NC Gibsonville
NC Goldsboro
NC Graham
NC Greenville
NC Guilford County
NC Harnett County
NC Haw River
NC Hickory
NC High Point
NC Hildebran
NC Hope Mills
NC Indian Trail
NC Jacksonville
NC Jamestown
NC Kannapolis
NC Landis
NC Leland
NC Long View
NC Lowell
NC Matthews
NC McAdenville
NC Mebane
NC Mecklenburg County
NC Mint Hill
NC Montreat
NC Mount Holly
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NC Nash County
NC New Hanover County
NC Newton
NC Onslow County
NC Orange County
NC Pineville
NC Pitt County
NC Randolph County
NC Ranlo
NC Rocky Mount
NC Rowan County
NC Rural Hall
NC Spring Lake
NC Stallings
NC Thomasville
NC Union County
NC Wake County
NC Walkertown
NC Wayne County
NC Weaverville
NC Wilmington
NC Winterville
NC Woodfin
NC Wrightsville Beach
ND Bismarck
ND Burleigh County
ND Cass County
ND Fargo
ND Grand Forks
ND Grand Forks County
ND Lincoln
ND Mandan
ND Morton County
ND West Fargo
OH Addyston
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OH Ottawa County
OH Ottawa Hills
OH Painesville
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OH Parma
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OH Worthington
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OK Arkoma
OK Bethany
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OK Canadian County
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OK Cleveland County
OK Comanche County
OK Creek County
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OK Forest Park
OK Hall Park
OK Harrah
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OK Jones
OK Lake Aluma
OK Lawton
OK Logan County
OK Midwest City
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OK Nichols Hills
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OK Oklahoma County
OK Rogers County
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OK Smith Village
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OR Central Point
OR Columbia County
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PA Adamsburg
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PA Allegheny County
PA Allenport
PA Altoona
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PA Beaver County
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PA Bell Acres
PA Belle Vernon
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PA Berks County
PA Bethel Park
PA Bethlehem
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PA Birdsboro
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PA Chester County
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PA Colwyn
PA Conshohocken
PA Conway
PA Coplay
PA Coraopolis
PA Courtdale
PA Crafton
PA Cumberland County
PA Daisytown
PA Dale
PA Dallas
[[Page 1628]]
PA Dallastown
PA Darby
PA Dauphin County
PA Delaware County
PA Delmont
PA Dickson City
PA Donora
PA Dormont
PA Dover
PA Downingtown
PA Doylestown
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PA Jenkintown
PA Jermyn
PA Jessup
PA Johnstown
PA Kenhorst
PA Kingston
PA Koppel
PA Lackawanna County
PA Laflin
PA Lancaster
PA Lancaster County
PA Langhorne
PA Langhorne Manor
PA Lansdale
PA Lansdowne
PA Larksville
PA Laurel Run
PA Laureldale
PA Lawrence County
PA Lebanon County
PA Leesport
PA Leetsdale
PA Lehigh County
PA Lemoyne
PA Liberty
PA Lincoln
PA Lititz
PA Loganville
PA Lorain
PA Lower Burrell
PA Luzerne
PA Luzerne County
PA Lycoming County
PA Macungie
PA Madison
PA Malvern
PA Manor
PA Marcus Hook
PA Marysville
PA Mayfield
PA McKees Rocks
PA McKeesport
PA Mechanicsburg
PA Media
PA Mercer County
PA Middletown
PA Millbourne
PA Millersville
PA Millvale
PA Modena
PA Mohnton
PA Monaca
PA Monessen
PA Monongahela
PA Montgomery County
PA Montoursville
PA Moosic
PA Morrisville
PA Morton
PA Mount Oliver
PA Mount Penn
PA Mountville
PA Munhall
PA Municipality of Monroeville
PA Municipality of Murrysville
PA Nanticoke
PA Narberth
PA New Brighton
PA New Britain
PA New Cumberland
PA New Eagle
PA New Galilee
PA New Kensington
PA New Stanton
PA Newell
PA Newtown
PA Norristown
PA North Belle Vernon
PA North Braddock
PA North Catasauqua
PA North Charleroi
PA North Irwin
PA North Wales
PA North York
PA Northampton
PA Northampton County
PA Norwood
PA Oakmont
PA Old Forge
PA Olyphant
PA Osborne
PA Paint
PA Palmyra
PA Parkside
PA Patterson Heights
PA Paxtang
PA Penbrook
PA Penn
PA Penndel
PA Pennsbury Village
PA Phoenixville
PA Pitcairn
PA Pittsburgh
PA Pittston
PA Pleasant Hills
PA Plum
PA Plymouth
PA Port Vue
PA Pottstown
PA Pringle
PA Prospect Park
PA Rankin
PA Reading
PA Red Lion
PA Ridley Park
PA Rochester
PA Rockledge
PA Roscoe
PA Rose Valley
PA Rosslyn Farms
PA Royalton
PA Royersford
PA Rutledge
PA Scalp Level
PA Schwenksville
PA Scranton
PA Sewickley
PA Sewickley Heights
PA Sewickley Hills
PA Sharon
PA Sharon Hill
PA Sharpsburg
PA Sharpsville
PA Shillington
PA Shiremanstown
PA Sinking Spring
PA Somerset County
[[Page 1629]]
PA Souderton
PA South Coatesville
PA South Greensburg
PA South Heights
PA South Williamsport
PA Southmont
PA Southwest Greensburg
PA Speers
PA Spring City
PA Springdale
PA St. Lawrence
PA State College
PA Steelton
PA Stockdale
PA Sugar Notch
PA Swarthmore
PA Swissvale
PA Swoyersville
PA Tarentum
PA Taylor
PA Telford
PA Temple
PA Thornburg
PA Throop
PA Trafford
PA Trainer
PA Trappe
PA Tullytown
PA Turtle Creek
PA Upland
PA Verona
PA Versailles
PA Wall
PA Warrior Run
PA Washington
PA Washington County
PA Wernersville
PA Wesleyville
PA West Brownsville
PA West Chester
PA West Conshohocken
PA West Easton
PA West Elizabeth
PA West Fairview
PA West Homestead
PA West Lawn
PA West Mayfield
PA West Middlesex
PA West Mifflin
PA West Newton
PA West Pittston
PA West Reading
PA West View
PA West Wyoming
PA West York
PA Westmont
PA Westmoreland County
PA Wheatland
PA Whitaker
PA White Oak
PA Wilkes-Barre
PA Wilkinsburg
PA Williamsport
PA Wilmerding
PA Wilson
PA Windber
PA Windsor
PA Wormleysburg
PA Wrightsville
PA Wyoming
PA Wyomissing
PA Wyomissing Hills
PA Yardley
PA Yatesville
PA Yeadon
PA Yoe
PA York
PA York County
PA Youngwood
PR Aguada Municipio
PR Aguadilla Municipio
PR Aguas Buenas Municipio
PR Aibonito Municipio
PR Anasco Municipio
PR Arecibo Municipio
PR Bayamon Municipio
PR Cabo Rojo Municipio
PR Caguas Municipio
PR Camuy Municipio
PR Canovanas Municipio
PR Carolina Municipio
PR Catano Municipio
PR Cayey Municipio
PR Cidra Municipio
PR Dorado Municipio
PR Guaynabo Municipio
PR Gurabo Municipio
PR Hatillo Municipio
PR Hormigueros Municipio
PR Humacao Municipio
PR Juncos Municipio
PR Las Piedras Municipio
PR Loiza Municipio
PR Manati Municipio
PR Mayaguez Municipio
PR Moca Municipio
PR Naguabo Municipio
PR Naranjito Municipio
PR Penuelas Municipio
PR Ponce Municipio
PR Rio Grande Municipio
PR San German Municipio
PR San Juan Municipio
PR San Lorenzo Municipio
PR Toa Alta Municipio
PR Toa Baja Municipio
PR Trujillo Alto Municipio
PR Vega Alta Municipio
PR Vega Baja Municipio
PR Yabucoa Municipio
RI Bristol County
RI Central Falls
RI Cranston
RI East Providence
RI Kent County
RI Newport
RI Newport County
RI Pawtucket
RI Providence
RI Providence County
RI Warwick
RI Washington County
RI Woonsocket
SC Aiken
SC Aiken County
SC Anderson
SC Anderson County
SC Arcadia Lakes
SC Berkeley County
SC Burnettown
SC Cayce
SC Charleston
SC Charleston County
SC Columbia
SC Cowpens
SC Darlington County
SC Dorchester County
SC Florence
SC Florence County
SC Folly Beach
SC Forest Acres
SC Fort Mill
SC Georgetown County
SC Goose Creek
SC Hanahan
SC Horry County
SC Irmo
SC Isle of Palms
SC Lexington County
SC Lincolnville
SC Mount Pleasant
SC Myrtle Beach
SC North Augusta
SC North Charleston
SC Pickens County
SC Pineridge
SC Quinby
SC Rock Hill
SC South Congaree
SC Spartanburg
SC Spartanburg County
SC Springdale
SC Sullivan's Island
SC Summerville
SC Sumter
SC Sumter County
SC Surfside Beach
SC West Columbia
SC York County
SD Minnehaha County
SD North Sioux City
SD Pennington County
SD Rapid City
TN Alcoa
TN Anderson County
TN Bartlett
TN Blount County
TN Brentwood
TN Bristol
TN Carter County
TN Church Hill
TN Clarksville
TN Collegedale
TN East Ridge
TN Elizabethton
TN Farragut
TN Germantown
TN Hamilton County
TN Hawkins County
TN Hendersonville
TN Jackson
TN Johnson City
TN Jonesborough
TN Kingsport
TN Knox County
TN Lakesite
TN Lookout Mountain
TN Loudon County
TN Madison County
TN Maryville
TN Montgomery County
TN Mount Carmel
TN Mount Juliet
TN Red Bank
TN Ridgeside
TN Rockford
TN Shelby County
TN Signal Mountain
TN Soddy-Daisy
TN Sullivan County
TN Sumner County
TN Washington County
TN Wilson County
TX Addison
TX Alamo
TX Alamo Heights
[[Page 1630]]
TX Allen
TX Azle
TX Balch Springs
TX Balcones Heights
TX Bayou Vista
TX Baytown
TX Bedford
TX Bell County
TX Bellaire
TX Bellmead
TX Belton
TX Benbrook
TX Beverly Hills
TX Bexar County
TX Blue Mound
TX Bowie County
TX Brazoria County
TX Brazos County
TX Brookside Village
TX Brownsville
TX Bryan
TX Buckingham
TX Bunker Hill Village
TX Cameron County
TX Carrollton
TX Castle Hills
TX Cedar Hill
TX Cedar Park
TX Cibolo
TX Clear Lake Shores
TX Clint
TX Cockrell Hill
TX College Station
TX Colleyville
TX Collin County
TX Combes
TX Converse
TX Copperas Cove
TX Corinth
TX Coryell County
TX Crowley
TX Dallas County
TX Dalworthington Gardens
TX Deer Park
TX Denison
TX Denton
TX Denton County
TX DeSoto
TX Dickinson
TX Donna
TX Double Oak
TX Duncanville
TX Ector County
TX Edgecliff
TX Edinburg
TX El Lago
TX El Paso County
TX Euless
TX Everman
TX Farmers Branch
TX Flower Mound
TX Forest Hill
TX Fort Bend County
TX Friendswood
TX Galena Park
TX Galveston
TX Galveston County
TX Grand Prairie
TX Grapevine
TX Grayson County
TX Gregg County
TX Groves
TX Guadalupe County
TX Haltom City
TX Hardin County
TX Harker Heights
TX Harlingen
TX Hedwig Village
TX Hewitt
TX Hickory Creek
TX Hidalgo County
TX Highland Park
TX Highland Village
TX Hill Country Village
TX Hilshire Village
TX Hitchcock
TX Hollywood Park
TX Howe
TX Humble
TX Hunters Creek Village
TX Hurst
TX Hutchins
TX Impact
TX Jacinto City
TX Jefferson County
TX Jersey Village
TX Katy
TX Keller
TX Kemah
TX Kennedale
TX Killeen
TX Kirby
TX La Marque
TX La Porte
TX Lacy-Lakeview
TX Lake Dallas
TX Lake Worth
TX Lakeside
TX Lakeside City
TX Lancaster
TX League City
TX Leander
TX Leon Valley
TX Lewisville
TX Live Oak
TX Longview
TX Lubbock County
TX Lumberton
TX McAllen
TX McLennan County
TX Meadows
TX Midland
TX Midland County
TX Mission
TX Missouri City
TX Montgomery County
TX Morgan's Point
TX Nash
TX Nassau Bay
TX Nederland
TX Nolanville
TX North Richland Hills
TX Northcrest
TX Nueces County
TX Odessa
TX Olmos Park
TX Palm Valley
TX Palmview
TX Pantego
TX Pearland
TX Pflugerville
TX Pharr
TX Piney Point Village
TX Port Arthur
TX Port Neches
TX Portland
TX Potter County
TX Primera
TX Randall County
TX Richardson
TX Richland Hills
TX River Oaks
TX Robinson
TX Rockwall
TX Rockwall County
TX Rollingwood
TX Rose Hill Acres
TX Rowlett
TX Sachse
TX Saginaw
TX San Angelo
TX San Benito
TX San Juan
TX San Patricio County
TX Sansom Park
TX Santa Fe
TX Schertz
TX Seabrook
TX Seagoville
TX Selma
TX Shavano Park
TX Sherman
TX Shoreacres
TX Smith County
TX Socorro
TX South Houston
TX Southside Place
TX Spring Valley
TX Stafford
TX Sugar Land
TX Sunset Valley
TX Tarrant County
TX Taylor County
TX Taylor Lake Village
TX Temple
TX Terrell Hills
TX Texarkana
TX Texas City
TX Tom Green County
TX Travis County
TX Tye
TX Tyler
TX Universal City
TX University Park
TX Victoria
TX Victoria County
TX Wake Village
TX Watauga
TX Webb County
TX Webster
TX Weslaco
TX West Lake Hills
TX West University Place
TX Westover Hills
TX Westworth
TX White Oak
TX White Settlement
TX Wichita County
TX Wichita Falls
TX Williamson County
TX Wilmer
TX Windcrest
TX Woodway
UT American Fork
UT Bluffdale
UT Bountiful
UT Cache County
UT Cedar Hills
UT Centerville
UT Clearfield
UT Clinton
UT Davis County
UT Draper
UT Farmington
UT Farr West
UT Fruit Heights
UT Harrisville
UT Highland
[[Page 1631]]
UT Hyde Park
UT Kaysville
UT Layton
UT Lehi
UT Lindon
UT Logan
UT Mapleton
UT Midvale
UT Millville
UT Murray
UT North Logan
UT North Ogden
UT North Salt Lake
UT Ogden
UT Orem
UT Pleasant Grove
UT Pleasant View
UT Providence
UT Provo
UT River Heights
UT Riverdale
UT Riverton
UT Roy
UT Sandy
UT Smithfield
UT South Jordan
UT South Ogden
UT South Salt Lake
UT South Weber
UT Springville
UT Sunset
UT Syracuse
UT Uintah
UT Utah County
UT Washington Terrace
UT Weber County
UT West Bountiful
UT West Jordan
UT West Point
UT West Valley City
UT Woods Cross
VT Burlington
VT Chittenden County
VT Essex Junction
VT South Burlington
VT Winooski
VA Albemarle County
VA Alexandria
VA Amherst County
VA Bedford County
VA Botetourt County
VA Bristol
VA Campbell County
VA Charlottesville
VA Colonial Heights
VA Danville
VA Dinwiddie County
VA Fairfax
VA Falls Church
VA Fredericksburg
VA Gate City
VA Gloucester County
VA Hanover County
VA Herndon
VA Hopewell
VA James City County
VA Loudoun County
VA Lynchburg
VA Manassas
VA Manassas Park
VA Occoquan
VA Petersburg
VA Pittsylvania County
VA Poquoson
VA Prince George County
VA Richmond
VA Roanoke
VA Roanoke County
VA Salem
VA Scott County
VA Spotsylvania County
VA Stafford County
VA Suffolk
VA Vienna
VA Vinton
VA Washington County
VA Weber City
VA Williamsburg
VA York County
WA Algona
WA Auburn
WA Beaux Arts Village
WA Bellevue
WA Bellingham
WA Benton County
WA Bonney Lake
WA Bothell
WA Bremerton
WA Brier
WA Clyde Hill
WA Cowlitz County
WA Des Moines
WA DuPont
WA Edmonds
WA Everett
WA Fife
WA Fircrest
WA Franklin County
WA Gig Harbor
WA Hunts Point
WA Issaquah
WA Kelso
WA Kennewick
WA Kent
WA Kirkland
WA Kitsap County
WA Lacey
WA Lake Forest Park
WA Longview
WA Lynnwood
WA Marysville
WA Medina
WA Mercer Island
WA Mill Creek
WA Millwood
WA Milton
WA Mountlake Terrace
WA Mukilteo
WA Normandy Park
WA Olympia
WA Pacific
WA Pasco
WA Port Orchard
WA Puyallup
WA Redmond
WA Renton
WA Richland
WA Ruston
WA Selah
WA Spokane
WA Spokane County
WA Steilacoom
WA Sumner
WA Thurston County
WA Tukwila
WA Tumwater
WA Union Gap
WA Vancouver
WA West Richland
WA Whatcom County
WA Woodway
WA Yakima
WA Yakima County
WA Yarrow Point
WV Bancroft
WV Barboursville
WV Belle
WV Benwood
WV Berkeley County
WV Bethlehem
WV Brooke County
WV Cabell County
WV Cedar Grove
WV Ceredo
WV Charleston
WV Chesapeake
WV Clearview
WV Dunbar
WV East Bank
WV Follansbee
WV Glasgow
WV Glen Dale
WV Hancock County
WV Huntington
WV Hurricane
WV Kanawha County
WV Kenova
WV Marmet
WV Marshall County
WV McMechen
WV Mineral County
WV Moundsville
WV Nitro
WV North Hills
WV Ohio County
WV Parkersburg
WV Poca
WV Putnam County
WV Ridgeley
WV South Charleston
WV St. Albans
WV Triadelphia
WV Vienna
WV Wayne County
WV Weirton
WV Wheeling
WV Wood County
WI Allouez
WI Altoona
WI Appleton
WI Ashwaubenon
WI Bayside
WI Beloit
WI Big Bend
WI Brookfield
WI Brown County
WI Brown Deer
WI Butler
WI Calumet County
WI Cedarburg
WI Chippewa County
WI Chippewa Falls
WI Combined Locks
WI Cudahy
WI Dane County
WI De Pere
WI Eau Claire
WI Eau Claire County
WI Elm Grove
WI Elmwood Park
WI Fitchburg
WI Fox Point
WI Franklin
WI Germantown
WI Glendale
WI Grafton
WI Green Bay
WI Greendale
[[Page 1632]]
WI Greenfield
WI Hales Corners
WI Holmen
WI Howard
WI Janesville
WI Kaukauna
WI Kenosha
WI Kenosha County
WI Kimberly
WI Kohler
WI La Crosse
WI La Crosse County
WI Lannon
WI Little Chute
WI Maple Bluff
WI Marathon County
WI McFarland
WI Menasha
WI Menomonee Falls
WI Mequon
WI Middleton
WI Monona
WI Muskego
WI Neenah
WI New Berlin
WI North Bay
WI Oak Creek
WI Onalaska
WI Oshkosh
WI Outagamie County
WI Ozaukee County
WI Pewaukee
WI Pleasant Prairie
WI Racine
WI Racine County
WI River Hills
WI Rock County
WI Rothschild
WI Schofield
WI Sheboygan
WI Sheboygan County
WI Sheboygan Falls
WI Shorewood
WI Shorewood Hills
WI South Milwaukee
WI St. Francis
WI Sturtevant
WI Superior
WI Superior
WI Sussex
WI Thiensville
WI Washington County
WI Waukesha
WI Waukesha County
WI Wausau
WI Wauwatosa
WI West Allis
WI West Milwaukee
WI Whitefish Bay
WI Wind Point
WI Winnebago County
WY Casper
WY Cheyenne
WY Evansville
WY Laramie County
WY Mills
WY Natrona County
Appendix 7 of Preamble--Incorporated Places and Counties Potentially
Designated (Outside Urbanized Areas)\1\ Under the Storm Water Phase II
Proposed Rule
[Proposed to be Examined by the Permitting Authority Under
Sec. 123.35(b)(2)]
(From the 1990 Census of Population and Housing--U.S. Census Bureau)
---------------------------------------------------------------------------
\1\ Listed incorporated places have at least 10,000 population
and 1,000 population density. Please note that no counties meet the
10,000/1,000 threshold.
---------------------------------------------------------------------------
(This List May Change With the Decennial Census)
AL Jacksonville
AL Selma
AZ Douglas
AK Arkadelphia
AK Benton
AK Blytheville
AK Conway
AK El Dorado
AK Hot Springs
AK Magnolia
AK Rogers
AK Searcy
AK Stuttgart
CA Arcata
CA Arroyo Grande
CA Atwater
CA Auburn
CA Brawley
CA Calexico
CA Clearlake
CA Corcoran
CA Delano
CA Dinuba
CA Dixon
CA El Centro
CA El Paso De Robles
CA Eureka
CA Gilroy
CA Grover City
CA Hanford
CA Hollister
CA Lemoore
CA Los Banos
CA Madera
CA Manteca
CA Oakdale
CA Oroville
CA Paradise
CA Petaluma
CA Porterville
CA Red Bluff
CA Reedley
CA Ridgecrest
CA Sanger
CA Selma
CA Tracy
CA Tulare
CA Turlock
CA Ukiah
CA Wasco
CA Woodland
CO Canon City
CO Durango
CO Lafayette
CO Louisville
CO Loveland
CO Sterling
FL De Land
FL Eustis
FL Key West
FL Leesburg
FL Palatka
FL St. Augustine
FL St. Cloud
GA Americus
GA Carrollton
GA Cordele
GA Dalton
GA Dublin
GA Griffin
GA Hinesville
GA Moultrie
GA Newnan
GA Statesboro
GA Thomasville
GA Tifton
GA Valdosta
GA Waycross
ID Caldwell
ID Coeur D'alene
ID Lewiston
ID Moscow
ID Nampa
ID Rexburg
ID Twin Falls
IL Belvidere
IL Canton
IL Carbondale
IL Centralia
IL Charleston
IL Danville
IL De Kalb
IL Dixon
IL Effingham
IL Freeport
IL Galesburg
IL Herrin
IL Jacksonville
IL Kewanee
IL Lincoln
IL Macomb
IL Marion
IL Mattoon
IL Morris
IL Mount Vernon
IL Ottawa
IL Pontiac
IL Quincy
IL Rantoul
IL Sterling
IL Streator
IL Taylorville
IL Woodstock
IN Bedford
IN Columbus
IN Connersville
IN Crawfordsville
IN Frankfort
IN Franklin
IN Greenfield
IN Huntington
IN Jasper
IN La Porte
IN Lebanon
IN Logansport
IN Madison
IN Marion
IN Martinsville
IN Michigan City
IN New Castle
IN Noblesville
IN Peru
IN Plainfield
[[Page 1633]]
IN Richmond
IN Seymour
IN Shelbyville
IN Valparaiso
IN Vincennes
IN Wabash
IN Warsaw
IN Washington
IA Ames
IA Ankeny
IA Boone
IA Burlington
IA Fort Dodge
IA Fort Madison
IA Indianola
IA Keokuk
IA Marshalltown
IA Mason City
IA Muscatine
IA Newton
IA Oskaloosa
IA Ottumwa
IA Spencer
KS Arkansas City
KS Atchison
KS Coffeyville
KS Derby
KS Dodge City
KS El Dorado
KS Emporia
KS Garden City
KS Great Bend
KS Hays
KS Hutchinson
KS Junction City
KS Leavenworth
KS Liberal
KS Manhattan
KS Mcpherson
KS Newton
KS Ottawa
KS Parsons
KS Pittsburg
KS Salina
KS Winfield
KY Bowling Green
KY Danville
KY Frankfort
KY Georgetown
KY Glasgow
KY Hopkinsville
KY Madisonville
KY Middlesborough
KY Murray
KY Nicholasville
KY Paducah
KY Radcliff
KY Richmond
KY Somerset
KY Winchester
LA Abbeville
LA Bastrop
LA Bogalusa
LA Crowley
LA Eunice
LA Hammond
LA Jennings
LA Minden
LA Morgan City
LA Natchitoches
LA New Iberia
LA Opelousas
LA Ruston
LA Thibodaux
ME Waterville
MD Aberdeen
MD Cambridge
MD Salisbury
MD Westminster
MA Newburyport
MI Adrian
MI Albion
MI Alpena
MI Big Rapids
MI Cadillac
MI Escanaba
MI Grand Haven
MI Marquette
MI Midland
MI Monroe
MI Mount Pleasant
MI Owosso
MI Sturgis
MI Traverse City
MN Albert Lea
MN Austin
MN Bemidji
MN Brainerd
MN Faribault
MN Fergus Falls
MN Hastings
MN Hutchinson
MN Mankato
MN Marshall
MN New Ulm
MN North Mankato
MN Northfield
MN Owatonna
MN Stillwater
MN Willmar
MN Winona
MS Brookhaven
MS Canton
MS Clarksdale
MS Cleveland
MS Columbus
MS Greenville
MS Greenwood
MS Grenada
MS Indianola
MS Laurel
MS Mccomb
MS Meridian
MS Natchez
MS Starkville
MS Vicksburg
MS Yazoo City
MO Cape Girardeau
MO Carthage
MO Excelsior Springs
MO Farmington
MO Hannibal
MO Jefferson City
MO Kennett
MO Kirksville
MO Marshall
MO Maryville
MO Mexico
MO Moberly
MO Poplar Bluff
MO Rolla
MO Sedalia
MO Sikeston
MO Warrensburg
MO Washington
MT Bozeman
MT Havre
MT Helena
MT Kalispell
NE Beatrice
NE Columbus
NE Fremont
NE Grand Island
NE Hastings
NE Kearney
NE Norfolk
NE North Platte
NE Scottsbluff
NV Elko
NJ Bridgeton
NJ Princeton Borough
NM Alamogordo
NM Artesia
NM Clovis
NM Deming
NM Farmington
NM Gallup
NM Hobbs
NM Las Vegas
NM Portales
NM Roswell
NM Silver City
NY Amsterdam
NY Auburn
NY Batavia
NY Canandaigua
NY Corning
NY Cortland
NY Dunkirk
NY Fredonia
NY Fulton
NY Geneva
NY Gloversville
NY Jamestown
NY Kingston
NY Lockport
NY Massena
NY Middletown
NY Ogdensburg
NY Olean
NY Oneonta
NY Oswego
NY Plattsburgh
NY Potsdam
NY Watertown
NC Albemarle
NC Asheboro
NC Boone
NC Eden
NC Elizabeth City
NC Havelock
NC Henderson
NC Kernersville
NC Kinston
NC Laurinburg
NC Lenoir
NC Lexington
NC Lumberton
NC Monroe
NC New Bern
NC Reidsville
NC Roanoke Rapids
NC Salisbury
NC Sanford
NC Shelby
NC Statesville
NC Tarboro
NC Wilson
ND Dickinson
ND Jamestown
ND Minot
ND Williston
OH Alliance
[[Page 1634]]
OH Ashland
OH Ashtabula
OH Athens
OH Bellefontaine
OH Bowling Green
OH Bucyrus
OH Cambridge
OH Chillicothe
OH Circleville
OH Coshocton
OH Defiance
OH Delaware
OH Dover
OH East Liverpool
OH Findlay
OH Fostoria
OH Fremont
OH Galion
OH Greenville
OH Lancaster
OH Lebanon
OH Marietta
OH Marion
OH Medina
OH Mount Vernon
OH New Philadelphia
OH Norwalk
OH Oxford
OH Piqua
OH Portsmouth
OH Salem
OH Sandusky
OH Sidney
OH Tiffin
OH Troy
OH Urbana
OH Van Wert
OH Washington
OH Wilmington
OH Wooster
OH Xenia
OH Zanesville
OK Ada
OK Altus
OK Bartlesville
OK Chickasha
OK Claremore
OK Mcalester
OK Miami
OK Muskogee
OK Okmulgee
OK Owasso
OK Ponca City
OK Stillwater
OK Tahlequah
OK Weatherford
OR Albany
OR Ashland
OR Astoria
OR Bend
OR City of the Dalles
OR Coos Bay
OR Corvallis
OR Grants Pass
OR Hermiston
OR Klamath Falls
OR La Grande
OR Lebanon
OR Mcminnville
OR Newberg
OR Pendleton
OR Roseburg
OR Woodburn
PA Berwick Borough
PA Bloomsburg
PA Butler
PA Carlisle Borough
PA Chambersburg Borough
PA Ephrata Borough
PA Hazleton
PA Indiana Borough
PA Lebanon
PA Meadville
PA New Castle
PA Oil City
PA Pottsville
PA Sunbury
PA Uniontown
PA Warren
SC Clemson
SC Easley
SC Gaffney
SC Greenwood
SC Newberry
SC Orangeburg
SD Aberdeen
SD Brookings
SD Huron
SD Mitchell
SD Vermillion
SD Watertown
SD Yankton
TN Brownsville
TN Cleveland
TN Collierville
TN Cookeville
TN Dyersburg
TN Greeneville
TN Lawrenceburg
TN Mcminnville
TN Millington
TN Morristown
TN Murfreesboro
TN Shelbyville
TN Springfield
TN Union City
TX Alice
TX Alvin
TX Andrews
TX Angleton
TX Bay City
TX Beeville
TX Big Spring
TX Borger
TX Brenham
TX Brownwood
TX Burkburnett
TX Canyon
TX Cleburne
TX Conroe
TX Coppell
TX Corsicana
TX Del Rio
TX Dumas
TX Eagle Pass
TX El Campo
TX Gainesville
TX Gatesville
TX Georgetown
TX Henderson
TX Hereford
TX Huntsville
TX Jacksonville
TX Kerrville
TX Kingsville
TX Lake Jackson
TX Lamesa
TX Levelland
TX Lufkin
TX Mercedes
TX Mount Pleasant
TX Nacogdoches
TX New Braunfels
TX Palestine
TX Pampa
TX Pecos
TX Plainview
TX Port Lavaca
TX Robstown
TX Rosenberg
TX Round Rock
TX San Marcos
TX Seguin
TX Snyder
TX Stephenville
TX Sweetwater
TX Taylor
TX The Colony
TX Uvalde
TX Vernon
TX Vidor
UT Brigham City
UT Cedar City
UT Spanish Fork
UT Tooele
VT Rutland
VA Blacksburg
VA Christiansburg
VA Front Royal
VA Harrisonburg
VA Leesburg
VA Martinsville
VA Radford
VA Staunton
VA Waynesboro
VA Winchester
WA Aberdeen
WA Anacortes
WA Centralia
WA Ellensburg
WA Moses Lake
WA Mount Vernon
WA Oak Harbor
WA Port Angeles
WA Pullman
WA Sunnyside
WA Walla Walla
WA Wenatchee
WV Beckley
WV Bluefield
WV Clarksburg
WV Fairmont
WV Martinsburg
WV Morgantown
WI Beaver Dam
WI Fond du Lac
WI Fort Atkinson
WI Manitowoc
WI Marinette
WI Marshfield
WI Menomonie
WI Monroe
WI Oconomowoc
WI River Falls
WI Stevens Point
WI Sun Prairie
WI Two Rivers
WI Watertown
WI West Bend
WI Whitewater
WI Wisconsin Rapids
WY Evanston
WY Gillette
WY Green River
[[Page 1635]]
WY Laramie
WY Rock Springs
WY Sheridan
For the reasons set forth in the preamble, chapter I of title 40 of
the Code of Federal Regulations is proposed to be amended as follows:
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. In Sec. 122.26, revise paragraphs (a)(9), (b)(4)(i), (b)(7)(i),
(b)(8)(i), (b)(14) introductory text, (b)(14)(xi); redesignate
paragraph (b)(15) as paragraph (b)(17) and add new paragraphs (b)(15)
and (b)(16); revise paragraph (c) heading, paragraphs (c)(1)
introductory text first sentence, (c)(1)(i) introductory text,
(c)(1)(i)(C) first sentence, (c)(1)(i)(E) introductory text, (c)(1)(ii)
first sentence of introductory text, (e)(1)(ii); add paragraph
(e)(1)(iii); revise paragraphs (f)(4), (f)(5), and (g) to 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 otherwise already required by
paragraph (a)(1) of this section to obtain a permit, owners or
operators shall be required to obtain a NPDES permit if:
(A) The discharge is from a small municipal separate storm sewer
system required to be regulated pursuant to Sec. 122.32;
(B) The discharge is a storm water discharge associated with other
activity pursuant to paragraph (b)(15) of this section;
(C) The Director determines that storm water controls are needed
for the discharge based on:
(1) Wasteload allocations that are part of ``total maximum daily
loads'' (TMDLs) that address the pollutants of concern; or
(2) A comprehensive watershed plan, implemented for the waterbody,
that includes the equivalents of TMDLs, and addresses the pollutants of
concern; or
(D) The Director 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.
(ii) Owners or operators of municipal separate storm sewer systems
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. Owners or 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) Owners or 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
* * * * *
(8) * * *
(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;
* * * * *
(14) 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 40 CFR part 401); 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 finished products; and
areas where industrial activity has taken place in the past and
significant materials remain and are exposed to storm water. 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.
* * * * *
(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, 4221-25;
* * * * *
(15) Storm water discharges associated with other activity means
the discharge from any conveyance used for collecting and conveying
storm water that needs to be regulated to protect water quality. For
the categories of facilities identified in this paragraph, the term
includes the entire facility except areas located at the facility
separated from the plant's operational activities. Such separated areas
may include office buildings and accompanying parking lots, as long as
the drainage from the separated areas is not mixed with storm water
drained from the plant's operational activities. The following types of
facilities or activities are sources of ``storm water discharges
associated with other activity'' for the purposes of this paragraph:
(i) Construction activities. (A) Construction activities including
clearing, grading, and excavating activities that result in land
disturbance of equal to or greater than one acre and less than five
acres. Sites disturbing less than one acre are included if they are
part of a larger common plan of development or sale with a planned
disturbance of equal to or greater than one and less than five acres.
The NPDES permitting authority may waive the otherwise applicable
requirements for a storm water discharge from construction activities
that disturb less than five acres where:
(1) The rainfall erosivity factor (``R'' in the Revised Universal
Soil Loss Equation) is less than two during the period of construction
activity. The owner/operator must certify that construction activity
will take place during the period when the rainfall erosivity factor is
less than two;
[[Page 1636]]
(2) On a case-by-case basis the annual soil loss for a site will be
less than two tons/acre/year. The owner or operator must certify that
the annual soil loss for their site will be less than two tons/acre/
year through the use of the Revised Universal Soil Loss Equation,
assuming the constants of no ground cover and no runoff controls in
place; or
(3) Storm water controls are not needed based on:
(i) Wasteload allocations that are part of ``total maximum daily
loads'' (TMDLs) that address the pollutants of concern. The owner or
operator must certify that the construction activity will take place,
and storm water discharges will occur, within an area covered by the
TMDLs; or
(ii) A comprehensive watershed plan, implemented for the waterbody,
that includes the equivalents of TMDLs, and addresses the pollutants of
concern. The owner or operator must certify that the construction
activity will take place, and storm water discharges will occur, within
an area covered by the watershed plan.
(B) Any other construction activity designated by the NPDES
permitting authority 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.
(ii) Any other discharges, except municipal separate storm sewer
systems, designated by the NPDES permitting authority pursuant to
paragraph (a)(9) of this section.
Exhibit 1 to Sec. 122.26(b)(15).--Summary of Coverage of ``Storm Water
Discharges Associated With Other Activity''* Under the NPDES Storm Water
Program
[*See definition in Sec. 122.26(b)(15)]
------------------------------------------------------------------------
------------------------------------------------------------------------
Automatic Designation:
Required Nationwide Construction activities that result in a
Coverage. land disturbance of equal to or greater
than one acre and less than five acres.
Sites disturbing less than one acre are
included if part of a larger common plan
of development or sale. (see Sec.
122.26(b)(15)(i)(A)).
Potential Designation:
Optional Evaluation and (1) Construction activities that result
Designation by the in a land disturbance of less than one
Permitting Authority. acre based on the potential for adverse
impact on water quality or for
significant contribution of pollutants.
(see Sec. 122.26(b)(15)(i)(B)).
(2) Any other non-municipal storm water
discharges. (see Sec.
122.26(b)(15)(ii)).
Automatic Designation:
Required nationwide Construction activities that result in a
Coverage. land disturbance of equal to or greater
than one acre and less than five acres.
Sites disturbing less than one acre are
included if part of a larger common plan
of development or sale. (see Sec.
122.26(b)(15)(i)(A)).
Potential Waiver:
Waiver from Requirements Any automatically designated construction
as Determined by the activity where the owner/operator
Permitting Authority. certifies:
(1) A rainfall erosivity factor of less
than two, or
(2) An annual soil loss of less than two
tons/acre/year, or
(3) That the activity will occur within
an area where controls are not needed
based on ``waste load allocations'' that
are part of total maximum daily loads
(TMDLs), or a comprehensive watershed
plan. (see Sec. 122.26(b)(15)(i)(A)).
------------------------------------------------------------------------
(16) Small municipal separate storm sewer system means all
municipal separate storm sewer systems that are not designated 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.
* * * * *
(c) Application requirements for storm water discharges associated
with industrial activity or storm water discharges associated with
other activity--
(1) Individual application. Dischargers of storm water associated
with industrial or other activity are required to apply for an
individual permit, apply for a permit through a group application, or
seek coverage under a promulgated storm water general permit. * * *
(i) Except as provided in Sec. 122.26(c)(1)(ii) through (c)(1)(iv),
the operator of a storm water discharge associated with industrial or
other activity subject to this section shall provide:
* * * * *
(C) A certification that all outfalls that should contain storm
water discharges associated with industrial or other activity have been
tested or evaluated for the presence of non-storm water discharges
which are not covered by a NPDES permit; tests for such non-storm water
discharges may include smoke tests, fluorometric dye tests, analysis of
accurate schematics, as well as other appropriate tests. * * *
* * * * *
(E) Quantitative data based on samples collected during storm
events and collected in accordance with Sec. 122.21 from all outfalls
containing a storm water discharge associated with industrial or other
activity for the following parameters:
* * * * *
(ii) The 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 other activity solely
under paragraph (b)(15)(i) of this section, is exempt from the
requirements of Sec. 122.21(g) and paragraph (c)(1)(i) of this section.
* * *
* * * * *
(e) * * *
(1) * * *
(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, the permit application must be submitted
to the Director by August 7, 2001.
(iii) For any storm water discharge associated with other activity
identified in paragraph (b)(15) of this section that is not authorized
by a general or individual permit, the permit application made under
paragraph (c) of this section must be submitted to the Director by
{insert date 3 years and 90 days from date of publication of final rule
in the Federal Register}.
* * * * *
(f) * * *
[[Page 1637]]
(4) Any person may petition the Director for the designation of a
large, medium, or small municipal separate sewer system as defined by
paragraphs (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 municipal separate
storm sewer system in which case the Director shall make a final
determination on the petition within 180 days after its receipt.
(g) Conditional exemption for ``no exposure'' of industrial
activities and materials to storm water. Discharges composed entirely
of storm water do not require an NPDES permit if the owner or operator
of the facility satisfies the conditions of this paragraph concerning
``no exposure.'' For purposes of this section, ``no exposure'' means
all industrial materials or activities are protected by a storm
resistant shelter so that they are not exposed to rain, snow, snowmelt,
or runoff. Industrial materials or activities include, but are not
limited to, material handling equipment, industrial machinery, raw
materials, intermediate products, by-products, or waste products,
however packaged. This exemption does not apply to storm water
discharges from facilities identified in paragraphs (b)(14)(x) and
(b)(15)(i) of this section and sources individually designated under
paragraphs (a)(1)(v), (a)(9)(i)(B),(C)&(D) and (g)(3) of this section.
Actions taken to qualify for this provision shall not interfere with
the attainment or maintenance of water quality standards, including
designated uses. To establish that the facility meets the definition of
no exposure described in this paragraph, an owner or operator must
submit a written certification to the NPDES permitting authority once
every five years.
(1) Any owner or operator claiming the no exposure exemption must:
(i) Notify the NPDES permitting authority at the beginning of each
permit term or prior to commencing discharges during a permit term;
(ii) Allow the permitting authority, or the municipality where the
facility discharges into a municipal separate storm sewer system, to
inspect the facility and allow the permitting authority or the
municipality to make such inspection reports publicly available upon
request;
(iii) Upon request, also submit a copy of the certification to the
municipality in which the facility is located; and
(iv) Sign and certify the certification in accordance with
Sec. 122.22.
(2) If there is a change in circumstances which causes exposure of
industrial activities or materials to storm water, the owner or
operator must comply immediately with all the requirements of the storm
water program including applying for and obtaining coverage under an
NPDES permit.
(3) Even if an owner or operator certifies to no exposure under
paragraph (g)(1) of this section, the NPDES permitting authority still
retains the authority to require the owner or operator of a facility to
apply for an individual or general permit if the permitting authority
has determined that the discharge:
(i) Is, or may reasonably be, causing or contributing to the
violation of a water quality standard; or
(ii) Is, or may reasonably be, interfering with the attainment or
maintenance of water quality standards, including designated uses.
3. 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 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.
* * * * *
4. Add undesignated centerheadings and Secs. 122.30 through 122.37
to subpart B to read as follows:
General Purpose of the CWA Section 402(p)(6) Storm Water Program
Sec. 122.30 What is the purpose of the CWA section 402(p)(6) storm
water regulations?
(a) 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. (Since 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.)
(b) Storm water runoff continues to harm the nation's waters.
Runoff from lands modified by human activities can harm surface water
resources in two ways: 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.
(c) 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.
Tribal Role for the CWA Section 402(p)(6) Storm Water Program
Sec. 122.31 As a Tribe, what is my role under the CWA section
402(p)(6) 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 generally
will implement the program on your reservation as well as other Indian
country.);
(b) Be classified as an owner or operator of a regulated small
municipal separate storm sewer system, as defined in Sec. 122.32, to
the extent the population within the urbanized area of the reservation
is greater than or equal to 1,000 persons. (Designation of your Tribe
as an owner or operator of a small municipal separate storm sewer
system 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 municipal separate storm sewer system, your
reservation would be subject to the requirements under Secs. 122.33
through 122.35. If you are not designated as a regulated small
municipal separate storm sewer system, you may ask EPA to designate you
as such for the purposes of this part. Being regulated as a small
municipal separate storm sewer system and having coverage under an
NPDES permit may benefit you by enhancing your ability to establish and
enforce certain
[[Page 1638]]
requirements for facilities that discharge storm water into your
separate storm sewer system.); or
(c) Be a discharger of storm water associated with industrial or
other 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 generally would be EPA, unless you are authorized
to administer the NPDES program.
Municipal Role for the CWA Section 402(p)(6) Storm Water Program
Exhibit 1 to Subpart B.--Summary of Coverage of Small Municipal Separate
Storm Sewer Systems* Under the NPDES Storm Water Program
[*See definition at Sec. 122.26(b)(16)]
------------------------------------------------------------------------
------------------------------------------------------------------------
Who is Designated/Covered Under This Part?
------------------------------------------------------------------------
Automatic Designation
Required Nationwide All owners or operators of small
Coverage. municipal separate storm sewer systems
(MS4s) located within an ``urbanized
area.'' (see Sec. 122.32(a)(1)).
Potential Designation:
Required Evaluation by All owners or operators of small MS4s
the Permitting Authority located outside of an ``urbanized area''
for Coverage. with a population of at least 10,000 and
a population density of at least 1,000.
(see Secs. 122.32(a)(2) and
123.35(b)(2)).
All owners or operators of small MS4s
that contribute substantially to the
storm water pollutant loadings of a
physically interconnected MS4 that is
regulated by the NPDES storm water
program. (see Secs. 122.32(a)(2) and
123.35(b)(4)).
Potential Designation:
Optional Evaluation by Owners and operators of small MS4s
the Permitting Authority located outside of an ``urbanized area''
for Coverage. with a population of less than 10,000 or
a density of less than 1,000. (see Secs.
122.32(a)(2) and 123.35(b)(3)).
------------------------------------------------------------------------
Who is Eligible for a Waiver or an Exemption From the Small MS4 Permit
Requirements?
------------------------------------------------------------------------
Potential Waiver:
Locally-Based Waiver from Owners or operators of small MS4s,
Requirements as located within an ``urbanized area,''
Determined by the with a jurisdiction of less than 1,000
Permitting Authority. persons and a system that is not
contributing substantially to the
pollutant loadings of a physically
interconnected MS4 may certify that
storm water controls are not needed
based on:
(1) Waste load allocations that are part
of ``total maximum daily loads'' (TMDLs)
that address the pollutants of concern;
or
(2) A comprehensive watershed plan,
implemented for the waterbody, that
includes the equivalents of TMDLs, and
addresses the pollutants of concern.
Exemption:
Not Defined as a Federal Indian reservations where the
Regulated Small MS4. population within the ``urbanized area''
portion of the reservation is less than
1,000 persons.
------------------------------------------------------------------------
Sec. 122.32 As an owner or operator of a small municipal separate
storm sewer system, am I regulated under the CWA section 402(p)(6)
municipal storm water program?
(a) You are a regulated small municipal separate storm sewer system
if you are the owner or operator of a small municipal separate storm
sewer system, including but not limited to systems owned or operated by
local governments, State departments of transportation, and State,
Tribal, and Federal facilities; and you meet the following definition.
Regulated small municipal separate storm sewer systems are defined as
all small municipal separate storm sewer systems that are located in:
(1) An incorporated place, county (only the portion located in an
urbanized area), or other place under the jurisdiction of a
governmental entity, including but not limited to Tribal or Territorial
governments, located in an urbanized area as determined by the latest
Decennial Census by the Bureau of the Census, except for Federal Indian
reservations where the population within the urbanized area of the
reservation is under 1,000 persons;
(2) An incorporated place, county, or other place under the
jurisdiction of a governmental entity other than those described in
paragraph (a)(1) of this section that is designated by the NPDES
permitting authority, including where the designation is pursuant to
Secs. 123.35(b)(2) 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, by any person, to the
NPDES permitting authority to require an NPDES permit for a discharge
which is composed entirely of storm water which contributes to a
violation of a water quality standard or is a significant contributor
of pollutants to waters of the United States. Upon a final
determination by the NPDES permitting authority, you would be required
to comply with Secs. 122.33 through 122.35.
(c) If you receive a waiver under Sec. 122.33(b), you may
subsequently be designated back into the municipal storm water program
by the NPDES permitting authority if circumstances change. (See also
Sec. 123.35(b) of this chapter.)
Sec. 122.33 If I am an owner or operator of a regulated small
municipal separate storm sewer system, must I apply for an NPDES
permit? If so, by when do I have to seek coverage under an NPDES
permit? If so, who is my NPDES permitting authority?
(a) If you are the owner or operator of a regulated small municipal
separate storm sewer system under Sec. 122.32, you must seek coverage
under a general or individual NPDES permit, unless waived under
paragraph (b) of this section, as follows:
(1) If you are seeking coverage under a general permit, you must
submit a Notice of Intent (NOI). The general permit will explain the
steps necessary to attain coverage.
(2) If you are seeking coverage under an individual permit, you
must submit an individual application to your NPDES permitting
authority that includes the information required under Sec. 122.21(f)
and the following information:
[[Page 1639]]
(i) Estimate of square mileage served by your separate storm sewer
system, and
(ii) Any additional information that your NPDES permitting
authority requests.
(3) If there is an adjoining municipality or other governmental
entity with an issued NPDES storm water permit that is willing to have
you participate in its storm water program, you may jointly with that
adjoining municipality or other governmental entity seek a permit
modification to include your municipality or other governmental entity
in the relevant portions of that NPDES permit. If you choose this
option you will need to comply with the permit application requirements
of Sec. 122.26, in lieu of 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) (identifying a management plan) by referring
to the adjoining municipality's storm water management plan. (In
referencing an adjoining municipality's storm water management plan,
you should briefly describe how the existing plan will address
discharges from your municipal separate storm sewer system or would
need to be supplemented in order to adequately address your discharges,
explain the role you will play in coordinating storm water activities
in your jurisdiction, and detail the resources available to you to
accomplish the plan.)
(b) The NPDES permitting authority may waive the requirements
otherwise applicable to you if you are an owner or operator of a
regulated small municipal separate storm sewer system, as defined in
Sec. 122.32(a)(1), the jurisdiction served by your system includes a
population of less than 1,000 ersons, your system is not contributing
substantially to the storm water pollutant loadings of a physically
interconnected regulated municipal separate storm sewer system (see
Sec. 123.35(b)(4) of this chapter), and you have certified that storm
water controls are not needed based on:
(1) Wasteload allocations that are part of ``total maximum daily
loads'' (TMDLs) that address the pollutants of concern; or
(2) A comprehensive watershed plan, implemented for the waterbody,
that includes the equivalents of TMDLs, and addresses the pollutants of
concern.
(c) If you are an owner or operator of a regulated small municipal
separate storm sewer system:
(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 (a)(3) of this section, by {insert date 3 years
and 90 days from date of publication of final rule}.
(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 (a)(3) of this section, within 60 days of
notice, unless the NPDES permitting authority grants a later date.
(d) 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. (You should call your EPA Regional Office to find
out who your NPDES permitting authority is.)
Sec. 122.34 As an owner or operator of a regulated small municipal
separate storm sewer system, what will my NPDES municipal storm water
permit require?
(a) Your NPDES municipal storm water permit will, at a minimum,
require you to develop, implement, and enforce a storm water management
program designed to reduce the discharge of pollutants from your
municipal separate storm sewer system to the maximum extent practicable
(MEP) and protect water quality. Your storm water management program
must include the minimum control measures described in paragraph (b) of
this section. 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 water quality-
based requirements of the Clean Water Act. Implementation of the 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 will constitute
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. 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 can be taken to reduce storm water
pollution. (You may use storm water educational materials provided by
your State, Tribe, EPA, or, subject to the approval of the local
government, environmental or other public interest or trade
organizations. The materials or outreach programs should inform
individuals and households about the steps they can take, such as
ensuring proper septic system maintenance, limiting the use and runoff
of garden chemicals, becoming involved in local stream restoration
activities that are coordinated by youth service and conservation corps
and other citizen groups, and participating in storm drain stenciling,
to reduce storm water pollution. In addition, some of the 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, 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 children.)
(2) Public involvement/participation. You must comply with State,
Tribal and local public notice requirements. (You should include the
public in developing, implementing, and reviewing your storm water
management program. The public participation process should make
efforts to reach out and engage all economic and ethnic groups. You may
consider impanelling a group of citizens to participate in your
decision-making process, hold public hearings, or work with
volunteers.)
(3) Illicit discharge detection and elimination. You must:
(i) Develop, if not already completed, a storm sewer system map, or
equivalent, showing the location of major pipes, outfalls, and
topography. In addition, if data already exist, show areas of
concentrated activities likely to be a source of storm water pollution;
(ii) To the extent allowable under State or Tribal law, effectively
prohibit, through ordinance, order, or similar means, illicit
discharges into your storm sewer system and implement appropriate
enforcement procedures and actions;
[[Page 1640]]
(iii) Implement a plan to detect and address illicit discharges,
including illegal dumping, to your system; and
(iv) Inform public employees, businesses, and the general public of
hazards associated with illegal discharges and improper disposal of
waste. (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. You must develop,
implement, and enforce a program to reduce pollutants in storm water
runoff to your municipal separate storm sewer system from construction
activities that result in land disturbance of greater than or equal to
one acre. You must use an ordinance or other regulatory mechanism that
controls erosion and sediment to the maximum extent practicable and
allowable under State or Tribal law. Your program must control other
waste at the construction site that may adversely impact water quality,
such as discarded building materials, concrete truck washout, and
sanitary waste. Your program also must include, at a minimum,
requirements for construction site owners or operators to implement
appropriate BMPs, provisions for pre-construction review of site
management plans, procedures for receipt and consideration of
information submitted by the public, regular inspections during
construction, and penalties to ensure compliance. (See Sec. 122.44(s))
(5) Post-construction storm water management in new development and
redevelopment. You must 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 and that discharge into your municipal separate storm sewer
system. Your program must include a plan to implement site-appropriate
and cost-effective structural and non-structural best management
practices (BMPs) and ensure adequate long-term operation and
maintenance of such BMPs. Your program must ensure that controls are in
place that would prevent or minimize water quality impacts. (If the
involved parties consider water quality impacts from the beginning
stages of projects, new development and potentially redevelopment allow
opportunities for water quality sensitive projects. EPA recommends that
municipalities establish requirements for the use of cost-effective
BMPs that minimize water quality impacts and attempt to maintain pre-
development runoff conditions. In other words, post-development
conditions should not be different from pre-development conditions in a
way that adversely affects water quality. The municipal program should
include structural and/or non-structural BMPs. EPA encourages locally-
based watershed planning and the use of preventative measures,
including non-structural BMPs, which are generally lower in cost than
structural BMPs, to minimize water quality impacts. Non-structural BMPs
are preventative actions that involve management and source controls.
Examples of non-structural BMPs include policies and ordinances that
result in protection of natural resources and prevention of runoff.
These include requirements to limit growth to identified areas, protect
sensitive areas such as wetlands and riparian areas, minimize
imperviousness, maintain open space, and minimize disturbance of soils
and vegetation. Examples of structural BMPs include storage practices
(wet ponds and extended-detention outlet structures), filtration
practices (grassed swales, sand filters and filter strips), and
infiltration practices (infiltration basins, infiltration trenches, and
porous pavement). Storm water technologies are constantly being
improved, and EPA recommends that municipal requirements be responsive
to these changes.)
(6) Pollution prevention/good housekeeping for municipal
operations. You must develop and implement a cost-effective operation
and maintenance program with the ultimate goal of preventing or
reducing pollutant runoff from municipal operations. Using training
materials that are available from EPA, your State, or Tribe, or from
other organizations whose materials are approved by the local
government, your program must include local government employee
training to prevent and reduce storm water pollution from government
operations, such as park and open space maintenance, fleet maintenance,
planning, building oversight, and storm water system maintenance. (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 other 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, and waste transfer
stations; procedures for properly disposing of waste removed from the
separate storm sewer systems 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. In general,
the requirement to develop and implement an operation and maintenance
program, including local government employee training, is meant to
ensure that municipal activities are performed in the most appropriate
way to minimize contamination of storm water discharges, rather than
requiring the municipality to undertake new activities.)
(c) The NPDES permitting authority may include permit provisions in
your NPDES permit that incorporate by reference qualifying local, State
or Tribal municipal storm water management program requirements that
address one or more of the minimum controls of Sec. 122.34(b).
Qualifying local, State or Tribal program requirements must impose, at
a minimum, the relevant requirements of paragraph (b) of this section.
(d) You must identify and submit to your NPDES permitting authority
either in your notice of intent or in your permit application (see
Sec. 122.33) the following information: best management practices
(BMPs) to be implemented and the measurable goals for each of the storm
water minimum control measures at paragraphs (b)(1) through (b)(6) of
this section, the month and year in which you will start and aim to
complete each of the measures or indicate the frequency of the action,
and the person or persons responsible for implementing or coordinating
your storm water management program. Measurable goals to satisfy
minimum control measures in paragraphs (b)(3) through (b)(6) of this
section identified in a notice of intent will not constitute a
condition of the permit, unless EPA or your State or Tribe has provided
or issued a menu of regionally appropriate and field-tested BMPs that
EPA or your State or Tribe believes to be cost-effective. (EPA will
provide guidance on developing BMPs and measurable goals and modify,
update, and supplement such guidance based on the assessments of the
NPDES municipal storm water program and research conducted by (date 13
years from effective date of final rule).
(e) You must comply with other applicable NPDES permit
requirements, standards and conditions established in the individual or
general permit, developed consistent with the
[[Page 1641]]
provisions of Secs. 122.41 through 122.49, as appropriate.
(f) 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. (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) Record keeping. 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 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, not to exceed two working days.)
(3) Reporting. 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; and
(iv) A change in any identified measurable goals that apply to the
program elements.
Sec. 122.35 As an owner or operator of a regulated small municipal
separate storm sewer system, what if another governmental or other
entity is already implementing a minimum control measure in my
jurisdiction?
(a) You may rely on another entity to satisfy your NPDES permit
obligations to implement a minimum control measure if: the other entity
is implementing the control measure; the particular control measure, or
component thereof, is at least as stringent as the corresponding NPDES
permit requirement; and you have requested, and the other entity has
agreed to accept responsibility for implementation of the control
measure on your behalf to satisfy your permit obligation. You must note
in your Sec. 122.34(f)(3) reports when you are relying on another
entity to satisfy your permit obligations. 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) Where appropriate, the NPDES permitting authority may recognize
existing responsibilities among governmental entities for the minimum
control measures in your NPDES permit. (For example, a State or Tribe
may be responsible for addressing construction site runoff and
municipalities may be responsible for the remaining minimum control
measures. You are not required to provide notice to the other
governmental entity when your NPDES permit recognizes the entity and
its existing responsibilities.) Where the permitting authority
recognizes an existing responsibility for one or more of the minimum
control measures in your permit, your responsibility to include such
minimum control measure, or measures, in your storm water management
program is waived so long as the other governmental entity implements
the measure consistent with the requirements of Sec. 122.34(b).
Sec. 122.36 As an owner or operator of a regulated small municipal
separate storm sewer system, 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 or
local law. Compliance with a permit issued pursuant to section 402 of
the Clean Water Act would be 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.
Sec. 122.37 Will the municipal 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 municipal storm water regulations at
Secs. 122.32 through 122.36 and Sec. 123.35 of this chapter after
{insert date 13 years from date of publication of final rule in the
Federal Register} and make any necessary revisions. (EPA will conduct
an enhanced research effort and compile a comprehensive evaluation of
the NPDES municipal storm water program. EPA strongly recommends that
no additional requirements beyond the minimum control measures be
imposed on regulated small municipal separate storm sewer systems
without the agreement of the owner or operator of the affected
municipal separate storm sewer system, except where adequate
information exists in approved TMDLs or equivalents of TMDLs to develop
more specific measures to protect water quality, or until EPA's
comprehensive evaluation is completed. EPA will evaluate the
regulations based on data from the NPDES municipal storm water program,
from research on receiving water impacts from storm water, and the
effectiveness of best management practices (BMPs).)
5. Add Sec. 122.44(s) to read as follows:
Sec. 122.44 Establishing limitations, standards, and other permit
conditions (applicable to State NPDES programs, see Sec. 123.25)
* * * * *
(s)(1) For storm water discharges from construction sites
identified in Sec. 122.26(b)(15)(i), the Director may include permit
provisions that incorporate by reference qualifying State, Tribal, or
local sediment and erosion control program requirements. A qualifying
State, Tribal, or local sediment and erosion control program is one
that meets the requirements of a municipal NPDES separate storm sewer
permit or a program otherwise approved by the Director. For the
Director to approve such programs, the program must meet the minimum
program requirements established under Sec. 122.34(b)(4).
(2) For storm water discharges identified in Sec. 122.26(b)(14)(x),
the Director may include by reference State, Tribal or local
requirements that meet the standard of ``best available technology''
(BAT) as defined, for example, in the storm water general permit.
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. Section 123.25 is amended by adding paragraphs (a)(39) through
(a)(46) to read as follows:
Sec. 123.25 Requirements for permitting.
(a) * * *
[[Page 1642]]
(39) Sec. 122.30 (What is the purpose of the CWA section 402(p)(6)
storm water regulations?);
(40) Sec. 122.31 (For Indian Tribes only) (As a Tribe, what is my
role under the CWA section 402(p)(6) storm water program?)
(41) Sec. 122.32 (As an owner or operator of a small municipal
separate storm sewer system, am I regulated under the CWA section
402(p)(6) municipal storm water program?);
(42) Sec. 122.33 (If I am an owner or operator of a regulated small
municipal separate storm sewer system, must I apply for an NPDES
permit? If so, by when do I have to seek coverage under an NPDES
permit? If so, who is my NPDES permitting authority?);
(43) Sec. 122.34 (As an owner or operator of a regulated small
municipal separate storm sewer system, what will my NPDES municipal
storm water permit require?);
(44) Sec. 122.35 (As an owner or operator of a regulated small
municipal separate storm sewer system, what if another governmental or
other entity is already implementing a minimum control measure in my
jurisdiction?);
(45) Sec. 122.36 (As an owner or operator of a regulated small
municipal separate storm sewer system, what happens if I don't comply
with the application or permit requirements in Secs. 122.33 through
122.35?);
(46) Sec. 122.37 (Will the municipal storm water program
regulations at Secs. 122.32 through 122.36 and Sec. 123.35 of this
chapter change in the future?);
* * * * *
3. Add an undesignated centerheading and Sec. 123.35 to subpart B
to read as follows:
NPDES Permitting Authority Role for the CWA section 402(p)(6)
Municipal Program
Sec. 123.35 As the NPDES Permitting Authority for regulated small
municipal separate storm sewer systems, 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 municipal storm water program.)
(b) You must develop a process, as well as criteria, to designate
incorporated places, counties, or other places under the jurisdiction
of a governmental entity, other than those described in
Sec. 122.32(a)(1) of this chapter, as regulated small municipal
separate storm sewer systems to be covered under the CWA section
402(p)(6) program. This process must include the authority to designate
a small municipal separate storm sewer system 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 your designations, you
must:
(1) 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. (EPA recommends as guidance for determining other significant
water quality impacts 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 control of
water quality concerns by other programs.);
(2) Apply such criteria, at a minimum, to any incorporated place,
county, or other place under the jurisdiction of a governmental entity
located outside of an urbanized area that has a population density of
at least 1,000 people per square mile and a population of at least
10,000;
(3) Designate any incorporated place, county or other place under
the jurisdiction of a governmental entity that meets the selected
criteria by {insert date three years and 90 days from date of
publication of final rule in the FEDERAL REGISTER}. You may have until
{insert date five years from date of publication of final rule in the
FEDERAL REGISTER} to apply the designation criteria on a watershed
basis where there is a comprehensive watershed plan. You may apply
these criteria to make additional designations at any time, as
appropriate; and
(4) Designate any incorporated place, county, or other place under
the jurisdiction of a governmental entity that contributes
substantially to the storm water pollutant loadings of a physically
interconnected municipal separate storm sewer system that is regulated
by the NPDES storm water program.
(c) You must make a final determination within 180 days from
receiving a petition under Sec. 122.32(b) of this chapter (or analogous
State or Tribal law). If a State or Tribe fails to do so, 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 municipal separate storm
sewer systems. You may waive the requirements otherwise applicable to
regulated small municipal separate storm sewer systems, as defined in
Sec. 122.32(a)(1) of this chapter, if the jurisdiction of the regulated
small municipal separate storm sewer system includes a population of
less than 1,000 persons, its discharges are not contributing
substantially to the storm water pollutant loadings of a physically
interconnected regulated municipal separate storm sewer system (see
paragraph (b)(4) of this section), and the owner or operator of the
regulated small municipal separate storm sewer system has certified
that storm water controls are not needed based on:
(1) Wasteload allocations that are part of ``total maximum daily
loads'' (TMDLs) that address the pollutants of concern; or
(2) A comprehensive watershed plan, implemented for the waterbody,
that includes the equivalents of TMDLs, and addresses the pollutants of
concern.
(e) You must specify a time period of up to 5 years from the date
of permit issuance for owners or operators of small municipal separate
storm sewer systems to fully develop and implement their storm water
program.
(f) You must include the requirements in Sec. 122.34 of this
chapter including as modified in accordance with Secs. 122.33(a)(3),
122.34(c), or 122.35(b) of this chapter, in any permit issued for
regulated small municipal separate storm sewer systems. (You may
include permit provisions in a regulated small municipal separate storm
sewer system NPDES permit that incorporates by reference qualifying
local, State or Tribal municipal storm water management program
requirements that address one or more of the minimum controls of
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 plan to issue a general permit to authorize storm water
discharges from small municipal separate storm sewer systems, you must
provide or issue by {insert 2 years from date of publication of final
rule in the Federal Register} a menu of regionally appropriate and
field-tested BMPs that you believe to be cost-effective from which
regulated small municipal separate storm sewer systems can select.
Failure to issue the menu of BMPs would not affect the legal status of
the general permit. If a State or Tribe fails
[[Page 1643]]
to provide or issue the menu, EPA may do so.
(h) You must incorporate additional measures necessary to ensure
effective implementation of your State storm water program for
regulated small municipal separate storm sewer systems. (EPA recommends
consideration of the following:
(1) You are encouraged to use a general permit for regulated small
municipal separate storm sewer systems;
(2) To the extent that there is a dedicated funding source, you
should play an active role in providing financial assistance to owners
and operators of regulated small municipal separate storm sewer
systems;
(3) 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;
(4) 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;
(5) Where appropriate, you may recognize existing responsibilities
among governmental entities for the control measures in an NPDES small
municipal storm water permit (see Sec. 122.35(b) of this chapter); and
(6) You are encouraged to use a brief (e.g., two page) reporting
format to facilitate compiling and analyzing data from submitted
reports under Sec. 122.34(f)(3) of this chapter. EPA will develop a
model form for this purpose.)
[FR Doc. 98-180 Filed 1-8-98; 8:45 am]
BILLING CODE 6560-50-P