[Federal Register Volume 64, Number 235 (Wednesday, December 8, 1999)]
[Rules and Regulations]
[Pages 68722-68851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29181]



[[Page 68721]]

_______________________________________________________________________

Part II





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 9, 122, 123, and 124



National Pollutant Discharge Elimination System--Regulations for 
Revision of the Water Pollution Control Program Addressing Storm Water 
Discharges; Final Rule



Report to Congress on the Phase II Storm Water Regulations; Notice

  Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / 
Rules and Regulations  

[[Page 68722]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9, 122 , 123, and 124

[FRL--6470-8]
RIN 2040-AC82


National Pollutant Discharge Elimination System--Regulations for 
Revision of the Water Pollution Control Program Addressing Storm Water 
Discharges

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Today's regulations (Phase II) expand the existing National 
Pollutant Discharge Elimination System (NPDES) storm water program 
(Phase I) to address storm water discharges from small municipal 
separate storm sewer systems (MS4s) (those serving less than 100,000 
persons) and construction sites that disturb one to five acres. 
Although these sources are automatically designated by today's rule, 
the rule allows for the exclusion of certain sources from the national 
program based on a demonstration of the lack of impact on water 
quality, as well as the inclusion of others based on a higher 
likelihood of localized adverse impact on water quality. Today's 
regulations also exclude from the NPDES program storm water discharges 
from industrial facilities that have ``no exposure'' of industrial 
activities or materials to storm water. Finally, today's rule extends 
from August 7, 2001 until March 10, 2003 the deadline by which certain 
industrial facilities owned by small MS4s must obtain coverage under an 
NPDES permit. This rule establishes a cost-effective, flexible approach 
for reducing environmental harm by storm water discharges from many 
point sources of storm water that are currently unregulated.
    EPA believes that the implementation of the six minimum measures 
identified for small MS4s should significantly reduce pollutants in 
urban storm water compared to existing levels in a cost-effective 
manner. Similarly, EPA believes that implementation of Best Management 
Practices (BMP) controls at small construction sites will also result 
in a significant reduction in pollutant discharges and an improvement 
in surface water quality. EPA believes this rule will result in 
monetized financial, recreational and health benefits, as well as 
benefits that EPA has been unable to monetize. Expected benefits 
include reduced scouring and erosion of streambeds, improved aesthetic 
quality of waters, reduced eutrophication of aquatic systems, benefit 
to wildlife and endangered and threatened species, tourism benefits, 
biodiversity benefits and reduced costs for siting reservoirs. In 
addition, the costs of industrial storm water controls will decrease 
due to the exclusion of storm water discharges from facilities where 
there is ``no exposure'' of storm water to industrial activities and 
materials.

DATES: This regulation is effective on February 7, 2000. The 
incorporation by reference of the rainfall erosivity factor publication 
listed in the rule is approved by the Director of the Federal Register 
as of February 7, 2000. For judicial review purposes, this final rule 
is promulgated as of 1:00 p.m. Eastern Standard Time, on December 22, 
1999 as provided in 40 CFR 23.2.

ADDRESSES: The complete administrative record for the final rule and 
the ICR have been established under docket numbers W-97-12 (rule) and 
W-97-15 (ICR), and includes supporting documentation as well as 
printed, paper versions of electronic comments. Copies of information 
in the record are available upon request. A reasonable fee may be 
charged for copying. The record is available for inspection and copying 
from 9 a.m. to 4 p.m., Monday through Friday, excluding legal holidays, 
at the Water Docket, EPA, East Tower Basement, 401 M Street, SW, 
Washington, DC. For access to docket materials, please call 202/260-
3027 to schedule an appointment.

FOR FURTHER INFORMATION CONTACT: George Utting, Office of Wastewater 
Management, Environmental Protection Agency, Mail Code 4203, 401 M 
Street, SW, Washington, DC 20460; (202) 260-5816; [email protected].

SUPPLEMENTARY INFORMATION: Entities potentially regulated by this 
action include:

------------------------------------------------------------------------
                Category                 Examples of regulated  entities
------------------------------------------------------------------------
Federal, State, Tribal, and Local        Operators of small separate
 Governments.                             storm sewer systems,
                                          industrial facilities that
                                          discharge storm water
                                          associated with industrial
                                          activity or construction
                                          activity disturbing 1 to 5
                                          acres.
Industry...............................  Operators of industrial
                                          facilities that discharge
                                          storm water associated with
                                          industrial activity.
Construction Activity..................  Operators of construction
                                          activity disturbing 1 to 5
                                          acres.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your facility or company is regulated by this action, you should 
carefully examine the applicability criteria in Secs. 122.26(b), 
122.31, 122.32, and 123.35 of the final rule. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.

Table of Contents:

I. Background
    A. Proposed Rule and Pre-proposal Outreach
    B. Water Quality Concerns/Environmental Impact Studies and 
Assessments
    1. Urban Development
    a. Large-Scale Studies and Assessments
    b. Local and Watershed-Based Studies
    c. Beach Closings/Advisories
    2. Non-storm Water Discharges Through Municipal Storm Sewers
    3. Construction Site Runoff
    C. Statutory Background
    D. EPA's Reports to Congress
    E. Industrial Facilities Owned or Operated by Small 
Municipalities
    F. Related Nonpoint Source Programs
II. Description of Program
    A. Overview
    1. Objectives EPA Seeks to Achieve in Today's Rule
    2. General Requirements for Regulated Entities Under Today's 
Rule
    3. Integration of Today's Rule With the Existing Storm Water 
Program
    4. General Permits
    5. Tool Box
    6. Deadlines Established in Today's Action
    B. Readable Regulations
    C. Program Framework: NPDES Approach
    D. Federal Role
    1. Develop Overall Framework of the Program
    2. Encourage Consideration of ``Smart Growth'' Approaches
    3. Provide Financial Assistance
    4. Implement the Program in Jurisdictions not Authorized to 
Administer the NPDES Program
    5. Oversee State and Tribal Programs
    6. Comply with Applicable Requirements as a Discharger
    E. State Role
    1. Develop the Program
    2. Comply With Applicable Requirements as a Discharger
    3. Communicate with EPA
    F. Tribal Role
    G. NPDES Permitting Authority's Role for the NPDES Storm Water 
Small MS4 Program
    1. Comply With Implementation Requirements
    2. Designate Sources
    a. Develop Designation Criteria
    b. Apply Designation Criteria

[[Page 68723]]

    c. Designate Physically Interconnected Small MS4s
    d. Respond to Public Petitions for Designation
    3. Provide Waivers
    4. Issue Permits
    5. Support and Oversee the Local Programs
    H. Municipal Role
    1. Scope of Today's Rule
    2. Municipal Definitions
    a. Municipal Separate Storm Sewer Systems (MS4s)
    b. Small Municipal Separate Storm Sewer Systems
    i. Combined Sewer Systems (CSS)
    ii. Owners/Operators
    c. Regulated Small MS4s
    i. Urbanized Area Description
    ii. Rationale for Using Urbanized Areas
    d. Municipal Designation by the Permitting Authority
    e. Waiving the Requirements for Small MS4s
    3. Municipal Permit Requirements
    a. Overview
    i. Summary of Permitting Options
    ii. Water Quality-Based Requirements
    iii. Maximum Extent Practicable
    b. Program Requirements--Minimum Control Measures
    i. Public Education and Outreach on Storm Water Impacts
    ii. Public Involvement/Participation
    iii. Illicit Discharge Detection and Elimination
    iv. Construction Site Storm Water Runoff Control
    v. Post-Construction Storm Water Management in New Development 
and Redevelopment
    vi. Pollution Prevention/Good Housekeeping for Municipal 
Operations
    c. Application Requirements
    i. Best Management Practices and Measurable Goals
    ii. Individual Permit Application for a Sec. 122.34(b) Program
    iii. Alternative Permit Option/ Tenth Amendment
    iv. Satisfaction of Minimum Measure Obligations by Another 
Entity
    v. Joint Permit Programs
    d. Evaluation and Assessment
    i. Recordkeeping
    ii. Reporting
    iii. Permit-As-A-Shield
    e. Other Applicable NPDES Requirements
    f. Enforceability
    g. Deadlines
    h. Reevaluation of Rule
    I. Other Designated Storm Water Discharges
    1. Discharges Associated with Small Construction Activity
    a. Scope
    b. Waivers
    i. Rainfall-Erosivity Waiver
    ii. Water Quality Waiver
    c. Permit Process and Administration
    d. Cross-Referencing State, Tribal, or Local Erosion and 
Sediment Control Programs
    e. Alternative Approaches
    2. Other Sources
    3. ISTEA Sources
    4. Residual Designation Authority
    J. Conditional Exclusion for ``No Exposure'' of Industrial 
Activities and Materials to Storm Water
    1. Background
    2. Today's Rule
    3. Definition of ``No Exposure''
    K. Public Involvement/Public Role
    L. Water Quality Issues
    1. Water Quality Based Effluent Limits
    2. Total Maximum Daily Loads and Analysis to Determine the Need 
for Water Quality-Based Limitations
    3. Anti-Backsliding
    4. Water Quality-Based Waivers and Designations
III. Cost-Benefit Analysis
    A. Costs
    1. Municipal Costs
    2. Construction Costs
    B. Quantitative Benefits
    1. National Water Quality Model
    2. National Water Quality Assessment
    a. Municipal Measures
    i. Fresh Waters Benefits
    ii. Marine Waters Benefits
    b. Construction Benefits
    c. Summary of Benefits From the National Water Quality 
Assessment
    C. Qualitative Benefits
    D. National Economic Impact
IV. Regulatory Requirements
    A. Paperwork Reduction Act
    B. Executive Order 12866
    C. Unfunded Mandates Reform Act
    1. Summary of UMRA Section 202 Written Statement
    2. Selection of the Least Costly, Most Cost-Effective or Least 
Burdensome Alternative That Achieves the Objectives of the Statute
    3. Effects on Small Governments
    D. Executive Order 13132
    E. Regulatory Flexibility Act
    F. National Technology Transfer And Advancement Act
    G. Executive Order 13045
    H. Executive Order 13084
    I. Congressional Review Act

I. Background

A. Proposed Rule and Pre-Proposal Outreach

    On January 9, 1998 (63 FR 1536), EPA proposed to expand the 
National Pollutant Discharge Elimination System (NPDES) storm water 
program to include storm water discharges from municipal separate storm 
sewer systems (MS4s) and construction sites that were smaller than 
those previously included in the program. The proposal also addressed 
industrial sources that have ``no exposure'' of industrial activities 
and materials to storm water. Today, EPA is promulgating a final rule 
to implement most of the proposed revisions with minor changes based on 
public comments received on the proposal. Today's final rule also 
extends the deadline by which certain industrial facilities operated by 
municipalities of less than 100,000 population must be covered by a 
NPDES permit; the deadline is changed from August 7, 2001 until March 
10, 2003.
    In 1972, Congress amended the Federal Water Pollution Control Act 
(commonly referred to as the Clean Water Act (CWA)) to prohibit the 
discharge of any pollutant to waters of the United States from a point 
source unless the discharge is authorized by an NPDES permit. The NPDES 
program is a program designed to track point sources and require the 
implementation of the controls necessary to minimize the discharge of 
pollutants. Initial efforts to improve water quality under the NPDES 
program primarily focused on reducing pollutants in industrial process 
wastewater and municipal sewage. These discharge sources were easily 
identified as responsible for poor, often drastically degraded, water 
quality conditions.
    As pollution control measures for industrial process wastewater and 
municipal sewage were implemented and refined, it became increasingly 
evident that more diffuse sources of water pollution were also 
significant causes of water quality impairment. Specifically, storm 
water runoff draining large surface areas, such as agricultural and 
urban land, was found to be a major cause of water quality impairment, 
including the nonattainment of designated beneficial uses.
    In 1987, Congress amended the CWA to require implementation, in two 
phases, of a comprehensive national program for addressing storm water 
discharges. The first phase of the program, commonly referred to as 
``Phase I,'' was promulgated on November 16, 1990 (55 FR 47990). Phase 
I requires NPDES permits for storm water discharge from a large number 
of priority sources including municipal separate storm sewer systems 
(``MS4s'') generally serving populations of 100,000 or more and several 
categories of industrial activity, including construction sites that 
disturb five or more acres of land.
    Today's rule, which is the second phase of the storm water program, 
expands the existing program to include discharges of storm water from 
smaller municipalities in urbanized areas and from construction sites 
that disturb between one and five acres of land. Today's rule allows 
certain sources to be excluded from the national program based on a 
demonstrable lack of impact on water quality. The rule also allows 
other sources not automatically regulated on a national basis to be 
designated for inclusion based on increased likelihood for localized 
adverse impact on water quality.

[[Page 68724]]

Today's rule also conditionally excludes storm water discharges from 
industrial facilities that have ``no exposure'' of industrial 
activities or materials to storm water. Today's rule and the effort 
that led to its development are commonly referred to as ``Phase II.'' 
On August 7, 1995, EPA promulgated a final rule that required 
facilities to be regulated under Phase II to apply for a NPDES permit 
by August 7, 2001, unless the NPDES permitting authority designates 
them as requiring a permit by an earlier date. (60 FR 40230). That rule 
is referred to as ``the Interim Phase II Rule.'' Today's rule replaces 
the Interim Phase II rule.
    EPA performed extensive outreach and worked with a variety of 
stakeholders prior to proposing today's rule. On September 9, 1992, EPA 
published a notice requesting information and public comment on how to 
prepare regulations under CWA section 402(p)(6) (see 57 FR 41344). The 
notice identified three sets of issues associated with developing new 
NPDES storm water regulations: (1) How should EPA identify unregulated 
sources of storm water to protect water quality, (2) what types of 
control strategies should EPA develop for these sources, and (3) what 
are appropriate deadlines for implementing new requirements. The notice 
recognized that potential sources for coverage under the section 
402(p)(6) regulations would fall into two main categories: municipal 
separate storm sewer systems and individual (commercial and 
residential) sources. EPA received more than 130 comments on the 
September 9, 1992, notice. For further discussion of the comments 
received, see Storm Water Discharges Potentially Addressed by Phase II 
of the National Pollutant Discharge Elimination System: Report to 
Congress (EPA, 1995a), pp. 1-21 to 1-22, and Appendix J (which provides 
a detailed summary of the comments received as they relate to the 
specific issues raised in the notice).
    In early 1993, the Rensselaerville Institute and EPA held public 
and expert meetings to assist in developing and analyzing options for 
identifying unregulated sources and possible controls. The report on 
the 1993 meetings identified two options that were favored by the 
various groups that participated. One option was a program that allowed 
States to select sources to be controlled in a manner consistent with 
criteria developed by EPA. A second option was a tiered approach under 
which EPA would select high priority sources for control by NPDES 
permits and States would select other sources for control under a State 
water quality program other than the NPDES program. For additional 
details see the ``Report on the EPA Storm Water Management Program 
(Rensselaerville Study),'' Appendix I of Storm Water Discharges 
Potentially Addressed by Phase II of the National Pollutant Discharge 
Elimination System: Report to Congress (EPA, 1995a).
    EPA also conducted outreach with representatives of small entities 
in conjunction with the convening of a Small Business Advocacy Review 
Panel under the Small Business Regulatory Enforcement Fairness Act 
(SBREFA). This process is discussed in section IV.E of today's 
preamble. For additional background see the discussion in the preamble 
to the proposal for today's rule.
    To assist EPA by providing advice and recommendations regarding the 
urban municipal wet weather water pollution control program, EPA 
established the Urban Wet Weather Flows Federal Advisory Committee 
(hereinafter, ``FACA Committee'') under the Federal Advisory Committee 
Act (FACA). The Office of Management and Budget approved the charter 
for the FACA Committee on March 10, 1995. The FACA Committee provided a 
forum for identifying and addressing issues associated with water 
quality impacts from storm water sources.
    The FACA Committee established two subcommittees: the Storm Water 
Phase II FACA Subcommittee and the Sanitary Sewer Overflows (SSOs) FACA 
Subcommittee. Consistent with the requirements of FACA, the membership 
of both the FACA Committee and the subcommittees was balanced among 
EPA's various outside stakeholder interests, including representatives 
from municipalities, States, Indian Tribes, EPA, industrial and 
commercial sectors, agriculture, and environmental and public interest 
groups.
    The Storm Water Phase II FACA Subcommittee (``Subcommittee'') met 
fourteen times between September 1995 and June 1998. The 32 
Subcommittee members discussed possible regulatory frameworks at these 
meetings as well as during numerous other meetings and conference 
calls. Members of the FACA Committee provided views regarding the 
development of the ``no exposure'' provision and other provisions in 
drafts of the Phase II rule. EPA provided Subcommittee members with 
four successive drafts of the proposed rule and preamble, outlines of 
the rule, summaries of the written comments received on each draft, and 
documents identifying the changes made to each draft. In the course of 
providing input to the Committee, individual Subcommittee members 
provided significant input and advice that EPA considered in the 
context of public comments received. Ultimately, the Subcommittee did 
not provide a written report back to the FACA Committee, and the FACA 
Committee did not provide written advice and recommendations to EPA. 
The Agency, therefore, did not rely on group recommendations in 
developing today's rule, but does consider the process to have resulted 
in important public outreach.

B. Water Quality Concerns/Environmental Impact Studies and Assessments

    Storm water runoff from lands modified by human activities can harm 
surface water resources and, in turn, cause or contribute to an 
exceedance of water quality standards by changing natural hydrologic 
patterns, accelerating stream flows, destroying aquatic habitat, and 
elevating pollutant concentrations and loadings. Such runoff may 
contain or mobilize high levels of contaminants, such as sediment, 
suspended solids, nutrients (phosphorous and nitrogen), heavy metals 
and other toxic pollutants, pathogens, toxins, oxygen-demanding 
substances (organic material), and floatables (U.S. EPA. 1992. 
Environmental Impacts of Storm Water Discharges: A National Profile. 
EPA 841-R-92-001. Office of Water. Washington, DC). After a rain, storm 
water runoff carries these pollutants into nearby streams, rivers, 
lakes, estuaries, wetlands, and oceans. The highest concentrations of 
these contaminants often are contained in ``first flush'' discharges, 
which occur during the first major storm after an extended dry period 
(Schueler, T.R. 1994. ``First Flush of Stormwater Pollutants 
Investigated in Texas.'' Note 28. Watershed Protection Techniques 
1(2)). Individually and combined, these pollutants impair water 
quality, threatening designated beneficial uses and causing habitat 
alteration or destruction.
    Uncontrolled storm water discharges from areas of urban development 
and construction activity negatively impact receiving waters by 
changing the physical, biological, and chemical composition of the 
water, resulting in an unhealthy environment for aquatic organisms, 
wildlife, and humans. The following sections discuss the studies and 
data that address and support this finding.
    Although water quality problems also can occur from agricultural 
storm water discharges and return flows from irrigated agriculture, 
this area of

[[Page 68725]]

concern is statutorily exempted from regulation as a point source under 
the Clean Water Act and is not discussed here. (See CWA section 
502(14)). Other storm water sources not specifically identified in the 
regulations may be of concern in certain areas and can be addressed on 
a case-by-case (or category-by-category) basis through the NPDES 
designation authority preserved by CWA section 402(p)(2)(6), as well as 
today's rule.
1. Urban Development
    Urbanization alters the natural infiltration capability of the land 
and generates a host of pollutants that are associated with the 
activities of dense populations, thus causing an increase in storm 
water runoff volumes and pollutant loadings in storm water discharged 
to receiving waterbodies (U.S. EPA, 1992). Urban development increases 
the amount of impervious surface in a watershed as farmland, forests, 
and meadowlands with natural infiltration characteristics are converted 
into buildings with rooftops, driveways, sidewalks, roads, and parking 
lots with virtually no ability to absorb storm water. Storm water and 
snow-melt runoff wash over these impervious areas, picking up 
pollutants along the way while gaining speed and volume because of 
their inability to disperse and filter into the ground. What results 
are storm water flows that are higher in volume, pollutants, and 
temperature than the flows in less impervious areas, which have more 
natural vegetation and soil to filter the runoff (U.S. EPA, 1997. 
Urbanization and Streams: Studies of Hydrologic Impacts. EPA 841-R-97-
009. Office of Water. Washington, DC).
    Studies reveal that the level of imperviousness in an area strongly 
correlates with the quality of the nearby receiving waters. For 
example, a study in the Puget Sound lowland ecoregion found that when 
the level of basin development exceeded 5 percent of the total 
impervious area, the biological integrity and physical habitat 
conditions that are necessary to support natural biological diversity 
and complexity declined precipitously (May, C.W., E.B. Welch, R.R. 
Horner, J.R. Karr, and B.W. May. 1997. Quality Indices for Urbanization 
Effects in Puget Sound Lowland Streams, Technical Report No. 154. 
University of Washington Water Resources Series). Research conducted in 
numerous geographical areas, concentrating on various variables and 
employing widely different methods, has revealed a similar conclusion: 
stream degradation occurs at relatively low levels of imperviousness, 
such as 10 to 20 percent (even as low as 5 to 10 percent according to 
the findings of the Washington study referenced above) (Schueler, T.R. 
1994. ``The Importance of Imperviousness.'' Watershed Protection 
Techniques 1(3); May, C., R.R. Horner, J.R. Karr, B.W. Mar, and E.B. 
Welch. 1997. ``Effects Of Urbanization On Small Streams In The Puget 
Sound Lowland Ecoregion.'' Watershed Protection Techniques 2(4); Yoder, 
C.O., R.J. Miltner, and D. White. 1999. ``Assessing the Status of 
Aquatic Life Designated Uses in Urban and Suburban Watersheds.'' In 
Proceedings: National Conference on Retrofits Opportunities in Urban 
Environments. EPA 625-R-99-002, Washington, DC; Yoder, C.O and R.J. 
Miltner. 1999. ``Assessing Biological Quality and Limitations to 
Biological Potential in Urban and Suburban Watersheds in Ohio.'' In 
Comprehensive Stormwater & Aquatic Ecosystem Management Conference 
Papers, Auckland, New Zealand). Furthermore, research has indicated 
that few, if any, urban streams can support diverse benthic communities 
at imperviousness levels of 25 percent or more. An area of medium 
density single family homes can be anywhere from 25 percent to nearly 
60 percent impervious, depending on the design of the streets and 
parking (Schueler, 1994).
    In addition to impervious areas, urban development creates new 
pollution sources as population density increases and brings with it 
proportionately higher levels of car emissions, car maintenance wastes, 
pet waste, litter, pesticides, and household hazardous wastes, which 
may be washed into receiving waters by storm water or dumped directly 
into storm drains designed to discharge to receiving waters. More 
people in less space results in a greater concentration of pollutants 
that can be mobilized by, or disposed into, storm water discharges from 
municipal separate storm sewer systems. A modeling system developed for 
the Chesapeake Bay indicated that contamination of the Bay and its 
tributaries from runoff is comparable to, if not greater than, 
contamination from industrial and sewage sources (Cohn-Lee, R. and D. 
Cameron. 1992. ``Urban Stormwater Runoff Contamination of the 
Chesapeake Bay: Sources and Mitigation.'' The Environmental 
Professional, Vol. 14).
a. Large-Scale Studies and Assessments
    In support of today's regulatory designation of MS4s in urbanized 
areas, the Agency relied on broad-based assessments of urban storm 
water runoff and related water quality impacts, as well as more site-
specific studies. The first national assessment of urban runoff 
characteristics was completed for the Nationwide Urban Runoff Program 
(NURP) study (U.S. EPA. 1983. Results of the Nationwide Urban Runoff 
Program, Volume 1--Final Report. Office of Water. Washington, D.C.). 
The NURP study is the largest nationwide evaluation of storm water 
discharges, which includes adverse impacts and sources, undertaken to 
date.
    EPA conducted the NURP study to facilitate understanding of the 
nature of urban runoff from residential, commercial, and industrial 
areas. One objective of the study was to characterize the water quality 
of discharges from separate storm sewer systems that drain residential, 
commercial, and light industrial (industrial parks) sites. Storm water 
samples from 81 residential and commercial properties in 22 urban/
suburban areas nationwide were collected and analyzed during the 5-year 
period between 1978 and 1983. The majority of samples collected in the 
study were analyzed for eight conventional pollutants and three heavy 
metals.
    Data collected under the NURP study indicated that discharges from 
separate storm sewer systems draining runoff from residential, 
commercial, and light industrial areas carried more than 10 times the 
annual loadings of total suspended solids (TSS) than discharges from 
municipal sewage treatment plants that provide secondary treatment. The 
NURP study also indicated that runoff from residential and commercial 
areas carried somewhat higher annual loadings of chemical oxygen demand 
(COD), total lead, and total copper than effluent from secondary 
treatment plants. Study findings showed that fecal coliform counts in 
urban runoff typically range from tens to hundreds of thousands per 
hundred milliliters of runoff during warm weather conditions, with the 
median for all sites being around 21,000/100 ml. This is generally 
consistent with studies that found that fecal coliform mean values 
range from 1,600 coliform fecal units (CFU)/100 ml to 250,000 cfu/100 
ml (Makepeace, D.K., D.W. Smith, and S.J. Stanley. 1995. ``Urban Storm 
Water Quality: Summary of Contaminant Data.'' Critical Reviews in 
Environmental Science and Technology 25(2):93-139). Makepeace, et al., 
summarized ranges of contaminants from storm water, including physical 
contaminants such as total solids (76--36,200 mg/L) and copper (up to 
1.41 mg/L); organic chemicals; organic compounds, such as oil and 
grease (up to 110 mg/L); and microorganisms.

[[Page 68726]]

    Monitoring data summarized in the NURP study provided important 
information about urban runoff from residential, commercial, and light 
industrial areas. The study concluded that the quality of urban runoff 
can be affected adversely by several sources of pollution that were not 
directly evaluated in the study, including illicit discharges, 
construction site runoff, and illegal dumping. Data from the NURP study 
were analyzed further in the U.S. Geological Survey (USGS) Urban Storm 
Water Data Base for 22 Metropolitan Areas Throughout the United States 
study (Driver, N.E., M.H. Mustard, R.B. Rhinesmith, and R.F. 
Middleburg. 1985. U.S. Geological Survey Urban Storm Water Data Base 
for 22 Metropolitan Areas Throughout the United States. Report No. 85-
337 USGS. Lakewood, CO). The USGS report summarized additional 
monitoring data compiled during the mid-1980s, covering 717 storm 
events at 99 sites in 22 metropolitan areas and documented problems 
associated with metals and sediment concentrations in urban storm water 
runoff. More recent reports have confirmed the pollutant concentration 
data collected in the NURP study (Marsalek, J. 1990. ``Evaluation of 
Pollutant Loads from Urban Nonpoint Sources.'' Wat. Sci. Tech. 22(10/
11):23-30; Makepeace, et al., 1995).
    Commenters argued that the NURP study does not support EPA's 
contention that urban activities significantly jeopardize attainment of 
water quality standards. One commenter argued that the NURP study and 
the 1985 USGS study are seriously out of date. Because they were issued 
10 years or more before the implementation of the current storm water 
permit program, the data in those reports do not reflect conditions 
that exist after implementation of permits issued by authorized States 
and EPA for storm water from construction sites, large municipalities, 
and industrial activities.
    In response, EPA notes that it is not relying solely on the NURP 
study to describe current water quality impairment. Rather, EPA is 
citing NURP as a source of data on typical pollutant concentrations in 
urban runoff. Recent studies have not found significantly different 
pollutant concentrations in urban runoff when compared to the original 
NURP data (see Makepeace, et al., 1995; Marsalek, 1990; and Pitt, et 
al., 1995).
    America's Clean Water--the States' Nonpoint Source Assessment 
(Association of State and Interstate Water Pollution Control 
Administrators (ASIWPCA). 1985. America's Clean Water--The States' 
Nonpoint Source Assessment. Prepared in cooperation with the U.S. EPA, 
Office of Water, Washington, DC), a comprehensive study of diffuse 
pollution sources conducted under the sponsorship of the Association of 
State and Interstate Water Pollution Control Administrators (ASIWPCA) 
and EPA revealed that 38 States reported urban runoff as a major cause 
of designated beneficial use impairment and 21 States reported storm 
water runoff from construction sites as a major cause of beneficial use 
impairment. In addition, the 1996 305(b) Report (U.S. EPA. 1998. The 
National Water Quality Inventory, 1996 Report to Congress. EPA 841-R-
97-008. Office of Water. Washington, DC), provides a national 
assessment of water quality based on biennial reports submitted by the 
States as required under CWA section 305(b) of the CWA. In the CWA 
305(b) reports, States, Tribes, and Territories assess their individual 
water quality control programs by examining the attainment or 
nonattainment of the designated uses assigned to their rivers, lakes, 
estuaries, wetlands, and ocean shores. A designated use is the legally 
applicable use specified in a water quality standard for a watershed, 
waterbody, or segment of a waterbody. The designated use is the 
desirable use that the water quality should support. Examples of 
designated uses include drinking water supply, primary contact 
recreation (swimming), and aquatic life support. Each CWA 305(b) report 
indicates the assessed fraction of a State's waters that are fully 
supporting, partially supporting, or not supporting designated 
beneficial uses.
    In their reports, States, Tribes, and Territories first identified 
and then assigned the sources of water quality impairment for each 
impaired waterbody using the following categories: industrial, 
municipal sewage, combined sewer overflows, urban runoff/storm sewers, 
agricultural, silvicultural, construction, resource extraction, land 
disposal, hydrologic modification, and habitat modification. The 1996 
Inventory, based on a compilation of 60 individual 305(b) reports 
submitted by States, Tribes, and Territories, assessed the following 
percentages of total waters nationwide: 19 percent of river and stream 
miles; 40 percent of lake, pond, and reservoir acres; 72 percent of 
estuary square miles; and 6 percent of ocean shoreline waters. The 1996 
Inventory indicated that approximately 40 percent of the Nation's 
assessed rivers, lakes, and estuaries are impaired. Waterbodies deemed 
as ``impaired'' are either partially supporting designated uses or not 
supporting designated uses.
    The 1996 Inventory also found urban runoff/discharges from storm 
sewers to be a major source of water quality impairment nationwide. 
Urban runoff/storm sewers were found to be a source of pollution in 13 
percent of impaired rivers; 21 percent of impaired lakes, ponds, and 
reservoirs; and 45 percent of impaired estuaries (second only to 
industrial discharges). In addition, urban runoff was found to be the 
leading cause of ocean impairment for those ocean miles surveyed.
    In addition, a recent USGS study of urban watersheds across the 
United States has revealed a link between urban development and 
contamination of local waterbodies. The study found the highest levels 
of organic contaminants, known as polycyclic aromatic hydrocarbons 
(PAHs) (products of combustion of wood, grass, and fossil fuels), in 
the reservoirs of urbanized watersheds (U.S. Geological Survey (USGS). 
1998. Research Reveals Link Between Development and Contamination in 
Urban Watersheds. USGS news release. USGS National Water-Quality 
Assessment Program).
    Urban storm water also can contribute significant amounts of 
toxicants to receiving waters. Pitt, et. al. (1993), found heavy metal 
concentrations in the majority of samples analyzed. Industrial or 
commercial areas were likely to be the most significant pollutant 
source areas (Pitt, R., R. Field, M. Lalor, M. Brown 1993. ``Urban 
stormwater toxic pollutants: assessment, sources, and treatability'' 
Water Environment Research, 67(3):260-75).
b. Local and Watershed-Based Studies
    In addition to the large-scale nationwide studies and assessments, 
a number of local and watershed-based studies from across the country 
have documented the detrimental effects of urban storm water runoff on 
water quality. A study of urban streams in Milwaukee County, Wisconsin, 
found local streams to be highly degraded due primarily to urban 
runoff, while three studies in the Atlanta, Georgia, region were 
characterized as being ``the first documentation in the Southeast of 
the strong negative relationship between urbanization and stream 
quality that has been observed in other ecoregions'' (Masterson, J. and 
R. Bannerman. 1994. ``Impacts of Storm Water Runoff on Urban Streams in 
Milwaukee County, Wisconsin.'' Paper presented at National Symposium on 
Water Quality: American Water Resources Association; Schueler, T.R. 
1997. ``Fish Dynamics in Urban Streams Near Atlanta, Georgia.''

[[Page 68727]]

Technical Note 94. Watershed Protection Techniques 2(4)). Several other 
studies, including those performed in Arizona (Maricopa County), 
California (San Jose's Coyote Creek), Massachusetts (Green River), 
Virginia (Tuckahoe Creek), and Washington (Puget Sound lowland 
ecoregion), all had the same finding: runoff from urban areas greatly 
impair stream ecology and the health of aquatic life; the more heavily 
developed the area, the more detrimental the effects (Lopes, T. and K. 
Fossum. 1995. ``Selected Chemical Characteristics and Acute Toxicity of 
Urban Stormwater, Streamflow, and Bed Material, Maricopa County, 
Arizona.'' Water Resources Investigations Report 95-4074. USGS; Pitt, 
R. 1995. ``Effects of Urban Runoff on Aquatic Biota.'' In Handbook of 
Ecotoxicology; Pratt, J. and R. Coler. 1979. ``Ecological Effects of 
Urban Stormwater Runoff on Benthic Macroinvertebrates Inhabiting the 
Green River, Massachusetts.'' Completion Report Project No. A-094. 
Water Resources Research Center. University of Massachusetts at 
Amherst.; Schueler, T.R. 1997. ``Historical Change in a Warmwater Fish 
Community in an Urbanizing Watershed.'' Technical Note 93. Watershed 
Protection Techniques 2(4); May, C., R. Horner, J. Karr, B. Mar, and E. 
Welch. 1997. ``Effects Of Urbanization On Small Streams In The Puget 
Sound Lowland Ecoregion.'' Watershed Protection Techniques 2(4)).
    Pitt and others also described the receiving water effects on 
aquatic organisms associated with urban runoff (Pitt, R.E. 1995. 
``Biological Effects of Urban Runoff Discharges'' In Stormwater Runoff 
and Receiving Systems: Impact, Monitoring, and Assessment, ed. E.E 
Herricks, Lewis Publishers; Crunkilton, R., J. Kleist, D. Bierman, J. 
Ramcheck, and W. DeVita. 1999. ``Importance of Toxicity as a Factor 
Controlling the Distribution of Aquatic Organisms in an Urban Stream.'' 
In Comprehensive Stormwater & Aquatic Ecosystem Management Conference 
Papers. Auckland, New Zealand).
    In Wisconsin, runoff samples were collected from streets, parking 
lots, roofs, driveways, and lawns. Source areas were broken up into 
residential, commercial, and industrial. Geometric mean concentration 
data for residential areas included total solids of about 500-800 mg/L 
from streets and 600 mg/L from lawns. Fecal coliform data from 
residential areas ranged from 34,000 to 92,000 cfu/100 mL for streets 
and driveways. Contaminant concentration data from commercial and 
industrial source areas were lower for total solids and fecal coliform, 
but higher for total zinc (Bannerman, R.T., D.W. Owens, R.B. Dods, and 
N.J. Hornewer. 1993. ``Sources of Pollutants in Wisconsin Stormwater.'' 
Wat. Sci. Tech. 28(3-5):241-59).
    Bannerman, et al. also found that streets contribute higher loads 
of pollutants to urban storm water than any other residential 
development source. Two small urban residential watersheds were 
evaluated to determine that lawns and streets are the largest sources 
of total and dissolved phosphorus in the basins (Waschbusch, R.J., W.R. 
Selbig, and R.T. Bannerman. 1999. ``Sources of Phosphorus in Stormwater 
and Street Dirt from Two Urban Residential Basins In Madison, 
Wisconsin, 1994-95.'' Water Resources Investigations Report 99-4021. 
U.S. Geological Survey). A number of other studies have indicated that 
urban roadways often contain significant quantities of metal elements 
and solids (Sansalone, J.J. and S.G. Buchberger. 1997. ``Partitioning 
and First Flush of Metals in Urban Roadway Storm Water.'' ASCE Journal 
of Environmental Engineering 123(2); Sansalone, J.J., J.M. Koran, J.A. 
Smithson, and S.G. Buchberger. 1998. ``Physical Characteristics of 
Urban Roadway Solids Transported During Rain Events'' ASCE Journal of 
Environmental Engineering 124(5); Klein, L.A., M. Lang, N. Nash, and 
S.L. Kirschner. 1974. ``Sources of Metals in New York City Wastewater'' 
J. Water Pollution Control Federation 46(12):2653-62; Barrett, M.E, 
R.D. Zuber, E.R. Collins, J.F. Malina, R.J. Charbeneau, and G.H Ward., 
1993. ``A Review and Evaluation of Literature Pertaining to the 
Quantity and Control of Pollution from Highway Runoff and 
Construction.'' Research Report 1943-1. Center for Transportation 
Research, University of Texas, Austin).
c. Beach Closings/Advisories
    Urban wet weather flows have been recognized as the primary sources 
of estuarine pollution in coastal communities. Urban storm water 
runoff, sanitary sewer overflows, and combined sewer overflows have 
become the largest causes of beach closings in the United States in the 
past three years. Storm water discharges from urban areas not only pose 
a threat to the ecological environment, they also can substantially 
affect human health. A survey of coastal and Great Lakes communities 
reports that in 1998, more than 1,500 beach closings and advisories 
were associated with storm water runoff (Natural Resources Defense 
Council. 1999. ``A Guide to Water Quality at Vacation Beaches'' New 
York, NY). Other reports also document public health, shellfish bed, 
and habitat impacts from storm water runoff, including more than 823 
beach closings/advisories issued in 1995 and more than 407 beach 
closing/advisories issued in 1996 due to urban runoff (Natural 
Resources Defense Council. 1996. Testing the Waters Volume VI: Who 
Knows What You're Getting Into. New York, NY; NRDC. 1997. Testing the 
Waters Volume VII: How Does Your Vacation Beach Rate. New York, NY; 
Morton, T. 1997. Draining to the Ocean: The Effects of Stormwater 
Pollution on Coastal Waters. American Oceans Campaign, Santa Monica, 
CA). The Epidemiological Study of Possible Adverse Health Effects of 
Swimming in Santa Monica Bay (Haile, R.W., et. al. 1996. ``An 
Epidemiological Study of Possible Adverse Health Effects of Swimming in 
Santa Monica Bay.'' Final Report prepared for the Santa Monica Bay 
Restoration Project) concluded that there is a 57 percent higher rate 
of illness in swimmers who swim adjacent to storm drains than in 
swimmers who swim more than 400 yards away from storm drains. This and 
other studies document a relationship between gastrointestinal illness 
in swimmers and water quality, the latter of which can be heavily 
compromised by polluted storm water discharges.
2. Non-Storm Water Discharges Through Municipal Storm Sewers
    Studies have shown that discharges from MS4s often include wastes 
and wastewater from non-storm water sources. Federal regulations 
(Sec. 122.26(b)(2)) define an illicit discharge as ``* * * any 
discharge to an MS4 that is not composed entirely of storm water * * 
*,'' with some exceptions. These discharges are ``illicit'' because 
municipal storm sewer systems are not designed to accept, process, or 
discharge such wastes. Sources of illicit discharges include, but are 
not limited to: sanitary wastewater; effluent from septic tanks; car 
wash, laundry, and other industrial wastewaters; improper disposal of 
auto and household toxics, such as used motor oil and pesticides; and 
spills from roadway and other accidents.
    Illicit discharges enter the system through either direct 
connections (e.g., wastewater piping either mistakenly or deliberately 
connected to the storm drains) or indirect connections (e.g., 
infiltration into the MS4 from cracked sanitary systems, spills 
collected by drain outlets, and paint or used oil dumped directly into 
a drain). The result is untreated discharges that contribute high 
levels of pollutants,

[[Page 68728]]

including heavy metals, toxics, oil and grease, solvents, nutrients, 
viruses and bacteria into receiving waterbodies. The NURP study, 
discussed earlier, found that pollutant levels from illicit discharges 
were high enough to significantly degrade receiving water quality and 
threaten aquatic, wildlife, and human health. The study noted 
particular problems with illicit discharges of sanitary wastes, which 
can be directly linked to high bacterial counts in receiving waters and 
can be dangerous to public health.
    Because illicit discharges to MS4s can create severe widespread 
contamination and water quality problems, several municipalities and 
urban counties performed studies to identify and eliminate such 
discharges. In Michigan, the Ann Arbor and Ypsilanti water quality 
projects inspected 660 businesses, homes, and other buildings and 
identified 14 percent of the buildings as having improper storm sewer 
drain connections. The program assessment revealed that, on average, 60 
percent of automobile-related businesses, including service stations, 
automobile dealerships, car washes, body shops, and light industrial 
facilities, had illicit connections to storm sewer drains. The program 
assessment also showed that a majority of the illicit discharges to the 
storm sewer system resulted from improper plumbing and connections, 
which had been approved by the municipality when installed (Washtenaw 
County Statutory Drainage Board. 1987. Huron River Pollution Abatement 
Program).
    In addition, an inspection of urban storm water outfalls draining 
into Inner Grays, Washington, indicated that 32 percent of these 
outfalls had dry weather flows. Of these flows, 21 percent were 
determined to have pollutant levels higher than the pollutant levels 
expected in typical urban storm water runoff characterized in the NURP 
study (U.S. EPA. 1993. Investigation of Inappropriate Pollutant Entries 
Into Storm Drainage Systems--A User's Guide. EPA 600/R-92/238. Office 
of Research and Development. Washington, DC). That same document 
reports a study in Toronto, Canada, that found that 59 percent of 
outfalls from the MS4 had dry-weather flows. Chemical tests revealed 
that 14 percent of these dry-weather flows were determined to be 
grossly polluted.
    Inflows from aging sanitary sewer collection systems are one of the 
most serious illicit discharge-related problems. Sanitary sewer systems 
frequently develop leaks and cracks, resulting in discharges of 
pollutants to receiving waters through separate storm sewers. These 
pollutants include sanitary waste and materials from sewer main 
construction (e.g., asbestos cement, brick, cast iron, vitrified clay). 
Municipalities have long recognized the reverse problem of storm water 
infiltration into sanitary sewer collection systems; this type of 
infiltration often disrupts the operation of the municipal sewage 
treatment plant.
    The improper disposal of materials is another illicit discharge-
related problem that can result in contaminated discharges from 
separate storm sewer systems in two ways. First, materials may be 
disposed of directly in a catch basin or other storm water conveyance. 
Second, materials disposed of on the ground may either drain directly 
to a storm sewer or be washed into a storm sewer during a storm event. 
Improper disposal of materials to street catch basins and other storm 
sewer inlets often occurs when people mistakenly believe that disposal 
to such areas is an environmentally sound practice. Part of the 
confusion may occur because some areas are served by combined sewer 
systems, which are part of the sanitary sewer collection system, and 
people assume that materials discharged to a catch basin will reach a 
municipal sewage treatment plant. Materials that are commonly disposed 
of improperly include used motor oil; household toxic materials; 
radiator fluids; and litter, such as disposable cups, cans, and fast-
food packages. EPA believes that there has been increasing success in 
addressing these problems through initiatives such as storm drain 
stenciling and recycling programs, including household hazardous waste 
special collection days.
    Programs that reduce illicit discharges to separate storm sewers 
have improved water quality in several municipalities. For example, 
Michigan's Huron River Pollution Abatement Program found the 
elimination of illicit connections caused a measurable improvement in 
the water quality of the Washtenaw County storm sewers and the Huron 
River (Washtenaw County Statutory Drainage Board, 1987). In addition, 
an illicit detection and remediation program in Houston, Texas, has 
significantly improved the water quality of Buffalo Bayou. Houston 
estimated that illicit flows from 132 sources had a flow rate as high 
as 500 gal/min. Sources of the illicit discharges included broken and 
plugged sanitary sewer lines, illicit connections from sanitary lines 
to storm sewer lines, and floor drain connections (Glanton, T., M.T. 
Garrett, and B. Goloby. 1992. The Illicit Connection: Is It the 
Problem? Wat. Env. Tech. 4(9):63-8).
3. Construction Site Runoff
    Storm water discharges generated during construction activities can 
cause an array of physical, chemical, and biological water quality 
impacts. Specifically, the biological, chemical, and physical integrity 
of the waters may become severely compromised. Water quality impairment 
results, in part, because a number of pollutants are preferentially 
absorbed onto mineral or organic particles found in fine sediment. The 
interconnected process of erosion (detachment of the soil particles), 
sediment transport, and delivery is the primary pathway for introducing 
key pollutants, such as nutrients (particularly phosphorus), metals, 
and organic compounds into aquatic systems (Novotny, V. and G. 
Chesters. 1989. ``Delivery of Sediment and Pollutants from Nonpoint 
Sources: A Water Quality Perspective.'' Journal of Soil and Water 
Conservation, 44(6):568-76). Estimates indicate that 80 percent of the 
phosphorus and 73 percent of the Kjeldahl nitrogen in streams is 
associated with eroded sediment (U.S. Department of Agriculture. 1989. 
``The Second RCA Appraisal, Soil, Water and Related Resources on 
Nonfederal Land in the United States, Analysis of Condition and 
Trends.'' Cited in Fennessey, L.A.J., and A.R. Jarrett. 1994. ``The 
Dirt in a Hole: a Review of Sedimentation Basins for Urban Areas and 
Construction Sites.'' Journal of Soil and Water Conservation, 
49(4):317-23).
    In watersheds experiencing intensive construction activity, the 
localized impacts of water quality may be severe because of high 
pollutant loads, primarily sediments. Siltation is the largest cause of 
impaired water quality in rivers and the third largest cause of 
impaired water quality in lakes (U.S. EPA, 1998). The 1996 305(b) 
report also found that construction site discharges were a source of 
pollution in: 6 percent of impaired rivers; 11 percent of impaired 
lakes, ponds, and reservoirs; and 11 percent of impaired estuaries. 
Introduction of coarse sediment (coarse sand or larger) or a large 
amount of fine sediment is also a concern because of the potential of 
filling lakes and reservoirs (along with the associated remediation 
costs for dredging), as well as clogging stream channels (e.g., 
Paterson, R.G., M.I. Luger, E.J. Burby, E.J. Kaiser, H.R. Malcolm, and 
A.C. Beard. 1993. ``Costs and Benefits of Urban Erosion and Sediment 
Control: North Carolina Experience.'' Environmental Management 
17(2):167-78). Large inputs of coarse sediment into

[[Page 68729]]

stream channels initially will reduce stream depth and minimize habitat 
complexity by filling in pools (U.S. EPA. 1991. Monitoring Guidelines 
to Evaluate Effects of Forestry Activities on Streams in the Pacific 
Northwest and Alaska. EPA 910/9-91-001. Seattle, WA). In addition, 
studies have shown that stream reaches affected by construction 
activities often extend well downstream of the construction site. For 
example, between 4.8 and 5.6 kilometers of stream below construction 
sites in the Patuxent River watershed were observed to be impacted by 
sediment inputs (Fox, H.L. 1974. ``Effects of Urbanization on the 
Patuxent River, with Special Emphasis on Sediment Transport, Storage, 
and Migration.'' Ph.D. dissertation. Johns Hopkins University, 
Baltimore, MD. As Cited in Klein, R.D. 1979. ``Urbanization and Stream 
Quality Impairment.'' Water Resources Bulletin 15(4): 948-63).
    A primary concern at most construction sites is the erosion and 
transport process related to fine sediment because rain splash, rills 
(i.e., a channel small enough to be removed by normal agricultural 
practices and typically less than 1-foot deep), and sheetwash encourage 
the detachment and transport of this material to waterbodies (Storm 
Water Quality Task Force. 1993. California Storm Water Best Management 
Practice Handbooks--Construction Activity. Oakland, CA: Blue Print 
Service). Construction sites also can generate other pollutants 
associated with onsite wastes, such as sanitary wastes or concrete 
truck washout.
    Although streams and rivers naturally carry sediment loads, erosion 
from construction sites and runoff from developed areas can elevate 
these loads to levels well above those in undisturbed watersheds. It is 
generally acknowledged that erosion rates from construction sites are 
much greater than from almost any other land use (Novotny, V. and H. 
Olem. 1994. Water Quality: Prevention, Identification, and Management 
of Diffuse Pollution. New York: Van Nostrand Reinhold). Results from 
both field studies and erosion models indicate that erosion rates from 
construction sites are typically an order of magnitude larger than row 
crops and several orders of magnitude greater than rates from well-
vegetated areas, such as forests or pastures (USDA. 1970. ``Controlling 
Erosion on Construction Sites.'' Agriculture Information Bulletin, 
Washington, DC; Meyer, L.D., W.H. Wischmeier, and W.H. Daniel. 1971. 
``Erosion, Runoff and Revegetation of Denuded Construction Sites.'' 
Transactions of the ASAE 14(1):138-41; Owen, O.S. 1975. Natural 
Resource Conservation. New York: MacMillan. As cited in Paterson, et 
al., 1993).
    A recent review of the efficiency of sediment basins indicated that 
inflows from 12 construction sites had a mean TSS concentration of 
about 4,500 mg/L (Brown, W.E. 1997. ``The Limits of Settling.'' 
Technical Note No. 83. Watershed Protection Techniques 2(3)). In 
Virginia, suspended sediment concentrations from housing construction 
sites were measured at 500-3,000 mg/L, or about 40 times larger than 
the concentrations from already-developed urban areas (Kuo, C.Y. 1976. 
``Evaluation of Sediment Yields Due to Urban Development.'' Bulletin 
No. 98. Virginia Water Resources Research Center, Virginia Polytechnic 
Institute and State University, Blacksburg, VA).
    Similar impacts from storm water runoff have been reported in a 
number of other studies. For example, Daniel, et al., monitored three 
residential construction sites in southeastern Wisconsin and determined 
that annual sediment yields were more than 19 times the yields from 
agricultural areas (Daniel, T.C., D. McGuire, D. Stoffel, and B. 
Miller. 1979. ``Sediment and Nutrient Yield from Residential 
Construction Sites'' Journal of Environmental Quality 8(3):304-08). 
Daniel, et al., identified total storm runoff, followed by peak storm 
runoff, as the most influential factors controlling the sediment 
loadings from residential construction sites. Daniel, et al., also 
found that suspended sediment concentrations were 15,000-20,000 mg/L in 
moderate events and up to 60,000 mg/L in larger events.
    Wolman and Schick (Wolman, M.G. and A.P. Schick. 1967. ``Effects of 
Construction on Fluvial Sediment, Urban and Suburban Areas of 
Maryland.'' Water Resources Research 3(2): 451-64) studied the impacts 
of development on fluvial systems in Maryland and determined that 
sediment yields in areas undergoing construction were 1.5 to 75 times 
greater than detected in natural or agricultural catchments. The 
authors summarize the potential impacts of construction on sediment 
yields by stating that ``the equivalent of many decades of natural or 
even agricultural erosion may take place during a single year from 
areas cleared for construction'' (Wolman and Schick, 1967).
    A number of studies have examined the effects of road construction 
on erosion rates and sediment yields. A highway construction project in 
West Virginia disturbed only 4.2 percent of a 4.72-square-mile basin, 
but resulted in a three-fold increase in suspended sediment yields 
(Downs, S.C. and D.H. Appel. 1986. Progress Report on the Effects of 
Highway Construction on Suspended-Sediment Discharge in the Coal River 
and Trace Fork, West Virginia, 1975-81. USGS Water Resources 
Investigations Report 84-4275. Charlestown, WV). During the largest 
storm event, it was estimated that 80 percent of the sediment in the 
stream originated from the construction site. As is often the case, the 
increase in suspended sediment load could not be detected further 
downstream, where the drainage area was more than 50 times larger (269 
square miles).
    Another study evaluated the effect of 290 acres of highway 
construction on watersheds ranging in size from 5 to 38 square miles. 
Suspended sediment loads in the smallest watershed increased by 250 
percent, and the estimated sediment yield from the construction area 
was 37 tons/acre during a 2-year period (Hainly, R.A. 1980. The Effects 
of Highway Construction on Sediment Discharge into Blockhouse Creek and 
Stream Valley Run, Pennsylvania. USGS Water Resources Investigations 
Report 80-68. Harrisburg, PA). A more recent study in Hawaii showed 
that highway construction increased suspended sediment loads by 56 to 
76 percent in three small (1 to 4 square mile) basins (Hill, B.R. 1996. 
Streamflow and Suspended-Sediment Loads Before and During Highway 
Construction, North Halawa, Haiku, and Kamooalii Drainage Basins, Oahu, 
Hawaii, 1983-91. USGS Water Resources Investigations Report 96-4259. 
Honolulu, HI). A 1970 study determined that sediment yields from 
construction areas can be as much as 500 times the levels detected in 
rural areas (National Association of Counties Research Foundation. 
1970. Urban Soil Erosion and Sediment Control. Water Pollution Control 
Research Series, Program #15030 DTL. Federal Water Quality 
Administration, U.S. Department of Interior. Washington, DC)
    Yorke and Herb (Yorke, T.H., and W.J. Herb. 1978. Effects of 
Urbanization on Streamflow and Sediment Transport in the Rock Creek and 
Anacostia River Basins, Montgomery County, Maryland, 1962-74. USGS 
Professional Paper 1003, Washington, DC) evaluated nine subbasins in 
the Maryland portion of the Anacostia watershed for more than a decade 
in an effort to define the impacts of changing land use/land cover on 
sediment in runoff. Average annual suspended sediment yields for 
construction sites ranged from 7 to 100 tons/acre. Storm water 
discharges from construction sites that occur when the land area is 
disturbed (and prior to

[[Page 68730]]

surface stabilization) can significantly impact designated uses. 
Examples of designated uses include public water supply, recreation, 
and propagation of fish and wildlife. The siltation process described 
previously can threaten all three designated uses by (1) depositing 
high concentrations of pollutants in public water supplies; (2) 
decreasing the depth of a waterbody, which can reduce the volume of a 
reservoir or result in limited use of a water body by boaters, 
swimmers, and other recreational enthusiasts; and (3) directly 
impairing the habitat of fish and other aquatic species, which can 
limit their ability to reproduce.
    Excess sediment can cause a number of other problems for 
waterbodies. It is associated with increased turbidity and reduced 
light penetration in the water column, as well as more long-term 
effects associated with habitat destruction and increased difficulty in 
filtering drinking water. Numerous studies have examined the effect 
that excess sediment has on aquatic ecosystems. For example, sediment 
from road construction activity in Northern Virginia reduced aquatic 
insect and fish communities by up to 85 percent and 40 percent, 
respectively (Reed, J.R. 1997. ``Stream Community Responses to Road 
Construction Sediments.'' Bulletin No. 97. Virginia Water Resources 
Research Center, Virginia Polytechnic Institute, Blacksburg, VA. As 
cited in Klein, R.D. 1990. A Survey of Quality of Erosion and Sediment 
Control and Storm Water Management in the Chesapeake Bay Watershed. 
Annapolis, MD: Chesapeake Bay Foundation). Other studies have shown 
that fine sediment (fine sand or smaller) adversely affects aquatic 
ecosystems by reducing light penetration, impeding sight-feeding, 
smothering benthic organisms, abrading gills and other sensitive 
structures, reducing habitat by clogging interstitial spaces within a 
streambed, and reducing the intergravel dissolved oxygen by reducing 
the permeability of the bed material (Everest, F.H., J.C. Beschta, K.V. 
Scrivener, J.R. Koski, J.R. Sedell, and C.J. Cederholm. 1987. ``Fine 
Sediment and Salmonid Production: A Paradox.'' Streamside Management: 
Forestry and Fishery Interactions, Contract No. 57, Institute of Forest 
Resources, University of Washington, Seattle, WA). For example, 4.8 and 
5.6 kilometers of stream below construction sites in the Patuxent River 
watershed in Maryland were found to have fine sediment amounts 15 times 
greater than normal (Fox, 1974. As cited in Klein, 1979). Benthic 
organisms in the streambed can be smothered by sediment deposits, 
causing changes in aquatic flora and fauna, such as fish species 
composition (Wolman and Schick, 1967). In addition, the primary cause 
of coral reef degradation in coastal areas is attributed to land 
disturbances and dredging activities due to urban development (Rogers, 
C.S. 1990. ``Responses of Coral Reefs and Reef Organizations to 
Sedimentation.'' Marine Ecology Progress Series, 62:185-202).
    EPA believes that the water quality impact from small construction 
sites is as high as or higher than the impact from larger sites on a 
per acre basis. The concentration of pollutants in the runoff from 
smaller sites is similar to the concentrations in the runoff from 
larger sites. The proportion of sediment that makes it from the 
construction site to surface waters is likely the same for larger and 
smaller construction sites in urban areas because the runoff from 
either site is usually delivered directly to the storm drain network 
where there is no opportunity for the sediment to be filtered out.
    The expected contribution of total sediment yields from small sites 
depends, in part, on the extent to which erosion and sedimentation 
controls are being applied. Because current storm water regulations are 
more likely to require erosion and sedimentation controls on larger 
sites in urban areas, smaller construction sites that lack such 
programs are likely to contribute a disproportionate amount of the 
total sediment from construction activities (MacDonald, L.H. 1997. 
Technical Justification for Regulating Construction Sites 1-5 Acres in 
Size. Unpublished report submitted to U.S. EPA, Washington, DC). 
Smaller construction sites are less likely to have an effective plan to 
control erosion and sedimentation, are less likely to properly 
implement and maintain their plans, and are less likely to be inspected 
(Brown, W. and D. Caraco. 1997. Controlling Storm Water Runoff 
Discharges from Small Construction Sites: A National Review. Submitted 
to Office of Wastewater Management, U.S. EPA, Washington, DC., by the 
Center for Watershed Protection, Silver Spring, MD). The proportion of 
sediment that makes it from the construction site to surface waters is 
likely the same for larger and smaller construction sites in urban 
areas because the runoff from either site is usually delivered directly 
to the storm drain network, where there is no opportunity for the 
sediment to be filtered out.
    To confirm its belief that sediment yields from small sites are as 
high as or higher than the 20 to 150 tons/acre/year measured from 
larger sites, EPA gave a grant to the Dane County, Wisconsin Land 
Conservation Department, in cooperation with the USGS, to evaluate 
sediment runoff from two small construction sites. The first was a 0.34 
acre residential lot and the second was a 1.72 acre commercial office 
development. Runoff from the sites was channeled to a single discharge 
point for monitoring. Each site was monitored before, during, and after 
construction.
    The Dane County study found that total solids concentrations from 
these small sites are similar to total solids concentrations from 
larger construction sites. Results show that for both of the study 
sites, total solids and suspended solids concentrations were 
significantly higher during construction than either before or after 
construction. For example, preconstruction total solids concentrations 
averaged 642 mg/L during the period when ryegrass was established, 
active construction total solids concentrations averaged 2,788 mg/L, 
and post-construction total solids concentrations averaged 132 mg/L (on 
a pollutant load basis, this equaled 7.4 lbs preconstruction, 35 lbs 
during construction, and 0.6 lbs post-construction for total solids). 
While this site was not properly stabilized before construction, after 
construction was complete and the site was stabilized, post-
construction concentrations were more than 20 times less than during 
construction. The results were even more dramatic for the commercial 
site. The commercial site had one preconstruction event, which resulted 
in total solids concentrations of 138 mg/L, while active construction 
averaged more than 15,000 mg/L and post-construction averaged only 200 
mg/L (on a pollutant load basis, this equaled 0.3 lbs preconstruction, 
490 lbs during construction, and 13.4 lbs post-construction for total 
solids). The active construction period resulted in more than 75 times 
more sediment than either before or after construction (Owens, D.W., P. 
Jopke, D.W. Hall, J. Balousek and A. Roa. 1999. ``Soil Erosion from 
Small Construction Sites.'' Draft USGS Fact Sheet. USGS and Dane County 
Land Conservation Department, WI). The total solids concentrations from 
these small sites in Wisconsin are similar to total solids 
concentrations from larger construction sites. For example, a study 
evaluating the effects of highway construction in West Virginia found 
that a small storm produced a sediment concentration of 7,520 mg/L 
(Downs and Appel, 1986).
    One important aspect of small construction sites is the number of 
small sites relative to larger construction sites

[[Page 68731]]

and total land area within the watershed. Brown and Caraco surveyed 219 
local jurisdictions to assess erosion and sediment control (ESC) 
programs. Seventy respondents provided data on the number of ESC 
permits for construction sites smaller than 5 acres. In 27 cases (38 
percent of the respondents), more than three-quarters of the permits 
were for sites smaller than 5 acres; in another 18 cases (26 percent), 
more than half of the permits were for sites smaller than 5 acres.
    In addition, data on the total acreage disturbed by smaller 
construction sites have been collected recently in two States 
(MacDonald, 1997). The most recent and complete data set is the listing 
of the disturbed area for each of the 3,831 construction sites 
permitted in North Carolina for 1994-1995 and 1995-1996. Nearly 61 
percent of the sites that were 1 acre or larger were between 1.0 and 
4.9 acres in size. This proportion was consistent between years. Data 
showed that this range of sites accounted for 18 percent of the total 
area disturbed by construction. The values showed very little variation 
between the 2 years of data. The total disturbed area for all sites 
over this 2-year period was nearly 33,000 acres, or about 0.1 percent 
of the total area of North Carolina.
    EPA estimates that construction sites disturbing greater than 5 
acres disturb 2.1-million acres of land (78.1 percent of the total) 
while sites disturbing between 1 and 5 acres of land disturb 0.5-
million acres of land (19.4 percent). The remaining sites on less than 
1 acres of land disturb 0.07-million acres of land (only 2.5 percent of 
the total). Given the high erosion rates associated with most 
construction sites, small construction sites can be a significant 
source of water quality impairment, particularly in small watersheds 
that are undergoing rapid development. Exempting sites under 1 acre 
will exclude only about 2.5 percent of acreage from program coverage, 
but will exclude a far higher number of sites, approximately 25 
percent.
    Several studies have determined that the most effective 
construction runoff control programs rely on local plan review and 
field enforcement (Paterson, R. G. 1994. ``Construction Practices: the 
Good, the Bad, and the Ugly.'' Watershed Protection Techniques 1(3)). 
In his review, Paterson suggests that, given the critical importance of 
field implementation of erosion and sediment control programs and the 
apparent shortcomings that exist, much more focus should be given to 
plan implementation.
    Several commenters disputed the data presented in the proposed rule 
for storm water discharges from smaller construction sites. One 
commenter stated that EPA has not adequately explained the basis for 
permitting construction activity down to 1 disturbed acre. Another 
commenter stated that EPA did not present sufficient data on water 
quality impacts from construction sites disturbing less than 5 acres.
    EPA believes that the data presented above sufficiently support 
nationwide designation of storm water discharges from construction 
activity disturbing more than 1 acre. Based on total disturbed land 
area within a watershed, the cumulative effects of numerous small 
construction sites can have impacts similar to those of larger sites in 
a particular area. In addition, waivers for storm water discharges from 
smaller construction activity will exclude sites not expected to impair 
water quality. EPA will continue to collect water quality data on 
construction site storm water runoff.

C. Statutory Background

    In 1972, Congress enacted the CWA to prohibit the discharge of any 
pollutant to waters of the United States from a point source unless the 
discharge is authorized by an NPDES permit. Congress added CWA section 
402(p) in 1987 to require implementation of a comprehensive program for 
addressing storm water discharges. Section 402(p)(1) required EPA or 
NPDES-authorized States or Tribes to issue NPDES permits for the 
following five classes of storm water discharges composed entirely of 
storm water (``storm water discharges'') specifically listed under 
section 402(p)(2):
    (A) a discharge subject to an NPDES permit before February 4, 1987
    (B) a discharge associated with industrial activity
    (C) a discharge from a municipal separate storm sewer system 
serving a population of 250,000 or more
    (D) a discharge from a municipal separate storm sewer system 
serving a population of 100,000 or more but less than 250,000
    (E) a discharge that an NPDES permitting authority determines to be 
contributing to a violation of a water quality standard or a 
significant contributor of pollutants to the waters of the United 
States.
    Section 402(p)(3)(A) requires storm water discharges associated 
with industrial activity to meet all applicable provisions of section 
402 and section 301 of the CWA, including technology-based requirements 
and any more stringent requirements necessary to meet water quality 
standards. Section 402(p)(3)(B) establishes NPDES permit standards for 
discharges from municipal separate storm sewer systems, or MS4s. NPDES 
permits for discharges from MS4s (1) may be issued on a system or 
jurisdiction-wide basis, (2) must include a requirement to effectively 
prohibit non-storm water discharges into the storm sewers, and (3) must 
require controls to reduce pollutant discharges to the maximum extent 
practicable, including best management practices, and other provisions 
as the Administrator or the States determine to be appropriate for the 
control of such pollutants. At this time, EPA determines that water 
quality-based controls, implemented through the iterative processes 
described today are appropriate for the control of such pollutants and 
will result in reasonable further progress towards attainment of water 
quality standards. See sections II.L and II.H.3 of the preamble.
    In CWA section 402(p)(4), Congress established statutory deadlines 
for the initial steps in implementing the NPDES program for storm water 
discharges. This section required development of NPDES permit 
application regulations, submission of NPDES permit applications, 
issuance of NPDES permits for sources identified in section 402(p)(2), 
and compliance with NPDES permit conditions. In addition, this section 
required industrial facilities and large MS4s to submit NPDES permit 
applications for storm water discharges by February 4, 1990. Medium 
MS4s were to submit NPDES permit applications by February 4, 1992. EPA 
and authorized NPDES States were prohibited from requiring an NPDES 
permit for any other storm water discharges until October 1, 1994.
    Section 402(p)(5) required EPA to conduct certain studies and 
submit a report to Congress. This requirement is discussed in the 
following section.
    Section 402(p)(6) requires EPA, in consultation with States and 
local officials, to issue regulations for the designation of additional 
storm water discharges to be regulated to protect water quality. It 
also requires EPA to extend the existing storm water program to 
regulate newly designated sources. At a minimum, the extension must 
establish (1) priorities, (2) requirements for State storm water 
management programs, and (3) expeditious deadlines. Section 402(p)(6) 
specifies that the program may include performance standards, 
guidelines, guidance, and management practices and treatment 
requirements, as

[[Page 68732]]

appropriate. Today's rule implements this section.

D. EPA's Reports to Congress

    Under CWA section 402(p)(5), EPA, in consultation with the States, 
was required to conduct a study. The study was to identify unregulated 
sources of storm water discharges, determine the nature and extent of 
pollutants in such discharges, and establish procedures and methods to 
mitigate the impacts of such discharges on water quality. Section 
402(p)(5) also required EPA to report the results of the first two 
components of that study to Congress by October 1, 1988, and the final 
report by October 1, 1989.
    In March 1995, EPA submitted to Congress a report that reviewed and 
analyzed the nature of storm water discharges from municipal and 
industrialacilities that were not already regulated under the initial 
NPDES regulations for storm water (U.S. Environmental Protection 
Agency, Office of Water. 1995. Storm Water Discharges Potentially 
Addressed by Phase II of the National Pollutant Discharge Elimination 
System Storm Water Program: Report to Congress. Washington, D.C. EPA 
833-K-94-002) (``Report''). The Report also analyzed associated 
pollutant loadings and water quality impacts from these unregulated 
sources. Based on identification of unregulated municipal sources and 
analysis of information on impacts of storm water discharges from 
municipal sources, the Report recommended that the NPDES program for 
storm water focus on the 405 ``urbanized areas'' identified by the 
Bureau of the Census. The Report further found that a number of 
discharges from unregulated industrial facilities warranted further 
investigation to determine the need for regulation. It classified these 
unregulated industrial discharges in two groups: Group A and Group B. 
Group A comprised sources that may be considered a high priority for 
inclusion in the NPDES program for storm water because discharges from 
these sources are similar or identical to already regulated sources. 
These ``look alike'' storm water discharge sources were not covered in 
the initial NPDES regulations for storm water due to the language used 
to define ``associated with industrial activity.'' In the initial 
regulations for storm water, ``industrial activity'' is identified 
using Standard Industrial Classification (SIC) codes. The use of SIC 
codes led to incomplete categorization of industrial activities with 
discharges that needed to be regulated to protect water quality. Group 
B consisted of 18 industrial sectors, which included sources that EPA 
expected to contribute to storm water contamination due to the 
activities conducted and pollutants anticipated onsite (e.g., vehicle 
maintenance, machinery and electrical repair, and intensive 
agricultural activities).
    EPA reported on the latter component of the section 402(p)(5) study 
via President Clinton's Clean Water Initiative, which was released on 
February 1, 1994 (U.S. Environmental Protection Agency, Office of 
Water. 1994. President Clinton's Clean Water Initiative. Washington, 
D.C. EPA 800-R-94-001) (``Initiative''). The Initiative addressed a 
number of issues associated with NPDES requirements for storm water 
discharges and proposed (1) establishing a phased compliance with a 
water quality standards approach for discharges from municipal separate 
storm sewer systems with priority on controlling discharges from 
municipal growth and development areas, (2) clarifying that the maximum 
extent practicable standard should be applied in a site-specific, 
flexible manner, taking into account cost considerations as well as 
water quality effects, (3) providing an exemption from the NPDES 
program for storm water discharges from industrial facilities with no 
activities or significant materials exposed to storm water, (4) 
providing extensions to the statutory deadlines to complete 
implementation of the NPDES program for the storm water program, (5) 
targeting urbanized areas for the requirements in the NPDES program for 
storm water, and (6) providing control of discharges from inactive and 
abandoned mines located on Federal lands in a more targeted, flexible 
manner. Additionally, prior to promulgation of today's rule, section 
431 of the Agency's Appropriation Act for FY 2000 (Departments of 
Veterans Affairs and Housing and Urban Development and Independent 
Agencies Appropriations Act of 2000, Public Law 106-74, section 432 
(1999)) directed EPA to report on certain matters to be covered in 
today's rule. That report supplements the study required by CWA Section 
402(p)(5). EPA is publishing the availability of that report elsewhere 
in this issue of the Federal Register.
    Several commenters asserted that the Report to Congress is an 
inadequate basis for the designation and regulation of sources covered 
under today's final rule, specifically the nationwide designation of 
small municipal separate storm sewer systems within urbanized areas and 
construction activities disturbing between one and five acres.
    EPA believes that it has developed an adequate record for today's 
regulation both through the Report to Congress and the Clean Water 
Initiative and through more recent activities, including the FACA 
Subcommittee process, regulatory notices and evaluation of comments, 
and recent research and analysis. EPA does not interpret the 
congressional reporting requirements of CWA section 402(p)(5) to be the 
sole basis for determining sources to be regulated under today's final 
rule.
    EPA's decision to designate on a national basis small MS4s in 
urbanized areas is supported by studies that clearly show a direct 
correlation between urbanization and adverse water quality impacts from 
storm water discharges. (Schueler, T. 1987. Controlling Urban Runoff: A 
Practical Manual for Planning & Designing Urban BMPs. Metropolitan 
Washington Council of Governments). ``Urbanized areas''--within which 
all small MS4s would be covered--represent the most intensely developed 
and dense areas of the Nation. They constitute only two percent of the 
land area but 63 percent of the total population. See section I.B.1, 
Urban Development, above, for studies and assessments of the link 
between urban development and storm water impacts on water resources.
    Commenters argued that the Report to Congress does not address 
storm water discharges from construction sites. They further argued 
that the designation of small construction sites per today's final rule 
goes beyond the President's 1994 Initiative because the Initiative only 
recommends requiring municipalities to implement a storm water 
management program to control unregulated storm water sources, 
``including discharges from construction of less than 5 acres, which 
are part of growth, development and significant redevelopment 
activities.'' They point out that the Initiative provides that 
unregulated storm water discharges not addressed through a municipal 
program would not be covered by the NPDES program. Commenters assert 
that EPA has not developed a record independent of its section 
402(p)(5) studies that demonstrates the necessity of regulating under a 
separate NPDES permit storm water discharges from smaller construction 
sites ``to protect water quality.'' EPA disagrees.
    EPA evaluated the nature and extent of pollutants from construction 
site sources in a process that was separate and distinct from the 
development of the Report to Congress. Today's decision to regulate 
certain storm water discharges from construction sites disturbing less 
than 5 acres arose in part

[[Page 68733]]

out of the 9th Circuit remand in NRDC v. EPA, 966 F.2d 1292 (9th Cir. 
1992). In that case, the court remanded portions of the Phase I storm 
water regulations related to discharges from construction sites. Those 
regulations define ``storm water discharges associated with industrial 
activity'' to include only those storm water discharges from 
construction sites disturbing 5 acres or more of total land area (see 
40 CFR 122.26(b)(14)(x)). In its decision, the court concluded that the 
5-acre threshold was improper because the Agency had failed to identify 
information ``to support its perception that construction activities on 
less than 5 acres are non-industrial in nature'' (966 F.2d at 1306). 
The court remanded the below 5 acre exemption to EPA for further 
proceedings (966 F.2d at 1310).
    In a Federal Register notice issued on December 18, 1992, EPA noted 
that it did not believe that the Court's decision had the effect of 
automatically subjecting small construction sites to the existing 
application requirements and deadlines. EPA believed that additional 
notice and comment were necessary to clarify the status of these sites. 
The information received during the notice and comment process and 
additional research, as discussed in section I.B.3 Construction Site 
Runoff, formed the basis for the designation of construction activity 
disturbing between one and five acres on a nationwide basis. EPA's 
objectives in today's proposal include an effort to (1) address the 9th 
Circuit remand, (2) address water quality concerns associated with 
construction activities that disturb less than 5 acres of land, and (3) 
balance conflicting recommendations and concerns of stakeholders.
    One commenter noted that EPA's proposal would fail to regulate 
industrial facilities identified as Group A and Group B in the March 
1995 Report to Congress. EPA is relying on the analysis in the Report, 
which provided that the recommendation for coverage was meant as 
guidance and was not intended to be an identification of specific 
categories that must be regulated under Section 402(p)(6). Report to 
Congress, p. 4-1. The Report recognized the existence of limited data 
on which to base loadings estimates to support the nationwide 
designation of individual or categories of sources. Report to Congress, 
p. 4-44. Furthermore, during FACA Subcommittee discussion, EPA 
continued to urge stakeholders to provide further data relating to 
industrial and commercial storm water sources, which EPA did not 
receive. EPA concluded that, due to insufficient data, these sources 
were not appropriate for nationwide designation at this time.

E. Industrial Facilities Owned or Operated by Small Municipalities

    Congress granted extensions to the NPDES permit application process 
for selected classes of storm water discharges associated with 
industrial activity. On December 18, 1991, Congress enacted the 
Intermodal Surface Transportation Efficiency Act (ISTEA), which 
postponed NPDES permit application deadlines for most storm water 
discharges associated with industrial activity at facilities that are 
owned or operated by small municipalities. EPA and States authorized to 
administer the NPDES program could not require any municipality with a 
population of less than 100,000 to apply for or obtain an NPDES permit 
for any storm water discharge associated with industrial activity prior 
to October 1, 1992, except for storm water discharges from airports, 
power plants, or uncontrolled sanitary landfills. See 40 CFR 
122.26(e)(1); 57 FR 11524, April 2, 1992 (reservation of NPDES 
application deadlines for ISTEA facilities).
    The facilities exempted by ISTEA discharge storm water in the same 
manner (and are expected to use identical processes and materials) as 
the industrial facilities regulated under the 1990 Phase I regulations. 
Accordingly, these facilities pose similar water quality problems. The 
extended moratorium for these facilities was necessary to allow 
municipalities additional time to comply with NPDES requirements. The 
proposal for today's rule would have maintained the existing deadline 
for seeking coverage under an NPDES permit (August 7, 2001).
    Today's rule changes the permit application deadline for such 
municipally owned or operated facilities discharging industrial storm 
water to make it consistent with the application date for small 
regulated MS4s. Because EPA missed its March 1999 deadline for 
promulgating today's rule, and the deadline for MS4s to submit permit 
applications has been extended to three years and 90 days from the date 
of this notice, the deadline for permitting ISTEA sources has been 
similarly extended. The permitting of these sources is discussed below 
in section ``II.I.3. ISTEA Sources.''

F. Related Nonpoint Source Programs

    Today's rule addresses point source discharges of storm water 
runoff and non-storm water discharges into MS4s. Many of these sources 
have been addressed by nonpoint source control programs, which are 
described briefly below.
    In 1987, section 319 was added to the CWA to provide a framework 
for funding State and local efforts to address pollutants from nonpoint 
sources not addressed by the NPDES program. To obtain funding, States 
are required to submit Nonpoint Source Assessment Reports identifying 
State waters that, without additional control of nonpoint sources of 
pollution, could not reasonably be expected to attain or maintain 
applicable water quality standards or other goals and requirements of 
the CWA. States are also required to prepare and submit for EPA 
approval a statewide Nonpoint Source Management Program for controlling 
nonpoint source water pollution to navigable waters within the State 
and improving the quality of such waters. State program submittals must 
identify specific best management practices (BMPs) and measures that 
the State proposes to implement in the first four years after program 
submission to reduce pollutant loadings from identified nonpoint 
sources to levels required to achieve the stated water quality 
objectives.
    State nonpoint source programs funded under section 319 can include 
both regulatory and nonregulatory State and local approaches. Section 
319(b)(2)(B) specifies that a combination of ``nonregulatory or 
regulatory programs for enforcement, technical assistance, financial 
assistance, education, training, technology transfer, and demonstration 
projects' may be used, as necessary, to achieve implementation of the 
BMPs or measures identified in the section 319 submittals.
    Section 6217 of the Coastal Zone Act Reauthorization Amendments 
(CZARA) of 1990 provides that States with approved coastal zone 
management programs must develop coastal nonpoint pollution control 
programs and submit them to EPA and the National Oceanic and 
Atmospheric Administration (NOAA) for approval. Failure to submit an 
approvable program will result in a reduction of Federal grants under 
both the Coastal Zone Management Act and section 319 of the CWA.
    State coastal nonpoint pollution control programs under CZARA must 
include enforceable policies and mechanisms that ensure implementation 
of the management measures throughout the coastal management area. EPA 
issued Guidance Specifying Management Measures for Sources of Nonpoint 
Pollution in Coastal Waters under section 6217(g) in

[[Page 68734]]

January 1993. The guidance identifies management measures for five 
major categories of nonpoint source pollution. The management measures 
reflect the greatest degree of pollutant reduction that is economically 
achievable for each of the listed sources. These management measures 
provide reference standards for the States to use in developing or 
refining their coastal nonpoint programs. A few management measures, 
however, contain quantitative standards that specify pollutant loading 
reductions. For example, the New Development Management Measure, which 
is applicable to construction in urban areas, requires (1) that by 
design or performance the average annual total suspended solid loadings 
be reduced by 80 percent and (2) to the extent practicable, that the 
pre-development peak runoff rate and average volume be maintained.
    EPA and NOAA published Coastal Nonpoint Pollution Control Program: 
Program Development and Approval Guidance (1993). The document 
clarifies that States generally must implement management measures for 
each source category identified in the EPA guidance developed under 
section 6217(g). Coastal Nonpoint Pollution Control Programs are not 
required to address sources that are clearly regulated under the NPDES 
program as point source discharges. Specifically, such programs would 
not need to address small MS4s and construction sites covered under 
NPDES storm water permits (both general and individual).

II. Description of Program

A. Overview

1. Objectives EPA Seeks To Achieve in Today's Rule
    EPA seeks to achieve several objectives in today's final rule. 
First, EPA is implementing the requirement under CWA section 402(p)(6) 
to provide a comprehensive storm water program that designates and 
controls additional sources of storm water discharges to protect water 
quality. Second, EPA is addressing storm water discharges from the 
activities exempted under the 1990 storm water permit application 
regulations that were remanded by the Ninth Circuit Court of Appeals in 
NRDC v. EPA, 966 F.2d 1292 (9th Circuit, 1992). These are construction 
activities disturbing less than 5 acres and so-called ``light'' 
industrial activities not exposed to storm water (see discussion of 
``no exposure'' below). Third, EPA is providing coverage for the so-
called ``donut holes'' created by the existing NPDES storm water 
program. Donut holes are geographic gaps in the NPDES storm water 
program's regulatory scheme. They are MS4s located within areas covered 
by the existing NPDES storm water program, but not currently addressed 
by the storm water program because it is based on political 
jurisdictions. Finally, EPA also is trying to promote watershed 
planning as a framework for implementing water quality programs where 
possible.
    Although EPA had options for different approaches (see alternatives 
discussed in the January 9, 1998, proposed regulation), EPA believes it 
can best achieve its objectives through flexible innovations within the 
framework of the NPDES program. Unlike the interim section 402(p)(6) 
storm water regulations EPA promulgated in 1995, EPA no longer 
designates all of the unregulated storm water discharges for nationwide 
coverage under the NPDES program for storm water. The framework for 
today's final rule is one that balances automatic designation on a 
nationwide basis and locally-based designation and waivers. Nationwide 
designation applies to those classes or categories of storm water 
discharges that EPA believes present a high likelihood of having 
adverse water quality impacts, regardless of location. Specifically, 
today's rule designates discharges from small MS4s located in urbanized 
areas and storm water discharges from construction activities that 
result in land disturbance equal to or greater than one and less than 
five acres. As noted under Section I.B., Water Quality Concerns/
Environmental Impact Studies and Assessments, these two categories of 
storm water sources, when unregulated, tend to cause significant 
adverse water quality impacts. Additional sources are not covered on a 
nationwide basis either because EPA currently lacks information 
indicating a consistent potential for adverse water quality impact or 
because EPA believes that the likelihood of adverse impacts on water 
quality is low, with some localized exceptions. Additional individual 
sources or categories of storm water discharges could, however, be 
covered under the program through a local designation process. A 
permitting authority may designate additional small MS4s after 
developing designation criteria and applying those criteria to small 
MS4s located outside of an urbanized area, in particular those with a 
population of 10,000 or more and a population density of at least 
1,000. Exhibit 1 illustrates the designation framework for today's 
final rule.

BILLING CODE 6560-50-P

[[Page 68735]]

[GRAPHIC] [TIFF OMITTED] TR08DE99.000


BILLING CODE 6560-50-C

[[Page 68736]]

    The designation framework for today's final rule provides a 
significant degree of flexibility. The proposed provisions for 
nationwide designation of storm water discharges from construction and 
from small MS4s in urbanized areas allowed for a waiver of applicable 
requirements based on appropriate water quality conditions. Today's 
final rule expands and simplifies those waivers.
    The permitting authority may waive the requirement for a permit for 
any small MS4 serving a jurisdiction with a population of less than 
1,000 unless storm water controls are needed because the MS4 is 
contributing to a water quality impairment. The permitting authority 
may also waive permit coverage for MS4s serving a jurisdiction with a 
population of less than 10,000 if all waters that receive a discharge 
from the MS4 have been evaluated and discharges from the MS4 do not 
significantly contribute to a water quality impairment or have the 
potential to cause an impairment. Today's rule also allows States with 
a watershed permitting approach to phase in coverage for MS4s in 
jurisdictions with populations under 10,000.
    Water quality conditions are also the basis for a waiver of 
requirements for storm water discharges from construction activities 
disturbing between one and five acres. For these small construction 
sources, the rule provides significant flexibility for waiving 
otherwise applicable regulatory requirements where a permitting 
authority determines, based on water quality and watershed 
considerations, that storm water discharge controls are not needed.
    Coverage can be extended to municipal and construction sources 
outside the nationwide designated classes or categories based on 
watershed and case-by-case assessments. For the municipal storm water 
program, today's rule provides broad discretion to NPDES permitting 
authorities to develop and implement criteria for designating storm 
water discharges from small MS4s outside of urbanized areas. Other 
storm water discharges from unregulated industrial, commercial, and 
residential sources will not be subject to the NPDES permit 
requirements unless a permitting authority determines on a case-by-case 
basis (or on a categorical basis within identified geographic areas 
such as a State or watershed) that regulatory controls are needed to 
protect water quality. EPA believes that the flexibility provided in 
today's rule facilitates watershed planning.
2. General Requirements for Regulated Entities Under Today's Rule
    As previously noted, today's final rule defines additional classes 
and categories of storm water discharges for coverage under the NPDES 
program. These designated dischargers are required to seek coverage 
under an NPDES permit. Furthermore, all NPDES-authorized States and 
Tribes are required to implement these provisions and make any 
necessary amendments to current State and Tribal NPDES regulations to 
ensure consistency with today's final rule. EPA remains the NPDES 
permitting authority for jurisdictions without NPDES authorization.
    Today's final rule includes some new requirements for NPDES 
permitting authorities implementing the CWA section 402(p)(6) program. 
EPA has made a significant effort to build flexibility into the program 
while attempting to maintain an appropriate level of national 
consistency. Permitting authorities must ensure that NPDES permits 
issued to MS4s include the minimum control measures established under 
the program. Permitting authorities also have the ability to make 
numerous decisions including who is regulated under the program, i.e., 
case-by-case designations and waivers, and how responsibilities should 
be allocated between regulated entities.
    Today's final rule extends the NPDES program to include discharges 
from the following: small MS4s within urbanized areas (with the 
exception of systems waived from the requirements by the NPDES 
permitting authority); other small MS4s meeting designation criteria to 
be established by the permitting authority; and any remaining MS4 that 
contributes substantially to the storm water pollutant loadings of a 
physically interconnected MS4 already subject to regulation under the 
NPDES program. Small MS4s include urban storm sewer systems owned by 
Tribes, States, political subdivisions of States, as well as the United 
States, and other systems located within an urbanized area that fall 
within the definition of an MS4. These include, for example, State 
departments of transportation (DOTs), public universities, and federal 
military bases.
    Today's final rule requires all regulated small MS4s to develop and 
implement a storm water management program. Program components include, 
at a minimum, 6 minimum measures to address: public education and 
outreach; public involvement; illicit discharge detection and 
elimination; construction site runoff control; post-construction storm 
water management in new development and redevelopment; and pollution 
prevention and good housekeeping of municipal operations. These program 
components will be implemented through NPDES permits. A regulated small 
MS4 is required to submit to the NPDES permitting authority, either in 
its notice of intent (NOI) or individual permit application, the BMPs 
to be implemented and the measurable goals for each of the minimum 
control measures listed above.
    The rule addresses all storm water discharges from construction 
site activities involving clearing, grading and excavating land equal 
to or greater than 1 acre and less than 5 acres, unless requirements 
are otherwise waived by the NPDES permitting authority. Discharges from 
such sites, as well as construction sites disturbing less than 1 acre 
of land that are designated by the permitting authority, are required 
to implement requirements set forth in the NPDES permit, which may 
reference the requirements of a qualifying local program issued to 
cover such discharges.
    The rule also addresses certain other sources regulated under the 
existing NPDES program for storm water. For municipally-owned 
industrial sources required to be regulated under the existing NPDES 
storm water program but exempted from immediate compliance by the 
Intermodal Surface Transportation Act of 1991 (ISTEA), the rule revises 
the existing deadline for seeking coverage under an NPDES permit 
(August 7, 2001) to make it consistent with the application date for 
small regulated MS4s. (See section I.3. below.) The rule also provides 
relief from NPDES storm water permitting requirements for industrial 
sources with no exposure of industrial materials and activities to 
storm water.
3. Integration of Today's Rule With the Existing Storm Water Program
    In developing an approach for today's final rule, numerous early 
interested stakeholders encouraged EPA to seek opportunities to 
integrate, where possible, the proposed Phase II requirements with 
existing Phase I requirements, thus facilitating a unified storm water 
discharge control program. EPA believes that this objective is met by 
using the NPDES framework. This framework is already applied to 
regulated storm water discharge sources and is extended to those 
sources designated under today's rule. This approach facilitates 
program consistency, public access to information, and program 
oversight.

[[Page 68737]]

    EPA believes that today's final rule provides consistency in terms 
of program coverage and requirements for existing and newly designated 
sources. For example, the rule includes most of the municipal donut 
holes, those MS4s located in incorporated places, townships or towns 
with a population under 100,000 that are within Phase I counties. These 
MS4s are not addressed by the existing NPDES storm water program while 
MS4s in the surrounding county are currently addressed. In addition, 
the minimum control measures required in today's rule for regulated 
small MS4s are very similar to a number of the permit requirements for 
medium and large MS4s under the existing storm water program. Following 
today's rule, permit requirements for all regulated MS4s (both those 
under the existing program and those under today's rule) will require 
implementation of BMPs. Furthermore, with regard to the development of 
NPDES permits to protect water quality, EPA intends to apply the August 
1, 1996, Interim Permitting Approach for Water Quality-Based Effluent 
Limitations in Storm Water Permits (hereinafter, ``Interim Permitting 
Approach'') (see Section II.L.1. for further description) to all MS4s 
covered by the NPDES program.
    EPA is applying NPDES permit requirements to construction sites 
below 5 acres that are similar to the existing requirements for those 
above 5 acres and above. In addition, today's rule allows compliance 
with qualifying local, Tribal, or State erosion and sediment controls 
to meet the erosion and sediment control requirements of the general 
permits for storm water discharges associated with construction, both 
above and below 5 acres.
4. General Permits
    EPA recommends using general permits for all newly regulated storm 
water sources under today's rule. The use of general permits, instead 
of individual permits, reduces the administrative burden on permitting 
authorities, while also limiting the paperwork burden on regulated 
parties seeking permit authorization. Permitting authorities may, of 
course, require individual permits in some cases to address specific 
concerns, including permit non-compliance.
    EPA recommends that general permits for MS4s, in particular, be 
issued on a watershed basis, but recognizes that each permitting 
authority must decide how to develop its general permit(s). Permit 
conditions developed to address concerns and conditions of a specific 
watershed could reflect a watershed plan; such permit conditions must 
provide for attainment of applicable water quality standards (including 
designated uses), allocations of pollutant loads established by a TMDL, 
and timing requirements for implementation of a TMDL. If the permitting 
authority issues a State-wide general permit, the permitting authority 
may include separate conditions tailored to individual watersheds or 
urbanized areas. Of course, for a newly regulated MS4, modification of 
an existing individual MS4 permit to include the newly regulated MS4 as 
a ``limited co-permittee'' also remains an option.
5. Tool Box
    During the FACA process, many Storm Water Phase II FACA 
Subcommittee representatives expressed an interest, which was endorsed 
by the full Committee, in having EPA develop a ``tool box'' to assist 
States, Tribes, municipalities, and other parties involved in the Phase 
II program. EPA made a commitment to work with Storm Water Phase II 
FACA Subcommittee representatives in developing such a tool box, with 
the expectation that a tool box would facilitate implementation of the 
storm water program in an effective and cost-efficient manner. EPA has 
developed a preliminary working tool box (available on EPA's web page 
at www.epa.gov/owm/sw/toolbox). EPA intends to have the tool box fully 
developed by the time of the first general permits. EPA also intends to 
update the tool box as resources and data become available. The tool 
box will include the following eight main components: fact sheets; 
guidances; a menu of BMPs for the six MS4 minimum measures; an 
information clearinghouse; training and outreach efforts; technical 
research; support for demonstration projects; and compliance 
monitoring/assistance tools. EPA intends to issue the menu of BMPs, 
both structural and non-structural, by October 2000. In addition, EPA 
will issue by October 2000 a ``model'' permit and will issue by October 
2001 guidance materials on the development of measurable goals for 
municipal programs.
    In an attempt to avoid duplication, the Agency has undertaken an 
effort to identify and coordinate sources of information that relate to 
the storm water discharge control program from both inside and outside 
the Agency. Such information includes research and demonstration 
projects, grants, storm water management-related programs, and 
compendiums of available documents, including guidances, related 
directly or indirectly to the comprehensive NPDES storm water program. 
Based on this effort, EPA is developing a tool box containing fact 
sheets and guidance documents pertaining to the overall program and 
rule requirements (e.g., guidance on municipal and construction 
programs, and permitting authority guidance on designation and waiver 
criteria); models of current programs aimed at assisting States, 
Tribes, municipalities, and others in establishing programs; a 
comprehensive list of reference documents organized according to 
subject area (e.g., illicit discharges, watersheds, water quality 
standards attainment, funding sources, and similar types of 
references); educational materials; technical research data; and 
demonstration project results. The information collected by EPA will 
not only provide the background for tool box materials, but will also 
be made available through an information clearinghouse on the world 
wide web.
    With assistance from EPA, the American Public Works Association 
(APWA) developed a workbook and series of workshops on the proposed 
Phase II rule. Ten workshops were held from September 1998 through May 
1999. Depending on available funding, these workshops may continue 
after publication of today's final rule. EPA also intends to provide 
training to enable regional offices to educate States, Tribes, and 
municipalities about the storm water program and the availability of 
the tool box materials.
    The CWA currently provides funding mechanisms to support activities 
related to storm water. These mechanisms will be described in the tool 
box. Activities funded under grant and loan programs, which could be 
used to assist in storm water program development, include programs in 
the nonpoint source area, storm water demonstration projects, source 
water protection and wastewater construction projects. EPA has already 
provided funding for numerous research efforts in these areas, 
including a database of BMP effectiveness studies (described below), an 
assessment of technologies for storm water management, a study of the 
effectiveness of storm water BMPs for controlling the impacts of 
watershed imperviousness, protocols for wet weather monitoring, 
development of a dynamic model for wet weather flows, and numerous 
outreach projects.
    EPA has entered into a cooperative agreement with the Urban Water 
Resources Research Council of the American Society of Civil Engineers 
(ASCE) to develop a scientifically-based management tool for the 
information

[[Page 68738]]

needed to evaluate the effectiveness of urban storm water runoff BMPs 
nationwide. The long-term goal of the National Stormwater BMP Database 
project is to promote technical design improvements for BMPs and to 
better match their selection and design to the local storm water 
problems being addressed. The project team has collected and evaluated 
hundreds of existing published BMP performance studies and created a 
database covering about 75 test sites. The database includes detailed 
information on the design of each BMP and its watershed 
characteristics, as well as its performance. Eventually the database 
will include the nationwide collection of information on the 
characteristics of structural and non-structural BMPs, data collection 
efforts (e.g., sampling and flow gaging equipment), climatological 
characteristics, watershed characteristics, hydrologic data, and 
constituent data. The database will continue to grow as new BMP data 
become available. The initial release of the database, which includes 
data entry and retrieval software, is available on CD-ROM and operates 
on Windows-compatible personal computers. The ASCE project 
team envisions that periodic updates to the database will be 
distributed through the Internet. The team is currently developing a 
system for Internet retrieval of selected database records, and this 
system is expected to be available in early 2000.
    EPA and ASCE invite BMP designers, owners and operators to 
participate in the continuing database development effort. To make this 
effort successful, a large database is essential. Interested persons 
are encouraged to submit their BMP performance evaluation data and 
associated BMP watershed characteristics for potential entry into the 
database. The software included in the CD-ROM allows data providers to 
enter their BMP data locally, retain and edit the data as needed, and 
submit them to the ASCE Database Clearinghouse when ready.
    To obtain a copy of the database, please contact Jane Clary, 
Database Clearinghouse Manager, Wright Water Engineers, Inc., 2490 W. 
26th Ave., Suite 100A, Denver, CO 80211; Phone 303-480-1700; E-mail 
[email protected].
    In addition, EPA requests that researchers planning to conduct BMP 
performance evaluations compile and collect BMP reporting information 
according to the standard format developed by ASCE. The format is 
provided with the database software and is also available on the ASCE 
website at www.asce.org/peta/tech/nsbd01.html.
6. Deadlines Established in Today's Action
    Exhibit 2 outlines the various deadlines established under today's 
final rule. EPA believes that the dates allow sufficient time for 
completion of both the NPDES permitting authority's and the permittee's 
program responsibilities.

            Exhibit 2-Storm Water Phase II Actions Deadlines
------------------------------------------------------------------------
                Activity                          Deadline date
------------------------------------------------------------------------
NPDES-authorized States modify NPDES     1 year from date of publication
 program if no statutory change is        of today's rule in the Federal
 required.                                Register.
NPDES-authorized States modify NPDES     2 years from date of
 program if statutory change is           publication of today's rule in
 required.                                the Federal Register.
EPA issues a menu of BMPs for regulated  October 27, 2000
 small MS4s.
ISTEA sources submit permit application  3 years and 90 days from date
                                          of publication of today's rule
                                          in the Federal Register.
Permitting authority issues general      3 years from date of
 permit(s) (if this type of permit        publication of today's rule in
 coverage is selected).                   the Federal Register.
Regulated small MS4s submit permit
 application:
    a. If designated under Sec.          a. 3 years and 90 days from
     122.32(a)(1) unless the permitting   date of publication of today's
     authority has established a          rule in the Federal Register.
     phasing schedule under Sec.
     123.35(d)(3).
    b. If designated under Sec.          b. Within 180 days of notice.
     122.32(a)(2) or Secs.
     122.26(a)(9)(i) (C) or (D).
Storm water discharges associated with
 small construction activity submit
 permit application:
    a. If designated under Sec.          a. 3 years and 90 days from
     122.26(b)(15)(i).                    date of publication of today's
                                          rule in the Federal Register
    b. If designated under Sec.          b. Within 180 days of notice.
     122.26(b)(15)(ii).
Permitting authority designates small    3 years from date of
 MS4s under Sec.  123.35(b)(2).           publication of today's rule in
                                          the Federal Register or 5
                                          years from date of publication
                                          of today's rule in the Federal
                                          Register if a watershed plan
                                          is in place
Regulated small MS4s' program fully      Up to 5 years from date of
 developed and implemented.               permit issuance.
Reevaluation of the municipal storm      13 years from date of
 water rules by EPA.                      publication of today's rule in
                                          the Federal Register
Permitting authority determination on a  Within 180 days of receipt.
 petition.
Non-municipal sources designated under   Within 180 days of notice.
 Sec.  122.26(a)(9)(i) (C) or (D)
 submit permit application.
Submission of No Exposure Certification  Every 5 years.
------------------------------------------------------------------------

B. Readable Regulations

    Today, EPA is finalizing new regulations in a ``readable 
regulation'' format. This reader-friendly, plain language approach is a 
departure from traditional regulatory language and should enhance the 
rule's readability. These plain language regulations use questions and 
answers, ``you'' to identify the person who must comply, and terms like 
``must'' rather than ``shall'' to identify a mandate. This new format, 
which minimizes layers of subparagraphs, should also allow the reader 
to easily locate specific provisions of the regulation.
    Some sections of today's final rule are presented in the 
traditional language and format because these sections amend existing 
regulations. The readable regulation format was not used in these 
existing provisions in an attempt to avoid confusion or disruption

[[Page 68739]]

of the readability of the existing regulations.
    Most commenters supported EPA's use of plain language and agreed 
with EPA that the question and answer format makes the rule easier to 
understand. Three commenters thought that EPA should retain the 
traditional rule format. The June 1, 1998, Presidential memorandum 
directs all government agencies to write documents in plain language. 
Based on the majority of the comments, EPA has retained the plain 
language format used in the January 9, 1998, proposal in today's final 
rule.
    The proposal to today's final rule included guidance as well as 
legal requirements. The word ``must'' indicates a requirement. Words 
like ``should,'' ``could,'' or ``encourage'' indicate a recommendation 
or guidance. In addition, the guidance was set off in parentheses to 
distinguish it from requirements.
    EPA received numerous comments supporting the inclusion of guidance 
in the text of the Code of Federal Regulations (CFR), as well as 
comments opposing inclusion of guidance. Supporters stated that 
preambles and guidance documents are often not accessible when rules 
are implemented. Any language not included in the CFR is therefore not 
available when it may be most needed. Commenters that opposed including 
guidance in the CFR expressed the concern that any language in the rule 
might be interpreted as a requirement, in spite of any clarifying 
language. They suggested that guidance be presented in the preamble and 
additional guidance documents.
    The majority of commenters on this issue thought that the guidance 
should be retained but the distinction between requirements and 
guidance should be better clarified. Suggestions included clarifying 
text, symbols, and a change from use of the word ``should'' to ``EPA 
recommends'' or ``EPA suggests''. EPA believes that it is important to 
include the guidance in the rule and agrees that the distinction 
between requirements and EPA recommendations must be very clear. In 
today's final rule, EPA has put the guidance in paragraphs entitled 
``Guidance'' and replaced the word ``should'' with ``EPA recommends.'' 
This is intended to clarify that the recommendations contained in the 
guidance paragraphs are not legally binding.

C. Program Framework: NPDES Approach

    Today's rule regulates Phase II sources using the NPDES permit 
program. EPA interprets Clean Water Act section 402(p)(6) as 
authorizing the Agency to develop a storm water program for Phase II 
sources either as part of the existing NPDES permit program or as a 
stand alone non-NPDES program such as a self-implementing rule. Under 
either approach, EPA interprets section 402(p)(6) as directing EPA to 
publish regulations that ``regulate'' the remaining unregulated 
sources, specifically to establish requirements that are federally 
enforceable under the CWA. Although EPA believes that it has the 
discretion to not require sources regulated under CWA section 402(p)(6) 
to be covered by NPDES permits, the Agency has determined, for the 
reasons discussed below, that it is most appropriate to use NPDES 
permits in implementing the program to address the sources designated 
for regulation in today's rule.
    As discussed in Section II.A, Overview, EPA sought to achieve 
certain goals in today's final rule. EPA believes that the NPDES 
program best achieves EPA's goals for today's final rule for the 
reasons discussed below.
    Requiring Phase II sources to be covered by NPDES permits helps 
address the consistency problems currently caused by municipal ``donut 
holes.'' Donut holes are gaps in program coverage where a small 
unregulated MS4 is located next to or within a regulated larger MS4 
that is subject to an NPDES permit under the Phase I NPDES storm water 
program. The existence of such ``donut holes'' creates an equity 
problem because similar discharges may remain unregulated even though 
they cause or contribute to the same adverse water quality impacts. 
Using NPDES permits to regulate the unregulated discharges in these 
areas is intended to facilitate the development of a seamless 
regulatory program for the mitigation and control of contaminated storm 
water discharges in an urbanized area. For example, today's rule allows 
a newly regulated MS4 to join as a ``limited'' co-permittee with a 
regulated MS4 by referencing a common storm water management program. 
Such cooperation should be further encouraged by the fact that the 
minimum control measures required in today's rule for regulated small 
MS4s are very similar to a number of the permit requirements for medium 
and large MS4s under the Phase I storm water program. The minimum 
control measures applicable to discharges from smaller MS4s are 
described with slightly more generality than under the Phase I permit 
application regulations for larger MS4s, thus enabling maximum 
flexibility for operators of smaller MS4s to optimize efforts to 
protect water quality.
    Today's rule also applies NPDES permit requirements to construction 
sites below 5 acres that are similar to the existing requirements for 
those 5 acres and above. In addition, the rule would allow compliance 
with qualifying local, Tribal, or State erosion and sediment controls 
to meet the erosion and sediment control requirements of the general 
permits for storm water discharges associated with construction, both 
above and below 5 acres.
    Incorporating the CWA section 402(p)(6) program into the NPDES 
program capitalizes upon the existing governmental infrastructure for 
administration of the NPDES program. Moreover, much of the regulated 
community already understands the NPDES program and the way it works.
    Another goal of the NPDES program approach is to provide 
flexibility in order to facilitate and promote watershed planning and 
sensitivity to local conditions. NPDES permits promote those goals in 
several ways. NPDES general permits may be used to cover a category of 
regulated sources on a watershed basis or within political boundaries. 
The NPDES permitting process provides a mechanism for storm water 
controls tailored on a case-by-case basis, where necessary. In 
addition, the NPDES permit requirements of a permittee may be satisfied 
by another cooperating entity. Finally, NPDES permits may incorporate 
the requirements of existing State, Tribal and local programs, thereby 
accommodating State and Tribes seeking to coordinate the storm water 
program with other programs, including those that focus on watershed-
based nonpoint source regulation.
    In promoting the watershed approach to program administration, EPA 
believes NPDES general permits can cover a category of dischargers 
within a defined geographic area. Areas can be defined very broadly to 
include political boundaries (e.g., county), watershed boundaries, or 
State or Tribal land.
    NPDES permits generally require an application or a notice of 
intent(NOI) to trigger coverage. This information exchange assures 
communication between the permitting authority and the regulated 
community. This communication is critical in ensuring that the 
regulated community is aware of the requirements and the permitting 
authority is aware of the potential for adverse impacts to water 
quality from identifiable locations. The NPDES permitting process 
includes the public as a valuable stakeholder and ensures

[[Page 68740]]

that the public is included and information is made publicly available.
    Another concern for EPA and several stakeholders was that the 
program ensure citizen participation. The NPDES approach ensures 
opportunities for citizen participation throughout the permit issuance 
process, as well as in enforcement actions. NPDES permits are also 
federally enforceable under the CWA.
    EPA believes that the use of NPDES permits makes a significant 
difference in the degree of compliance with regulations in the storm 
water program. The NPDES program provides for public participation in 
the development, enforcement and revision of storm water management 
programs. Citizen suit enforcement has assisted in focusing attention 
on adverse water quality impacts on a localized, public priority basis. 
Citizens frequently rely on the NPDES permitting process and the 
availability of NOIs to track program implementation and help them 
enforce regulatory requirements.
    NPDES permits are also advantageous to the permittee. The NPDES 
permit informs the permittee about the scope of what it is expected do 
to be in compliance with the Clean Water Act. As explained more fully 
in EPA's April 1995 guidance, Policy Statement on Scope of Discharge 
Authorization and Shield Associated with NPDES Permits, compliance with 
an NPDES permit constitutes compliance with the Clean Water Act (see 
CWA section 402(k)). In addition, NPDES permittees are excluded from 
duplicative regulatory regimes under the Resource Conservation and 
Recovery Act and the Comprehensive Emergency Response, Compensation and 
Liability Act under RCRA's exclusions to the definition of ``solid 
waste'' and CERCLA's exemption for ``federally permitted releases.''
    EPA considered suggestions that the Agency authorize today's rule 
to be implemented as a self-implementing rule. This would be a 
regulation promulgated at the Federal, State, or Tribal level to 
control some or all of the storm water dischargers regulated under 
today's rule. Under this approach, a rule would spell out the specific 
requirements for dischargers and impose the restrictions and conditions 
that would otherwise be contained in an NPDES permit. It would be 
effective until modified by EPA, a State, or a Tribe, unlike an NPDES 
permit which cannot exceed a duration of five years. Some stakeholders 
believed that this approach would reduce the burden on the regulated 
community (e.g., by not requiring permit applications), and 
considerably reduce the amount of additional paperwork, staff time and 
accounting required to administer the proposed permit requirements.
    EPA is sensitive to the interest of some stakeholders in having a 
streamlined program that minimizes the burden associated with permit 
administration and maximizes opportunities for field time spent by 
regulatory authorities. Key provisions in today's rule address some of 
these concerns by promoting a streamlined approach to permit issuance 
by, for example, using general permits and allowing the incorporation 
of existing programs. By adopting the NPDES approach rather than a 
self-implementing rule, today's rule also allows for consistent 
regulation between larger MS4s and construction sites regulated under 
the existing storm water management rule and smaller sources regulated 
under today's rule.
    EPA believes that it is most appropriate to use NPDES permits to 
implement a program to address the sources regulated by today's rule. 
In addition to the reasons discussed above, NPDES permits provide a 
better mechanism than would a self-implementing rule for tailoring 
storm water controls on a case-by-case basis, where necessary. One 
commenter reasoned this concern could be addressed by including 
provisions in the regulation that allow site-specific BMPs (i.e., case-
by-case permits), suggesting storm water discharges that might require 
site-specific BMPs can be identified during the designation process of 
the regulatory authority. EPA believes that, in addition to its 
complexity, the commenter's approach lacks the other advantages of the 
NPDES permitting process.
    A self-implementing rule would not ensure the degree of public 
participation that the NPDES permit process provides for the 
development, enforcement and revision of the storm water management 
program. A self-implementing rule also might not have provided the 
regulated community the ``permit shield'' under CWA section 402(k) that 
is provided by an NPDES permit. Based on all these considerations, EPA 
declined to adopt a self-implementing rule approach and adopted the 
NPDES approach.
    Some State representatives sought alternative approaches for State 
implementation of the storm water program for Phase II sources. These 
State representatives asserted that a non-NPDES alternative approach 
best facilitated watershed management and avoided duplication and 
overlapping regulations. These representatives believed the NPDES 
approach would undercut State programs that had developed storm water 
controls tailored to local watershed concerns. Finally, a number of 
commenters expressed the view that States implement a variety of 
programs not based on the CWA that are effective in controlling storm 
water, and that EPA should provide incentives for their implementation 
and improvement in performance.
    Throughout the development of the rule, State representatives 
sought alternatives to the NPDES approach for State implementation of 
the storm water program for Phase II sources. Discussions focused on an 
approach whereby States could develop an alternative program that EPA 
would approve or disapprove based on identified criteria, including 
that the alternative non-NPDES program would result in ``equivalent or 
better protection of water quality.'' The State representatives, 
however, were unable to propose or recommend criteria for gauging 
whether a program would provide equivalent protection. EPA also did not 
receive any suggestions for objective, workable criteria in response to 
the Agency's explicit request for specific criteria (by which EPA could 
objectively judge such programs) in the preamble to the proposed rule.
    EPA evaluated several existing State initiatives to address storm 
water and found many cases where standards under State programs may be 
coordinated with the Federal storm water program. Where the NPDES 
permit is developed in coordination with State standards, there are 
opportunities to avoid duplication and overlapping requirements. Under 
today's rule, an NPDES permitting authority may include conditions in 
the NPDES permit that direct an MS4 to follow the requirements imposed 
under State standards, rather than the requirements of Sec. 122.34(b). 
This is allowed as long as the State program at a minimum imposes the 
relevant requirements of Sec. 122.34(b). Additional opportunities 
follow from other provisions in today's rule.
    Seeking to further explore the feasibility of a non-NPDES approach, 
the Agency, after the proposal, had extensive discussions with 
representatives of a number of States. Discussions related specifically 
to possible alternatives for regulations of urban storm water 
discharges and MS4s specifically. The Agency also sought input on these 
issues from other stakeholders.
    As a result of these discussions, many of the commenters provided 
input on issues such as: whether or not the Agency should require NPDES 
permits; whether location of MS4s in urbanized

[[Page 68741]]

areas should be the basis for designation or whether designation should 
be based on other determinations relating to water quality; whether 
States should be allowed to satisfy the conditions of the rule through 
the use of existing State programs; and issues concerning timing and 
resources for program implementation.
    In response, today's rule still follows the regulatory scheme of 
the proposed rule, but incorporates additional flexibility to address 
some of the concerns raised by commenters.
    In order to facilitate implementation by States that utilize a 
watershed permitting approach or similar approach (i.e., based on a 
State's unified watershed assessments), today's rule allows States to 
phase in coverage for MS4s in jurisdictions with a population less than 
10,000. Under such an approach, States could focus their resources on a 
rolling basis to assist smaller MS4s in developing storm water 
programs.
    In addition, in response to concerns that the rule should not 
require permit coverage for MS4s that do not significantly contribute 
to water quality impairments, today's rule provides options for two 
waivers for small MS4s. The rule allows permitting authorities to 
exempt from the requirement for a permit any MS4 serving a jurisdiction 
with a population less than 1,000, unless the State determines that the 
MS4 must implement storm water controls because it is significantly 
contributing to a water quality impairment. A second waiver option 
applies to MS4s serving a jurisdiction with a population less than 
10,000. For those MS4s, the State must determine that discharges from 
the MS4 do not significantly contribute to a water quality impairment, 
or have the potential for such an impairment, in order to provide the 
exemption. The State must review this waiver on a periodic basis no 
less frequently than once every five years.
    Throughout the development of today's rule, commenters questioned 
whether the Clean Water Act authorized the use of the NPDES permit 
program, pointing out that the text of CWA 402(p)(6) does not use the 
word ``permit.'' Based on the absence of the word ``permit'' and the 
express mention of State storm water management programs, the 
commenters asserted that Congress did not intend for Phase II sources 
to be regulated using NPDES permits.
    EPA disagrees with the commenters' interpretation of section 
402(p)(6). Section 402(p)(6) does not preclude use of permits as part 
of the ``comprehensive program'' to regulate designated sources. The 
language provides EPA with broad discretion in the establishment of the 
``comprehensive program.'' Absence of the word ``permit'' (a term that 
the statute does not otherwise define) does not preclude use of a 
permit, which is a familiar and reasonably well understood regulatory 
implementation vehicle. First, section 402(p)(6) says that EPA must 
establish a comprehensive program that ``shall, at a minimum, establish 
priorities, establish requirements for State stormwater management 
programs, and establish expeditious deadlines.'' The ``at a minimum'' 
language suggests that the Agency may, and perhaps should, develop a 
comprehensive program that does more than merely attend to these 
minimum criteria. Use of the term ``at a minimum'' preserves for the 
Agency broad discretion to establish a comprehensive program that 
includes use of NPDES permits.
    Further, in the final sentence of the section, Congress included 
additional language to affirm the Agency's discretion. The final 
sentence clarifies that the Phase II program ``may include performance 
standards, guidelines, guidance, and management practices and treatment 
requirements, as appropriate.'' Under existing CWA programs, 
performance standards, (effluent limitations) guidelines, management 
practices, and treatment requirements are typically implemented through 
NPDES or dredge and fill permits.
    Although EPA believes that it had the discretion to not require 
permits, the Agency has determined that it is reasonable to interpret 
section 402(p)(6) to authorize permits. Moreover, for the reasons 
discussed above, the Agency believes that it is appropriate to use 
NPDES permits in implementing today's rule.

D. Federal Role

    Today's final rule describes EPA's approach to expand the existing 
storm water program under CWA section 402(p)(6). As in all other 
Federal programs, the Federal government plays an integral role in 
complying with, developing, implementing, overseeing, and enforcing the 
program. This section describes EPA's role in the revised storm water 
program.
1. Develop Overall Framework of the Program
    The storm water discharge control program under CWA section 
402(p)(6) consists of the rule, tool box, and permits. EPA's primary 
role is to ensure timely development and implementation of all 
components. Today's rule is a refinement of the first step in 
developing the program. EPA is fully committed to continuing to work 
with involved stakeholders on developing the tool box and issuing 
permits. As noted in today's rule, EPA will assess the municipal storm 
water program based on (1) evaluations of data from the NPDES municipal 
storm water program, (2) research concerning water quality impacts on 
receiving waters from storm water, and (3) research on BMP 
effectiveness. (Section II.H, Municipal Role, provides a more detailed 
discussion of this provision.)
    EPA is planning to standardize minimum requirements for 
construction and post-construction BMPs in a new rulemaking under Title 
III of the CWA. While larger construction sites are already subject to 
NPDES permits (and smaller sites will be subject to permits pursuant to 
today's rule), the permits generally do not contain specific 
requirements for BMP design or performance. The permits require the 
preparation of storm water pollution prevention plans, but actual BMP 
selection and design is at the discretion of permittees, in conformance 
with applicable State and local requirements. Where there are existing 
State and local requirements specific to BMPs, they vary widely, and 
many jurisdictions do not have such requirements.
    In developing these regulations, EPA intends to evaluate the 
inclusion of design and maintenance criteria as minimum requirements 
for a variety of BMPs used for erosion and sediment control at 
construction sites, as well as for permanent BMPs used to manage post-
construction storm water discharges. The Agency plans to consider the 
merits and performance of all appropriate management practices (both 
structural and non-structural) that can be used to reduce adverse water 
quality impacts. EPA does not intend to require the use of particular 
BMPs at specific sites, but plans to assist builders and developers in 
BMP selection by publishing data on the performance to be expected by 
various BMP types. EPA would like to build upon the successes of some 
of the effective State and local storm water programs currently in 
place around the country, and to establish nation-wide criteria to 
support builders and local jurisdictions in appropriate BMP selection.
2. Encourage Consideration of Smart Growth Approaches
    In the proposal, EPA invited comment on possible approaches for 
providing

[[Page 68742]]

incentives for local decision making that would limit the adverse 
impacts of growth and development on water quality. EPA asked for 
comments on this ``smart growth'' approach.
    EPA received comments on all sides of this issue. A number of 
commenters supported the idea of ``smart growth'' incentives but did 
not present concrete ideas. Several commenters suggested ``smart 
growth'' criteria. States that have adopted ``smart growth'' laws were 
worried that EPA's focus on urbanized areas for municipal requirements 
could encourage development outside of designated growth areas. Today's 
final rule clearly allows States to expand coverage of their municipal 
storm water program outside of urbanized areas. In addition, the 
flexibility of the six municipal minimum measures should avoid 
encouragement of development into rural rather than urban areas. For 
example, as part of the post-construction minimum measure, EPA 
recommends that municipalities consider policies and ordinances that 
encourage infill development in higher density urban areas, and areas 
with existing infrastructure, in order to meet the measure's intent.
    EPA also received several comments expressing concern that 
incorporating ``smart growth'' incentives threatened the autonomy of 
local governments. One commenter was worried that ``incentives'' could 
become more onerous than the minimum measures. EPA is very aware of 
municipal concerns about possible federal interference with local land 
use planning. EPA is also cognizant of the difficulty surrounding 
incentives for ``smart growth'' activities due to these concerns. 
However, the Agency believes it has addressed these concerns by 
proposing a flexible approach and will continue to support the concept 
of ``smart growth'' by encouraging policies that limit the adverse 
impacts of growth and development on water quality.
3. Provide Financial Assistance
    Although Congress has not established a fund to fully finance 
implementation of the proposed extension of the existing NPDES storm 
water program under CWA section 402(p)(6), numerous federal financing 
programs (administered by EPA and other federal agencies) can provide 
some financial assistance. The primary funding mechanism is the Clean 
Water State Revolving Fund (SRF) program, which provides sources of 
low-cost financing for a range of water quality infrastructure 
projects, including storm water. In addition to the SRF, federal 
financial assistance programs include the Water Quality Cooperative 
Agreements under CWA section 104(b)(3), Water Pollution Control Program 
grants to States under CWA section 106, and the Transportation Equity 
Act for the 21st Century (TEA-21) among others. In addition, Section 
319 funds may be used to fund any urban storm water activities that are 
not specifically required by a draft or final NPDES permit. EPA will 
develop a list of potential funding sources as part of the tool box 
implementation effort. EPA anticipates that some of these programs will 
provide funds to help develop and, in limited circumstances, implement 
the CWA section 402(p)(6) storm water discharge control program.
    EPA received numerous comments that requested additional funding. 
Congress provided one substantial new source of potential funding for 
transportation related storm water projects--TEA-21. The Department of 
Transportation has included a number of water-related provisions in its 
TEA-21 planning. These include Transportation Enhancements, 
Environmental Restoration and Pollution Abatement, and Environmental 
Streamlining. More information on TEA-21 is available at the following 
internet sites: www.fhwa.dot.gov/tea21/outreach.htm and www.tea21.org.
4. Implement the Program in Jurisdictions Not Authorized To Administer 
the NPDES Program
    Because today's final rule uses the NPDES framework, EPA will be 
the NPDES permitting authority in several States, Tribal jurisdictions, 
and Territories. As such, EPA will have the same responsibilities as 
any other NPDES permitting authority--issuing permits, designating 
additional sources, and taking appropriate enforcement actions--and 
will seek to tailor the storm water discharge control program to the 
specific needs in that State, Tribal jurisdiction, or Territory. EPA 
also plans to provide support and oversight, including outreach, 
training, and technical assistance to the regulated communities. 
Section II.G. of today's preamble provides a separate discussion 
related to the NPDES permitting authority's responsibilities for 
today's final rule.
5. Oversee State and Tribal Programs
    Under the NPDES program, EPA plays an oversight role for NPDES-
approved States and Tribes. In this role, EPA and the State or Tribe 
work together to implement, enforce, and improve the NPDES program. 
Part of this oversight role includes working with States and Tribes to 
modify their programs where programmatic or implementation concerns 
impede program effectiveness. This role will be vitally important when 
States and Tribes make adjustments to develop, implement, and enforce 
today's extension of the existing NPDES storm water discharge control 
program. In addition, States maintain a continuing planning process 
(CPP) under CWA section 303(e), which EPA periodically reviews to 
assess the program's achievements.
    In its oversight role, EPA takes action to address States and 
Tribes who have obtained NPDES authorization but are not fulfilling 
their obligations under the NPDES program. If an NPDES-authorized State 
or Tribe fails to implement an adequate NPDES storm water program, for 
example, EPA typically enters into extensive discussions to resolve 
outstanding issues. EPA has the authority to withdraw the entire NPDES 
program when resolution cannot be reached. Partial program withdrawal 
is not provided for under the CWA except for partial approvals.
    EPA is also working with the States and Tribes to improve nonpoint 
source management programs and assessments to incorporate key program 
elements. Key nonpoint source program elements include setting short 
and long term goals and objectives; establishing public and private 
partnerships; using a balanced approach incorporating Statewide and 
watershed-wide abatement of existing impairments; preventing future 
impairments; developing processes to address both impaired and 
threatened waters; reviewing and upgrading all program components, 
including program revisions on a 5-year cycle; addressing federal land 
management and activities inconsistent with State programs; and 
managing State nonpoint source management programs effectively.
    In particular, EPA works with the States and Tribes to strengthen 
their nonpoint source pollution programs to address all significant 
nonpoint sources, including agricultural sources, through the CWA 
section 319 program. EPA is working with other government agencies, as 
well as with community groups, to effect voluntary changes regarding 
watershed protection and reduced nonpoint source pollution.
    In addition, EPA and NOAA have published programmatic and technical 
guidance to address coastal nonpoint source pollution. Under Section 
6217 of the CZARA, States are developing and implementing coastal 
nonpoint pollution control programs approved by EPA and NOAA.

[[Page 68743]]

6. Comply With Applicable Requirements as a Discharger
    Today's final rule covers federally operated facilities in a 
variety of ways. These facilities are generally areas where people 
reside, such as a federal prison, hospital, or military base. It also 
includes federal parkways and road systems with separate storm sewer 
systems. Today's rule requires federal MS4s to comply with the same 
application deadlines that apply to regulated small MS4s generally. EPA 
believes that all federal MS4s serve populations of less than 100,000.
    EPA received several comments that asked if individual buildings 
like post offices are considered to be small MS4s and thereby regulated 
in today's rule if they are in an urbanized area. Most of these 
buildings have at most a parking lot with runoff or a storm sewer that 
connects with a municipality's MS4. EPA does not intend that individual 
federal buildings be considered to be small MS4s. This is discussed in 
section II.H.2.b. of today's preamble.
    Federal facilities can also be included under requirements 
addressing storm water discharges associated with small construction 
activities. In any case, discharges from these facilities will need to 
comply with all applicable NPDES requirements and any additional water 
quality-related requirements imposed by a State, Tribal, or local 
government. Failure to comply can result in enforcement actions. 
Federal facilities can act as models for municipal and private sector 
facilities and implement or test state-of-the-art management practices 
and control measures.

E. State Role

    Today's final rule sets forth an NPDES approach for implementing 
the extension of the existing storm water discharge control program 
under CWA section 402(p)(6). State assumption of the NPDES program is 
voluntary, consistent with the principles of federalism. Because most 
States are approved to implement the NPDES program, they will tailor 
their storm water discharge control programs to address their water 
quality needs and objectives. While today's rule establishes the basic 
framework for the section 402(p)(6) program, States as well as Tribes 
(see discussion in section II.F) have an important role in fine-tuning 
the program to address the water quality issues within their 
jurisdictions. The basic framework allows for adjustments based on 
factors that vary geographically, including climate patterns and 
terrain.
    Where States do not have NPDES authority, they are not required to 
implement the storm water discharge control program, but they may still 
participate in water quality protection through participation in the 
CWA section 401 certification process (for any permits) and through 
development of water quality standards and TMDLs.
1. Develop the Program
    In expanding the existing NPDES program for storm water discharges, 
States must evaluate whether revisions to their NPDES programs are 
necessary. If so, modifications must be made in accordance with 
Sec. 123.62. Under Sec. 123.62, States must revise their NPDES programs 
within 1 year, or within 2 years if statutory changes are necessary.
    Some States and departments of transportation (DOTs) commented that 
this timeframe is too short, anticipating that the State legislative 
process and the modification of regulations combined would take beyond 
2 years. The deadline language in Sec. 123.62 is not new language for 
the storm water discharge control program; it applies to all NPDES 
programs. EPA believes the vast majority of States will meet the 
deadline and will work with States in those cases where there may be 
difficulty meeting this deadline due to the timing of legislative 
sessions and the regulatory development process.
    An authorized State NPDES program must meet the requirements of CWA 
section 402(b) and conform to the guidelines issued under CWA section 
304(i)(2). Today's final rule under Sec. 123.25 adds specific cross 
references to the storm water discharge control program components to 
ensure that States adequately address these requirements.
2. Comply With Applicable Requirements as a Discharger
    Today's final rule covers State operated separate storm sewer 
systems in a variety of ways. These systems generally drain areas where 
people reside, such as a prison, hospital, or other populated facility. 
These systems are included under the definition of a regulated small 
MS4, which specifically identifies systems operated by State 
departments of transportation. Alternatively, storm water discharges 
from State activities may be regulated under the section addressing 
storm water discharges associated with small construction activities. 
In any case, discharges from these facilities must comply with all 
applicable NPDES requirements. Failure to comply can result in 
enforcement actions. State facilities can act as models for municipal 
and private sector facilities and implement or test state-of-the-art 
management practices and control measures.
3. Communicate With EPA
    Under approved NPDES programs, States have an ongoing obligation to 
share information with EPA. This dialogue is particularly important in 
the CWA section 402(p)(6) storm water program where these governments 
continue to develop a great deal of the guidance and outreach related 
to water quality.

F. Tribal Role

    The proposal to today's final rule provides background information 
on EPA's 1984 Indian Policy and the criteria for treatment of an Indian 
Tribe in the same manner as a State. Today's final rule extends the 
existing NPDES program for storm water discharges to two types of 
dischargers located in Indian country. First, the final rule designates 
storm water discharges from any regulated small MS4, including Tribal 
systems. Second, the final rule regulates discharges associated with 
construction activity disturbing between one and five acres of land, 
including sites located in Indian country. Operators in each of these 
categories of regulated activity must apply for coverage under an NPDES 
permit by 3 years and 90 days from the date of publication of today's 
final rule. Under existing regulations, however, EPA or an authorized 
NPDES Tribe may require a specified storm water discharger to apply for 
NPDES permit coverage before this deadline based on a determination 
that the discharge is contributing to a violation of a water quality 
standard (including designated uses) or is a significant contributor of 
pollutants.
    Under today's rule, a Tribal governmental entity may regulate storm 
water discharges on its reservation in two ways--as either an NPDES-
authorized Tribe or as a regulated MS4. If a Tribe is authorized to 
operate the NPDES program, the Tribe must implement today's final rule 
for the NPDES program for storm water for covered dischargers located 
within the EPA recognized boundaries. Otherwise, EPA is generally the 
permitting/program authority within Indian country. Discussions about 
the State Role in the preceding section also apply to NPDES authorized 
Tribes. For additional information on the role and responsibilities of 
the permitting authority in the NPDES storm water program, see 
Sec. 123.35 (and Section II.G. of today's preamble) and Sec. 123.25(a).

[[Page 68744]]

    Under today's final rule, if the Indian reservation is located 
entirely or partially within an ``urbanized area,'' as defined in 
Sec. 122.32(a)(1), the Tribe must obtain an NPDES permit if it operates 
a small MS4 within the urbanized area portion. Tribal MS4s located 
outside an urbanized area are not automatically covered, but may be 
designated by EPA pursuant to Sec. 122.32(a)(2) of today's rule or may 
request designation as a regulated small MS4 from EPA. A Tribe that is 
a regulated MS4 for NPDES program purposes is required to implement the 
six minimum control measures to the extent allowable under Federal law.
    The Tribal representative on the Storm Water Phase II FACA 
Subcommittee asked EPA to provide a list of the Tribes located in 
urbanized areas that would fall within the NPDES storm water program 
under today's final rule. In December 1996, EPA developed a list of 
federally recognized American Indian Areas located wholly or partially 
in Bureau of the Census-designated urbanized areas (see Appendix 1). 
Appendix 1 not only provides a listing of reservations and individual 
Tribes, but also the name of the particular urbanized area in which the 
reservation is located and an indication of whether the urbanized area 
contains a medium or large MS4 that is already covered by the existing 
Phase I regulations.
    Some of the Tribes listed in Appendix 1 are only partially located 
in an urbanized area. If the Tribe's MS4 serves less than 1,000 people 
within an urbanized area, the permitting authority may waive the 
Tribe's MS4 storm water requirements if it meets the conditions of 
Sec. 122.32(c). EPA does not have information on the Tribal populations 
within the urbanized areas, so it can not identify the Tribes that are 
eligible for a waiver. Therefore, a Tribe that believes it qualifies 
for a waiver should contact its permitting authority.

G. NPDES Permitting Authority's Role for the NPDES Storm Water Small 
MS4 Program

    As noted previously, the NPDES permitting authority can be EPA or 
an authorized State or an authorized Tribe. The following discussion 
describes the role of the NPDES permitting authority under today's 
final rule.
1. Comply With Implementation Requirements
    NPDES permitting authorities must perform certain duties to 
implement the NPDES storm water municipal program. Section 123.35(a) of 
today's final rule emphasizes that permitting authorities have existing 
obligations under the NPDES program. Section 123.35 focuses on specific 
issues related to the role of the NPDES authority to support 
administration and implementation of the municipal storm water program 
under CWA section 402(p)(6).
2. Designate Sources
    Section 123.35(b) of today's final rule addresses the requirements 
for the NPDES permitting authority to designate sources of storm water 
discharges to be regulated under Secs. 122.32 through 122.36. NPDES 
permitting authorities must develop a process, as well as criteria, to 
designate small MS4s. They must also have the authority to designate a 
small MS4 if and when circumstances that support a waiver under 
Sec. 122.32(c) change. EPA may make designations if an NPDES-approved 
State or Tribe fails to do so.
    NPDES permitting authorities must examine geographic jurisdictions 
that they believe should be included in the storm water discharge 
control program but are not located in an ``urbanized area''. Small 
MS4s in these areas are not designated automatically. Discharges from 
such areas should be brought into the program if found to have actual 
or potential exceedances of water quality standards, including 
impairment of designated uses, or other adverse impacts on water 
quality, as determined by local conditions or watershed and TMDL 
assessments. EPA's aim is to address discharges to impaired waters and 
to protect waters with the potential for problems. EPA encourages NPDES 
permitting authorities, local governments, and the interested public to 
work together in the context of a watershed plan to address water 
quality issues, including those associated with municipal storm water 
runoff.
    EPA received comments stating that the process of developing 
criteria and applying it to all MS4s outside an urbanized area serving 
a population of 10,000 or greater and with a density of 1,000 people 
per square mile is too time-consuming and resource-intensive. These 
commenters believe that the permitting authority should decide which 
MS4s must be brought into the storm water discharge control program and 
that population and density should not be an overriding criteria. One 
suggested way of doing so was to only designate MS4s with demonstrated 
contributions to the impairment of water quality uses as shown by a 
TMDL. EPA disagrees with this suggestion. The TMDL process is time-
consuming. MS4s outside of urbanized areas may cause water quality 
problems long before a TMDL is completed.
    EPA believes that permitting authorities should consider the 
potential water quality impacts of storm water from all jurisdictions 
with a population of 10,000 or greater and a density of 1,000 people 
per square mile. EPA is using data summarized in the NURP study and in 
the CWA section 305(b) reports to support this approach for targeted 
designation outside of urbanized areas. EPA is not mandating which 
criteria are to be used, but has provided examples of criteria that may 
be useful in evaluating potential water quality impacts. EPA believes 
that the flexibility provided in this section of today's final rule 
allows the permitting authority to develop criteria and a designation 
process that is easy to use and protects water quality. Therefore, the 
provisions of Sec. 123.35(b) remain as proposed.
a. Develop Designation Criteria
    Under Sec. 123.35(b), the NPDES permitting authority must establish 
designation criteria to evaluate whether a storm water discharge 
results in or has the potential to result in exceedances of water 
quality standards, including impairment of designated uses, or other 
significant water quality impacts, including adverse habitat and 
biological impacts.
    EPA recommends that NPDES permitting authorities consider, in a 
balanced manner, certain locally-focused criteria for designating any 
MS4 located outside of an urbanized area on the basis of significant 
water quality impacts. EPA recommends consideration of criteria such as 
discharge to sensitive waters, high growth or growth potential, high 
population density, contiguity to an urbanized area, significant 
contribution of pollutants to waters of the United States, and 
ineffective control of water quality concerns by other programs. These 
suggested designation criteria are intended to help encourage the 
permitting authority to use an objective method for identifying and 
designating, on a local basis, sources that adversely impact water 
quality. More information about these criteria and the reasons why they 
are suggested by EPA is included in the January 9, 1998, proposal (63 
FR 1561) for today's final rule.
    The suggested criteria are meant to be taken in the aggregate, with 
a great deal of flexibility as to how each should be weighed in order 
to best account for watershed and other local conditions and to allow 
for a more tailored case-by-case analysis. The application of criteria 
is meant to be geographically specific. Furthermore, each criterion 
does not have to be met in order for a small MS4

[[Page 68745]]

to qualify for designation, nor should an MS4 necessarily be designated 
on the basis of one or two criteria alone.
    EPA believes that the application of the recommended designation 
criteria provides an objective indicator of real and potential water 
quality impacts from urban runoff on both the local and watershed 
levels. EPA encourages the application of the recommended criteria in a 
watershed context, thereby allowing for the evaluation of the water 
quality impacts of the portions of a watershed outside of an urbanized 
area. For example, situations exist where the urbanized area represents 
a small portion of a degraded watershed, and the adjacent nonurbanized 
areas of the watershed have significant cumulative effects on the 
quality of the receiving waters.
    EPA received numerous suggestions of additional criteria that 
should be added and reasons why some of the criteria in the proposal to 
today's final rule were not appropriate. EPA developed its suggested 
designation criteria based on findings of the NURP study and other 
studies that indicate pollutants of concern, including total suspended 
solids, chemical oxygen demand, and temperature. These criteria were 
the subject of considerable discussion by the Storm Water Phase II FACA 
Subcommittee. EPA developed them in response to recommendations from 
the subcommittee during development of the proposed rule. The listed 
criteria are only suggestions. Permitting authorities are required to 
develop their own criteria. EPA has not found any reason to change its 
suggested list of criteria and the suggestions remain as proposed.
b. Apply Designation Criteria
    After customizing the designation criteria for local conditions, 
the permitting authority must apply such criteria, at a minimum, to any 
MS4 located outside of an urbanized area serving a jurisdiction with a 
population of at least 10,000 and a population density of 1,000 people 
per square mile or greater (see Sec. 123.35(b)(2)). If the NPDES 
permitting authority determines that an MS4 meets the criteria, the 
permitting authority must designate it as a regulated small MS4. This 
designation must occur within 3 years of publication of today's final 
rule. Alternatively, the NPDES authority can designate within 5 years 
from the date of final regulation if the designation criteria are 
applied on a watershed basis where a comprehensive watershed plan 
exists (a comprehensive watershed plan is one that includes the 
equivalents of TMDLs) (see Sec. 123.35(b)(3)). The extended 5 year 
deadline is intended to provide incentives for watershed-based 
designations. If an NPDES-authorized State or Tribe does not develop 
and apply designation criteria within this timeframe, then EPA has the 
opportunity to do so in lieu of the authorized State or Tribe.
    NPDES permitting authorities can designate any small MS4, including 
one below 10,000 in population and 1,000 in density. EPA established 
the 10,000/1,000 threshold based on the likelihood of adverse water 
quality impacts at these population and density levels. In addition, 
the 1,000 persons per square mile threshold is consistent with both the 
Bureau of the Census definition of an ``urbanized area'' (see Section 
II.H.2. below) and stakeholder discussions concerning the definition of 
a regulated small MS4.
    One commenter requested that EPA develop interim deadlines for 
development of designation criteria. EPA believes that the designation 
deadline identified in today's final rule at Sec. 123.35(b)(3) provides 
States and Tribes with a flexibility that allows them to develop and 
apply the criteria locally in a timely fashion, while at the same time 
establishing an expeditious deadline.
 c. Designate Physically Interconnected Small MS4s
    In addition to applying criteria on a local basis for potential 
designation, the NPDES permitting authority must designate any MS4 that 
contributes substantially to the pollutant loadings of a physically 
interconnected municipal separate storm sewer that is regulated by the 
NPDES program for storm water discharges (see Sec. 123.35(b)(4)). To be 
``physically interconnected,'' the MS4 of one entity, including roads 
with drainage systems and municipal streets, is physically connected 
directly to the municipal separate storm sewer of another entity. This 
provision applies to all MS4s located outside of an urbanized area. EPA 
added this section in recognition of the concerns of local government 
stakeholders that a local government should not have to shoulder total 
responsibility for a storm water program when storm water discharges 
from another MS4 are also contributing pollutants or adversely 
affecting water quality. This provision also helps to provide some 
consistency among MS4 programs and to facilitate watershed planning in 
the implementation of the NPDES storm water program. EPA recommended 
physical interconnectedness in the existing NPDES storm water 
regulations as a factor for consideration in the designation of 
additional sources.
    Today's final rule does not include interim deadlines for 
identifying physically interconnected MS4s. However, consistent with 
the deadlines identified in Sec. 123.35(b)(3) of today's final rule, 
EPA encourages the permitting authority to make these determinations 
within 3 years from the date of publication of the final rule or within 
5 years if the permitting authority is implementing a comprehensive 
watershed plan. Alternatively, the affected jurisdiction could use the 
petition process under 40 CFR 122.26(f) in seeking to have the 
permitting authority designate the contributing jurisdiction.
    Several commenters expressed concerns about who could be designated 
under this provision (Sec. 123.35(b)(4)). One commenter requested that 
the word ``substantially'' be deleted from the rule because they 
believe any MS4 that contributes at all to a physically interconnected 
municipal separate storm sewer should be regulated. EPA believes that 
the word ``substantially'' provides necessary flexibility to the 
permitting authorities. The permitting authority can decide if an MS4 
is contributing discharges to another municipal separate storm sewer in 
a manner that requires regulation. If the operator of a regulated 
municipal separate storm sewer believes that some of its pollutant 
loadings are coming from an unregulated MS4, it can petition the 
permitting authority to designate the unregulated MS4 for regulation.
d. Respond to Public Petitions for Designation
    Today's final rule reiterates the existing opportunity for the 
public to petition the permitting authority for designation of a point 
source to be regulated to protect water quality. The petition 
opportunity also appears in existing NPDES regulations at 40 CFR 
122.26(f). Any person may petition the permitting authority to require 
an NPDES permit for a discharge composed entirely of storm water that 
contributes to a violation of a water quality standard or is a 
significant contributor of pollutants to the waters of the United 
States (see Sec. 123.32(b)). The NPDES permitting authority must make a 
final determination on any petition within 180 days after receiving the 
petition (see Sec. 123.35(c)). EPA believes that a 180 day limit 
balances the public's need for a timely final determination with the 
NPDES permitting authority's need to prioritize its workload. If an 
NPDES-approved State or Tribe fails to act

[[Page 68746]]

within the 180-day timeframe, EPA may make a determination on the 
petition. EPA believes that public involvement is an important 
component of the NPDES program for storm water and feels that this 
provision encourages public participation. Section II.K, Public 
Involvement/Public Role, further discusses this topic.
3. Provide Waivers
    Today's rule provides two opportunities for the NPDES permitting 
authority to exempt certain small MS4s from the need for a permit based 
on water quality considerations. See Secs. 122.32(d) and (e). The two 
waiver opportunities have different size thresholds and take different 
approaches to considering the water quality impacts of discharges from 
the MS4.
    In the proposal, EPA requested comment on the option of waiving 
coverage for all MS4s with less than 1,000 people unless the permitting 
authority determined that the small MS4 should be regulated based on 
significant adverse water quality impacts. A number of commenters 
supported this option. They expressed concern that compliance with the 
rule requirements and certification of one of the waiver provisions 
were both costly for very small communities. They stated that the 
permitting authority should identify a water quality problem before 
requiring compliance. Today's rule essentially adopts this alternative 
approach for MS4s serving a population under 1,000.
    The final rule has expanded the waiver provision that EPA proposed 
for small MS4s with a population less than 1,000. The proposed rule 
would have required a small MS4 operator to certify that storm water 
controls are not needed based on either wasteload allocations that are 
part of TMDLs that address the pollutants of concern, or a 
comprehensive watershed plan implemented for the waterbody that 
includes the equivalents of TMDLs and addresses the pollutant(s) of 
concern. Commenters noted that the proposed waivers would be 
unattainable if a TMDL or equivalent analysis was required for every 
pollutant that could possibly be present in any amount in discharges 
from an MS4 regardless of whether the pollutant is causing water 
quality impairment. Commenters asked that EPA identify what constitutes 
the ``pollutant(s) of concern'' for which a TMDL or its equivalent must 
be developed. For example, Sec. 122.30(c) indicates that the MS4 
program is intended to control ``sediment, suspended solids, nutrients, 
heavy metals, pathogens, toxins, oxygen-demanding substances, and 
floatables.'' Commenters asked whether TMDLs or equivalent analyses 
have to address all of these.
    EPA has revised the proposed waiver in response to these concerns. 
Under today's rule, NPDES permitting authorities may waive the 
requirements of today's rule for any small MS4 with a population less 
than 1,000 that does not contribute substantially to the pollutant 
loadings of a physically interconnected MS4, unless the small MS4 
discharges pollutants that have been identified as a cause of 
impairment of the waters to which the small MS4 discharges. If the 
small MS4 does discharge pollutants that have been identified as 
impairing the water body into which the small MS4 discharges, the NPDES 
permitting authority may grant a waiver only if it determines that 
storm water controls are not needed based on an EPA approved or 
established TMDL that addresses the pollutant(s) of concern.
    Unlike the proposed rule, Sec. 122.32(d) does not allow the waiver 
for MS4s serving a population under 1,000 to be based on ``the 
equivalent of a TMDL.'' Because Sec. 122.32(d) requires a pollutant 
specific analysis only for a pollutant that has been identified as a 
cause of impairment, a TMDL is required for such pollutant before the 
waiver may be granted. Once a pollutant has been identified as the 
cause of impairment of a water body, the State should develop a TMDL 
for that pollutant for that water body. Thus, Sec. 122.32(d) takes a 
different approach than that taken for the waiver in Sec. 122.32(e) for 
MS4s serving a population under 10,000, which can be based upon an 
analysis that is ``the equivalent of a TMDL.'' This is because 
Sec. 122.32(d) requires an analysis to support the waiver for MS4s 
under 1,000 only if a waterbody to which the MS4 discharges has been 
identified as impaired. The Sec. 122.32(e) waiver, on the other hand, 
would be available for larger MS4s but only after the State 
affirmatively establishes lack of impairment based upon a comprehensive 
analysis of smaller urban waters that might not otherwise be evaluated 
for the purposes of CWA section 303. Since Sec. 122.32(e) requires the 
analysis of waters that have not been identified as impaired, an actual 
TMDL is not required and an analysis that is the equivalent of a TMDL 
can suffice to support the waiver.
    Where a State is the NPDES permitting authority, the permitting 
authority is responsible for the development of the TMDLs as well as 
the assessment of the extent to which a small MS4's discharge 
contributes pollutants to a neighboring regulated system. In States 
where EPA is the permitting authority, EPA will use a State's TMDLs to 
determine whether storm water controls are required for the small MS4s.
    The proposed rule would have required the operator of the small MS4 
serving a population under 1,000 to certify that its discharge was 
covered under a TMDL that indicated that discharges from its particular 
system were not having an adverse impact on water quality (i.e., it was 
either not assigned wasteload allocations under TMDLs or its discharge 
is within an assigned allocation). Many commenters expressed concerns 
that MS4 operators serving less than 1,000 persons may lack the 
technical capacity to certify that their discharges are not 
contributing to adverse water quality impacts. These commenters thought 
that the permitting authority should make such a certification. Today's 
rule provides flexibility as to how the waiver is administered. 
Permitting authorities are ultimately responsible for granting the 
waiver, but are free to determine whether or not to require small MS4 
operators that are seeking waivers to submit information or a written 
certification.
    Under Sec. 122.32(e) a State may grant a waiver to an MS4 serving a 
population between 1,000 and 10,000 only if the State has made a 
comprehensive effort to ensure that the MS4 will not cause or 
contribute to water quality impairment. To grant a Sec. 122.32(e) 
waiver, the NPDES permitting authority must evaluate all waters of the 
U.S. that receive a discharge from the MS4 and determine that storm 
water controls are not needed. The permitting authority's evaluation 
must be based on wasteload allocations that are part of an EPA approved 
or established TMDL or, if a TMDL has not been developed or approved, 
an equivalent analysis that determines sources and allocations for the 
pollutant(s) of concern. The pollutants of concern that the permitting 
authority must evaluate include biochemical oxygen demand (BOD), 
sediment or a parameter that addresses sediment (such as total 
suspended solids, turbidity or siltation), pathogens, oil and grease, 
and any other pollutant that has been identified as a cause of 
impairment of any water body that will receive a discharge from the 
MS4. Finally, the permitting authority must have determined that future 
discharges from the MS4 do not have the potential to result in 
exceedances of water quality standards, including impairment of 
designated uses, or other significant

[[Page 68747]]

water quality impacts, including habitat and biological impacts.
    Although EPA did not propose this specific approach, the Agency did 
request comment on whether to increase the proposed 1,000 population 
threshold for a waiver. The Sec. 122.32(e) waiver was developed in 
response to comments, including States' concerns that they needed 
greater flexibility to focus their efforts on MS4s that were causing 
water quality impairment. Several commenters thought that the threshold 
should be increased from 1,000 to 5,000 or 10,000. Others suggested 
additional ways of qualifying for a waiver for MS4s that discharge to 
waters that are not covered by a TMDL or watershed plan. EPA carefully 
considered all the options for expanding the waiver provisions and has 
decided to expand the waiver only in the very narrow circumstances 
described above where a comprehensive analysis has been undertaken to 
demonstrate that the MS4 is not causing water quality impairment.
    The NPDES permitting authority can, at any time, mandate compliance 
with program requirements from a previously waived small MS4 if 
circumstances change. For example, a waiver can be withdrawn in 
circumstances where the permitting authority later determines that a 
waived small MS4's storm water discharge to a small stream will cause 
adverse impacts to water quality or significantly interfere with 
attainment of water quality standards. A ``change in circumstances'' 
could involve receipt of new information. Changed circumstances can 
also allow a regulated small MS4 operator to request a waiver at any 
time.
    Some commenters expressed concerns about allowing any small MS4 
waivers. One commenter stated that storm water pollution prevention 
plans are necessary to control storm water pollution and should be 
required from all regulated small MS4s. For the reasons stated in the 
Background section above, EPA agrees that the discharges from most MS4s 
in urbanized areas should be addressed by a storm water management 
program outlined in today's rule. For MS4s serving very small areas, 
however, the TMDL development process provides an opportunity to 
determine whether an MS4 serving a population less than 1,000 is having 
a negative impact on any receiving water that is impaired by a 
pollutant that the MS4 discharges. MS4s serving populations up to 
10,000 may receive a waiver only if a comprehensive analysis of its 
impact on receiving water has been performed.
    Other commenters said that waivers should not be allowed for small 
MS4s that discharge into another regulated MS4. These commenters stated 
that the word ``substantially'' should be removed from 
Sec. 122.32(d)(i) so that a waiver would not be allowed for any system 
``contributing to the storm water pollutant loadings of a physically 
interconnected regulated MS4.'' As previously mentioned under the 
designation discussion of section II.G.2.c, EPA believes that the word 
``substantially'' provides needed flexibility to the permitting 
authorities. It is important to note that this is only one aspect that 
the permitting authority must consider when deciding on the 
appropriateness of a waiver.
4. Issue Permits
    NPDES permitting authorities have a number of responsibilities 
regarding the permit process. Sections 123.35(d) through (g) ensure a 
certain level of consistency for permits, yet provide numerous 
opportunities for flexibility. NPDES permitting authorities must issue 
NPDES permits to cover municipal sources to be regulated under 
Sec. 122.32, unless waived under Sec. 122.32(c). EPA encourages 
permitting authorities to use general permits as the vehicle for 
permitting and regulating small MS4s. The Agency notes, however, that 
some operators may wish to take advantage of the option to join as a 
co-permittee with an MS4 regulated under the existing NPDES storm water 
program.
    Today's final rule includes a provision, Sec. 123.35(f), that 
requires NPDES permitting authorities to either include the 
requirements in Sec. 122.34 for NPDES permits issued for regulated 
small MS4s or to develop permit limits based on a permit application 
submitted by a small MS4. See Section II.H.3.a, Minimum Control 
Measures, for more details on the actual Sec. 122.34 requirements. See 
Section II.H.3.c for alternative and joint permitting options.
    In an attempt to avoid duplication of effort, Sec. 122.34(c) allows 
NPDES permitting authorities to include permit conditions that direct 
an MS4 to meet the requirements of a qualifying local, Tribal, or State 
municipal storm water management program. For a local, Tribal, or State 
program to ``qualify,'' it must impose, at a minimum, the relevant 
requirements of Sec. 122.34(b). A regulated small MS4 must still follow 
the procedural requirements for an NPDES permit (i.e., submit an 
application, either an individual application or an NOI under a general 
permit) but will instead follow the substantive pollutant control 
requirements of the qualifying local, Tribal, or State program.
    Under Sec. 122.35(b), NPDES permitting authorities may also 
recognize existing responsibilities among governmental entities for the 
minimum control measures in an NPDES small MS4 storm water permit. For 
example, the permit might acknowledge the existence of a State 
administered program that addresses construction site runoff and 
require that the municipalities only develop substantive controls for 
the remaining minimum control measures. By acknowledging existing 
programs, this provision is meant to reduce the duplication of efforts 
and to increase the flexibility of the NPDES storm water program.
    Section 123.35(e) of today's final rule requires permitting 
authorities to specify a time period of up to 5 years from the issuance 
date of an NPDES permit for regulated small MS4 operators to fully 
develop and implement their storm water programs. As discussed more 
fully below, permitting authorities should be providing extensive 
support to the local governments to assist them in developing and 
implementing their programs.
    In the proposed rule, EPA stated that the permitting authority 
would develop the menu of BMPs and if they failed to do so, EPA would 
develop the menu. Commenters felt that EPA should develop a menu of 
BMPs, rather than just providing guidance. In the settlement agreement 
for seeking an extension to the deadline for issuing today's rule, EPA 
committed to developing a menu of BMPs by October 27, 2000. Permitting 
authorities can adopt EPA's menu or develop their own. The menu itself 
is not intended to replace more comprehensive BMP guidance materials. 
As part of the tool box efforts, EPA will provide separate guidance 
documents that discuss the results from EPA-sponsored nationwide 
studies on the design, operation and maintenance of BMPs. Additionally, 
EPA expects that the new rulemaking on construction BMPs may provide 
more specific design, operation and maintenance criteria.
5. Support and Oversee the Local Programs
    NPDES permitting authorities are responsible for supporting and 
overseeing the local municipal programs. Section 123.35(h) of today's 
final rule highlights issues associated with these responsibilities.
    To the extent possible, NPDES permitting authorities should provide 
financial assistance to MS4s, which

[[Page 68748]]

often have limited resources, for the development and implementation of 
local programs. EPA recognizes that funding for programs at the State 
and Tribal levels may also be limited, but strongly encourages States 
and Tribes to provide whatever assistance is possible. In lieu of 
actual dollars, NPDES permitting authorities can provide cost-cutting 
assistance in a number of ways. For example, NPDES permitting 
authorities can develop outreach materials for MS4s to distribute or 
the NPDES permitting authority can actually distribute the materials. 
Another option is to implement an erosion and sediment control program 
across an entire State (or Tribal land), thus alleviating the need for 
the MS4 to implement its own program. The NPDES permitting authority 
must balance the need for site-specific controls, which are best 
handled by a local MS4, with its ability to offer financial assistance. 
EPA, States, Tribes, and MS4s should work as a team in making these 
kinds of decisions.
    NPDES permitting authorities are responsible for overseeing the 
local programs. Permitting authorities should work with the regulated 
community and other stakeholders to assist in local program development 
and implementation. This might include sharing information, analyzing 
reports, and taking enforcement actions, as necessary. NPDES permitting 
authorities play a vital role in supporting local programs by providing 
technical and programmatic assistance, conducting research projects, 
and monitoring watersheds. The NPDES permitting authority can also 
assist the MS4 permittee in obtaining adequate legal authority at the 
local level in order to implement the local component of the CWA 
section 402(p)(6) program.
    NPDES permitting authorities are encouraged to coordinate and 
utilize the data collected under several programs. States and Tribes 
address point and nonpoint source storm water discharges through a 
variety of programs. In developing programs to carry out CWA section 
402(p)(6), EPA recommends that States and Tribes coordinate all of 
their water pollution evaluation and control programs, including the 
continuing planning process under CWA section 303(e), the existing 
NPDES program, the CZARA program, and nonpoint source pollution control 
programs.
    In addition, NPDES permitting authorities are encouraged to provide 
a brief (e.g., two-page) reporting format to facilitate compilation and 
analysis of data from reports submitted under Sec. 122.34(g)(3). EPA 
intends to develop a model form for this purpose.

H. Municipal Role

1. Scope of Today's Rule
    Today's final rule attempts to establish an equitable and 
comprehensive four-pronged approach for the designation of municipal 
sources. First, the approach defines for automatic coverage the 
municipal systems believed to be of highest threat to water quality. 
Second, the approach designates municipal systems that meet a set of 
objective criteria used to measure the potential for water quality 
impacts. Third, the approach designates on a case-by-case basis 
municipal systems that ``contribute substantially to the pollutant 
loadings of a physically-interconnected [regulated] MS4.'' Finally, the 
approach designates on a case-by-case basis, upon petition, municipal 
systems that ``contribute to a violation of a water quality standard or 
are a significant contributor of pollutants.''
    Today's final rule automatically designates for regulation small 
MS4s located in urbanized areas, and requires that NPDES permitting 
authorities examine for potential designation, at a minimum, a 
particular subset of small MS4s located outside of urbanized areas. 
Today's rule also includes provisions that allow for waivers from the 
otherwise applicable requirements for the smallest MS4s that are not 
causing impairment of a receiving water body. Qualifications for the 
waivers vary depending on whether the MS4 serves a population under 
1,000 or a population under 10,000. See Secs. 122.32(d) and (e). These 
waivers are discussed further in section II.G.3. Any small MS4 
automatically designated by the final rule or designated by the 
permitting authority under today's final rule is defined as a 
``regulated'' small MS4 unless it receives a waiver.
    In today's final rule, all regulated small MS4s must establish a 
storm water discharge control program that meets the requirements of 
six minimum control measures. These minimum control measures are public 
education and outreach on storm water impacts, public involvement 
participation, illicit discharge detection and elimination, 
construction site storm water runoff control, post-construction storm 
water management in new development and redevelopment, and pollution 
prevention/good housekeeping for municipal operations.
    Today's rule allows for a great deal of flexibility in how an 
operator of a regulated small MS4 is authorized to discharge under an 
NPDES permit, by providing various options for obtaining permit 
coverage and satisfying the required minimum control measures. For 
example, the NPDES permitting authority can incorporate by reference 
qualifying State, Tribal, or local programs in an NPDES general permit 
and can recognize existing responsibilities among different 
governmental entities for the implementation of minimum control 
measures. In addition, a regulated small MS4 can participate in the 
storm water management program of an adjoining regulated MS4 and can 
arrange to have another governmental entity implement a minimum control 
measure on their behalf.
2. Municipal Definitions
a. Municipal Separate Storm Sewer Systems (MS4s)
    The CWA does not define the term ``municipal separate storm 
sewer.'' EPA defined municipal separate storm sewer in the existing 
storm water permit application regulations to mean, in part, a 
conveyance or system of conveyances (including roads with drainage 
systems and municipal streets) that is ``owned or operated by a State, 
city, town borough, county, parish, district, association, or other 
public body * * * designed or used for collecting or conveying storm 
water which is not a combined sewer and which is not part of a Publicly 
Owned Treatment Works as defined at 40 CFR 122.2'' (see 
Sec. 122.26(b)(8)(i)). Section 122.26 contains definitions of medium 
and large municipal separate storm sewer systems but no definition of a 
municipal separate storm sewer system, even though the term MS4 is 
commonly used. In today's rule, EPA is adding a definition of municipal 
separate storm sewer system and small municipal separate storm sewer 
system along with the abbreviations MS4 and small MS4.
    The existing municipal permit application regulations define 
``medium'' and ``large'' MS4s as those located in an incorporated place 
or county with a population of at least 100,000 (medium) or 250,000 
(large) as determined by the latest Decennial Census (see 
Secs. 122.26(b)(4) and 122.26(b)(7)). In today's final rule, these 
regulations have been revised to define all medium and large MS4s as 
those meeting the above population thresholds according to the 1990 
Decennial Census.
    Today's rule also corrects the titles and contents of Appendices F, 
G, H,& I to Part 122. EPA is adding those incorporated places and 
counties whose 1990 population caused them to be defined as a 
``medium'' or ``large'' MS4. All of these MS4s have applied for

[[Page 68749]]

permit coverage so the effect of this change to the appendices is 
simply to make them more accurate. They will not need to be revised 
again because today's rule ``freezes'' the definition of ``medium'' and 
``large'' MS4s at those that qualify based on the 1990 census.
    EPA received several comments supporting and opposing the proposal 
to ``freeze'' the definitions based on the 1990 census. Commenters who 
disagreed with EPA's position cited the unfairness of municipalities 
that reach the medium or large threshold at a later date having fewer 
permitting requirements compared to those that were already at the 
population thresholds when the existing storm water regulations took 
effect. EPA recognizes this disparity but does not believe it is 
unfair, as explained in the proposed rule. The decision was based on 
the fact that the deadlines from the existing regulations have lapsed, 
and because the permitting authority can always require more from 
operators of MS4s serving ``newly over 100,000'' populations.
b. Small Municipal Separate Storm Sewer Systems
    The proposal to today's final rule added ``the United States'' as a 
potential owner or operator of a municipal separate storm sewer. This 
addition was intended to address an omission from existing regulations 
and to clarify that federal facilities are, in fact, covered by the 
NPDES program for municipal storm water discharges when the federal 
facility is like other regulated MS4s. EPA received a comment that this 
change would cause federal facilities located in Phase 1 areas to be 
considered Phase 1 dischargers due to the definition of medium and 
large MS4s. All MS4s located in Phase 1 cities or counties are defined 
as Phase 1 medium or large MS4s. EPA believes that all federal 
facilities serve a population of under 100,000 and should be regulated 
as small MS4s. Therefore, in Sec. 122.26(a)(16) of today's final rule, 
EPA is adding federal facilities to the NPDES storm water discharge 
control program by changing the proposed definition of small municipal 
separate storm sewer system. Paragraph (i) of this section restates the 
definition of municipal separate storm sewer with the addition of ``the 
United States'' as a owner or operator of a small municipal separate 
storm sewer. Paragraph (ii) repeats the proposed language that states 
that a small MS4 is a municipal separate storm sewer that is not medium 
or large.
    Most commenters agreed that federal facilities should be covered in 
the same way as other similar MS4s. However, EPA received several 
comments asking whether individual federal buildings such as post 
offices or urban offices of the U.S. Park Service must apply for 
coverage as regulated small MS4s. Most of these buildings have, at 
most, a parking lot with runoff or a storm sewer that connects with a 
municipality's MS4. In Sec. 122.26(a)(16)(iii), EPA clarifies that the 
definition of small MS4 does not include individual buildings. These 
buildings may have a municipal separate storm sewer but they do not 
have a ``system'' of conveyances. The minimum measures for small MS4s 
were written to apply to storm sewer ``systems'' providing storm water 
drainage service to human populations and not to individual buildings. 
This is true of municipal separate storm sewers from State buildings as 
well as from federal buildings.
    There will likely be situations where the permitting authority must 
decide if a federal or State complex should be regulated as a small 
MS4. A federal complex of two or three buildings could be treated as a 
single building and not be required to apply for coverage. In these 
situations, permitting authorities will have to use their best judgment 
as to the nature of the complex and its storm water conveyance system. 
Permitting authorities should also consider whether the federal or 
State complex cooperates with its municipality's efforts to implement 
their storm water management program.
    Along with the questions about individual buildings, EPA received 
many questions about how various provisions of the rule should be 
interpreted for federal and State facilities. EPA acknowledges that 
federal and State facilities are different from municipalities. EPA 
believes, however, that the minimum measures are flexible enough that 
they can be implemented by these facilities. As an example, DOD 
commenters asked about how to interpret the term ``public'' for 
military installations when implementing the public education measure. 
EPA agrees with the suggested interpretation of ``public'' for DOD 
facilities as ``the resident and employee population within the fence 
line of the facility.''
    EPA also received many comments from State departments of 
transportation (DOTs) that suggested the ways in which they are 
different from municipalities and should therefore be regulated 
differently. Storm water discharges from State DOTs in Phase 1 areas 
should already be regulated under Phase I. The preamble to Phase 1 
clearly states that ``all systems within a geographical area including 
highways and flood control districts will be covered.'' Many permitting 
authorities regulated State DOTs as co-permittees with the Phase 1 
municipality in which the highway is located. State DOTs that are 
already regulated under Phase I are not required to comply with Phase 
II. State DOTs that are not already regulated have various options for 
meeting the requirements of today's rule. These options are discussed 
in Section II.H.3.c.iv below. Several DOTs commented that some of the 
minimum measures are outside the scope of their mission or that they do 
not have the legal authority required for implementation. EPA believes 
that the flexibility of the minimum measures allows them to be 
implemented by most MS4s, including DOTs. When a DOT does not have the 
necessary legal authority, EPA encourages the DOT to coordinate their 
storm water management efforts with the surrounding municipalities and 
other State agencies. Under today's rule, DOTs can use any of the 
options of Sec. 122.35 to share their storm water management 
responsibilities. DOTs may also want to work with their permitting 
authority to develop a State-wide DOT storm water permit.
    There are many storm water discharges from State DOTs and other 
State MS4s located in Phase 1 areas that were not regulated under Phase 
1. Today's rule adds many more State facilities as well as all federal 
facilities located in urbanized areas. All of these State and federal 
facilities that fit the definition of a small MS4 must be covered by a 
storm water management program. The individual permitting authorities 
must decide what type of permit is most applicable.
    The existing NPDES storm water program already regulates storm 
water from federally or State-operated industrial sources. Federal or 
State facilities that are currently regulated due to their industrial 
discharges may already be implementing some of today's rule 
requirements.
    EPA received comments that questioned the apparent inconsistency 
between regulating a federal facility such as a hospital and not 
regulating a similar private facility. Normally, this type of private 
facility is regulated by the MS4. EPA believes that federal facilities 
are subject to local water quality regulations, including storm water 
requirements, by virtue of the waiver of sovereign immunity in CWA 
section 313. However, there are special problems faced by MS4s in their 
efforts to regulate federal facilities that have not been encountered 
in regulating

[[Page 68750]]

similar private facilities. To ensure comprehensive coverage, today's 
rule merely clarifies the need for permit coverage for these federal 
facilities.
    i. Combined Sewer Systems (CSS). The definition of small MS4s does 
not include combined sewer systems. A combined sewer system is a 
wastewater collection system that conveys sanitary wastewater and storm 
water through a single set of pipes to a publicly-owned treatment works 
(POTW) for treatment before discharging to a receiving waterbody. 
During wet weather events when the capacity of the combined sewer 
system is exceeded, the system is designed to discharge prior to the 
POTW treatment plant directly into a receiving waterbody. Such an 
overflow is a combined sewer overflow or CSO. Combined sewer systems 
are not subject to existing regulations for municipal storm water 
discharges, nor will they be subject to today's regulations. EPA 
addresses combined sewer systems and CSOs in the National Combined 
Sewer Overflow (CSO) Control Policy issued on April 19, 1994 (59 FR 
18688). The CSO Control Policy contains provisions for developing 
appropriate, site-specific NPDES permit requirements for combined sewer 
systems. CSO discharges are subject to limitations based on the best 
available technology economically achievable for toxic pollutants and 
based on the best conventional pollutant control technology for 
conventional pollutants. MS4s are subject to a different technology 
standard for all pollutants, specifically to reduce pollutants to the 
maximum extent practicable.
    Some municipalities are served by both separate storm sewer systems 
and combined sewer systems. If such a municipality is located within an 
urbanized area, only the separate storm sewer systems within that 
municipality is included in the NPDES storm water program and subject 
to today's final rule. If the municipality is not located in an 
urbanized area, then the NPDES permitting authority has discretion as 
to whether the discharges from the separate storm sewer system is 
subject to today's final rule. The NPDES permitting authority will use 
the same process to designate discharges from portions of an MS4 for 
permit coverage where the municipality is also served by a combined 
sewer system.
    EPA recognizes that municipalities that have both combined and 
separate storm sewer systems may wish to find ways to develop a unified 
program to meet all wet weather water pollution control requirements 
more efficiently. In the proposal to today's final rule, EPA sought 
comment on ways to achieve such a unified program. Many municipalities 
that are served by CSSs and MS4s commented that it is inequitable to 
force them to comply with Phase II at this time because implementation 
of the CSO Control Policy through their NPDES permits already imposes a 
significant financial burden. They requested an extension of the 
implementation time frame. They did not provide ideas on how to unify 
the two programs. EPA encourages permitting authorities to work with 
these municipalities as they develop and begin implementation of their 
CSO and storm water management programs. If both sets of requirements 
are carefully coordinated early, a cost-effective wet weather program 
can be developed that will address both CSO and storm water 
requirements.
    ii. Owners/Operators. Several commenters mentioned the difference 
between the existing storm water application requirement for municipal 
operators and the proposed municipal requirement for owners or 
operators to apply. They felt that this inconsistency is confusing. The 
preamble to the existing regulations makes numerous references to 
owner/operator so there was no intent to make a clear distinction 
between Phase I and Phase II. Section 122.21(b) states that when the 
owner and operator are different, the operator must obtain the permit. 
MS4s often have several operators. The owner may be responsible for one 
part of the system and a regional authority may be responsible for 
other aspects. EPA proposed the ``owner or operator'' language to 
convey this dual responsibility. However, when the owner is responsible 
for some part of a storm water management plan, it is also an operator.
    EPA has revised the regulation language to clarify that ``an 
operator'' must apply for a permit. When responsibilities for the MS4 
are shared, all operators must apply.
c. Regulated Small MS4s
    In today's final rule, all small MS4s located in an urbanized area 
are automatically designated as ``regulated'' small MS4s provided that 
they were not previously designated into the existing storm water 
program. Unlike medium and large MS4s under the existing storm water 
regulations, not all small MS4s are designated under today's final 
rule. Therefore, today's rule distinguishes between ``small'' MS4s and 
``regulated small'' MS4s.
    EPA's definition of ``regulated small MS4s'' in the proposal to 
today's rule included mention of incorporated places and counties. 
Along with the definition, EPA included Appendices 6 and 7 to assist in 
the identification of areas that would probably require coverage as 
``automatically designated'' (Appendix 6) or ``potentially designated'' 
(Appendix 7). The definition and the appendices raised many questions 
about exactly who was required to comply with the proposed 
requirements. Commenters raised issues about the definition of 
``incorporated place'' and the status of towns, townships, and other 
places that are not considered incorporated by the Census Bureau. They 
also asked about special districts, regional authorities, MS4s already 
regulated, and other questions in order to clarify the rule's coverage.
    EPA has revised Sec. 122.32(a) to clarify that discharges are 
regulated under today's rule if they are from a small MS4 that is in an 
urbanized area and has not received a waiver or they are designated by 
the permitting authority. Today's rule does not regulate the county, 
city, or town. Today's rule regulates the MS4. Therefore, even though a 
county may be listed in Appendix 6, if that county does not own or 
operate the municipal storm sewer systems, the county does not have to 
submit an application or develop a storm water management program. If 
another entity does own or operate an MS4 within the county, for 
example, a regional utility district, that other entity needs to submit 
the application and develop the program.
    Some commenters suggested that EPA should change the rule language 
to specifically allow regional authorities to be the permitted entity 
and to allow small MS4s to apply as co-permittees. EPA believes that 
the best way to clarify that regional authorities can be the primary 
permitted entity is the change to Sec. 122.32(a) and the explanation 
above. Because EPA assumes that today's regulation will be implemented 
through general permits, MS4s will not be co-permittees under a general 
permit in the same manner as under individual permits. EPA has added 
Sec. 122.33(a)(4) and made a minor change to Sec. 122.35(a) to clarify 
that small MS4s can work together to share the responsibilities of a 
storm water management program. This is discussed further in Section 
II.H.3.c.iv below.
    The proposed rule stated that when a county or Federal Indian 
reservation is only partially included in an urbanized area, only MS4s 
in the urbanized portion of the county or Federal Indian reservation 
would be regulated. In the rare cases when an incorporated place is 
only partially included in the urbanized area, the entire incorporated 
place would be regulated. EPA received comments asking about towns and

[[Page 68751]]

townships, because they were not considered to be incorporated areas 
according to the Census Bureau's definition. Would the whole town/
township be covered or only the part of the town/township in the 
urbanized area? States use many different types of systems in their 
geographical divisions. Some towns are similar to incorporated cities 
and others are large areas that are more similar to counties. Some 
commenters thought that the urbanized area boundary was arbitrary, and 
if part of a town or county was covered, it all should be covered. 
Other commenters noted that some townships and counties encompass very 
large areas of which only a small portion is urbanized. Due to the 
great variety of situations, EPA has decided that for all geographical 
entities, only MS4s in the urbanized area are automatically designated. 
The population densities associated with the Census Bureau's 
designation of urbanized areas provide the basis for designation of 
these areas to protect water quality. This focused designation provides 
for consistency and allows for flexibility on the part of the MS4 and 
the permitting authority. In those situations where an incorporated 
place or a town is not all in an ``urbanized area'', there is a good 
possibility that it is served by more than one MS4. In those cases 
where the area is served by the same MS4, it makes sense to develop a 
storm water program for the whole area. Permitting authorities may also 
decide to designate all MS4s within a county or township, if they 
believe it is necessary to protect water quality.
    Most operators of MS4s will not need to independently determine the 
status of coverage under today's rule. EPA has revised the proposed 
Appendices 6 and 7 to include towns and townships. Therefore, these 
appendices will alert most MS4s as to whether they are likely to be 
covered under today's rule. However, each permitting authority must 
make the decision as to who requires coverage. Most likely, an 
illustrative list of the regulated areas will be published with the 
general permit. If not, the operator can contact its permitting 
authority or the Bureau of the Census to find out if their separate 
storm sewer systems are within an urbanized area.
    i. Urbanized Area Description. Under the Bureau of the Census 
definition of ``urbanized area,'' adopted by EPA for the purposes of 
today's final rule, ``an urbanized area (UA) comprises a place and the 
adjacent densely settled surrounding territory that together have a 
minimum population of 50,000 people.'' The proposal to today's rule 
provided the full definition and case studies to help explain the 
census category of ``urbanized area.'' Appendix 2 is a simplified 
urbanized area illustration to help demonstrate the concept of 
urbanized areas in relation to today's final rule. The ``urbanized 
area'' is the shaded area that includes within its boundaries 
incorporated places, a portion of a Federal Indian reservation, 
portions of two counties, an entire town, and portions of another town. 
All small MS4s located in the shaded area are covered by the rule, 
unless and until waived by the permitting authority. Any small MS4s 
located outside of the shaded area are subject to potential designation 
by the permitting authority.
    There are 405 urbanized areas in the United States that cover 2 
percent of total U.S. land area and contain approximately 63 percent of 
the nation's population (see Appendix 3 for a listing of urbanized 
areas of the United States and Puerto Rico). These numbers include U.S. 
Territories, although Puerto Rico is the only territory to have Census-
designated urbanized areas. Urbanized areas constitute the largest and 
most dense areas of settlement. The purpose of determining an 
``urbanized area'' is to delineate the boundaries of development and 
map the actual built-up urban area. The Bureau of the Census 
geographers liken it to flying over an urban area and drawing a line 
around the boundary of the built-up area as seen from the air.
    Using data from the latest decennial census, the Census Bureau 
applies the urbanized area definition nationwide (including U.S. Tribes 
and Territories) and determines which places and counties are included 
within each urbanized area. For each urbanized area, the Bureau 
provides full listings of who is included, as well as detailed maps and 
special CD-ROM files for use with computerized mapping systems (such as 
GIS). Each State's data center receives a copy of the list, and some 
maps, automatically. The States also have the CD-ROM files and a 
variety of publications available to them for reference from the Bureau 
of the Census. In addition, local or regional planning agencies may 
have urbanized area files already. New listings for urbanized areas 
based on the 2000 Census will be available by July/August 2001, but the 
more comprehensive computer files will not be available until late 
2001/early 2002.
    Additional designations based on subsequent census years will be 
governed by the Bureau of the Census' definition of an urbanized area 
in effect for that year. Based on historical trends, EPA expects that 
any area determined by the Bureau of the Census to be included within 
an urbanized area as of the 1990 Census will not later be excluded from 
the urbanized area as of the 2000 Census. However, it is important to 
note that even if this situation were to occur, for example, due to a 
possible change in the Bureau of the Census' urbanized area definition, 
a small MS4 that is automatically designated into the NPDES program for 
storm water under an urbanized area calculation for any given Census 
year will remain regulated regardless of the results of subsequent 
urbanized area calculations.
    ii. Rationale for Using Urbanized Areas. EPA is using urbanized 
areas to automatically designate regulated small MS4s on a nationwide 
basis for several reasons: (1) studies and data show a high correlation 
between degree of development/ urbanization and adverse impacts on 
receiving waters due to storm water (U.S. EPA, 1983; Driver et al., 
1985; Pitt, R.E. 1991. ``Biological Effects of Urban Runoff 
Discharges.'' Presented at the Engineering Foundation Conference: Urban 
Runoff and Receiving Systems; An Interdisciplinary Analysis of Impact, 
Monitoring and Management, August 1991. Mt. Crested Butte, CO. American 
Society of Civil Engineers, New York. 1992.; Pitt, R.E. 1995. 
``Biological Effects of Urban Runoff Discharges,'' in Storm water 
Runoff and Receiving Systems: Impact, Monitoring, and Assessment. Lewis 
Publishers, New York.; Galli, J. 1990. Thermal Impacts Associated with 
Urbanization and Storm water Management Best Management Practices. 
Prepared for the Sediment and Storm water Administration of the 
Maryland Department of the Environment.; Klein, 1979), (2) the blanket 
coverage within the urbanized area encourages the watershed approach 
and addresses the problem of ``donut-holes,'' where unregulated areas 
are surrounded by areas currently regulated (storm water discharges 
from donut hole areas present a problem due to their contributing 
uncontrolled adverse impacts on local waters, as well as by frustrating 
the attainment of water quality goals of neighboring regulated 
communities), (3) this approach targets present and future growth areas 
as a preventative measure to help ensure water quality protection, and 
(4) the determination of urbanized areas by the Bureau of the Census 
allows operators of small MS4s to quickly determine whether they are 
included in the NPDES storm water program as a regulated small MS4.
    Urbanized areas have experienced significant growth over the past 
50 years. According to EPA calculations

[[Page 68752]]

based on Census data from 1980 to 1990, the national average rate of 
growth in the United States during that 10-year period was more than 4 
percent. For the same period, the average growth within urbanized areas 
was 15.7 percent and the average for outside of urbanized areas was 
just more than 1 percent. The new development occurring in these 
growing areas can provide some of the best opportunities for 
implementing cost-effective storm water management controls.
    EPA received many comments on the proposal to designate discharges 
based on location within urbanized areas. EPA considered numerous other 
approaches, several of which are discussed in the proposal to today's 
final rule. Several commenters wanted designation to be based on proven 
water quality problems rather than inclusion in an urbanized area. One 
commenter proposed an approach based on the CWA 303(d) listing of 
impaired waters and the wasteload allocation conducted under the TMDL 
process. (See section II.L. on the section 303(d) and TMDL process). 
The commenter's proposal would designate small MS4s on a case-by-case 
basis, covering only those discharges where receiving streams are shown 
to have water quality problems, particularly a failure to meet water 
quality standards, including designated uses. The commenter further 
described a non-NPDES approach where a State would require cost-
effective measures based on a proportionate share under a waste load 
allocation, equitably allocated among all pollutant contributors. These 
waste load allocations would be developed with input from all 
stakeholders, and remedial measures would be implemented in a phased 
manner based on the probability of results and/or economic feasibility. 
The States would then periodically reassess the receiving streams to 
determine whether the remedial measures are working, and if not, 
require additional control measures using the same procedure used to 
establish the initial measures. What the commenter describes is almost 
a TMDL.
    EPA considered a remedial approach based on water quality 
impairment and rejected it for failure to prevent almost certain 
degradation caused by urban storm water. EPA's main concern in opting 
not to take a case-by-case approach to designation was that this 
approach would not provide controls for storm water discharges in 
receiving streams until after a site-specific demonstration of adverse 
water quality impact. The commenter's suggestion would do nothing to 
prevent pollution in waters that may be meeting water quality 
standards, including supporting designated uses. The approach would 
also rely on identifying storm water management programs following 
comprehensive watershed plans and TMDL development. In most States, 
water quality assessments have traditionally been conducted for 
principal mainstream rivers and their major tributaries, not all 
surface waters. The establishment of TMDLs nationwide will take many 
years, and many States will conduct additional monitoring to determine 
water quality conditions prior to establishing TMDLs. In addition, a 
case-by-case approach would not address the problem of ``donut holes'' 
within urbanized areas and a lack of consistency among similarly 
situated municipal systems would remain commonplace. After careful 
consideration of all comments, EPA still believes that the approach in 
today's rule is the most appropriate to protect water quality. 
Protection includes prevention as well as remediation.
d. Municipal Designation by the Permitting Authority
    Today's final rule also allows NPDES permitting authorities to 
designate MS4s that should be included in the storm water program as 
regulated small MS4s but are not located within urbanized areas. The 
final rule requires, at a minimum, that a set of designation criteria 
be applied to all small MS4s within a jurisdiction that serves a 
population of at least 10,000 and has a population density of at least 
1,000. Appendix 7 to this preamble provides an illustrative list of 
places that the Agency anticipates meet this criteria. In addition, any 
small MS4 may be the subject of a petition to the NPDES permitting 
authority for designation. See Section II.G, NPDES Permitting 
Authority's Role for more details on the designation and petition 
processes. EPA believes that the approach of combining nationwide and 
local designation to determine municipal coverage balances the 
potential for significant adverse impacts on water quality with local 
watershed protection and planning efforts.
e. Waiving the Requirements for Small MS4s
    Today's final rule includes some flexibility in the nationwide 
coverage of all small MS4s located in urbanized areas by providing the 
NPDES permitting authority with the discretion to waive the otherwise 
applicable requirements of the smallest MS4s that are not causing the 
impairment of a receiving water body. Qualifications for the waiver 
vary depending on whether the MS4 serves a population under 1,000 or a 
population between 1,000 and 10,000. Note that even if a small MS4 has 
requirements waived, it can subsequently be brought back into the 
program if circumstances change. See Section II.G, NPDES Permitting 
Authority's Role, for more details on this process.
3. Municipal Permit Requirements
a. Overview
    i. Summary of Permitting Options. Today's rule outlines six minimum 
control measures that constitute the framework for a storm water 
discharge control program for regulated small MS4s that, when properly 
implemented, will reduce pollutants to the maximum extent practicable 
(MEP). These six minimum control measures are specified in 
Sec. 122.34(b) and are discussed below in section ``II.H.3.b, Program 
Requirements-Minimum Control Measures.'' All operators of regulated 
small MS4s are required to obtain coverage under an NPDES permit, 
unless the requirement is waived by the permitting authority in 
accordance with today's rule. Implementation of Sec. 122.34(b) may be 
required either through an individual permit or, if the State or EPA 
makes one available to the facility, through a general permit. The 
process for issuing and obtaining these permits is discussed below in 
section ``II.H.3.c, Application Requirements.''
    As an alternative to implementing a program that complies with the 
requirements of Sec. 122.34, today's rule provides operators of 
regulated small MS4s with the option of applying for an individual 
permit under Sec. 122.26(d). The permit application requirements in 
Sec. 122.26 were originally drafted to apply to medium and large MS4s. 
Although EPA believes that the requirements of Sec. 122.34 provide a 
regulatory option that is appropriate for most small MS4s, the 
operators of some small MS4s may prefer more individualized 
requirements. This alternative permitting option for regulated small 
MS4s that wish to develop their own program is discussed below in 
section ``II.H.3.c.iii. Alternative Permit Option.'' The second 
alternative permitting option for regulated small MS4s is to become co-
permittees with a medium or large MS4 regulated under Sec. 122.26(d), 
as discussed below in section ``II.H.3.c.v. Joint Permit Programs.''
    ii. Water Quality-Based Requirements. Any NPDES permit issued under 
today's rule must, at a minimum, require the operator to develop, 
implement, and

[[Page 68753]]

enforce a storm water management program designed to reduce the 
discharge of pollutants from a regulated system to the MEP, to protect 
water quality, and satisfy the appropriate water quality requirements 
of the Clean Water Act (see MEP discussion in the following section). 
Absent evidence to the contrary, EPA presumes that a small MS4 program 
that implements the six minimum measures in today's rule does not 
require more stringent limitations to meet water quality standards. 
Proper implementation of the measures will significantly improve water 
quality. As discussed further below, however, small MS4 permittees 
should modify their programs if and when available information 
indicates that water quality considerations warrant greater attention 
or prescriptiveness in specific components of the municipal program. If 
the program is inadequate to protect water quality, including water 
quality standards, then the permit will need to be modified to include 
any more stringent limitations necessary to protect water quality.
    Regardless of the basis for the development of the effluent 
limitations (whether designed to implement the six minimum measures or 
more stringent or prescriptive limitations to protect water quality), 
EPA considers narrative effluent limitations requiring implementation 
of BMPs to be the most appropriate form of effluent limitations for 
MS4s. CWA section 402(p)(3)(b)(iii) expresses a preference for 
narrative rather than numeric effluent limits, for example, by 
reference to ``management practices, control techniques and system, 
design and engineering methods, and such other provisions as the 
Administrator or the State determines appropriate for the control of 
such pollutants.'' 33 U.S.C. 1342(p)(3)(B)(iii). EPA determines that 
pollutants from wet weather discharges are most appropriately 
controlled through management measures rather than end-of-pipe numeric 
effluent limitations. As explained in the Interim Permitting Policy for 
Water Quality-Based Effluent Limitations in Storm Water Permits, issued 
on August 1, 1996 [61 FR 43761 (November 26, 1996), EPA believes that 
the currently available methodology for derivation of numeric water 
quality-based effluent limitations is significantly complicated when 
applied to wet weather discharges from MS4s (compared to continuous or 
periodic batch discharges from most other types of discharge). Wet 
weather discharges from MS4s introduce a high degree of variability in 
the inputs to the models currently available for derivation of water 
quality based effluent limitations, including assumptions about 
instream and discharge flow rates, as well as effluent 
characterization. In addition, EPA anticipates that determining 
compliance with any such numeric limitations may be confounded by 
practical limitations in sample collection.
    In the first two to three rounds of permit issuance, EPA envisions 
that a BMP-based storm water management program that implements the six 
minimum measures will be the extent of the NPDES permit requirements 
for the large majority of regulated small MS4s. Because the six 
measures represent a significant level of control if properly 
implemented, EPA anticipates that a permit for a regulated small MS4 
operator implementing BMPs to satisfy the six minimum control measures 
will be sufficiently stringent to protect water quality, including 
water quality standards, so that additional, more stringent and/or more 
prescriptive water quality based effluent limitations will be 
unnecessary.
    If a small MS4 operator implements the six minimum control measures 
in Sec. 122.34(b) and the discharges are determined to cause or 
contribute to non-attainment of an applicable water quality standard, 
the operator needs to expand or better tailor its BMPs within the scope 
of the six minimum control measures. EPA envisions that this process 
will occur during the first two to three permit terms. After that 
period, EPA will revisit today's regulations for the municipal separate 
storm sewer program.
    If the permitting authority (rather than the regulated small MS4 
operator) needs to impose additional or more specific measures to 
protect water quality, then that action will most likely be the result 
of an assessment based on a TMDL or equivalent analysis that determines 
sources and allocations of pollutant(s) of concern. EPA believes that 
the small MS4's additional requirements, if any, should be guided by 
its equitable share based on a variety of considerations, such as cost 
effectiveness, proportionate contribution of pollutants, and ability to 
reasonably achieve wasteload reductions. Narrative effluent limitations 
in the form of BMPs may still be the best means of achieving those 
reductions.
    See Section II.L, Water Quality Issues, for further discussion of 
this approach to permitting, consistent with EPA's interim permitting 
guidance. Pursuant to CWA section 510, States implementing their own 
NPDES programs may develop more stringent or more prescriptive 
requirements than those in today's rule.
    EPA's interpretation of CWA section 402(p)(3)(B)(iii) was recently 
reviewed by the Ninth Circuit in Defenders of Wildlife, et al v. 
Browner, No. 98-71080 (September 15, 1999). The Court upheld the 
Agency's action in issuing five MS4 permits that included water 
quality-based effluent limitations. The Court did, however, disagree 
with EPA's interpretation of the relationship between CWA sections 301 
and 402(p). The Court reasoned that MS4s are not compelled by section 
301(b)(1)(C) to meet all State water quality standards, but rather that 
the Administrator or the State may rely on section 402(p)(3)(B)(iii) to 
require such controls. Accordingly, the Defenders of Wildlife decision 
is consistent with the Agency's 1996 ``Interim Permitting Policy for 
Water Quality-Based Effluent Limitations in Storm Water Permits.''
    As noted, the 1996 Policy describes how permits would implement an 
iterative process using BMPs, assessment, and refocused BMPs, leading 
toward attainment of water quality standards. The ultimate goal of the 
iteration would be for water bodies to support their designated uses. 
EPA believes this iterative approach is consistent with and implements 
section 301(b)(1)(C), notwithstanding the Ninth Circuit's 
interpretation. As an alternative to basing these water quality-based 
requirements on section 301(b)(1)(C), however, EPA also believes the 
iterative approach toward attainment of water quality standards 
represents a reasonable interpretation of CWA section 
402(p)(3)(B)(iii). For this reason, today's rule specifies that the 
``compliance target'' for the design and implementation of municipal 
storm water control programs is ``to reduce pollutants to the maximum 
extent practicable (MEP), to protect water quality, and to satisfy the 
appropriate water quality requirements of the CWA.'' The first 
component, reductions to the MEP, would be realized through 
implementation of the six minimum measures. The second component, to 
protect water quality, reflects the overall design objective for 
municipal programs based on CWA section 402(p)(6). The third component, 
to implement other applicable water quality requirements of the CWA, 
recognizes the Agency's specific determination under CWA section 
402(p)(3)(B)(iii) of the need to achieve reasonable further progress 
toward attainment of water quality standards according to the iterative 
BMP process, as well as the determination that State or EPA officials 
who establish TMDLs could allocate waste loads to

[[Page 68754]]

MS4s, as they would to other point sources.
    EPA does not presume that water quality will be protected if a 
small MS4 elects not to implement all of the six minimum measures and 
instead applies for alternative permit limits under Sec. 122.26(d). 
Operators of such small MS4s that apply for alternative permit limits 
under Sec. 122.26(d) must supply additional information through 
individual permit applications so that the permit writer can determine 
whether the proposed program reduces pollutants to the MEP and whether 
any other provisions are appropriate to protect water quality and 
satisfy the appropriate water quality requirements of the Clean Water 
Act.
    iii. Maximum Extent Practicable. Maximum extent practicable (MEP) 
is the statutory standard that establishes the level of pollutant 
reductions that operators of regulated MS4s must achieve. The CWA 
requires that NPDES permits for discharges from MS4s ``shall require 
controls to reduce the discharge of pollutants to the maximum extent 
practicable, including management practices, control techniques and 
system, design and engineering methods.'' CWA Section 
402(p)(3)(B)(iii). This section also calls for ``such other provisions 
as the [EPA] Administrator or the State determines appropriate for the 
control of such pollutants.'' EPA interprets this standard to apply to 
all MS4s, including both existing regulated (large and medium) MS4s, as 
well as the small MS4s regulated under today's rule.
    For regulated small MS4s under today's rule, authorization to 
discharge may be under either a general permit or individual permit, 
but EPA anticipates and expects that general permits will be the most 
common permit mechanism. The general permit will explain the steps 
necessary to obtain permit authorization. Compliance with the 
conditions of the general permit and the series of steps associated 
with identification and implementation of the minimum control measures 
will satisfy the MEP standard. Implementation of the MEP standard under 
today's rule will typically require the permittee to develop and 
implement appropriate BMPs to satisfy each of the required six minimum 
control measures.
    In issuing the general permit, the NPDES permitting authority will 
establish requirements for each of the minimum control measures. 
Permits typically will require small MS4 permittees to identify in 
their NOI the BMPs to be performed and to develop the measurable goals 
by which implementation of the BMPs can be assessed. Upon receipt of 
the NOI from a small MS4 operator, the NPDES permitting authority will 
have the opportunity to review the NOI to verify that the identified 
BMPs and measurable goals are consistent with the requirement to reduce 
pollutants under the MEP standard, to protect water quality, and to 
satisfy the appropriate water quality requirements of the Clean Water 
Act. If necessary, the NPDES permitting authority may ask the permittee 
to revise their mix of BMPs, for example, to better reflect the MEP 
pollution reduction requirement. Where the NPDES permit is not written 
to implement the minimum control measures specified under 
Sec. 122.34(b), for example in the case of an individual permit under 
Sec. 122.33(b)(2)(ii), the MEP standard will be applied based on the 
best professional judgment of the permit writer.
    Commenters argued that MEP is, as yet, an undefined term and that 
EPA needs to further clarify the MEP standards by providing a 
regulatory definition that includes recognition of cost considerations 
and technical feasibility. Commenters argued that, without a 
definition, the regulatory community is not adequately on notice 
regarding the standard with which they need to comply. EPA disagrees 
that affected MS4 permittees will lack notice of the applicable 
standard. The framework for the small MS4 permits described in this 
notice provides EPA's interpretation of the standard and how it should 
be applied.
    EPA has intentionally not provided a precise definition of MEP to 
allow maximum flexibility in MS4 permitting. MS4s need the flexibility 
to optimize reductions in storm water pollutants on a location-by-
location basis. EPA envisions that this evaluative process will 
consider such factors as conditions of receiving waters, specific local 
concerns, and other aspects included in a comprehensive watershed plan. 
Other factors may include MS4 size, climate, implementation schedules, 
current ability to finance the program, beneficial uses of receiving 
water, hydrology, geology, and capacity to perform operation and 
maintenance.
    The pollutant reductions that represent MEP may be different for 
each small MS4, given the unique local hydrologic and geologic concerns 
that may exist and the differing possible pollutant control strategies. 
Therefore, each permittee will determine appropriate BMPs to satisfy 
each of the six minimum control measures through an evaluative process. 
Permit writers may evaluate small MS4 operator's proposed storm water 
management controls to determine whether reduction of pollutants to the 
MEP can be achieved with the identified BMPs.
    EPA envisions application of the MEP standard as an iterative 
process. MEP should continually adapt to current conditions and BMP 
effectiveness and should strive to attain water quality standards. 
Successive iterations of the mix of BMPs and measurable goals will be 
driven by the objective of assuring maintenance of water quality 
standards. If, after implementing the six minimum control measures 
there is still water quality impairment associated with discharges from 
the MS4, after successive permit terms the permittee will need to 
expand or better tailor its BMPs within the scope of the six minimum 
control measures for each subsequent permit. EPA envisions that this 
process may take two to three permit terms.
    One commenter observed that MEP is not static and that if the six 
minimum control measures are not achieving the necessary water quality 
improvements, then an MS4 should be expected to revise and, if 
necessary, expand its program. This concept, it is argued, must be 
clearly part of the definition of MEP and thus incorporated into the 
binding and operative aspects of the rule. As is explained above, EPA 
believes that it is. The iterative process described above is intended 
to be sensitive to water quality concerns. EPA believes that today's 
rule contains provisions to implement an approach that is consistent 
with this comment.
b. Program Requirements'Minimum Control Measures
    A regulated small MS4 operator must develop and implement a storm 
water management program designed to reduce the discharge of pollutants 
from their MS4 to protect water quality. The storm water management 
program must include the following six minimum measures.
    i. Public Education and Outreach on Storm Water Impacts. Under 
today's final rule, operators of small MS4s must implement a public 
education program to distribute educational materials to the community 
or conduct equivalent outreach activities about the impacts of storm 
water discharges on water bodies and the steps to reduce storm water 
pollution. The public education program should inform individuals and 
households about the problem and the steps they can take to reduce or 
prevent storm water pollution.
    EPA believes that as the public gains a greater understanding of 
the storm water program, the MS4 is likely to gain

[[Page 68755]]

more support for the program (including funding initiatives). In 
addition, compliance with the program will probably be greater if the 
public understands the personal responsibilities expected of them. 
Well-informed citizens can act as formal or informal educators to 
further disseminate information and gather support for the program, 
thus easing the burden on the municipalities to perform all educational 
activities.
    MS4s are encouraged to enter into partnerships with their States in 
fulfilling the public education requirement. It may be more cost-
effective to utilize a State education program instead of numerous MS4s 
developing their own programs. MS4 operators are also encouraged to 
work with other organizations (e.g., environmental, nonprofit and 
industry organizations) that might be able to assist in fulfilling this 
requirement.
    The public education program should be tailored, using a mix of 
locally appropriate strategies, to target specific audiences and 
communities (particularly minority and disadvantaged communities). 
Examples of strategies include distributing brochures or fact sheets, 
sponsoring speaking engagements before community groups, providing 
public service announcements, implementing educational programs 
targeted at school age children, and conducting community-based 
projects such as storm drain stenciling, and watershed and beach 
cleanups. Operators of MS4s may use storm water educational information 
provided by the State, Tribe, EPA, or environmental, public interest, 
trade organizations, or other MS4s. Examples of successful public 
education efforts concerning polluted runoff can be found in many State 
nonpoint source pollution control programs under CWA section 319.
    The public education program should inform individuals and 
households about steps they can take to reduce storm water pollution, 
such as ensuring proper septic system maintenance, ensuring the use and 
disposal of landscape and garden chemicals including fertilizers and 
pesticides, protecting and restoring riparian vegetation, and properly 
disposing of used motor oil or household hazardous wastes. 
Additionally, the program could inform individuals and groups on how to 
become involved in local stream and beach restoration activities as 
well as activities coordinated by youth service and conservation corps 
and other citizen groups. Finally, materials or outreach programs 
should be directed toward targeted groups of commercial, industrial, 
and institutional entities likely to have significant storm water 
impacts. For example, MS4 operators should provide information to 
restaurants on the impact of grease clogging storm drains and to auto 
garages on the impacts of used oil discharges.
    EPA received comments from representatives of State DOTs and U.S. 
Department of Defense (DOD) installations seeking exemption from the 
public education requirement. While today's rule does not exempt DOTs 
and military bases from the user education requirement, the Agency 
believes the flexibility inherent in the Rule addresses many of the 
concerns expressed by these commenters.
    Certain DOT representatives commented that if their agencies were 
not exempt from the user education measure's requirements, they should 
at least be allowed to count DOT employee education as an adequate 
substitute. EPA supports the use of existing materials and programs, 
granted such materials and programs meet the rule's requirement that 
the MS4 user community (i.e., the public) is also educated concerning 
the impacts of storm water discharges on water bodies and the steps to 
reduce storm water pollution.
    Finally, certain DOD representatives requested that ``public,'' as 
applied to their installations, be defined as the resident and employee 
populations within the fence line of the facility. EPA agrees that the 
education effort should be directed toward those individuals who 
frequent the federally owned land (i.e., residents and individuals who 
come there to work and use the MS4 facilities).
    EPA also received a number of comments from municipalities stating 
that education would be more thorough and cost effective if 
accomplished by EPA on the national level. EPA believes that a 
collaborative State and local approach, in conjunction with significant 
EPA technical support, will best meet the goal of targeting, and 
reaching, specific local audiences. EPA technical support will include 
a tool box which will contain fact sheets, guidance documents, an 
information clearinghouse, and training and outreach efforts.
    Finally, EPA received comments expressing concern that the public 
education program simply encourages the distribution of printed 
material. EPA is sensitive to this concern. Upon evaluation, the Agency 
made changes to the proposal's language for today's rule. The language 
has been changed to reflect EPA's belief that a successful program is 
one that includes a variety of strategies locally designed to reach 
specific audiences.
    ii. Public Involvement/Participation. Public involvement is an 
integral part of the small MS4 storm water program. Accordingly, 
today's final rule requires that the municipal storm water management 
program must comply with applicable State and local public notice 
requirements. Section 122.34(b)(2) recommends a public participation 
process with efforts to reach out and engage all economic and ethnic 
groups. EPA believes there are two important reasons why the public 
should be allowed and encouraged to provide valuable input and 
assistance to the MS4's program.
    First, early and frequent public involvement can shorten 
implementation schedules and broaden public support for a program. 
Opportunities for members of the public to participate in program 
development and implementation could include serving as citizen 
representatives on a local storm water management panel, attending 
public hearings, working as citizen volunteers to educate other 
individuals about the program, assisting in program coordination with 
other pre-existing programs, or participating in volunteer monitoring 
efforts. Moreover, members of the public may be less likely to raise 
legal challenges to a MS4's storm water program if they have been 
involved in the decision making process and program development and, 
therefore, internalize personal responsibility for the program 
themselves.
    Second, public participation is likely to ensure a more successful 
storm water program by providing valuable expertise and a conduit to 
other programs and governments. This is particularly important if the 
MS4's storm water program is to be implemented on a watershed basis. 
Interested stakeholders may offer to volunteer in the implementation of 
all aspects of the program, thus conserving limited municipal 
resources.
    EPA recognizes that there are a number of challenges associated 
with public involvement. One challenge is in engaging people in the 
public meeting and program design process. Another challenge is 
addressing conflicting viewpoints. Nevertheless, EPA strongly believes 
that these challenges can be addressed by use of an aggressive and 
inclusive program. Section II.K. provides further discussion on public 
involvement.
    A number of municipalities sought clarification from EPA concerning 
what the public participation program must

[[Page 68756]]

actually include. In response, the actual requirements are minimal, but 
the Agency's recommendations are more comprehensive. The public 
participation program must only comply with applicable State and local 
public notice requirements. The remainder of the preamble, as well as 
the Explanatory Note accompanying the regulatory text, provide guidance 
to the MS4s concerning what elements a successful and inclusive program 
should include. EPA will provide technical support as part of the tool 
box (i.e., providing model public involvement programs, conducting 
public workshops, etc.) to assist MS4 operators meet the intent of this 
measure.
    Finally, the Agency encourages MS4s to seek public participation 
prior to submitting an NOI. For example, public participation at this 
stage will allow the MS4 to involve the public in developing the BMPs 
and measurable goals for their NOI.
    iii. Illicit Discharge Detection and Elimination. Discharges from 
small MS4s often include wastes and wastewater from non-storm water 
``illicit'' discharges. Illicit discharge is defined at 40 CFR 
122.26(b)(2) as any discharge to a municipal separate storm sewer that 
is not composed entirely of storm water, except discharges pursuant to 
an NPDES permit and discharges resulting from fire fighting activities. 
As detailed below, other sources of non-storm water, that would 
otherwise be considered illicit discharges, do not need to be addressed 
unless the operator of the MS4 identifies one or more of them as a 
significant source of pollutants into the system. EPA's Nationwide 
Urban Runoff Program (NURP) indicated that many storm water outfalls 
still discharge during substantial dry periods. Pollutant levels in 
these dry weather flows were shown to be high enough to significantly 
degrade receiving water quality. Results from a 1987 study conducted in 
Sacramento, California, revealed that slightly less than one-half of 
the water discharged from a municipal separate storm sewer system was 
not directly attributable to precipitation runoff (U.S. Environmental 
Protection Agency, Office of Research and Development. 1993. 
Investigation of Inappropriate Pollutant Entries Into Storm Drainage 
Systems--A User's Guide. Washington, DC EPA 600/R-92/238.) A 
significant portion of these dry weather flows results from illicit 
and/or inappropriate discharges and connections to the municipal 
separate storm sewer system. Illicit discharges enter the system 
through either direct connections (e.g., wastewater piping either 
mistakenly or deliberately connected to the storm drains) or indirect 
connections (e.g., infiltration into the storm drain system or spills 
collected by drain inlets).
    Under the existing NPDES program for storm water, permit 
applications for large and medium MS4s are to include a program 
description for effective prohibition against non-storm water 
discharges into their storm sewers (see 40 CFR 122.26 (d)(1)(v)(B) and 
(d)(1)(iv)(B)). Further, EPA believes that in implementing municipal 
storm water management plans under these permits, large and medium MS4 
operators generally found their illicit discharge detection and 
elimination programs to be cost-effective. Properly implemented 
programs also significantly improved water quality.
    In today's rule, any NPDES permit issued to an operator of a 
regulated small MS4 must, at a minimum, require the operator to 
develop, implement and enforce an illicit discharge detection and 
elimination program. Inclusion of this measure for regulated small MS4s 
is consistent with the ``effective prohibition'' requirement for large 
and medium MS4s. Under today's rule, the NPDES permit will require the 
operator of a regulated small MS4 to: (1) Develop (if not already 
completed) a storm sewer system map showing the location of all 
outfalls, and names and location of all waters of the United States 
that receive discharges from those outfalls; (2) to the extent 
allowable under State, Tribal, or local law, effectively prohibit 
through ordinance, or other regulatory mechanism, illicit discharges 
into the separate storm sewer system and implement appropriate 
enforcement procedures and actions as needed; (3) develop and implement 
a plan to detect and address illicit discharges, including illegal 
dumping, to the system; and (4) inform public employees, businesses, 
and the general public of hazards associated with illegal discharges 
and improper disposal of waste.
    The illicit discharge and elimination program need only address the 
following categories of non-storm water discharges if the operator of 
the small MS4 identifies them as significant contributors of pollutants 
to its small MS4: water line flushing, landscape irrigation, diverted 
stream flows, rising ground waters, uncontaminated ground water 
infiltration (as defined at 40 CFR 35.2005(20)), uncontaminated pumped 
ground water, discharges from potable water sources, foundation drains, 
air conditioning condensation, irrigation water, springs, water from 
crawl space pumps, footing drains, lawn watering, individual 
residential car washing, flows from riparian habitats and wetlands, 
dechlorinated swimming pool discharges, and street wash water 
(discharges or flows from fire fighting activities are excluded from 
the definition of illicit discharge and only need to be addressed where 
they are identified as significant sources of pollutants to waters of 
the United States). If the operator of the MS4 identifies one or more 
of these categories of sources to be a significant contributor of 
pollutants to the system, it could require specific controls for that 
category of discharge or prohibit the discharges completely.
    Several comments were received on the mapping requirements of the 
proposal. Most comments said that more flexibility should be given to 
the MS4s to determine their mapping needs, and that resources could be 
better spent in addressing problems once the illicit discharges are 
detected. EPA reviewed the mapping requirements in the proposed rule 
and agrees that some of the information is not necessary in order to 
begin an illicit discharge detection and elimination program. Today's 
rule requires a map or set of maps that show the locations of all 
outfalls and names and locations of receiving waters. Knowing the 
locations of outfalls and receiving waters are necessary to be able to 
conduct dry weather field screening for non-storm water flows and to 
respond to illicit discharge reports from the public. EPA recommends 
that the operator collect any existing information on outfall locations 
(e.g., review city records, drainage maps, storm drain maps), and then 
conduct field surveys to verify the locations. It will probably be 
necessary to ``walk'' (i.e. wade small receiving waters or use a boat 
for larger receiving waters) the streambanks and shorelines, and it may 
take more than one trip to locate all outfalls. A coding system should 
be used to mark and identify each outfall. MS4 operators have the 
flexibility to determine the type (e.g. topographic, GIS, hand or 
computer drafted) and size of maps which best meet their needs. The map 
scale should be such that the outfalls can be accurately located. Once 
an illicit discharge is detected at an outfall, it may be necessary to 
map that portion of the storm sewer system leading to the outfall in 
order to locate the source of the discharge.
    Several comments requested clarification of the requirement to 
develop and implement a plan to detect and eliminate illicit 
discharges. EPA recommends that plans include procedures for the 
following: locating priority areas; tracing the source of an illicit 
discharge; removing the source of the discharge; and program evaluation

[[Page 68757]]

and assessment. EPA recommends that MS4 operators identify priority 
areas (i.e., problems areas) for more detailed screening of their 
system based on higher likelihood of illicit connections (e.g., areas 
with older sanitary sewer lines), or by conducting ambient sampling to 
locate impacted reaches. Once priority areas are identified, EPA 
recommends visually screening outfalls during dry weather and 
conducting field tests, where flow is occurring, of selected chemical 
parameters as indicators of the discharge source. EPA's manual for 
investigation of inappropriate pollutant entries into the storm 
drainage system (EPA, 1993) suggests the following parameter list: 
specific conductivity, fluoride and/or hardness concentration, ammonia 
and/or potassium concentration, surfactant and/or fluorescence 
concentration, chlorine concentration, pH and other chemicals 
indicative of industrial sources. The manual explains why each 
parameter is a good indicator and how the information can be used to 
determine the type of source flow. The Agency is not recommending that 
fluoride and chlorine, generally used to locate potable water 
discharges, be addressed under this program, therefore a short list of 
parameters may include conductivity, ammonia, surfactant and pH. Some 
MS4s have found it useful to measure for fecal coliform or E. coli in 
their testing program. Observations of physical characteristics of the 
discharge are also helpful such as flow rate, temperature, odor, color, 
turbidity, floatable matter, deposits and stains, and vegetation.
    The implementation plan should also include procedures for tracing 
the source of an illicit discharge. Once an illicit discharge is 
detected and field tests provide source characteristics, the next step 
is to determine the actual location of the source. Techniques for 
tracing the discharge to its place of origin may include: following the 
flow up the storm drainage system via observations and/or chemical 
testing in manholes or in open channels; televising storm sewers; using 
infrared and thermal photography; conducting smoke or dye tests.
    The implementation plan should also include procedures for removing 
the source of the illicit discharge. The first step may be to notify 
the property owner and specify a length of time for eliminating the 
discharge. Additional notifications and escalating legal actions should 
also be described in this part of the plan.
    Finally, the implementation plan should include procedures for 
program evaluation and assessment. Procedures could include 
documentation of actions taken to locate and eliminate illicit 
discharges such as: number of outfalls screened, complaints received 
and corrected, feet of storm sewers televised, numbers of discharges 
and quantities of flow eliminated, number of dye or smoke tests 
conducted. Appropriate records of such actions should be kept and 
should be submitted as part of the annual reports for the first permit 
term, as specified by the permitting authority (reports only need to be 
submitted in years 2 and 4 in later permits). For more on reporting 
requirements, see Sec. 122.34(g).
    EPA received comments regarding an MS4's legal authority beyond its 
jurisdictional boundaries to inspect or take enforcement against 
illicit discharges. EPA recognizes that illicit flows may originate in 
one jurisdiction and cross into one or more jurisdictions before being 
discharged at an outfall. In such instances, EPA expects the MS4 that 
detects the illicit flow to trace it to the point where it leaves their 
jurisdiction and notify the adjoining MS4 of the flow, and any other 
physical or chemical information. The adjoining MS4 should then trace 
it to the source or to the location where it enters their jurisdiction. 
The process of notifying the adjoining MS4 should continue until the 
source is located and eliminated. In addition, because any non-storm 
water discharge to waters of the U.S. through an MS4 is subject to the 
prohibition against unpermitted discharges pursuant to CWA section 301 
(a), remedies are available under the federal enforcement provisions of 
CWA sections 309 and 505.
    EPA requested and received comments regarding the prohibition and 
enforcement provision for this minimum measure. Commenters specifically 
questioned the proposal that the operator only has to implement the 
appropriate prohibition and enforcement procedures ``to the extent 
allowable under State or Tribal law.'' They raised concerns that by 
qualifying prohibition and enforcement procedures in this manner, the 
operator could altogether ignore this minimum measure where affirmative 
legal authority did not exist. Comments suggested that EPA require 
States to grant authority to those municipalities where it did not 
exist. Other comments, however, stated that municipalities cannot 
exercise legal authority not granted to them under State law, which 
varies considerably from one State to another. EPA has no intention of 
directing State legislatures on how to allocate authority and 
responsibility under State law. As noted above, there is at least one 
remedy (the federal CWA) to control non-storm water discharges through 
MS4s. If State law prevents political subdivisions from controlling 
discharges through storm sewers, EPA anticipates common sense will 
prevail to provide those MS4 operators with the ability to meet the 
requirements applicable for their discharges.
    One comment reinforced the importance of public information and 
education to the success of this measure. EPA agrees and suggests that 
MS4 operators consider a variety of ways to inform and educate the 
public which could include storm drain stenciling; a program to 
promote, publicize, and facilitate public reporting of illicit 
connections or discharges; and distribution of visual and/or printed 
outreach materials. Recycling and other public outreach programs could 
be developed to address potential sources of illicit discharges, 
including used motor oil, antifreeze, pesticides, herbicides, and 
fertilizers.
    EPA received comments that State DOT's lack authority to implement 
this measure. EPA believes that most DOTs can implement most parts of 
this measure. If a DOT does not have the necessary legal authority to 
implement any part of this measure, EPA encourages them to coordinate 
their storm water management efforts with the surrounding MS4s and 
other State agencies. Many DOTs that are regulated under Phase I of 
this program are co-permittees with the local regulated MS4. Under 
today's rule, DOTs can use any of the options of Sec. 122.35 to share 
their storm water management responsibilities.
    EPA received comments requesting clarification of various terms 
such as ``outfall'' and ``illicit discharge.'' One comment asked EPA to 
reinforce the point that a ``ditch'' could be considered an outfall. 
The term ``outfall'' is defined at 40 CFR 122.26(b)(9) as ``a point 
source at the point where a municipal separate storm sewer discharges 
to waters of the United States * * *''. The term municipal separate 
storm sewer is defined at 40 CFR Sec. 122.26(b)(8) as ``a conveyance or 
system of conveyances (including roads with drainage systems, municipal 
streets, catch basins, curbs, gutters, ditches, man-made channels, or 
storm drains) * * *''. Following the logic of these definitions, a 
``ditch'' may be part of the municipal separate storm sewer, and at the 
point where the ditch discharges to waters of the United States, it 
would be an outfall. As with any determination about jurisdictional 
provisions of the CWA, however, final decisions require case specific 
evaluations of fact.

[[Page 68758]]

    One commenter specifically requested clarification on the 
relationship between the term ``illicit discharge'' and non-storm water 
discharges from fire fighting. The comment suggested that it would be 
impractical to attempt to determine whether the flow from a specific 
fire (i.e., during a fire) is a significant source of pollution. EPA 
intends that MS4s will address all allowable non-storm water flows 
categorically rather than individually. If an MS4 is concerned that 
flows from fire fighting are, as a category, contributing substantial 
amounts of pollutants to their system, they could develop a program to 
address those flows prospectively. The program may include an analysis 
of the flow from several sources, steps to minimize the pollutant 
contribution, and a plan to work with the sources of the discharge to 
minimize any adverse impact on water quality. During the development of 
such a program, the MS4 may determine that only certain types of flows 
within a particular category are a concern, for example, fire fighting 
flows at industrial sites where large quantities of chemicals are 
present. In this example, a review of existing procedures with the fire 
department and/or hazardous materials team may reveal weaknesses or 
strengths previously unknown to the MS4 operator.
    EPA received comments requesting modifications to the rule to 
include on-site sewage disposal systems (i.e., septic systems) in the 
scope of the illicit discharge program. On-site sewage disposal systems 
that flow into storm drainage systems are within the definition of 
illicit discharge as defined by the regulations. Where they are found 
to be the source of an illicit discharge, they need to be eliminated 
similar to any other illicit discharge source. Today's rule was not 
modified to include discharges from on-site sewage disposal systems 
specifically because those sources are already within the scope of the 
existing definition of illicit discharge.
    iv. Construction Site Storm Water Runoff Control. Over a short 
period of time, storm water runoff from construction site activity can 
contribute more pollutants, including sediment, to a receiving stream 
than had been deposited over several decades (see section I.B.3). Storm 
water runoff from construction sites can include pollutants other than 
sediment, such as phosphorus and nitrogen, pesticides, petroleum 
derivatives, construction chemicals, and solid wastes that may become 
mobilized when land surfaces are disturbed. Generally, properly 
implemented and enforced construction site ordinances effectively 
reduce these pollutants. In many areas, however, the effectiveness of 
ordinances in reducing pollutants is limited due to inadequate 
enforcement or incomplete compliance with such local ordinances by 
construction site operators (Paterson, R.G. 1994. ``Construction 
Practices: The Good, the Bad, and the Ugly.'' Watershed Protection 
Techniques 1(2)).
    Today's rule requires operators of regulated small MS4s to develop, 
implement, and enforce a pollutant control program to reduce pollutants 
in any storm water runoff from construction activities that result in 
land disturbance of 1 or more acres (see Sec. 122.34(b)(4)). 
Construction activity on sites disturbing less than one acre must be 
included in the program if the construction activity is part of a 
larger common plan of development or sale that would disturb one acre 
or more.
    The construction runoff control program of the regulated small MS4 
must include an ordinance or other regulatory mechanism to require 
erosion and sediment controls to the extent practicable and allowable 
under State, Tribal or local law. The program also must include 
sanctions to ensure compliance (for example, non-monetary penalties, 
fines, bonding requirements, and/or permit denials for non-compliance). 
The program must also include, at a minimum: requirements for 
construction site operators to implement appropriate erosion and 
sediment control BMPS, such as silt fences, temporary detention ponds 
and diversions; procedures for site plan review by the small MS4 which 
incorporate consideration of potential water quality impacts; 
requirements to control other waste such as discarded building 
materials, concrete truck washout, chemicals, litter, and sanitary 
waste at the construction site that may adversely impact water quality; 
procedures for receipt and consideration of information submitted by 
the public to the MS4; and procedures for site inspection and 
enforcement of control measures by the small MS4.
    Today's rule provides flexibility for regulated small MS4s by 
allowing them to exclude from their construction pollutant control 
program runoff from those construction sites for which the NPDES 
permitting authority has waived NPDES storm water small construction 
permit requirements. For example, if the NPDES permitting authority 
waives permit coverage for storm water discharges from construction 
sites less than 5 acres in areas where the rainfall erosivity factor is 
less than 5, then the regulated small MS4 does not have to include 
these sites in its storm water management program. Even if requirements 
for a discharge from a given construction site are waived by the NPDES 
permitting authority, however, the regulated small MS4 may still chose 
to control those discharges under the MS4's construction pollutant 
control program, particularly where such discharges may cause siltation 
problems in storm sewers. See Section II.I.1.b for more information on 
construction waivers by the permitting authority.
    Some commenters suggested that the proposed construction minimum 
measure requirements went beyond the permit application requirements 
concerning construction for medium and large MS4s. In response, EPA has 
made changes to the proposed measure so that it more closely resembles 
the MS4 permit application requirements in existing regulations. For 
example, as described below, the Agency revised the proposed 
requirements for ``pre-construction review of site management plans'' 
to require ``procedures for site plan review.''
    One commenter expressed concerns that addressing runoff from 
construction sites within urbanized areas (through the small MS4 
program) differently from construction sites outside urbanized areas 
(which will not be covered by the small MS4 program) will encourage 
urban sprawl. Today's rule, together with the existing requirements, 
requires all construction greater than or equal to 1 acre, unless 
waived, to be covered by an NPDES permit whether it is located inside 
or outside of an urbanized area (see Sec. 122.26(b)(15)). Today's rule 
does not require small MS4s to control runoff from construction sites 
more stringently or prescriptively than is required for construction 
site runoff outside urbanized areas. Therefore, today's rule imposes no 
substantively different onsite controls on runoff of storm water from 
construction sites in urbanized areas than from construction sites 
outside of urbanized areas.
    One commenter recommended that the small MS4 construction site 
storm water runoff control program address all storm water runoff from 
construction sites, not just the runoff into the MS4. The commenter 
also believed that MS4s should provide clear, objective standards for 
all construction sites. EPA agrees. Because today's rule only regulates 
discharges from the MS4, the construction pollutant control measure 
only requires small MS4 operators to control runoff into its system. As 
a practical matter, however, EPA anticipates that MS4 operators will 
find that regulation of all construction site

[[Page 68759]]

runoff, whether they runoff into the MS4 or not, will prove to be the 
most simple and efficient program. The Agency may provide more specific 
criteria for construction site BMPs in the forthcoming rule being 
developed under CWA section 402(m). See section II.D.1 of today's rule.
    One commenter stated that there is no need for penalties at the 
local level by the small MS4 because the CWA already imposes sufficient 
penalties to ensure compliance. EPA disagrees and believes that 
enforcement and compliance at the local level is both necessary and 
preferable. Examples of sanctions, some not available under the CWA, 
include non-monetary penalties, monetary fines, bonding requirements, 
and denial of future or other local permits.
    One commenter recommended that EPA should not include the 
requirement to control pollutants other than sediment from construction 
sites in this measure. EPA disagrees with this comment. The requirement 
is to control waste that ``may cause adverse impacts on water 
quality.'' Such wastes may include discarded building materials, 
concrete truck washout, chemicals, pesticides, herbicides, litter, and 
sanitary waste. These wastes, when exposed to and mobilized by storm 
water, can contribute to water quality impairment.
    The proposed rule required ``procedures for pre-construction review 
of site management plans.'' EPA requested comment on expanding this 
provision to require both review and approval of construction site 
storm water plans. Many commenters expressed the concern that review 
and approval of site plans is not only costly and time intensive, but 
may unnecessarily delay construction projects and unduly burden staff 
who administer the local program. In addition, some commenters 
expressed confusion whether EPA proposed pre-construction review for 
all site management plans or only higher priority sites. To address 
these comments, and be consistent with the permit application 
requirements for larger MS4s, EPA changed ``procedures for pre-
construction review of site management plans'' to ``procedures for site 
plan review.'' Today's rule requires the small MS4 to develop 
procedures for site plan review so as to incorporate consideration of 
adverse potential water quality impacts. Procedures should include 
review of site erosion and sediment control plans, preferably before 
construction activity begins on a site. The objective is for the small 
MS4 operator and the construction site operator to address storm water 
runoff from construction activity early in the project design process 
so that potential consequences to the aquatic environment can be 
assessed and adverse water quality impacts can be minimized or 
eliminated.
    One commenter requested that EPA delete the requirement for 
``procedures for receipt and consideration of information submitted by 
the public'' because it went beyond existing storm water requirements. 
Another commenter stated that establishing a separate process to 
respond to public inquiries on a project is a burden to small 
communities, especially if the project has gone through an 
environmental review. One commenter requested clarification of this 
provision. EPA has retained this requirement in today's final rule to 
require some formality in the process for addressing public inquiries 
regarding storm water runoff from construction activities. EPA does not 
intend that small MS4s develop a separate, burdensome process to 
respond to every public inquiry. A small MS4 could, for example, simply 
log public complaints on existing storm water runoff problems from 
construction sites and pass that information on to local inspectors. 
The inspectors could then investigate complaints based on the severity 
of the violation and/or priority area.
    One commenter believed that the proposed requirement of ``regular 
inspections during construction'' would require every construction 
project to be inspected more than once by the small MS4 during the term 
of a construction project. EPA has deleted the reference to ``regular 
inspections.'' Instead, the small MS4 will be required to ``develop 
procedures for site inspection and enforcement of control measures.'' 
Procedures could include steps to identify priority sites for 
inspection and enforcement based on the nature and extent of the 
construction activity, topography, and the characteristics of soils and 
receiving water quality.
    In order to avoid duplication of small MS4 construction 
requirements with NPDES construction permit requirements, today's rule 
adds Sec. 122.44(s) to recognize that the NPDES permitting authority 
can incorporate qualifying State, Tribal, or local erosion and sediment 
control requirements in NPDES permits for construction site discharges. 
For example, a construction site operator who complies with MS4 
construction pollutant control programs that are referenced in the 
NPDES construction permit would satisfy the requirements of the NPDES 
permit. See section II.I.1.d for more information on incorporating 
qualifying programs by reference into NPDES construction permits. This 
provision has no impact on, or direct relation to, the small MS4 
operator's responsibilities under the construction site storm water 
runoff control minimum measure. Conversely, under Sec. 122.35(b), the 
permitting authority may recognize in the MS4's permit that another 
governmental entity, or the permitting authority itself, is responsible 
for implementing one or more of the minimum measures (including 
construction site storm water runoff control), and not include this 
measure in the small MS4's permit. In this case, the other governmental 
entity's program must satisfy all of the requirements of the omitted 
measure.
    v. Post-Construction Storm Water Management in New Development and 
Redevelopment. The NURP study and more recent investigations indicate 
that prior planning and designing for the minimization of pollutants in 
storm water discharges is the most cost-effective approach to storm 
water quality management. Reducing pollutant concentrations in storm 
water after the discharge enters a storm sewer system is often more 
expensive and less efficient than preventing or reducing pollutants at 
the source. Increased human activity associated with development often 
results in increased pollutant loading from storm water discharges. If 
potential adverse water quality impacts are considered from the 
beginning stages of a project, new development and redevelopment 
provides more opportunities for water quality protection. For example, 
minimization of impervious areas, maintenance or restoration of natural 
infiltration, wetland protection, use of vegetated drainage ways, and 
use of riparian buffers have been shown to reduce pollutant loadings in 
storm water runoff from developed areas. EPA encourages operators of 
regulated small MS4s to identify specific problem areas within their 
jurisdictions and initiate innovative solutions and designs to focus 
attention on those areas through local planning.
    In today's rule at Sec. 122.34(b)(5), NPDES permits issued to an 
operator of a regulated small MS4 will require the operator to develop, 
implement, and enforce a program to address storm water runoff from new 
development and redevelopment projects that result in land disturbance 
of greater than or equal to one acre, including projects less than one 
acre that are part of a larger common plan of development or sale, that 
discharge into the MS4. Specifically, the NPDES permit will require the 
operator of a regulated small MS4 to: (1) Develop and implement

[[Page 68760]]

strategies which include a combination of structural and/or non-
structural best management practices (BMPs) appropriate for the 
community; (2) use an ordinance, or other regulatory mechanism to 
address post-construction runoff from new development and redevelopment 
projects to the extent allowable under State, Tribal or local law; (3) 
ensure adequate long-term operation and maintenance of BMPs; and (4) 
ensure that controls are in place that would minimize water quality 
impacts. EPA intends the term ``redevelopment'' to refer to alterations 
of a property that change the ``footprint'' of a site or building in 
such a way that results in the disturbance of equal to or greater than 
1 acre of land. The term is not intended to include such activities as 
exterior remodeling, which would not be expected to cause adverse storm 
water quality impacts and offer no new opportunity for storm water 
controls.
    EPA received comments requesting guidance and clarification of the 
rule requirements. The scope of the comments ranged from general 
requests for more details on how MS4 operators should accomplish the 
four requirements listed above, to specific requests for information 
regarding transfer of ownership for structural controls, as well as 
ongoing responsibility for operation and maintenance. By the term 
``combination'' of BMPs, EPA intends a combination of structural and/or 
non-structural BMPs. For this requirement, the term ``combination'' is 
meant to emphasize that multiple BMPs should be considered and adopted 
for use in the community. A single BMP generally cannot significantly 
reduce pollutant loads because pollutants come from many sources within 
a community. The BMPs chosen should: (1) Be appropriate for the local 
community; (2) minimize water quality impacts; and (3) attempt to 
maintain pre-development runoff conditions. In choosing appropriate 
BMPs, EPA encourages small MS4 operators to participate in locally-
based watershed planning efforts which attempt to involve a diverse 
group of stakeholders. Each new development and redevelopment project 
should have a BMP component. If an approach is chosen that primarily 
focuses on regional or non-structural BMPs, however, then the BMPs may 
be located away from the actual development site (e.g., a regional 
water quality pond).
    Non-structural BMPs are preventative actions that involve 
management and source controls such as: (1) Policies and ordinances 
that provide requirements and standards to direct growth to identified 
areas, protect sensitive areas such as wetlands and riparian areas, 
maintain and/or increase open space (including a dedicated funding 
source for open space acquisition), provide buffers along sensitive 
water bodies, minimize impervious surfaces, and minimize disturbance of 
soils and vegetation; (2) policies or ordinances that encourage infill 
development in higher density urban areas, and areas with existing 
storm sewer infrastructure; (3) education programs for developers and 
the public about project designs that minimize water quality impacts; 
and (4) other measures such as minimization of the percentage of 
impervious area after development, use of measures to minimize directly 
connected impervious areas, and source control measures often thought 
of as good housekeeping, preventive maintenance and spill prevention. 
Detailed examples of non-structural BMPs follow.
    Preserving open space may help to protect water quality as well as 
provide other benefits such as recharging groundwater supplies, 
detaining storm water, supporting wildlife and providing recreational 
opportunities. Although securing funding for open space acquisition may 
be difficult, various funding mechanisms have been used. New Jersey 
uses a portion of their State sales tax (voter approved for a ten year 
period) as a stable source of funding to finance the preservation of 
historic sites, open space and farmland. Colorado uses part of the 
proceeds from the State lottery to acquire and manage open space. Some 
local municipalities use a percentage of the local sales tax revenue to 
pay for open space acquisition (e.g., Jefferson County, CO has had an 
open space program in place since 1977 funded by a 0.50 percent sales 
tax). Open space can be acquired in the form of: fee simple purchase; 
easements; development rights; purchase and sellback or leaseback 
arrangements; purchase options; private land trusts; impact fees; and 
land dedication requirements. Generally, fee simple purchases provide 
the highest level of development control and certainty of preservation, 
whereas the other forms of acquisition may provide less control, though 
they would also generally be less costly.
    Cluster development, while allowing housing densities comparable to 
conventional zoning practice, concentrates housing units in a portion 
of the total site area which provides for greater open space, 
recreation, stream protection and storm water control. This type of 
development, by reducing lot sizes, can protect sensitive areas and 
result in less impervious surface, as well as reduce the cost for roads 
and other infrastructure.
    Minimizing directly connected impervious areas (DCIAs) is a 
drainage strategy that seeks to reduce paved areas and directs storm 
water runoff to landscaped areas or to structural controls such as 
grass swales or buffer strips. This strategy can slow the rate of 
runoff, reduce runoff volumes, attenuate peak flows, and encourage 
filtering and infiltration of storm water. It can be made an integral 
part of drainage planning for any development (Urban Drainage and Flood 
Control District, Denver, CO. 1992. Urban Storm Drainage Criteria 
Manual, Volume 3--Best Management Practices). The Urban Drainage and 
Flood Control District manual describes three levels for minimizing 
DCIAs. At Level 1 all impervious surfaces are made to drain over grass-
covered areas before reaching a storm water conveyance system. Level 2 
adds to Level 1 and replaces street curb and gutter systems with low-
velocity grass-lined swales and pervious street shoulders. In addition 
to Levels 1 and 2, Level 3 over-sizes swales and configures driveway 
and street crossing culverts to use grass-lined swales as elongated 
detention basins.
    Structural BMPs include: (1) Storage practices such as wet ponds 
and extended-detention outlet structures; (2) filtration practices such 
as grassed swales, sand filters and filter strips; and (3) infiltration 
practices such as infiltration basins and infiltration trenches.
    EPA recommends that small MS4 operators ensure the appropriate 
implementation of the structural BMPs by considering some or all of the 
following: (1) Pre-construction review of BMP designs; (2) inspections 
during construction to verify BMPs are built as designed; (3) post-
construction inspection and maintenance of BMPs; and (4) sanctions to 
ensure compliance with design, construction or operation and 
maintenance (O&M) requirements of the program.
    EPA cautions that certain infiltration systems such as dry wells, 
bored wells or tile drainage fields may be subject to Underground 
Injection Control (UIC) program requirements (see 40 CFR Part 144.12.). 
To find out more about these requirements, contact your state UIC 
Program, or call EPA's Safe Drinking Water Hotline at 1-800-426-4791.
    In order to meet the third post-construction requirement (ensuring 
adequate long-term O&M of BMPs), EPA recommends that small MS4 
operators evaluate various O&M management agreement options. The most 
common options are agreements between the

[[Page 68761]]

MS4 operator and another party such as post-development landowners 
(e.g., homeowners' associations, office park owners, other government 
departments or entities), or regional authorities (e.g., flood control 
districts, councils of government). These agreements typically require 
the post-construction property owner to be responsible for the O&M and 
may include conditions which: allow the MS4 operator to be reimbursed 
for O&M performed by the MS4 operator that is the responsibility of the 
property owner but is not performed; allow the MS4 operator to enter 
the property for inspection purposes; and in some cases specify that 
the property owner submit periodic reports.
    In providing the guidance above, EPA intends the requirements in 
today's rule to be consistent with the permit application requirements 
for large MS4s for post-construction controls for new development and 
redevelopment. MS4 operators have significant flexibility both to 
develop this measure as appropriate to address local concerns, and to 
apply new control technologies as they become available. Storm water 
pollution control technologies are constantly being improved. EPA 
recommends that MS4s be responsive to these changes, developments or 
improvements in control technologies. EPA will provide more detailed 
guidance addressing the responsibility for long-term O&M of storm water 
controls in guidance materials. The guidance will also provide 
information on appropriate planning considerations, structural controls 
and non-structural controls. EPA also intends to develop a broad menu 
of BMPs as guidance to ensure flexibility to accommodate local 
conditions.
    EPA received comments suggesting that requirements for new 
development be treated separately from redevelopment in the rule. The 
comment stressed that new development on raw land presents fewer 
obstacles and more opportunities to incorporate elements for preventing 
water quality impacts, whereas redevelopment projects are constrained 
by space limitations and existing infrastructure. Another comment 
suggested allowing waivers from the redevelopment requirements if the 
redevelopment does not result in additional adverse water quality 
impacts, and where BMPs are not technologically or economically 
feasible. EPA recognizes that redevelopment projects may have more site 
constraints which narrow the range of appropriate BMPs. Today's rule 
provides small MS4 operators with the flexibility to develop 
requirements that may be different for redevelopment projects, and may 
also include allowances for alternate or off-site BMPs at certain 
redevelopment projects. Non-structural BMPs may be the most appropriate 
approach for smaller redevelopment projects.
    EPA received comments requesting clarification on what is meant by 
``pre-development'' conditions within the context of redevelopment. 
Pre-development refers to runoff conditions that exist onsite 
immediately before the planned development activities occur. Pre-
development is not intended to be interpreted as that period before any 
human-induced land disturbance activity has occurred.
    EPA received comments on the guidance language in the proposed rule 
and preamble which suggest that implementation of this measure should 
``attempt to maintain pre-development runoff conditions'' and that 
``post-development conditions should not be different than pre-
development conditions in a way that adversely affects water quality.'' 
Many comments expressed concern that maintaining pre-development runoff 
conditions is impossible and cost-prohibitive, and objected to any 
reference to ``flow'' or increase in volume of runoff. Other comments 
support the inclusion of this language in the final rule. Similar 
references in today's rule relating to pre-development runoff 
conditions are intended as recommendations to attempt to maintain pre-
development runoff conditions. With these recommendations, EPA intends 
to prevent water quality impacts resulting from increased discharges of 
pollutants, which may result from increased volume of runoff. In many 
cases, consideration of the increased flow rate, velocity and energy of 
storm water discharges following development unavoidably must be taken 
into consideration in order to reduce the discharge of pollutants, to 
meet water quality standards and to prevent degradation of receiving 
streams. EPA recommends that municipalities consider these factors when 
developing their post-construction storm water management program.
    Some comments said that the quoted phrases in the paragraph above 
are directives that imply federal land use control, which they argue is 
beyond the authority of the CWA. EPA recognizes that land use planning 
is within the authority of local governments.
    EPA disagrees, however, with the implication that today's rule 
dictates any such land use decisions. The requirement for small MS4 
operators to develop a program to address discharges resulting from new 
development and redevelopment is essentially a pollution prevention 
measure. The Rule provides the MS4 operator with flexibility to 
determine the appropriate BMPs to address local water quality concerns. 
EPA recognizes that these program goals may not be applied to every 
site, and expects that MS4s will develop an appropriate combination of 
BMPs to be applied on a site-by-site, regional or watershed basis.
    vi. Pollution Prevention/Good Housekeeping for Municipal 
Operations. Under today's final rule, operators of MS4s must develop 
and implement an operation and maintenance program (``program'') that 
includes a training component and has the ultimate goal of preventing 
or reducing storm water from municipal operations (in addition to those 
that constitute storm water discharges associated with industrial 
activity). This measure's emphasis on proper O&M of MS4s and employee 
training, as opposed to requiring the MS4 to undertake major new 
activities, is meant to ensure that municipal activities are performed 
in the most efficient way to minimize contamination of storm water 
discharges.
    The program must include government employee training that 
addresses prevention measures pertaining to municipal operations such 
as: parks, golf courses and open space maintenance; fleet maintenance; 
new construction or land disturbance; building oversight; planning; and 
storm water system maintenance. The program can use existing storm 
water pollution prevention training materials provided by the State, 
Tribe, EPA, or environmental, public interest, or trade organizations.
    EPA also encourages operators of MS4s to consider the following in 
developing a program: (1) Implement maintenance activities, maintenance 
schedules, and long-term inspection procedures for structural and non-
structural storm water controls to reduce floatables and other 
pollutants discharged from the separate storm sewers; (2) implement 
controls for reducing or eliminating the discharge of pollutants from 
streets, roads, highways, municipal parking lots, maintenance and 
storage yards, waste transfer stations, fleet or maintenance shops with 
outdoor storage areas, and salt/sand storage locations and snow 
disposal areas operated by the MS4; (3) adopt procedures for the proper 
disposal of waste removed from the separate storm sewer systems and 
areas listed above in (2), including dredge

[[Page 68762]]

spoil, accumulated sediments, floatables, and other debris; and (4) 
adopt procedures to ensure that new flood management projects are 
assessed for impacts on water quality and existing projects are 
assessed for incorporation of additional water quality protection 
devices or practices. Ultimately, the effective performance of the 
program measure depends on the proper maintenance of the BMPs, both 
structural and non-structural. Without proper maintenance, BMP 
performance declines significantly over time. Additionally, BMP neglect 
may produce health and safety threats, such as structural failure 
leading to flooding, undesirable animal and insect breeding, and odors. 
Maintenance of structural BMPs could include: replacing upper levels of 
gravel; dredging of detention ponds; and repairing of retention basin 
outlet structure integrity. Maintenance of non-structural BMPs could 
include updating educational materials periodically.
    EPA emphasizes that programs should identify and incorporate 
existing storm water practices and training, as well as non-storm water 
practices or programs that have storm water pollution prevention 
benefits, as a means to avoid duplication of efforts and reduce overall 
costs. EPA recommends that MS4s incorporate these new obligations into 
their existing programs to the greatest extent feasible and urges 
States to evaluate MS4 programs with programmatic efficiency in mind. 
EPA designed this minimum control measure as a modified version of the 
permit application requirements for medium and large MS4s described at 
40 CFR 122.26(d)(2)(iv), in order to provide more flexibility for these 
smaller MS4s. Today's requirements provide for a consistent approach to 
control pollutants from O&M among medium, large, and regulated small 
MS4s.
    By properly implementing a program, operators of MS4s serve as a 
model for the rest of the regulated community. Furthermore, the 
establishment of a long-term program could result in cost savings by 
minimizing possible damage to the system from floatables and other 
debris and, consequently, reducing the need for repairs.
    EPA received comments requesting clarification of what this measure 
requires. Certain municipalities expressed concern that the measure has 
the potential to impose significant costs associated with EPA's 
requirement that operators of MS4s consider implementing controls for 
reducing or eliminating the discharge of pollutants from streets, 
roads, highways, municipal parking lots, and salt/sand storage 
locations and snow disposal areas operated by the municipality. EPA 
disagrees that a requirement to consider such controls will impose 
considerable costs.
    One commenter objected to the preamble language from the proposal 
suggesting that EPA does not expect the MS4 to undertake new activity. 
While it remains the Agency's expectation that major new activity will 
not be required, the MEP process should drive MS4s to incorporate the 
measure's obligations into their existing programs to achieve the 
pollutant reductions to the maximum extent practicable.
    Certain commenters requested a definition for ``municipal 
operations.'' EPA has revised the language to more clearly define 
municipal operations. Questions may remain concerning whether 
discharges from specific municipal activities constitute discharges 
associated with industrial activities (requiring NPDES permit 
authorization according to the requirements for industrial storm water 
that apply in that State) or from municipal operations (subject only to 
the controls developed in the MS4 control program). Even though there 
may be different substantive requirements that apply depending on the 
source of the discharge, EPA has modified the deadlines for permit 
coverage so that all the regulated municipally owned and operated 
sources become subject to permit requirements on the same date. The 
deadline is the same for permit coverage for this minimum measure as 
for permit coverage for municipally owned/operated industrial sources.
c. Application Requirements
    An NPDES permit that authorizes the discharge from a regulated 
small MS4 may take the form of either an individual permit issued to 
one or more facilities as co-permittees or a general permit that 
applies to a group of MS4s. For reasons of administrative efficiency 
and to reduce the paperwork burden on permittees, EPA expects that most 
discharges from regulated small MS4s will be authorized under general 
permits. These NPDES general permits will provide specific instructions 
on how to obtain coverage, including application requirements. 
Typically, such application requirements will be satisfied by the 
submission of a Notice of Intent (NOI) to be covered by the general 
permit. In this section, EPA explains the small MS4 operator's 
application requirements for obtaining coverage under a NPDES permit 
for storm water.
    i. Best Management Practices and Measurable Goals, Section 
122.34(d) of today's rule requires the operator of a regulated small 
MS4 that wishes to implement a program under Sec. 122.34 to identify 
and submit to the NPDES permitting authority a list of the best 
management practices (``BMPs'') that will be implemented for each 
minimum control measure in their storm water management program. They 
also must submit measurable goals for the development and 
implementation of each BMP. The BMPs and the measurable goals must be 
included either in an NOI to be covered under a general permit or in an 
individual permit application.
    The operator's submission must identify, as appropriate, the months 
and years in which the operator will undertake actions required to 
implement each of the minimum control measures, including interim 
milestones and the frequency of periodic actions. The Agency revised 
references to ``starting and completing'' actions from the proposed 
rule because many actions will be repetitive or ongoing. The submission 
also must identify the person or persons responsible for implementing 
or coordinating the small MS4 storm water program. See Sec. 122.34(d). 
The submitted BMPs and measurable goals become enforceable according to 
the terms of the permit. The first permit can allow the permittee up to 
five years to fully implement the storm water management program.
    Several commenters opposed making the measurable goals enforceable 
permit conditions. Some suggested that a permittee should be able to 
change its goals so that BMPs that are not functioning as intended can 
be replaced. EPA agrees that a permittee should be free to switch its 
BMPs and corresponding goals to others that accomplish the minimum 
measure or measures. The permittee is required to implement BMPs that 
address the minimum measures in Sec. 122.34(b). If the permittee 
determines that its original combination of BMPs are not adequate to 
achieve the objectives of the municipal program, the MS4 should revise 
its program to implement BMPs that are adequate and submit to the 
permitting authority a revised list of BMPs and measurable goals. EPA 
suggests that permits describe the process for revising BMPs and 
measurable goals, such as whether the permittee should follow the same 
procedures as were required for the submission of the original NOI and 
whether the permitting authority's approval is necessary prior to the 
permittee implementing the revised

[[Page 68763]]

BMPs. The permittee should indicate on its periodic report whether any 
BMPs and measurable goals have been revised since the last periodic 
report.
    Some commenters expressed concern that making the measurable goals 
enforceable would encourage the development of easily attained goals 
and, conversely, discourage the setting of ambitious goals. Others 
noted that it is often difficult to determine the pollutant reduction 
that can be achieved by BMPs until several years after implementation. 
Much of the opposition to the enforceability of measurable goals 
appears to have been based on a mistaken understanding that measurable 
goals must consist of pollutant reduction targets to be achieved by the 
corresponding BMPs.
    Today's rule requires the operator to submit either measurable 
goals that serve as BMP design objectives or goals that quantify the 
progress of implementation of the actions or performance of the 
permittee's BMPs. At a minimum, the required measurable goals should 
describe specific actions taken by the permittee to implement each BMP 
and the frequency and the dates for such actions. Although the operator 
may choose to do so, it is not required to submit goals that measure 
whether a BMP or combination of BMPs is effective in achieving a 
specific result in terms of storm water discharge quality. For example, 
a measurable goal might involve a commitment to inspect a given number 
of drainage areas of the collection system for illicit connections by a 
certain date. The measurable goal need not commit to achieving a 
specific amount of pollutant reduction through the elimination of 
illicit connections. Other measurable goals could include the date by 
which public education materials would be developed, a certain 
percentage of the community participating in a clean-up campaign, the 
development of a mechanism to address construction site runoff, and a 
reduction in the percentage of imperviousness associated with new 
development projects.
    To reduce the risk that permittees will develop inadequate BMPs, 
EPA intends to develop a menu of BMPs to assist the operators of 
regulated small MS4s with the development of municipal programs. States 
may also develop a menu of BMPs. Today's rule provides that the 
measurable goals that demonstrate compliance with the minimum control 
measures in Secs. 122.34 (b)(3) through (b)(6) do not have to be met if 
the State or EPA has not issued a menu of BMPs at the time the MS4 
submits its NOI. Commenters pointed out that the proposed rule would 
have made the measurable goals unenforceable if the menu of BMPs was 
not available, but the proposal was silent as to the enforceability of 
the implementation of BMPs. Today's rule clarifies that the operators 
are not free to do nothing prior to the issuance of a menu of BMPs; 
they still must make a good faith effort to implement the BMPs designed 
to comply with each measure. See Sec. 122.34(d)(2). The operators would 
not, however, be liable for failure to meet its measurable goals if a 
menu of BMPs was not available at the time they submit their NOI.
    The proposed rule provision in Sec. 123.35 stated that the 
``[f]ailure to issue the menu of BMPs would not affect the legal status 
of the general permit.'' This concept is included in the final rule in 
Sec. 122.34(d)(2)'s clarification that the permittee still must comply 
with other requirements of the general permit.
    Unlike the proposed rule, today's rule does not require that each 
BMP in the menu developed by the State or EPA be regionally 
appropriate, cost-effective and field-tested. Various commenters 
criticized those criteria as unworkable, and one described them as 
``ripe for ambiguity and abuse.'' Other commenters feared that the 
operators of regulated small MS4s would never be required to achieve 
their goals until menus were developed that were cost-effective, field-
tested and appropriate for every conceivable subregion.
    While some municipal commenters supported the requirement that a 
menu of BMPs be made available that included BMPs that had been 
determined to be regionally appropriate, field-tested and cost-
effective, others raised concerns that they would be restricted to a 
limited menu. Some commenters supported such a detailed menu because 
they thought they would only be able to select BMPs that were on the 
menu, while others thought that it was the permitting authority's 
responsibility to develop BMPs narrowly tailored to their situation. In 
response, EPA notes that the operators will not be restricted to 
implementing only, or all of, the BMPs included on the menu. Since the 
menu does not require permittees to implement the BMPs included on the 
menu, it is also not necessary to apply the public notice and other 
procedures that some commenters thought should be applied to the 
development of the menu of BMPs.
    The purpose of the BMP menu is to provide guidance to assist the 
operators of regulated small MS4s with the development and refinement 
of their local program, not to limit their options. Permittees may 
implement BMPs other than those on the menu unless a State restricts 
its permittees to specific BMPs. To the extent possible, EPA will 
develop a menu of BMPs that describes the appropriateness of BMPs to 
specific regions, whether the BMPs have been field-tested, and their 
approximate costs. The menu, however, is not intended to relieve 
permittees of the need to implement BMPs that are appropriate for their 
specific circumstances.
    If there are no known relevant BMPs for a specific circumstance, a 
permittee has the option of developing and implementing pilot BMPs that 
may be better suited to their circumstances. Where BMPs are 
experimental, the permittee should consider committing to measurable 
goals that address its schedule for implementing its selected BMPs 
rather than goals of achieving specific pollutant reductions. If the 
BMPs implemented by the permittee do not achieve the desired objective, 
the permittee may be required to commit to different or revised BMPs.
    As stated in Sec. 123.35(g), EPA is committed to issuing a menu of 
BMPs prior to the deadline for the issuance of permits. This menu would 
serve as guidance for all operators of regulated small MS4s nationwide. 
After developing the initial menu of BMPs, EPA intends to periodically 
modify, update, and supplement the menu of BMPs based on the 
assessments of the MS4 storm water program and research. States may 
rely on EPA's menu of BMPs or issue their own. If States develop their 
own menus, they would constitute additional guidance (or perhaps 
requirements in some States) for the operators to follow. Several 
commenters were confused by the proposed rule language that stated that 
States must provide or issue a menu of BMPs and, if they fail to do so, 
EPA ``may'' do so. Some read this language as not requiring either EPA 
or the State to develop the menu. EPA had intended that it would 
develop a menu and that States could either provide the EPA developed 
menu or one developed by the State.
    EPA has dropped the proposed language that States ``must'' develop 
the menu of BMPs. Some commenters thought that it was inappropriate to 
require States to issue guidance. A menu of BMPs issued by either EPA 
or a permittee's State will satisfy the condition in Sec. 122.34(d) 
that a regulatory authority provide a menu of BMPs. A State could 
require its permittees to follow its menu of BMPs provided that they 
are adequate to implement Sec. 122.34(b).
    Several commenters raised concerns that operators of small MS4s 
could be

[[Page 68764]]

required to submit their BMPs and measurable goals before EPA or the 
State has issued a menu of BMPs. EPA has assumed primary responsibility 
for developing a menu of BMPs to minimize the possibility of this 
occurring. Should a general permit be issued before a menu of BMPs is 
available, the permit writer would have the option of delaying the date 
by which the identification of the BMPs and measurable goals must be 
submitted to the permitting authority until some time after a menu of 
BMPs is available.
    Several municipal commenters raised concerns that they would begin 
to develop a program only to be later told by the permitting authority 
or challenged in a citizen suit that their BMPs were inadequate. They 
expressed a need for certainty regarding what their permit required. 
Several commenters suggested that EPA require permitting authorities to 
approve or disapprove the submitted BMPs and measurable goals. EPA 
disagrees that formal approval or disapproval by the permitting 
authority is needed.
    EPA acknowledges that the lack of a formal approval process does 
place on the permittee some responsibility for designing and 
determining the adequacy of its BMPs. Once the permittee has submitted 
its BMPs to the permitting authority as part of its NOI, it must 
implement them in order to achieve the corresponding measurable goals. 
EPA does not believe that this results in the uncertainty to the extent 
expressed by some commenters or unduly expose the permittee to the risk 
of citizen suit. If the permit is very specific regarding what the 
permittee must do, then the uncertainty is eliminated. If the permit is 
less prescriptive, the permittee has greater latitude in determining 
for itself what constitutes an adequate program. A citizen suit could 
impose liability on the permittee only if the program that it develops 
and implements clearly does not satisfy the requirements of the general 
permit. EPA believes today's approach strikes a balance between the 
competing goals of providing certainty as to what constitutes an 
adequate program and providing flexibility to the permittees.
    Commenters were divided on whether five years was a reasonable and 
expeditious schedule for a MS4 to implement its program. Some thought 
that it was an appropriate amount of time to allow for the development 
and implementation of adequate programs. One questioned whether the 
permittee had to be implementing all of its program within that time, 
and suggested that there may be cases where a permitting authority 
would need flexibility to allow more time. One commenter suggested that 
five years is too long and would amount to a relaxation of 
implementation in their area. EPA believes it will take considerable 
time to complete the tasks of initially developing a program, 
commencing to implement it, and achieving results. EPA notes, however, 
that full implementation of an appropriate program must occur as 
expeditiously as possible, and not later than five years.
    EPA solicited comment on how an NOI form might best be formatted to 
allow for measurable goal information (e.g., through the use of check 
boxes or narrative descriptions) while taking into account the Agency's 
intention to facilitate computer tracking. All commenters supported the 
development of a checklist NOI, but most noted that there would need to 
be room for additional information to cover unusual situations. One 
noted that, while a summary of measurable goals might be reduced to one 
sheet, attachments that more fully described the program and the 
planned BMPs would be necessary. EPA agrees that in most cases a 
``checklist'' will not be able to capture the information on what BMPs 
a permittee intends to implement and its measurable goals for their 
implementation. EPA will continue to consider whether to develop a 
model NOI form and make it available for permitting authorities that 
choose to use it. What will be required on an MS4's NOI, however, is 
more extensive than what is usually required on an NOI, so a ``form'' 
NOI for MS4s may be impractical.
    ii. Individual Permit Application for a Sec. 122.34(b) program. In 
some cases, an operator of a regulated small MS4s may seek coverage 
under an individual NPDES permit, either because it chooses to do so or 
because the NPDES permitting authority has not made the general permit 
option available to that source. For small MS4s that are to implement a 
Sec. 122.34(b) program in today's rule, EPA is promulgating simplified 
individual permit application requirements at Sec. 122.33(b)(2)(i). 
Under the simplified individual permit application requirements, the 
operator submits an application to the NPDES permitting authority that 
includes the information required under Sec. 122.21(f) and an estimate 
of square mileage served by the small MS4. They are also required to 
supply the BMP and measurable goal information required under 
Sec. 122.34(d). Consistent with CWA section 308 and analogous State 
law, the permitting authority could request any additional information 
to gain a better understanding of the system and the areas draining 
into the system.
    Commenters suggested that the requirements of Sec. 122.21(f) are 
not necessarily applicable to a small MS4. One suggested that it was 
not appropriate to require the following information: a description of 
the activities conducted by the applicant which require it to obtain an 
NPDES permit; the name, mailing address, and location of the facility; 
and up to four Standard Industrial Classification (``SIC'') codes which 
best reflect the principal products or services provided by the 
facility. In response, EPA notes that the requirements in 
Sec. 122.21(f) are generic application requirements applicable to NPDES 
applicants. With the exception of the SIC code requirement, EPA 
believes that they are applicable to MS4s. In the SIC code portion of 
the standard application, the applicant may simply put ``not 
applicable.''
    One commenter asked that EPA clarify whether Sec. 122.21(f)(5)'s 
requirement to indicate ``whether the facility is located on Indian 
lands,'' referred to tribal lands, Indian country, or Indian 
reservations. For some local governments this is a complex issue with 
no easy ``yes'' or ``no'' answer. See the discussion in the Section 
II.F in the proposal to today's rule regarding what tribal lands are 
subject to the federal trust responsibility for purposes of the NPDES 
program.
    One commenter suggested that the application should not have to 
list the permits and approvals required under Sec. 122.21(f)(6). EPA 
notes that the applicant must only list the environmental permits that 
the applicant has received that cover the small MS4. The applicant is 
not required to list permits for other operations conducted by the 
small MS4 operator (e.g., for an operation of an airport or landfill). 
Again, in most cases the applicant could respond ``not applicable'' to 
this portion of the application.
    One commenter suggested that the topographic map requirement of 
Sec. 122.21(f)(7) was completely different from, and significantly more 
onerous than, the mapping requirement outlined in the proposed rule at 
Sec. 122.34(b)(3)(i). EPA agrees and has modified the final rule to 
clarify that a map that satisfies the requirements of 
Sec. 122.34(b)(3)(i) also satisfies the map requirements for MS4 
applicants seeking individual permits under Sec. 122.33(b)(2)(i).
    EPA is adding a new paragraph to Sec. 122.44(k) to clarify that 
requirements to implement BMPs developed pursuant to CWA 402(p) are 
appropriate permit

[[Page 68765]]

conditions. While such conditions could be included under the existing 
provision in Sec. 122.44(k)(3) for ``practices reasonably necessary to 
achieve effluent limitations and standards or to carry out the purposes 
and intent of the CWA,'' EPA believes it is clearer to specifically 
list in Sec. 122.44(k) BMPs that implement storm water programs in 
light of the frequency with which they are used as effluent 
limitations.
    iii. Alternative Permit Options/Tenth Amendment. As an alternative 
to implementing a program that addresses each of the six minimum 
measures according to the requirements of Sec. 122.34(b), today's rule 
provides the operators of regulated small MS4s with the option of 
applying for an individual permit under existing Sec. 122.26(d). See 
Sec. 122.33(b)(2)(ii). If a system operator does not want to be held 
accountable for implementation of each of the minimum measures, an 
individual permit option under Sec. 122.33(b)(2)(ii) remains available. 
(As explained in the next section of this preamble, Sec. 122.35(b) also 
provides an opportunity for relief from permit obligations for some of 
the minimum measures, but that relief exists within the framework of 
the minimum measures.)
    EPA originally drafted the individual permit application 
requirements in Sec. 122.26(d) to apply to medium and large MS4s. 
Today's rule abbreviates the individual permit application requirements 
for small MS4s. Although EPA believes that the storm water management 
program requirements of Sec. 122.34, including the minimum measures, 
provide the most appropriate means to control pollutants from most 
small MS4s, the Agency does recognize that the operators of some small 
MS4s may prefer more individualized permit requirements. Among other 
possible reasons, an operator may seek to avoid having to ``regulate'' 
third parties discharging into the separate storm sewer system. 
Alternatively, an operator may determine that structural controls, such 
as constructed wetlands, are more appropriate or effective to address 
the discharges that would otherwise be addressed under the construction 
and/or development/redevelopment measures.
    Some MS4s commenters alleged that an absolute requirement to 
implement the minimum measures violates the Tenth Amendment to the U.S. 
Constitution. While EPA disagrees that requiring MS4s to implement the 
minimum measures would violate the Constitution, today's rule does 
provide small MS4s with the option of developing more individualized 
measures to reduce the pollutants and pollution associated with urban 
storm water that will be regulated under today's rule.
    Some commenters specifically objected that Sec. 122.34's minimum 
measures for small MS4s violate the Tenth Amendment insofar as they 
require the operators of MS4s to regulate third parties. The minimum 
measures include requirements for small MS4 operators to prohibit 
certain non-storm water discharges, control storm water discharges from 
construction greater than one acre, and take other actions to control 
third party sources of storm water discharges into their MS4s. 
Commenters also argued that it was inappropriate for EPA to require 
local governments to enact ordinances that will consume local revenues 
and put local governments in the position of bearing the political 
responsibility for implementing the program. One commenter argued that 
EPA was prohibited from conditioning the issuance of an NPDES permit 
upon the small MS4 operators waiving their constitutional right to be 
free from such requirements to regulate third parties. The Agency 
replies to each comment in turn.
    Because the rule does rely on local governments--who operate 
municipal separate storm sewer systems--to regulate discharges from 
third parties into storm sewers, EPA acknowledges that the rule 
implicates the Tenth Amendment and constitutional principles of 
federalism. EPA disagrees, however, that today's rule is inconsistent 
with federalism principles. [As political subdivisions of States, 
municipalities enjoy the same protections as States under the Tenth 
Amendment.]
    The Supreme Court has interpreted the Tenth Amendment to preclude 
federal actions that compel States or their political subdivisions to 
enact or administer a federal regulatory program. See New York v. 
United States, 505 U.S. 144 (1992); Printz v. United States, 117 S.Ct. 
2365 (1997). The Printz case, however, did acknowledge that the 
restriction does not apply when federal requirements of general 
applicability--requirements that regulate all parties engaging in a 
particular activity--do not excessively interfere with the functioning 
of State governments when those requirements are applied to States (or 
their political subdivisions). See Printz, 117 S.Ct. at 2383.
    Today's rule imposes a federal requirement of general 
applicability, namely, the requirement to obtain and comply with an 
NPDES permit, on municipalities that operate a municipal separate storm 
sewer system. By virtue of this rule, the permit will require the 
municipality/storm sewer operator to develop a storm water control 
program. The rule specifies the components of the control program, 
which are primarily ``management'-type controls, for example, municipal 
regulation of third party storm water discharges associated with 
construction, as well as development and redevelopment, when those 
discharges would enter the municipal system.

    Unlike the circumstances reviewed in the New York and Printz cases, 
today's rule merely applies a generally applicable requirement (the CWA 
permit requirement) to municipal point sources. The CWA establishes a 
generally applicable requirement to obtain an NPDES permit to authorize 
point source discharge to waters of the United States. Because 
municipalities own and operate separate storm sewers, including storm 
sewers into which third parties may discharge pollutants, NPDES permits 
may require municipalities to control the discharge of pollutants into 
the storm sewers in the first instance. Because NPDES permits can 
impose end-of-pipe numeric effluent limits, narrative effluent limits 
in the form of ``management'' program requirements are also within the 
scope of Clean Water Act authority. As noted above, however, EPA 
believes that such narrative limitations are the most appropriate form 
of effluent limitation for these types of permits. For municipal 
separate storm sewer permits, CWA section 402(p)(3)(B)(iii) 
specifically authorizes ``controls to reduce pollutants to the maximum 
extent practicable, including management practices, control techniques 
and system, design and engineering methods, and such other provisions 
as the Administrator or the State determines appropriate for the 
control of such pollutants.''
    The Agency did not design the minimum measures in Sec. 122.34 to 
``commandeer'' state regulatory mechanisms, but rather to reduce 
pollutant discharges from small MS4s. The permit requirement in CWA 
section 402 is a requirement of general applicability. The operator of 
a small MS4 that does not prohibit and/or control discharges into its 
system essentially accepts ``title'' for those discharges. At a 
minimum, by providing free and open access to the MS4s that convey 
discharges to the waters of the United States, the municipal storm 
sewer system enables water quality impairment by third parties. Section 
122.34 requires the operator of a regulated small MS4 to control a 
third

[[Page 68766]]

party only to the extent that the MS4 collection system receives 
pollutants from that third party and discharges it to the waters of the 
United States. The operators of regulated small MS4s cannot passively 
receive and discharge pollutants from third parties. The Agency 
concedes that administration of a municipal program will consume 
limited local revenues for implementation; but those consequences stem 
from the municipal operator's identity as a permitted sewer system 
operator. The Tenth Amendment does not create a blanket municipal 
immunity from generally applicable requirements. Development of a 
program based on the minimum measures and implementation of that 
program should not ``excessively interfere'' with the functioning of 
municipal government, especially given the ``practicability'' threshold 
under CWA section 402(p)(3)(B)(iii).
    As noted above, today's rule also allows regulated small MS4s to 
opt out of the minimum measures approach. The individual permit option 
provides for greater flexibility in program implementation and also 
responds to the comment about requiring a municipal permit applicant's 
waiver of any arguable constitutional rights. The individual permit 
option responds to questions about the rule's alleged 
unconstitutionality by more specifically focusing on the pollutants 
discharged from municipal point sources. Today's rule gives operators 
of MS4s the option to seek an individual permit that varies from the 
minimum measures/management approach that is otherwise specified in 
today's rule. Even if the minimum measures approach was 
constitutionally suspect, a requirement that standing alone would 
violate constitutional principles of federalism does not raise concerns 
if the entity subject to the requirement may opt for an alternative 
action that does not raise a federalism issue.
    For municipal system operators who seek to avoid third party 
regulation according to all or some of the minimum measures, 
Sec. 122.26(d) requires the operator to submit a narrative description 
of its storm water sewer system and any existing storm water control 
program, as well as the monitoring data to enable the permit writer to 
develop appropriate permit conditions. The permit writer can then 
develop permit conditions and limitations that vary from the six 
minimum measures prescribed in today's rule. The information will 
enable the permit writer to develop an NPDES permit that will result in 
pollutant reduction to the maximum extent practicable. See NRDC v. EPA, 
966 F.2d at 1308, n17. If determined appropriate under CWA section 
402(p)(3)(B)(iii), for example BMPs to meet water quality standards, 
the permit could also incorporate any more stringent or prescriptive 
effluent limits based on the individual permit application information.
    For small MS4 operators seeking an individual permit, both Part 1 
and Part 2 of the application requirements in Sec. 122.26(d)(1) and (2) 
are required to be submitted within 3 years and 90 days of the date of 
publication of this Federal Register notice. Some of the information 
required in Part 1 will necessarily have to be developed by the permit 
applicant prior to the development of Part 2 of the application. The 
permit applicant should coordinate with its permitting authority 
regarding the timing of review of the information.
    The operators of regulated small MS4s that apply under 
Sec. 122.26(d) may apply to implement certain of the Sec. 122.34(b) 
minimum control measures, and thereby focus the necessary evaluation 
for additional limitations on alternative controls to the 
Sec. 122.34(b) measures that the small MS4 will not implement. The 
permit writer may determine ``equivalency'' for some or all of the 
minimum measures by developing a rough estimate of the pollutant 
reduction that would be achieved if the MS4 implemented the Sec. 122.34 
minimum measure and to incorporate that pollutant reduction estimate in 
the small MS4's individual permit as an effluent limitation. The Agency 
recognizes that, based on current information, any such estimates will 
probably have a wide range. Anticipation of this wide range is one of 
the reasons EPA believes MS4 operators need flexibility in determining 
the mix of BMPs (under the minimum measures) to achieve water quality 
objectives. Therefore, for example, if a system operator seeks to 
employ an alternative that involves structural controls, wide ranges 
will probably be associated with gross pollutant reduction estimates. 
Permit writers will undoubtedly develop other ways to ensure that 
permit limits ensure reduction of pollutants to the maximum extent 
practicable.
    Small MS4 operators that pursue this individual permit option do 
not need to submit details about their future program requirements 
(e.g., the MS4's future plans to obtain legal authority required by 
Secs. 122.26(d)(1)(ii) and (d)(2)). A small MS4 operator might elect to 
supply such information if it intends for the permit writer to take 
those plans into account when developing the small MS4's permit 
conditions.
    Several operators of small MS4s commented that they currently 
lacked the authority they would need to implement one or more of the 
minimum measures in Sec. 122.34(b). Today's rule recognizes that the 
operators of some small MS4s might not have the authority under State 
law to implement one or more of the measures using, for example, an 
ordinance or other regulatory mechanism. To address these situations, 
each minimum measure in Sec. 122.34(b) that would require the small MS4 
operator to develop an ordinance or other regulatory mechanism states 
that the operator is only required to implement that requirement to 
``the extent allowable under State, Tribal or local law.'' See 
Sec. 122.34(b)(3)(ii) (illicit discharge elimination), 
Sec. 122.34(b)(4)(ii) (construction runoff control) and 
Sec. 122.34(b)(5)(ii) (post-construction storm water management). This 
regulatory language does not mean that a operator of a small MS4 with 
ordinance making authority can simply fail to pass an ordinance 
necessary for a Sec. 122.34(b) program. The reference to ``the extent 
allowable under * * * local law'' refers to the local laws of other 
political subdivisions to which the MS4 operator is subject. Rather, a 
small MS4 operator that seeks to implement a program under section 
Sec. 122.34(b) may omit a requirement to develop an ordinance or other 
regulatory mechanism only to the extent its municipal charter, State 
constitution or other legal authority prevents the operator from 
exercising the necessary authority. Where the operator cannot obtain 
the authority to implement any activity that is only required to ``the 
extent allowable under State, Tribal or local law,'' the operator may 
satisfy today's rule by administering the remaining Sec. 122.34(b) 
requirements.
    Finally, although today's rule provides operators of small MS4s 
with an option of applying for a permit under Sec. 122.26(d), States 
authorized to administer the NPDES program are not required to provide 
this option. NPDES-authorized States could require all regulated small 
MS4s to be permitted under the minimum measures management approach in 
Sec. 122.34 as a matter of State law. Such an approach would be deemed 
to be equally or more stringent than what is required by today's rule. 
See 40 CFR 123.2(i). The federalism concerns discussed above do not 
apply to requirements imposed by a State on its political subdivisions.
    iv. Satisfaction of Minimum Measure Obligations by Another Entity. 
An operator of a regulated small MS4 may

[[Page 68767]]

satisfy the requirement to implement one or more of the six minimum 
measures in Sec. 122.34(b) by having a third party implement the 
measure or measures. Today's rule provides a variety of means for small 
MS4 operators to share responsibility for different aspects of their 
storm water management program. The means by which the operators of 
various MS4s share responsibility may affect who is ultimately 
responsible for performance of the minimum measure and who files the 
periodic reports on the implementation of the minimum measure. Section 
122.35 addresses these issues. The rule describes two different 
variants on third party implementation with different consequences if 
the third party fails to implement the measure.
    If the permit covering the discharge from a regulated small MS4 
identifies the operator as the entity responsible for a particular 
minimum control measure, then the operator-permittee remains 
responsible for the implementation of that measure even if another 
entity has agreed to implement the control measure. Section 122.35(a). 
Another party may satisfy the operator-permittee's responsibility by 
implementing the minimum control measure in a manner at least as 
stringent or prescriptive as the corresponding NPDES permit 
requirement. If the third party fails to do so, the operator-permittee 
remains responsible for its performance. The operator of the MS4 should 
consider entering into an agreement with the third party that 
acknowledges the responsibility to implement the minimum measure. The 
operator-permittee's NOI and its annual Sec. 122.34(f)(3) reports 
submitted to the NPDES permitting authority must identify the third 
party that is satisfying one or more of the permit obligations. This 
requirement ensures that the permitting authority is aware which entity 
is supposed to implement which minimum measures.
    If, on the other hand, the regulated small MS4's permit recognizes 
that an NPDES permittee other than the operator-permittee is 
responsible for a particular minimum control measure, then the 
operator-permittee is relieved from the responsibility for implementing 
that measure. The operator-permittee is also relieved from the 
responsibility for implementing any measure that the operator's permit 
indicates will be performed by the NPDES permitting authority. Section 
122.35(b). The MS4 operator-permittee would be responsible for 
implementing the remaining minimum measures.
    Today's final rule differs from the proposed version of 
Sec. 122.35(b), which stated that, even if the third party's 
responsibility is recognized in the permit, the MS4 operator-permittee 
remained responsible for performance if the third party failed to 
perform the measure consistent with Sec. 122.34(b). Under today's rule, 
the operator-permittee is relieved from responsibility for performance 
of a measure if the third party is an NPDES permittee whose permit 
makes it responsible for performance of the measure (including, for 
example, a State agency other than the State agency that issues NPDES 
permits) or if the third party is the NPDES permitting authority 
itself. Because the permitting authority is acknowledging the third 
party's responsibility in the permit, commenters thought that the MS4 
operator-permittee should not be responsible for ensuring that the 
other entity is implementing the control measure properly. EPA agrees 
that the operator-permittee should not be conditionally responsible 
when the requirements are enforceable against some other NPDES 
permittee. If the third party fails to perform the minimum measure, the 
requirements will be enforceable against the third party. In addition, 
the NPDES permitting authority could reopen the operator-permittee's 
permit under Sec. 122.62 and modify the permit to make the operator 
responsible for implementing the measure. A new paragraph has been 
added to Sec. 122.62 to clarify that the permit may be reopened in such 
circumstances.
    Today's rule also provides that the operator-permittee is not 
conditionally responsible where it is the State NPDES permitting 
authority itself that fails to implement the measure. The permitting 
authority does not need to issue a permit to itself (i.e., to the same 
State agency that issues the permit) for the sole purpose of relieving 
the small MS4 from responsibility in the event the State agency does 
not satisfy its obligation to implement a measure. EPA does not believe 
that the small MS4 should be responsible in the situation where the 
NPDES permit issued to the small MS4 operator recognizes that the State 
agency that issues the permit is responsible for implementing a 
measure. If the State does fail to implement the measure, the State 
agency could be held accountable for its commitment in the permit to 
implement the measure. Where the State does not fulfill its 
responsibility to implement a measure, a citizen also could petition 
for withdrawal of the State's NPDES program or it could petition to 
have the MS4's permit reopened to require the MS4 operator to implement 
the measure.
    EPA notes that not every State program that addresses erosion and 
sediment control from construction sites will be adequate to satisfy 
the requirement that each regulated small MS4 have a program to the 
extent required by Sec. 122.34(b)(4). For example, although all NPDES 
States are required to issue NPDES permits for construction activity 
that disturbs greater than one acre, the State's NPDES permit program 
will not necessarily be extensive enough to satisfy a regulated small 
MS4's obligation under Sec. 122.34(b)(4). NPDES States will not 
necessarily be implementing all of the required elements of that 
minimum measure, such as procedures for site plan review in each 
jurisdiction required to develop a program and procedures for receipt 
and consideration of information submitted by the public on individual 
construction sites. In order for a State erosion and sediment control 
program to satisfy a small MS4 operator's obligation to implement 
Sec. 122.34(b)(4), the State program would have to include all of the 
elements of that minimum measure.
    Where the operator-permittee is itself performing one or more of 
the minimum measures, the operator-permittee remains responsible for 
all of the reporting requirements under Sec. 122.34(f)(3). The 
operator-permittee's reports should identify each entity that is 
performing the control measures within the geographic jurisdiction of 
the regulated small MS4. If the other entity also operates a regulated 
MS4 and files reports on the progress of implementation of the measures 
within the geographic jurisdiction of the MS4, then the operator-
permittee need not include that same information in its own reports.
    If the other entity operates a regulated MS4 and is performing all 
of the minimum measures for the permittee, the permittee is not 
required to file the reports required by Sec. 122.34(f)(3). This relief 
from reporting is specified in Sec. 122.35(a).
    Section 122.35 addresses the concerns of some commenters who sought 
relief for governmental facilities that are classified as small MS4s 
under today's rule. These facilities frequently discharge storm water 
through another regulated MS4 and could be regulated by that MS4's 
program. For example, a State owned office complex that operates its 
storm sewer system in an urbanized area will be regulated as an MS4 
under today's rule even though its system may be subject to the storm 
water controls of the municipality in

[[Page 68768]]

which it is located. Today's rule specifically revised the definition 
of MS4 to recognize that different levels of government often operate 
MS4s and that each such separate entity (including the federal 
government) should be responsible for its discharges. If both MS4s 
agree, the downstream MS4 can develop a storm water management program 
that regulates the discharge from both MS4s. The upstream small MS4 
operator still must submit an NOI that identifies the entity on which 
the upstream small MS4 operator is relying to satisfy its permit 
obligations. No reports are required from the upstream small MS4 
operator, but the upstream operator must remain in compliance with the 
downstream MS4 operator's storm water management program. This option 
allows small MS4s to work together to develop one storm water 
management program that satisfies the permit obligations of both. If 
they cannot agree, the upstream small MS4 operator must develop its own 
program.
    As mentioned previously, comments from federal facilities and State 
organizations that operate MS4s requested that their permit 
requirements differ from those of MS4s that are political subdivisions 
of States (cities, towns, counties, etc.). EPA acknowledges that there 
are differences; e.g., many federal and State facilities do not serve a 
resident population and thus might require a different approach to 
public education. EPA believes, however, that MS4s owned by State and 
federal governments can develop storm water management plans that 
address the minimum measures. Federal and State owned small MS4s may 
choose to work with adjacent municipally owned MS4s to develop a 
unified plan that addresses all of the required measures within the 
jurisdiction of all of the contiguous MS4s. The options in Sec. 122.35 
minimize the burden on small MS4s that are covered by another MS4's 
program.
    One commenter recommended that if one MS4 discharges into a second 
MS4, the operator of the upstream MS4 should have to provide a copy of 
its NOI or permit application to the operator of the receiving MS4. EPA 
did not adopt this recommendation because the NOI and permit 
application will be publicly available; but EPA does recommend that 
NPDES permitting authorities consider it as a possible permit 
requirement. The commenter also suggested that monitoring data should 
be collected by the upstream MS4 and provided to the downstream MS4. 
EPA is not adopting such a uniform monitoring requirement because EPA 
believes it is more appropriate to let the MS4 operators work out the 
need for such data. If necessary, the downstream MS4s might want to 
make such data a condition to allowing the upstream MS4 to connect to 
its system.
    v. Joint Permit Programs. Many commenters supported allowing the 
operators of small MS4s to apply as co-permittees so they each would 
not have to develop their own storm water management program. Today's 
rule specifically allows regulated small MS4s to join with either other 
small MS4s regulated under Sec. 122.34(d) or with medium and large MS4s 
regulated under Sec. 122.26(d).
    As is discussed in the previous section, regulated small MS4s may 
indicate in their NOIs that another entity is performing one or more of 
its required minimum control measures. Today's rule under 
Sec. 122.33(b)(1) also specifically allows the operators of regulated 
small MS4s to jointly submit an NOI. The joint NOI must clearly 
indicate which entity is required to implement which control measure in 
each geographic jurisdiction within the service area of the entire 
small MS4. The operator of each regulated small MS4 remains responsible 
for the implementation of each minimum measure for its MS4 (unless, as 
is discussed in the previous section above, the permit recognizes that 
another entity is responsible for completing the measure.) The joint 
NOI, therefore, is legally equivalent to each entity submitting its own 
NOI. EPA is, however, revising the rule language to specifically 
authorize the joint submission of NOIs in response to comments that 
suggested that such explicit authorization might encourage programs to 
be coordinated on a watershed basis.
    Section 122.33(b)(2)(iii) authorizes regulated small MS4s to 
jointly apply for an individual permit to implement today's rule, where 
allowed by an NPDES permitting authority. The permit application should 
contain sufficient information to allow the permitting authority to 
allocate responsibility among the parties under one of the two 
permitting options in Secs. 122.33(b)(2)(i) and (ii).
    Section 122.33(b)(3) of today's rule also allows an operator of a 
regulated small MS4 to join as a co-permittee in an existing NPDES 
permit issued to an adjoining medium or large MS4 or source designated 
under the existing storm water program. This co-permittee option 
applies only with the agreement of all co-permittees. Under this co-
permittee arrangement, the operator of the regulated small MS4 must 
comply with the terms and conditions of the applicable permit rather 
than the permit condition requirements of Sec. 122.34 of today's rule. 
The regulated small MS4 that wishes to be a co-permittee must comply 
with the applicable requirements of Sec. 122.26(d), but would not be 
required to fulfill all the permit application requirements applicable 
to medium and large MS4s. Specifically, the regulated small MS4 is not 
required to comply with the application requirements of 
Sec. 122.26(d)(1)(iii) 
(Part 1 source identification), Sec. 122.26 (d)(1)(iv) (Part 1 
discharge characterization), and Sec. 122.26(d)(2)(iii) (Part 2 
discharge characterization data). Furthermore, the regulated small MS4 
operator could satisfy the requirements in Sec. 122.26(d)(1)(v) (Part 1 
management programs) and Sec. 122.26(d)(2)(iv) (Part 2 proposed 
management program) by referring to the adjoining MS4 operator's 
existing plan. An operator pursuing this option must describe in the 
permit modification request how the adjoining MS4's storm water program 
addresses or needs to be supplemented in order to adequately address 
discharges from the MS4. The request must also explain the role of the 
small MS4 operator in coordinating local storm water activities and 
describe the resources available to accomplish the storm water 
management plan.
    EPA sought comments regarding the appropriateness of the 
application requirements in these subsections of Sec. 122.26(d). One 
commenter stated that newly regulated smaller MS4s should not be 
required to meet the existing regulations' Part II application 
requirements under Sec. 122.26(d) regarding the control of storm water 
discharges from industrial activity. EPA disagrees. The smaller MS4 
operators designated for regulation in today's rule may satisfy this 
requirement by referencing the legal authority of the already regulated 
MS4 program to the extent the newly regulated MS4 will rely on such 
legal authority to satisfy its permit requirements. If the smaller MS4 
operator plans to rely on its own legal authorities, it must identify 
it in the application. If the smaller MS4 operator does not elect to 
use its own legal authority, they may file an individual permit 
application for an alternate program under Sec. 122.33(b)(2)(ii).
    The explanatory language in Sec. 122.33(b)(3) recommends that the 
smaller MS4s designated under today's rule identify how an existing 
plan ``would need to be supplemented in order to adequately address 
your discharges.'' One commenter suggested that this must be regulatory 
language and not guidance. EPA disagrees that this needs to be 
mandatory language.

[[Page 68769]]

Since many of the smaller MS4s designated today are ``donut holes'' 
within the geographic jurisdiction of an already regulated MS4, the 
larger MS4's program generally will be adequate to address the newly 
regulated MS4's discharges. The small MS4 applicant should consider the 
adequacy of the existing MS4's program to address the smaller MS4's 
water quality needs, but EPA is not imposing specific requirements. 
Where circumstances suggest that the existing program is inadequate 
with respect to the newly designated MS4 and the applicant does not 
address the issue, the NPDES permitting authority must require that the 
existing program be supplemented.
    Commenters recommended that the application deadline for smaller 
MS4s designated today be extended so that existing regulated MS4s would 
not have to modify their permit in the middle of their permit term, 
provided that permit renewal would occur within a reasonable time (12 
to 18 months) of the deadline. In response, EPA notes that today's rule 
allows operators of newly designated small MS4s up to three years and 
90 days from the promulgation of today's rule to submit an application 
to be covered under the permit issued to an already regulated MS4. The 
permitting authority has a reasonable time after receipt of the 
application to modify the existing permit to include the newly 
designated source. If an existing MS4's permit is up for renewal in the 
near future, the operator of a newly designated small MS4 may take that 
into account when timing its application and the NPDES permitting 
authority may take that into account when processing the application.
    Another commenter suggested that the rule should include a 
provision to allow permit application requirements for smaller MS4s 
designated today to be determined by the permitting authority to 
account for the particular needs/wants of an already regulated MS4 
operator. EPA does not believe that the regulations should specifically 
require this approach. When negotiating whether to include a newly 
designated MS4 in its program, the already regulated MS4 operator may 
require the newly designated MS4's operator to provide any information 
that is necessary.
    The co-permitting approach allows small MS4s to take advantage of 
existing programs to ease the burden of creating their own programs. 
The operators of regulated small MS4s, however, may find it simpler to 
apply for a program under today's rule, and to identify the medium or 
large MS4 operator that is implementing portions of its Sec. 122.34(b) 
minimum measures.
d. Evaluation and Assessment
    Under today's rule, operators of regulated small MS4s are required 
to evaluate the appropriateness of their identified BMPs and progress 
toward achieving their identified measurable goals. The purpose of this 
evaluation is to determine whether or not the MS4 is meeting the 
requirements of the minimum control measures. The NPDES permitting 
authority is responsible for determining whether and what types of 
monitoring needs to be conducted and may require monitoring in 
accordance with State/Tribe monitoring plans appropriate to the 
watershed. EPA does not encourage requirements for ``end-of-pipe'' 
monitoring for regulated small MS4s. Rather, EPA encourages permitting 
authorities to carefully examine existing ambient water quality and 
assess data needs. Permitting authorities should consider a combination 
of physical, chemical, and biological monitoring or the use of other 
environmental indicators such as exceedance frequencies of water 
quality standards, impacted dry weather flows, and increased flooding 
frequency. (Claytor, R. and W. Brown. 1996. Environmental Indicators to 
Assess Storm Water Control Programs and Practices. Center for Watershed 
Protection, Silver Spring, MD.) Section II.L., Water Quality Issues, 
discusses monitoring in greater detail.
    As recommended by the Intergovernmental Task Force on Monitoring 
Water Quality (ITFM), the NPDES permitting authority is encouraged to 
consider the following watershed objectives in determining monitoring 
requirements: (1) To characterize water quality and ecosystem health in 
a watershed over time, (2) to determine causes of existing and future 
water quality and ecosystem health problems in a watershed and develop 
a watershed management program, (3) to assess progress of watershed 
management program or effectiveness of pollution prevention and control 
practices, and (4) to support documentation of compliance with permit 
conditions and/or water quality standards. With these objectives in 
mind, the Agency encourages participation in group monitoring programs 
that can take advantage of existing monitoring programs undertaken by a 
variety of governmental and nongovernental entities. Many States may 
already have a monitoring program in effect on a watershed basis. The 
ITFM report is included in the docket for today's rule 
(Intergovernmental Task Force on Monitoring Water Quality. 1995. The 
Strategy for Improving Water-Quality Monitoring in the United States: 
Final Report of the Intergovernmental Task Force on Monitoring Water 
Quality. Copies can be obtained from: U.S. Geological Survey, Reston, 
VA.).
    EPA expects that many types of entities will have a role in 
supporting group monitoring activities--including federal agencies, 
State agencies, the public, and various classes or categories of point 
source dischargers. Some regulated small MS4s might be required to 
contribute to such monitoring efforts. EPA expects, however, that their 
participation in monitoring activities will be relatively limited. For 
purposes of today's rule, EPA recommends that, in general, NPDES 
permits for small MS4s should not require the conduct of any additional 
monitoring beyond monitoring that the small MS4 may be already 
performing. In the second and subsequent permit terms, EPA expects that 
some limited ambient monitoring might be appropriately required for 
perhaps half of the regulated small MS4s. EPA expects that such 
monitoring will only be done in identified locations for relatively few 
pollutants of concern. EPA does not anticipate ``end-of-pipe'' 
monitoring requirements for regulated small MS4s.
    EPA received a wide range of comments on this section of the rule. 
Some commenters believe that EPA should require monitoring; others want 
a strong statement that the newly regulated small MS4s should not be 
required to monitor. Many commenters raised questions about exactly 
what EPA expects MS4s to do to evaluate and assess their BMPs. EPA has 
intentionally written today's rule to provide flexibility to both MS4s 
and permitting authorities regarding appropriate evaluation and 
assessment. Permitting authorities can specify monitoring or other 
means of evaluation when writing permits. If additional requirements 
are not specified, MS4s can decide what they believe is the most 
appropriate way to evaluate their storm water management program. As 
mentioned above, EPA expects that the necessity for monitoring and its 
extent may change from permit cycle to permit cycle. This is another 
reason for making the evaluation and assessment rule requirements very 
flexible.
    i. Recordkeeping. The NPDES permitting authority is required to 
include at least the minimum appropriate recordkeeping conditions in 
each permit. Additionally, the NPDES permitting authority can specify 
that permittees develop, maintain, and/or

[[Page 68770]]

submit other records to determine compliance with permit conditions. 
The MS4 operator must keep these records for at least 3 years but is 
not required to submit records to the NPDES permitting authority unless 
specifically directed to do so. The MS4 operator must make the records, 
including the storm water management program, available to the public 
at reasonable times during regular business hours (see 40 CFR 122.7 for 
confidentiality provision). The MS4 operator is also able to assess a 
reasonable charge for copying and to establish advance notice 
requirements for members of the public.
    EPA received a comment that questioned EPA's authority to require 
MS4s to make their records available to the public. EPA disagrees with 
the commenter and believes that the CWA does give EPA the authority to 
require that MS4 records be available. It is also more practical for 
the public to request records directly from the MS4 than to request 
them from EPA who would then make the request to the MS4. Based on 
comments, EPA revised the proposed rule so as not to limit the time for 
advance notice requirements to 2 business days.
    ii. Reporting. Under today's rule, the operator of a regulated 
small MS4 is required to submit annual reports to the NPDES permitting 
authority for the first permit term. For subsequent permit terms, the 
MS4 operator must submit reports in years 2 and 4 unless the NPDES 
permitting authority requires more frequent reports. EPA received 
several comments supporting this timing for report submittal. Other 
commenters suggested that annual reports during the first permit cycle 
are too burdensome and not necessary. EPA believes that annual reports 
are needed during the first 5-year permit term to help permitting 
authorities track and assess the development of MS4 programs, which 
should be established by the end of the initial term. Information 
contained in these reports can also be used to respond to public 
inquiries.
    The report must include (1) the status of compliance with permit 
conditions, an assessment of the appropriateness of identified BMPs and 
progress toward achieving measurable goals for each of the minimum 
control measures, (2) results of information collected and analyzed, 
including monitoring data, if any, during the reporting period, (3) a 
summary of what storm water activities the permittee plans to undertake 
during the next reporting cycle, and (4) a change in any identified 
measurable goal(s) that apply to the program elements.
    The NPDES permitting authority is encouraged to provide a brief 
two-page reporting format to facilitate compiling and analyzing the 
data from submitted reports. EPA does not believe that submittal of a 
brief annual report of this nature is overly burdensome, and has not 
changed the required reporting time frame from the proposal. The 
permitting authority will use the reports in evaluating compliance with 
permit conditions and, where necessary, will modify the permit 
conditions to address changed conditions.
    iii. Permit-As-A-Shield. Section 122.36 describes the scope of 
authorization (i.e. ``permit-as-a-shield'') under an NPDES permit as 
provided by section 402(k) of the CWA. Section 402(k) provides that 
compliance with an NPDES permit is deemed compliance, for purposes of 
enforcement under CWA sections 309 and 505, with CWA sections 301, 302, 
306, 307, and 403, except for any standard imposed under section 307 
for toxic pollutants injurious to human health.
    EPA's Policy Statement on Scope of Discharge Authorization and 
Shield Associated with NPDES Permits, originally issued on July 1, 
1994, and revised on April 11, 1995, provides additional information on 
this matter.
e. Other Applicable NPDES Requirements
    Any NPDES permit issued to an operator of a regulated small MS4 
must also include other applicable NPDES permit requirements and 
standard conditions, specifically the applicable requirements and 
conditions at 40 CFR 122.41 through 122.49. Reporting requirements for 
regulated small MS4s are governed by Sec. 122.34 and not the existing 
requirements for medium and large MS4s at Sec. 122.42(c). In addition, 
the NPDES permitting authority is encouraged to consult the Interim 
Permitting Approach, issued on August 1, 1996. The discussion on the 
Interim Permitting Approach in Section II.L.1, Water Quality Based 
Effluent Limits, provides more information. The provisions of 
Secs. 122.41 through 122.49 establish permit conditions and limitations 
that are broadly applicable to the entire range of NPDES permits. These 
provisions should be interpreted in a manner that is consistent with 
provisions that address specific classes or categories of discharges. 
For example, Sec. 122.44(d) is a general requirement that each NPDES 
permit shall include conditions to meet water quality standards. This 
requirement will be met by the specific approach outlined in today's 
rule for the implementation of BMPs. BMPs are the most appropriate form 
of effluent limitations to satisfy technology requirements and water 
quality-based requirements in MS4 permits (see the introduction to 
Section II.H.3, Municipal Permit Requirements, Section II.H.3.h, 
Reevaluation of Rule, and the discussion of the Interim Permitting 
Policy in Section II.L.1. below).
f. Enforceability
    NPDES permits are federally enforceable. Violators may be subject 
to the enforcement actions and penalties described in CWA sections 309, 
504, and 505 or under similar water pollution enforcement provisions of 
State, tribal or local law. Compliance with a permit issued pursuant to 
section 402 of the Clean Water Act is deemed compliance, for purposes 
of sections 309 and 505, with sections 301, 302, 306, 307, and 403 
(except any standard imposed under section 307 for toxic pollutants 
injurious to human health).
g. Deadlines
    Today's final rule includes ``expeditious deadlines'' as directed 
by CWA section 402(p)(6). In proposed Sec. 122.26(e), the permit 
application for the ``ISTEA'' facilities was maintained as August 7, 
2001 and the permit application deadline for storm water discharges 
associated with other construction activity was established as 3 years 
and 90 days from the final rule date. In proposed Sec. 122.33(c)(1), 
operators of regulated small MS4s were required to seek permit coverage 
within 3 years and 90 days from the date of publication of the final 
rule. In proposed Sec. 122.33(c)(2), operators of regulated small MS4s 
designated by the NPDES permitting authority on a local basis under 
Sec. 122.32(a)(2) must seek coverage under an NPDES permit within 60 
days of notice, unless the NPDES permitting authority specifies a later 
date.
    In order to increase the clarity of today's final rule, EPA has 
changed the location of some of the above requirements. All application 
deadlines for both Phase I and Phase II are now listed or referenced in 
Sec. 122.26(e). Section 122.26(e)(1) contains the deadlines for storm 
water associated with industrial activity. Paragraph (i) has been 
changed to correct a typographical error. Paragraph (ii) has been 
revised to reflect the changed application date for ``ISTEA'' 
facilities. (See discussion in section I.3, ISTEA Sources). The 
application deadline for storm water discharges associated with other 
construction activity is now in a new Sec. 122.26(e)(8). The 
application deadline for regulated small MS4s

[[Page 68771]]

remains in Sec. 122.33(c) because this section is written in ``readable 
regulation'' format, but it is also described in a new 
Sec. 122.26(e)(9).
    Under today's rule, permitting authorities are allowed up to 3 
years to issue a general permit and MS4s designated under 
Sec. 122.32(a)(1) are allowed up to 3 years and 90 days to submit a 
permit application. Operators of regulated small MS4s that choose to be 
a co-permittee with an adjoining MS4 with an existing NPDES storm water 
permit must apply for a modification of that permit within the same 
time frame. Several commenters stated that 90 days was not adequate 
time to submit an NOI. This might be true if facilities did not start 
developing their storm water program until publication of their general 
permit. In fact, municipalities should start developing their storm 
water program upon publication of today's final rule, if they have not 
already done so. Municipalities that are uncertain if they fall within 
the urbanized area should ask their permitting authority. EPA believes 
that municipalities should not automatically take three years and 90 
days to develop a program and submit their NOI. Three years is the 
maximum amount of time to issue a general permit. MS4s that are 
automatically designated under today's rule may have less than 3 years 
and 90 days if the permitting authority issues a permit that requires 
submission of NOIs before that time. EPA encourages States to modify 
their NPDES program to include storm water and issue their permits as 
soon as possible. It is important for permitting authorities to keep 
their municipalities informed of their progress in developing or 
modifying their NPDES storm water requirements.
    EPA recognizes that MS4s brought into the program due to the 2000 
Census calculations do not have as much time to develop a program as 
those already designated from the 1990 Census. However, the official 
Bureau of the Census urbanized area calculation for the 2000 Census is 
expected to be published in the Federal Register in the spring of 2002, 
which should give the potentially affected MS4s adequate time to 
prepare for compliance under the applicable permit. However, if the 
publication of this information is delayed, MS4s in newly designated 
urbanized areas will have 180 days from the time the new designations 
are published to submit an NOI, consistent with the time frame for 
other regulated MS4s that are designated after promulgation of the 
rule.
    The proposed application deadline for MS4s designated under 
Sec. 122.32(a)(2) was within 60 days of notice. Many commenters stated 
that 60 days does not provide adequate time for the preparation of an 
NOI or permit application. EPA agrees that newly designated MS4s may 
not be aware that they might be designated since the permitting 
authority could take several years to develop designation criteria. EPA 
has decided that the application time frame for these facilities should 
be consistent with the 180 days allowed for facilities designated under 
Secs. 122.26(a)(9)(i)(C) and (D). Section 122.33(c)(2) of today's final 
rule contains the modified time frame of 180 days to apply for 
coverage.
h. Reevaluation of Rule
    The municipal caucus of the Storm Water Phase II FACA Subcommittee 
asked EPA to demonstrate its commitment to revisit the municipal 
requirements of today's rule and make changes where necessary after 
evaluating the storm water program and researching the effectiveness of 
municipal BMPs. In Sec. 122.37 of today's final rule, EPA commits to 
revisiting the regulations for the municipal storm water discharge 
control program after completion of the first two permit terms. EPA 
intends to use this time to work closely with stakeholders on research 
efforts. Gathering and analyzing data related to the storm water 
program, including data regarding the effectiveness of BMPs, is 
critical to EPA's storm water program evaluation. EPA does not intend 
to change today's NPDES municipal storm water program until the end of 
this period, except under the following circumstances: a court decision 
requires changes; a technical change is necessary for implementation; 
or the CWA is modified, thereby requiring changes. After careful 
analysis, EPA might also consider changes from consensus-based 
stakeholder requests regarding requirements applicable to newly 
regulated MS4s. EPA will apply the August 1, 1996, Interim Permitting 
Approach to today's program during this interim period and encourages 
all permitting authorities to use this approach in municipal storm 
water permits for newly regulated MS4s and in determining MS4 permit 
requirements under a TMDL approach. After careful consideration of the 
data, EPA will make modifications as necessary.
    EPA received comments that supported waiting two permit cycles 
before re-evaluating the rule and other comments that requested re-
evaluation much sooner. EPA anticipates two full permit cycles are 
necessary to obtain enough data to significantly evaluate the rule. The 
re-evaluation time frame of 13 years from today remains as proposed.

I. Other Designated Storm Water Discharges

1. Discharges Associated with Small Construction Activity
    Section 122.26(b)(15) of today's rule designates certain 
construction activities for regulation as ``storm water discharges 
associated with small construction activity.'' Specifically, storm 
water discharges from construction activity equal to or greater than 1 
acre and less than 5 acres are automatically designated except in those 
circumstances where the operator (i.e., person responsible for 
discharges that might occur) certifies to the permitting authority that 
one of two specific waiver circumstances (described in section b. 
below) applies. Sites below one acre may be designated under 
Sec. 122.26(b)(15)(ii) where necessary to protect water quality.
    Today's rule regulates these construction-related storm water 
sources under CWA section 402(p)(6) to protect water quality rather 
than under CWA section 402(p)(2). Designation under 402(p)(6) gives 
States and EPA the flexibility to waive the permit requirement for 
construction activity that is not likely to impair water quality, and 
to designate additional sources below one acre that are likely to cause 
water quality impairment. Thus, the one acre threshold of today's rule 
is not an absolute threshold like the five acre threshold that applies 
under the existing storm water rule.
    Today's rule regulating certain storm water discharges from 
construction activity disturbing less than 5 acres is consistent with 
the 9th Circuit remand in NRDC v. EPA, 966 F.2d 1292 (9th Cir. 1992). 
In that case, the court remanded portions of the existing storm water 
regulations related to discharges from construction sites. The existing 
Phase I regulations define ``storm water discharges associated with 
industrial activity'' to include storm water discharges from 
construction sites disturbing 5 acres or more of total land area (see 
40 CFR 122.26(b)(14)(x)). In its decision, the court concluded that the 
5-acre threshold was improper because the Agency had failed to identify 
information ``to support its perception that construction activities on 
less than 5 acres are non-industrial in nature'' (966 F.2d at 1306). 
The court remanded the exemption to EPA for further proceedings (966 
F.2d at 1310). EPA's objectives in today's action include an effort to 
(1) address the 9th Circuit

[[Page 68772]]

remand to reconsider regulation of storm water discharges from 
construction activities that disturb less than 5 acres of land, (2) 
address water quality concerns associated with such activities, and (3) 
balance conflicting recommendations and concerns of stakeholders in the 
regulation of additional construction activity.
    EPA responded to the Ninth Circuit's decision by designating 
discharges from construction activities that disturb between 1 and 5 
acres as ``discharges associated with small construction activity'' 
under CWA section 402(p)(6), rather than as ``discharges associated 
with industrial activity'' under CWA section 402(p)(2)(B). Although a 
size criterion alone may be an indicator of whether runoff from 
construction sites between 1 and 5 acres is ``associated with 
industrial activity,'' the Agency is instead relying on a size 
threshold in tandem with provisions that allow for designations and 
waivers based on potential for ``predicted water quality impairments'' 
to regulate construction sites between 1 and 5 acres under CWA section 
402(p)(6). This approach was chosen by the Agency for the sake of 
simplicity and certainty and, most importantly, to protect water 
quality consistent with the mandate of CWA section 402(p)(6). Today's 
rule also includes extended application deadlines for this new category 
of dischargers under the authority of CWA section 402(p)(6) (see 
Sec. 122.26(e)(8) of today's rule).
    In today's rule, EPA is regulating storm water discharges from 
additional construction sites to better protect the Nation's waters, 
while remaining sensitive to a concern that the Agency should not 
regulate discharges from construction sites that might not or do not 
have adverse water quality impacts. EPA believes that today's rule will 
successfully accomplish this objective by establishing a 1-acre 
threshold nationwide that includes the flexibility to allow the 
permitting authority to both waive requirements for discharges from 
sites that are not expected to cause adverse water quality impacts and 
to designate discharges from sites below 1-acre based on adverse water 
quality impacts.
    In addition to the diminishing water quality benefits of regulating 
all sites below one acre, the Agency relied on practical considerations 
in establishing a one acre threshold and not setting a lower threshold. 
Regardless of the threshold established by EPA, a NPDES permit can only 
be required if a construction site has a point source discharge. A 
point source discharge means that pollutants are added to waters of the 
United States through a discernible, confined, discrete conveyance. 
``Sheet flow'' runoff from a small construction site would not result 
in a point source discharge unless and until it channelized. As the 
amount of disturbed land surface decreases, precipitation is less 
likely to channelize and create a ``point source'' discharge (assuming 
the absence of steep slopes or other factors that lead to increased 
channelization). Categorical designation of very small sites may create 
confusion about applicability of the NPDES permitting program to those 
sites. EPA's one acre threshold reflects, in part, the need to 
recognize that smaller sites are less likely to result in point source 
discharges. Of course, the NPDES permitting authority could designate 
smaller sites (below one acre, assuming point source discharges occur 
from the smaller designated sites) for regulation if a watershed or 
other local assessment indicated the need to do so. The Phase II rule 
includes this designation authority at 40 CFR 122.26(a)(9)(i)(D) and 
(b)(15)(ii).
    The one acre threshold also provides an administrative tool for 
more easily identifying those sites that are identified for coverage by 
the rule (but may receive a waiver) and those that are not 
automatically covered (but may be designated for inclusion). Although 
all construction sites less than five acres could have a significant 
water quality impact cumulatively, EPA is automatically designating for 
permit coverage only those storm water discharges from construction 
sites that disturb land equal to or greater than one acre. Categorical 
regulation of discharges from construction below this one acre 
threshold would overwhelm the resources of permitting authorities and 
might not yield corresponding water quality benefits. Construction 
activities that disturb less than one acre make up, in total, a very 
small percentage of the total land disturbance from construction 
nationwide. The one acre threshold is reasonable for accomplishing the 
water quality goals of CWA section 402(p)(6) because it results in 
97.5% of the total acreage disturbed by construction being designated 
for coverage by the NPDES storm water program, while excluding from 
automatic coverage the numerous smaller sites that represent 24.7% of 
the total number of construction sites.
    Some commenters believed that EPA has not adequately identified 
water quality problems associated with storm water discharges from 
construction activity disturbing less than five acres. Other commenters 
believed that storm water discharges from small construction activity 
is a significant water quality problem nationwide. Section I.B.3, 
Construction Site Runoff, provides a detailed discussion of adverse 
water quality impacts resulting from construction site storm water 
discharges. EPA is regulating storm water discharges from construction 
activity disturbing between 1 and 5 acres because the cumulative impact 
of many sources, and not just a single identified source, is typically 
the cause for water quality impairments, particularly for sediment-
related water quality standards.
    Several commenters requested that EPA regulate discharges from 
small construction activity as ``discharges associated with industrial 
activity'' under CWA 402(p)(4) and not, as proposed, as ``storm water 
discharges associated with other activity'' under CWA 402(p)(6). EPA is 
regulating discharges from small construction sites as ``small 
construction activity'' under the authority of CWA section 402(p)(6), 
rather than section 402(p)(4), to ensure that regulation of these 
sources is water quality-sensitive. CWA section 402(p)(6) affords the 
opportunity for designations and waivers of sources based on potential 
for ``predicted water quality impairments.'' Regulation of storm water 
``associated with industrial activity'' does not necessarily focus 
regulation to protect water quality.
a. Scope
    The definition of ``storm water discharges associated with small 
construction activity'' includes discharges from construction 
activities, such as clearing, grading, and excavating activities, that 
result in the disturbance of equal to or greater than 1 acre and less 
than 5 acres (see Sec. 122.26(b)(15)(i)). Such activities could 
include: road building; construction of residential houses, office 
buildings, or industrial buildings; or demolition activity. The 
definition of ``storm water discharges associated with small 
construction activity'' also includes any other construction activity, 
regardless of size, designated based on the potential for contribution 
to a violation of a water quality standard or for significant 
contribution of pollutants to waters of the United States 
(Sec. 122.26(b)(15)(ii)). This designation is made by the Director, or 
in States with approved NPDES programs, either the Director or the EPA 
Regional Administrator.
    For the purposes of today's rule, the definition of ``storm water 
discharges associated with small construction activity'' includes 
discharges from activities disturbing less than 1 acre if that 
construction activity is part of a

[[Page 68773]]

``larger common plan of development or sale'' with a planned 
disturbance of equal to or greater than 1 acre of land. A ``larger 
common plan of development or sale'' means a contiguous area where 
multiple separate and distinct construction activities are planned to 
occur at different times on different schedules under one plan, e.g., a 
housing development of five \1/4\ acre lots (Sec. 122.26(b)(15)(i)).
    In addition to the regulatory text for smaller construction, the 
Agency is also revising the existing text of Sec. 122.26(b)(14)(x) to 
clarify EPA's intention regarding construction projects involving a 
larger common plan of development or sale ultimately disturbing 5 or 
more acres. Operators of such sites are required to seek coverage under 
an NPDES permit regardless of the number of lots in the larger plan 
because designation for permit coverage is based on the total amount of 
land area to be disturbed under the common plan. This designation 
attempts to address the potential cumulative effects of numerous 
construction activities concentrated in a given area.
    Several commenters asked that EPA allow the permitting authority to 
set the appropriate size threshold based on water quality studies. 
While EPA agrees that location-specific water quality studies provide 
an ideal information base from which to make regulatory decisions, 
today's rule establishes a default standard for regulation in the 
absence of location-specific studies. The rule does allow for deviation 
from the default standard through additional designations and waivers, 
however, when supported by location-specific water quality information. 
The rule codifies the ability of permitting authorities to provide 
waivers for sites greater than or equal to one acre (the default 
standard) and designate additional discharges from small sites below 
one acre when location-specific information suggests that the default 1 
acre standard is either unnecessary (waivers) or too limited 
(designations) to protect water quality.
    Some commenters wanted EPA to base the regulation of storm water 
discharges from construction sites not only on size, but also on the 
duration and intensity of activity occurring on the site. EPA believes 
that a national 1-acre threshold, in combination with waivers and 
additional designations, is the most effective and simplest way to 
address adverse water quality impacts from storm water from small 
construction sites. Moreover, as discussed below, the waiver for 
rainfall erosivity does account for projects of limited duration. EPA 
believes, however, that the intensity of activity occurring on-site 
would be a very difficult condition to quantify.
    Many commenters requested that EPA maintain the 5 acre threshold 
from the existing regulations, which include opportunities for site-
specific designation, as the regulatory scope for regulating storm 
water from construction sites, i.e., that the Agency not automatically 
regulate storm water discharges from sites less than 5 acres. Several 
commenters wanted construction requirements to be applied to sites 
smaller than 1 acre, while some commenters suggested alternative 
thresholds of 2 or 3 acres. The rest of the commenters supported the 1 
acre threshold. None of the commenters presented any data or rationales 
to support a specific size threshold.
    EPA examined alternative size thresholds, including 0.5 acre, 1 
acre, 2 acres and 5 acres. EPA had difficulty evaluating the 
alternative size thresholds because, while directly proportional to the 
size of the disturbed site, the water quality threat posed by 
discharges from construction sites of differing sizes varies 
nationwide, depending on the local climatological, geological, 
geographical, and hydrological influences. In order to ensure 
improvements in water quality nationwide, however, today's rule does 
not allow various permitting authorities to establish different size 
thresholds except based on the waiver and designation provisions of the 
rule. EPA believes that the water quality impact from small 
construction sites is as high as or higher than the impact from larger 
sites on a per acre basis. By selecting the 1 acre size threshold and 
coupling it with waivers and additional designations, EPA is seeking to 
standardize improvement of water quality on a national basis while 
providing permitting authorities with the opportunity to designate 
those unregulated activities causing water quality impairments 
regardless of site size, as well as to waive requirements when 
information demonstrates that regulation is unnecessary.
    EPA recognizes that the size criterion alone may not be the most 
ideal predictor of the need for regulation, but effective protection of 
water quality depends as much on simplicity in implementation as it 
does on the scientific information underlying the regulatory criteria. 
The default size criterion of 1 acre will ensure protection against 
adverse water quality impacts from storm water from small construction 
sites while not overburdening the resources of permitting authorities 
and the construction industry to implement the program to protect water 
quality in the first place.
    One commenter stated a need to clarify whether routine road 
maintenance is considered construction activity for the purpose of 
today's rule. The NPDES general permit for discharges from construction 
sites larger than 5 acres defined ``commencement of construction'' as 
the initial disturbance of soils associated with clearing, grading, or 
excavating activities or other construction activities (63 FR 7913). 
For construction sites disturbing less than 5 acres, EPA does not 
consider construction activity to include routine maintenance performed 
to maintain the original line and grade, hydraulic capacity, or 
original purpose of the facility.
    Two commenters believed that the Multi-Sector General Permit for 
storm water discharges from industrial activities (MSGP) (60 FR 50804) 
already applies to storm water discharges from construction activities 
at oil and gas exploration and production sites and asked for a 
clarification on this issue. Commenters also requested a single general 
permit to authorize both industrial storm water discharges and 
construction site discharges which occur at the same industrial site.
    Currently, when construction activity disturbing more than 5 acres 
occurs on an industrial site covered by the MSGP, authorization under a 
separate NPDES construction permit is needed because the MSGP does not 
include the ``construction'' industrial sector. While the MSGP does 
address sediment and erosion control, it is not as specific as the 
NPDES general permit for storm water discharges from construction 
activities disturbing more than 5 acres. Though permitting authorities 
could conceivably develop a single general permit to authorize storm 
water discharges associated with construction activity at these 
industrial facilities, the commenter's request is not addressed by 
today's rulemaking. When today's rule is implemented through general 
permits (to be issued later), the permitting authority will have 
discretion whether or not to incorporate the permit requirements for 
both the industrial storm water discharges and construction site storm 
water discharges into a single general permit. This type of request 
should be addressed to the permitting authority.
    One commenter suggested that discharges from small construction 
sites should be regulated through a ``self-implementing rule'' 
approach. While today's rule is not a self-implementing rule, it does 
add Sec. 122.28(b)(2)(v), which

[[Page 68774]]

gives the permitting authority the discretion to authorize a 
construction general permit for sites less than 5 acres without 
submitting a notice of intent. Such non-registration general permits 
function similarly to self-implementing rules, but are, in fact, 
permits. Today's rule will be implemented through NPDES permits rather 
than self-implementing regulations to capitalize on the compliance, 
tracking, enforcement, and public participation associated with NPDES 
permits (see discussion in section II.C).
    Other commenters believed that only the permitting authority should 
regulate construction site storm water discharges (under a NPDES 
permit) and that a small MS4 operator's regulation of storm water 
discharges associated with construction (under the small MS4 NPDES 
storm water program) is redundant. EPA disagrees that control measure 
implementation by the NPDES authority and the small MS4 operator is 
redundant. To the extent the two efforts overlap, today's rule provides 
for consolidation and coordination of substantive requirements via 
incorporation by reference permitting. Small MS4s operators may choose 
to impose more prescriptive requirements than an NPDES permitting 
authority based on localized water quality needs. In those cases, EPA 
intends that the substantive requirements from the small MS4 program 
should apply as the NPDES permit requirements for the construction site 
discharger. In cases where a small MS4 program does not prioritize and 
focus on storm water from construction sites (beyond the small MS4 
minimum control measure in today's rule, which does not require the 
small MS4 operator to control construction site discharges in a manner 
as prescriptive as is expected for discharges regulated under NPDES 
permits), the Agency intends that the NPDES general permit will provide 
the substantive standards applicable to the construction site 
discharge. EPA does anticipate, however, that implementation of MS4 
programs to address construction site runoff within their jurisdiction 
will enhance overall NPDES compliance by construction site dischargers. 
EPA also notes that under Sec. 122.35(b), the permitting authority may 
recognize its own program to control storm water discharges from 
construction sites in lieu of requiring such a program in an MS4's 
NPDES permit, provided that the permitting authority's program 
satisfies the requirements of Sec. 122.34(b)(4), including, for 
example, procedures for site plan reviews and consideration of 
information submitted by the public on individual construction sites in 
each jurisdiction required to be covered by the program.
b. Waivers
    Under Sec. 122.26(b)(15)(i) of today's rule, NPDES permitting 
authorities may waive today's requirement for construction site 
operators to obtain a permit in two circumstances. The first waiver is 
intended to apply where little or no rainfall is expected during the 
period of construction. The second waiver may be granted when a TMDL or 
equivalent analysis indicates that controls on construction site 
discharges are not needed to protect water quality.
    The first waiver is based on ``low predicted rainfall erosivity'' 
which can be found using tables of rainfall-runoff erosivity (R) values 
published for each region in the U.S. R factors are published in the 
U.S. Department of Agriculture (USDA) Agricultural Handbook 703 
(Renard, K.G., Foster, G.R., Weesies, G.A., McCool, D.K., and D.C. 
Yoder. 1997. Predicting Soil Erosion by Water: A Guide to Conservation 
Planning with the Revised Universal Soil Loss Equation (RUSLE). U.S. 
Department of Agriculture Handbook 703). The R factor varies based on 
the time during the year when construction activity occurs, where in 
the country it occurs, and how long the construction activity lasts. 
The permitting authority may determine, using Handbook 703, which times 
of year, if any, the waiver opportunity is available for construction 
activity. EPA will provide assistance either through computer programs 
or the World Wide Web on how to determine whether this waiver applies 
for a particular geographic area and time period. Application of this 
waiver for regulatory purposes will be determined by the authorized 
NPDES authority. This waiver is discussed further in the following 
section titled Rainfall-Erosivity Waiver.
    The second waiver is based on a consideration of ambient water 
quality. This waiver is available after a State or EPA develops and 
implements TMDLs for the pollutant(s) of concern from storm water 
discharges associated with construction activity. This waiver is also 
available for sites discharging to non-impaired waters that do not 
require TMDLs, when an equivalent analysis has determined allocations 
for small construction sites for the pollutant(s) of concern or 
determined that such allocations are not needed to protect water 
quality based on consideration of existing in-stream concentrations, 
expected growth in pollutant contributions from all sources, and a 
margin of safety. The Agency envisions an equivalent analysis that 
would demonstrate that water quality is not threatened by storm water 
discharges from small construction activity. This waiver is discussed 
further below in the sections titled TMDL Waiver and Water Quality 
Issues.
    The proposed rule included a waiver based on ``low predicted soil 
loss.'' This waiver provision would have been applicable on a case-by-
case basis where the annual soil loss rate for the period of 
construction for a site, using the Revised Universal Soil Loss Equation 
(RUSLE), would be less than 2 tons/acre/year. The annual soil loss rate 
of less than 2 tons/acre/year would be calculated through the use of 
the RUSLE equation, assuming the constants of no ground cover and no 
runoff controls in place.
    Several commenters found the low soil loss waiver too complex and 
impractical, and stated that expertise is not available at the local 
level to prepare and evaluate eligibility for the waiver. Another 
commenter questioned whether two tons/acre/year was an appropriate 
threshold for predicting adverse water quality impacts. Two other 
commenters said that RUSLE was never intended to predict off-site 
impacts and is not an indicator of potential harm to water quality. EPA 
agrees with the commenters on the difficulty associated with 
determining and implementing this waiver. Most construction site 
operators are not familiar with the RUSLE program, and the potential 
burden on the permitting authority, construction industry, USDA's 
Natural Resources Conservation Service and conservation districts 
probably would have been significant. The Agency has not included this 
waiver in the final rule.
    Two commenters asked that EPA allow States the flexibility to 
develop their own waiver criteria but did not suggest how the Agency 
(or affected stakeholders) could evaluate the acceptability of 
alternative State waiver criteria. Therefore, the final rule does not 
provide for any such alternative waivers. If a State does seek to 
develop alternate waiver criteria, then EPA procedures afford the 
opportunity for subsequent actions, for example, under the Project XL 
Program in EPA's Office of Reinvention, which seeks cleaner, smarter, 
and cheaper solutions to environmental problems. Many commenters 
suggested that EPA extend these waivers to existing industrial storm 
water regulations for construction activity greater than 5 acres. These 
construction site discharges are

[[Page 68775]]

regulated as industrial storm water discharges under CWA 402(p)(2) and 
are not eligible for such water quality-based waivers.
    Two commenters were concerned that waivers would create a potential 
for significant degradation of small streams. EPA disagrees. If small 
streams are threatened, the permitting authority would choose not to 
provide any waivers. In addition, permitting authorities may protect 
small streams by designating discharges from small construction 
activity based on the potential for contribution to a violation of a 
water quality standard or for significant contribution of pollutants to 
waters of the U.S.
    Two commenters asked that the waiver options be eliminated. They 
felt it would create a gross inequity within the construction community 
if some projects will not be subject to the requirements of today's 
rule. While the comments may be valid, EPA disagrees that waivers 
should be disallowed on this basis. Construction site discharges that 
qualify for a waiver from permitting requirements are not expected to 
present a threat to water quality, which is the basis for designation 
and regulation under today's rule.
    A number of commenters suggested additional waivers in cases where 
new development will result in no additional adverse impacts to water 
quality as compared to the existing development it replaces. EPA 
believes these waivers are either unworkable or unnecessary. It would 
be very difficult for most construction operators to determine, as well 
as for other stakeholders to verify, on a site-by-site basis, that 
there is no potential for adverse impact to water quality compared to 
the replaced development.
    Other commenters proposed waivers in cases where a local erosion 
and sediment control program covers the project or a separate waiver 
for small linear utility projects. Instead of waivers, today's rule 
addresses the first suggestion through the qualifying program provision 
described in the section titled Cross-Referencing State/Local Erosion 
and Sediment Control Programs below. Today's rule provides waivers for 
small linear projects in so far as they satisfy conditions for low 
rainfall erosivity. (See Sec. 122.26(b)(15)(i)(A).)
    Other commenters suggested waivers based on distance to water body, 
existence of vegetated buffer around water body, slope of disturbed 
land, or if discharging to very large bodies of water. As a result of 
public outreach, EPA believes that these proposed waivers would be 
generally unworkable for construction site dischargers and permitting 
authorities because of the difficulty in applying them to all small 
sites.
    One commenter mentioned that waivers for the R factor (rainfall-
erosivity) and soil loss are effluent standards that have not been 
developed in accordance with sections 301 and 304 of the CWA. EPA 
disagrees that these sections are relevant to the designation of 
sources in today's rule. The waiver provisions in this section of the 
rule are jurisdictional because they affect the scope of the universe 
of entities subject to the NPDES program. Therefore, the waiver 
provisions are not themselves substantive control standards implemented 
through NPDES permits, and thus, not subject to the statutory criteria 
in sections 301 and 304.
    Another commenter stated that waivers would allow exemptions to the 
technology based requirements and would thus be inconsistent with the 
two-fold approach of the CWA (a technology based minimum and a water 
quality based overlay). EPA acknowledges that the CWA does not 
generally provide for waivers for the Act's technology-based 
requirements. The waiver provisions do not create exemptions from 
technology-based standards that apply to NPDES dischargers; they 
provide exemption from the underlying requirement for an NPDES permit 
in the first place. Protection of water quality is the reason these 
smaller sites are designated for regulation under NPDES. The Act's two 
fold approach imposes more stringent water quality based effluent 
limitations when technology-based limitations applicable to regulated 
dischargers are insufficient to meet water quality standards. Under 
today's rule, water quality protection is the basis for determining 
which of the unregulated sources should be regulated at all. Thus, 
today's rule is entirely consistent with the Act's two fold approach.
    i. Rainfall-Erosivity Waiver. The rainfall-erosivity waiver under 
Sec. 122.26(b)(15)(i)(A) is intended to exempt the requirements for a 
permit when and where negligible rainfall/runoff-erosivity is expected. 
In the development of the Universal Soil Loss Equation, analysis of 
data indicated that when factors other than rainfall are held constant, 
soil loss is directly proportional to a rainfall factor composed of 
total storm kinetic energy times the maximum 30 minute intensity. The 
average annual sum of the storm energy and intensity values for an area 
comprise the R factor--the rainfall erosivity index. A detailed 
explanation of the R factor can be found in Predicting Soil Erosion by 
Water: A Guide to Conservation Planning With the Revised Universal Soil 
Loss Equation (RUSLE) (USDA, 1997).
    This waiver is time-sensitive and is dependent on when during the 
year a construction activity takes place, how long it lasts, and the 
expected rainfall and intensity during that time. R factors vary based 
on location. EPA anticipates that this waiver opportunity responds to 
concerns about the requirement for a permit when it is not expected to 
rain, especially in the arid areas of the U.S. Under today's rule, the 
permitting authority could waive the requirements for a permit for time 
periods when the rainfall-erosivity factor (``R'' in RUSLE) is less 
than five during the period of construction. For the purposes of 
calculating this waiver, the period of construction activity starts at 
the time of initial disturbance and ends with the time of final 
stabilization. The operator must submit a written certification to the 
Director in order to apply for such a waiver. EPA believes that those 
areas receiving negligible rainfall during certain times of the year 
are unlikely to have storm events causing discharges that could 
adversely impact receiving streams. Consequently, BMPs would not be 
necessary on those smaller sites. This waiver is most applicable to 
projects of short duration and to the arid regions of the country where 
the occurrence of rainfall follows a cyclic pattern--between no rain 
and extremely heavy rain. EPA review of rainfall records for these 
areas indicates that, during periods of the year when the number of 
events and quantity of rain are low, storm water discharges from the 
smaller construction sites regulated under today's rule should be 
minimal.
    Some commenters supported the use of the R factor as a waiver, 
while others felt that a waiver based on rainfall statistics ignores 
the fact that it may rain on any given day and it is the cumulative 
effect of wet weather discharges which cause water quality impairments. 
A commenter also asked what happens in ``El Nino'' years when 
significantly more rainfall than normal occurs. Another commenter also 
expressed concern that this waiver was not based on a measured water 
quality impact, but instead on an indicator of potential impact. In 
response to the previous comments, EPA notes that, under CWA 402(p)(6), 
sources are designated on their potential for adverse impact. 
Designation under the section is prospective, not retrospective or 
remedial only. For that reason, the waivers under today's rule also 
operate prospectively. EPA wanted to waive requirements for sites with 
little

[[Page 68776]]

potential to impair water quality, and the R factor is the most 
straightforward way to do this. The permitting authority, if electing 
to use waivers, could always suspend the use of waivers in certain 
areas or during certain times. In addition, the permitting authority 
may choose to use a lower R factor threshold than the one set by EPA. 
Application of this waiver is at the discretion of the permitting 
authority, subject only to the limitation that R factors cannot exceed 
5.
    One commenter expressed the need for EPA to provide a justification 
for the threshold value used for the R factor. None of the commenters 
included any data to show that EPA's proposed R factor of 2 was either 
too high or too low. EPA is using the R factor as an indicator of the 
potential to impact water quality. In an effort to determine which R 
threshold should be used, EPA conducted additional analysis of the 
rainfall/runoff erosivity factor for 134 sites across the country. For 
an R factor threshold of 5, approximately 12% of sites would be waived 
if the project period lasted 6 months, 27% for 3 months, 47% for 1 
month, and 60% of sites would be waived if the project lasted for only 
15 days. None of the 134 sites would be waived if the project lasted an 
entire year. For an R factor threshold of 2, approximately 9% of sites 
would be waived if the project period lasted 6 months, 15% for 3 
months, 31% for 1 month, and 43% for 15 days. For an R factor threshold 
of 10, approximately 22% of sites would be waived if the project period 
lasted 6 months, 37% for 3 months, 60% for 1 month, and 78% for 15 
days. EPA believes that an R factor of 5 is an adequate threshold to 
waive requirements for sites because they would not reasonably be 
expected to impair water quality.
    EPA will develop, as part of the tool box described in section 
II.A.5, guidance materials and computer or web-accessible programs to 
assist permitting authorities and construction site discharges in 
determining if any resulting storm water discharges from specific 
projects are eligible for this waiver.
    ii. Water Quality Waiver. The water quality waiver under 
Sec. 122.26(b)(15)(i)(B) is available where storm water controls are 
not needed based on a comprehensive, location-specific evaluation of 
water quality needs. The waiver is available based on either an EPA-
approved ``total maximum daily load'' (TMDL) under section 303(d) of 
the CWA that addresses the pollutant(s) of concern or, for sites 
discharging to non-impaired waters that do not require TMDLs, an 
equivalent analysis that has either determined allocations for small 
construction sites for the pollutant(s) of concern or determined that 
such allocations are not needed to protect water quality based on 
consideration of existing in-stream concentrations, expected growth in 
pollutant contributions from all sources, and a margin of safety. The 
pollutants of concern that must be addressed include sediment or a 
parameter that addresses sediment (such as total suspended solids 
(TSS), turbidity or siltation) and any other pollutant that has been 
identified as a cause of impairment of any water body that will receive 
a discharge from the construction activity. The operator must certify 
to the NPDES permitting authority that the construction activity will 
take place, and storm water discharges will occur, within the 
applicable drainage area evaluated in the TMDLs or equivalent analyses.
    Today's rule modifies the approach in the proposed rule. EPA 
proposed to allow a waiver of permit requirements for small 
construction if storm water controls were determined to be unnecessary 
based on ``wasteload allocations that are part of `total maximum daily 
loads' (TMDLs) that address the pollutants of concern,'' or ``a 
comprehensive watershed plan, implemented for the water body, that 
includes the equivalents of TMDLs, and addresses the pollutants of 
concern.''
    Commenters asked for clarification of the terms ``comprehensive 
watershed plans'' and ``equivalent of TMDLs.'' EPA intended that both 
terms would include a comprehensive analysis that determines that 
controls on small construction sites are not needed based on 
consideration of existing in-stream concentrations, expected growth in 
pollutant contributions from all sources, and a margin of safety. 
Today's rule makes this clarification.
    One commenter pointed out that there are no water quality standards 
for suspended solids, the major pollutant expected in discharges from 
construction activity. The commenter asserted that no waiver would ever 
be available. Another commenter noted that there are no sediment 
criteria developed for streams, also making this waiver useless. EPA 
notes that a number of States and Tribes have water quality standards 
that address TSS, which are narrative in form, and that may serve as a 
basis for water quality-based effluent limits. As efforts to identify 
impairments and improve water quality progress, some States may yet 
develop water quality standards for suspended solids. Although several 
TMDLs for sediment and related parameters have been established, EPA 
does recognize that currently it is extremely difficult to develop 
TMDLs for sediment. EPA is partially addressing this concern by 
clarifying in today's rule that the waivers may be based on a TMDL or 
equivalent analyses for sediment or one of the various pollutant 
parameters that are a proxy for sediment. These include TSS, turbidity 
and siltation.
    Other commenters noted that this waiver was unattainable if a TMDL 
or equivalent analysis must be available for every pollutant that could 
possibly be present in any amount in discharges from small construction 
sites regardless of whether the pollutant is causing water quality 
impairment. Commenters asked that EPA identify what constitutes the 
``pollutants of concern'' for which a TMDL or its equivalent must be 
developed. EPA has revised the proposed rule in response to these 
concerns.
    In order for discharges from construction sites under five acres to 
qualify for the water quality waiver of today's rule, the construction 
site operator must demonstrate that storm water controls are not 
necessary for sediment or a parameter that addresses sediment (such as 
TSS, turbidity or siltation) and any other pollutant that has been 
identified as a cause of impairment of any water body that will receive 
a discharge from the construction activity. Even if the water body is 
not currently impaired for sediment, today's rule requires an analysis 
of the potential impacts of sediment because the storm water discharges 
from the construction activity will be a new source of loading to the 
water body that could constitute a new impairment. Because the water 
body will not necessarily have been included on a ``303(d) list'' and a 
TMDL will not necessarily be required, the rule continues to allow an 
analysis that is the equivalent of a TMDL. The designation of storm 
water discharges from small construction activity for regulation in 
today's rule is intended to control pollutants other than sediment. 
This waiver provision requires a TMDL or equivalent analysis for a 
pollutant other than gross particulates (i.e., sediment and other 
particulate-focused pollutant parameters) only if the receiving water 
is currently impaired for that pollutant.
    One commenter expressed the concern that construction operators 
will not know if they are in a watershed covered by a TMDL. To the 
extent this is an operator's concern, he or she could contact their 
NPDES permitting

[[Page 68777]]

authority before applying for permit coverage to determine if receiving 
water is subject to a TMDL. Alternatively, the permitting authority 
could identify the TMDL (or equivalent analysis) areas in the general 
permit or another operator-accessible information source.
    Another commenter expressed the concern that a TMDL waiver is 
likely to be ineffective because the TMDL list is submitted only once 
every 2 years. By the time a water is listed, the activity may have 
been completed and stabilized. The commenter argued that, if a 
watershed is impaired due to sediment from construction, then storm 
water controls will still be needed, because small construction can 
only be waived when it is not identified as a source of impairment. In 
response, EPA notes that an analysis that is the equivalent of a TMDL 
(specifically, equivalent to the component of a TMDL that 
comprehensively analyses existing ambient conditions against the 
applicable water quality standards) may also provide a basis for waiver 
from the default 1 acre designation. Also, even if a water has been 
identified as impaired for sediment, it is possible that a site or 
category of sites may receive an allocation that is sufficiently high 
enough to allow discharges without storm water controls.
c. Permit Process and Administration
    The operator of the construction site, as with any operator of a 
point source discharge, is responsible for obtaining coverage under a 
NPDES permit as required by Sec. 122.21(b). The ``operator'' of the 
construction site, as explained in the current NPDES construction 
general permit, is typically the party or parties that either 
individually or collectively meet the following two criteria: (1) 
Operational control over the site specifications, including the ability 
to make modifications in the specifications; and (2) day-to-day 
operational control of those activities at the site necessary to ensure 
compliance with permit conditions (63 FR 7859). If more than one party 
meets these criteria, then each party involved would typically be a co-
permittee with any other operators. The operator could be the owner, 
the developer, the general contractor, or individual contractor. When 
responsibility for operational control is shared, all operators must 
apply.
    In today's rule, EPA is not requiring an NOI for NPDES general 
permits for storm water discharges from construction activities 
regulated by Sec. 122.26(b)(15) if the NPDES permitting authority finds 
that the use of NOIs would be inappropriate (see Sec. 122.28(b)(2)(v)). 
Under this approach, the NPDES permitting authority will have the 
discretion to decide whether or not to require NOIs for discharges from 
construction activity less than 5 acres. Compared to the existing storm 
water regulation, the permitting authority thus has increased 
flexibility in program implementation. EPA does recommend the use of 
NOIs, however because NOIs track permit coverage and provide a useful 
information source to prioritize inspections or enforcement. Requiring 
an NOI allows for greater accountability by, and tracking of, 
dischargers. This simple permit application and reporting mechanism 
also allows for better outreach to the regulated community, uses an 
existing and familiar mechanism, and is consistent with the existing 
requirements for storm water discharges from larger construction 
activities. Today's rule does not amend the requirement for NOIs in 
general permits for storm water discharges from construction activity 
disturbing 5 acres for more. See Sec. 122.28(b)(2)(v).
    EPA expects that the vast majority of discharges of storm water 
associated with small construction activity identified in 
Sec. 122.26(b)(15) will be regulated through general permits. In the 
event that an NPDES permitting authority decides to issue an individual 
construction permit, however, individual application requirements for 
these construction site discharges are found at Sec. 122.26(c)(1)(ii). 
For any discharges of storm water associated with small construction 
activity identified in Sec. 122.26(b)(15) that are not authorized by a 
general permit, a permit application made pursuant to Sec. 122.26(c) 
must be submitted to the Director by 3 years and 90 days after 
publication of the final rule.
    Some commenters expressed concern that linear construction projects 
(e.g., roads, highways, pipelines) that cross several jurisdictions 
will have to comply with multiple sets of requirements from various 
jurisdictions, including multiple local governments and States. EPA is 
limited in its options to address these concerns because the Agency 
cannot issue NPDES permits in States authorized to implement the NPDES 
program nor preempt other more stringent local and State requirements. 
EPA believes, however, that the option for incorporating by reference 
the State, Tribal or local requirements (see discussion in Section 
II.I.2.d., Cross-Referencing State/Local Erosion and Sediment Control 
Programs) should limit the administrative burden on the operator 
responsible for discharges from linear construction projects. If the 
operator were to implement the most comprehensive of the various 
requirements for the whole project, it could avoid confusion due to 
differing requirements for different sections of the project. In 
addition, linear utility projects, which usually have a shorter project 
period, are more likely to be eligible for the rainfall erosivity 
waiver.
    One commenter stated there was no reason to delay the application 
period for regulated storm water discharges from small construction 
activities. The commenter requested that the newly regulated 
construction site discharges should be required to seek permit coverage 
within 90 days, as opposed to 3 years, of the effective date of the 
rule. The Agency does not accept this request. EPA anticipates that 
NPDES permitting authorities will need one to two years to develop 
adequate legal authority to implement a program to address this new 
category of discharges, as well as to develop and issue general 
permits. Moreover, to ensure effective implementation to protect water 
quality, regulatory authorities will need additional time to inform 
small construction site operators of requirements and provide guidance 
and training on these requirements.
    Finally, EPA received a comment requesting that the three year file 
retention requirement be deleted for discharges from small construction 
sites. While EPA recognizes that the three year record retention 
schedule may be unnecessary for certain construction projects, the 
Agency has determined it is necessary to retain files after the 
completion of the project to ensure permit compliance, including 
applicable construction site stabilization enabling permit termination 
for such sites.
d. Cross-Referencing State, Tribal or Local Erosion and Sediment 
Control Programs
    In developing the NPDES permit requirements for construction sites 
less than 5 acres, members of the Storm Water Phase II FACA 
Subcommittee asked EPA to try to minimize redundancy in the 
construction permit requirements. In response, today's rule at 
Sec. 122.44(s) provides for incorporation of qualifying State, Tribal 
or local erosion and sediment control program requirements by reference 
into the NPDES permit authorizing storm water discharges from 
construction sites (described under Secs. 122.26(b)(15) and 
(b)(14)(x)). The incorporation by reference approach applies not only 
to the newly regulated storm water discharges (from construction 
activity disturbing between 1 and 5 acres, including designated sites, 
but

[[Page 68778]]

excluding waived sites) but also to discharges from construction 
activity disturbing 5 or more acres already covered by the existing 
storm water regulations. For this latter category of discharges from 
construction activity disturbing 5 or more acres, the incorporation by 
reference approach requires that the pollutant control requirements 
from the incorporated program also satisfy the statutory standard for 
limitations representing application of the best available technology 
economically achievable (BAT) and best conventional pollutant control 
technology (BCT).
    For permits issued for discharges from small construction activity 
defined under Sec. 122.26(b)(15), a qualifying State, Tribal, or local 
erosion and sediment control program is one that includes the program 
elements described under Sec. 122.44(s)(1). These elements include 
requirements for construction site operators to implement appropriate 
erosion and sediment control BMPs, requirements to control waste, a 
requirement to develop a storm water pollution prevention plan, and 
requirements to submit a site plan for review. A storm water pollution 
prevention plan includes site descriptions, descriptions of appropriate 
control measures, copies of approved State, Tribal or local 
requirements, maintenance procedures, inspection procedures, and 
identification of non-storm water discharges. The construction site's 
permit would require it to follow the requirements of the qualifying 
local program rather than require it to follow two different sets of 
requirements. If a partially-qualifying program does not have all of 
the elements described under Sec. 122.44(s)(1), then the NPDES 
permitting authority may still incorporate language in the small 
construction site discharge's permit that requires the construction 
site operator to follow the program, but the construction site 
discharge permit also must incorporate the missing required elements in 
order to satisfy CWA requirements.
    The term ``local'' refers to the geographic area of applicability, 
not the form of government that develops and administers the program. 
Thus, a qualifying federal erosion and control program, such as certain 
programs developed and administered by the federal Bureau of Land 
Management, could be a qualifying local program.
    As a result of this provision, local requirements will, in effect, 
provide the substantive construction site erosion and sediment control 
requirements for the NPDES permit authorization. Therefore, by 
following one set of erosion and sediment control requirements, 
construction site operators satisfy both local and NPDES permit 
requirements without duplicative effort. At the same time, 
noncompliance with the referenced local requirements will be considered 
noncompliance with the NPDES permit which is federally enforceable. The 
NPDES permitting authority will, of course, retain the discretion to 
decide whether to include the alternative requirements in the general 
permit. EPA believes that this approach will best balance the need for 
consideration of specific local requirements and local implementation 
with the need for federal and citizen oversight, and will extend 
supplemental NPDES requirements to control storm water discharges from 
construction sites.
    EPA developed the ``incorporation by reference'' approach based on 
implementation efforts designed by the State of Michigan. Michigan 
relies on localities to develop substantive controls for storm water 
discharges associated with construction activities on a localized 
basis. Localities, however, are not required to do so. In areas where 
the local authority does not choose to participate, the State 
administers the sedimentation and erosion control requirements. The 
State agency, as the NPDES permitting authority, receives an NOI 
(termed ``notice of coverage'' by Michigan) under the general permit 
and tracks and exercises oversight, as appropriate, over the activity 
causing the storm water discharge. Michigan's goal under these 
procedures is to utilize the existing erosion and sediment control 
program infrastructure authorized under State law for storm water 
discharge regulation. (See U.S. Environmental Protection Agency, Office 
of Water. January 7, 1994. Memo: From Michael B. Cook, Director OWEC, 
to Water Management Division Directors, Regarding the ``Approach Taken 
by Michigan to Regulate Storm Water Discharges from Construction 
Activities.'')
    Most commenters supported the general concept of incorporating by 
reference qualifying programs. Two commenters expressed concern that 
different local construction requirements will create an impossible 
regulatory scheme for builders who work in different localities. EPA 
believes that allowing States to incorporate qualifying programs by 
reference will minimize the differences for builders who work in 
different areas of the State. These differences already exist, however, 
not only for erosion and sediment controls, but also other aspects of 
construction. In any event, the criteria for qualification for 
localized programs should provide a certain degree of standardization 
for various localities' requirements. EPA expects that the new rule for 
construction and post-construction BMPs being developed under CWA 
section 304(m) will also encourage standardization of local 
requirements. (See discussion of this new rulemaking in section II.D.1, 
Federal Role of this preamble).
    Two commenters requested that an ``incorporation by reference'' 
should include permission, in writing, from the qualifying local 
program administrator because of a perceived extra burden on the 
referenced program. Any program requirements incorporated by reference 
in NPDES permits should already apply to construction site dischargers 
in the applicable area and therefore should not add any additional 
burden to the referenced program. EPA has left to the discretion of the 
permitting authority the decision on whether to seek permission from 
the qualifying program before cross-referencing it in an NPDES permit.
    One commenter stated that a qualifying local program should require 
a SWPPP. The proposed rule defined the qualifying local program as a 
program the meets the minimum program requirements established in the 
proposed construction minimum control measure for small MS4s. To ensure 
consistency in the controls for storm water discharges between the 
larger, already regulated construction sites and the discharges from 
smaller sites that will be regulated as a result of today's rule, EPA 
has made a change to define a qualifying local program as one that 
includes the elements described in Sec. 122.44(s)(1). Section 
122.44(s)(1) requires the development and implementation of a storm 
water pollution prevention plan as a criterion for qualification of 
local programs for incorporation by reference. As noted above, if a 
qualifying program does not include all the elements in 
Sec. 122.44(s)(1) then the permitting authority will need to specify 
the missing elements in order to rely on the incorporation by reference 
approach.
    One commenter asked what happens in regard to the use of qualifying 
programs when a construction site operator is also the qualifying local 
program operator. The provision for incorporation by reference applies 
in this situation also. The local program operator will be required to 
comply with requirements it has established for others.

[[Page 68779]]

e. Alternative Approaches
    EPA received a number of comments on alternative permitting 
approaches. Several commenters supported regulating discharges only 
from those construction sites within urbanized areas. Other commenters 
opposed this approach. EPA chose to address storm water discharges from 
construction sites located both within and outside urbanized areas 
because of the potential for adverse water quality impact from storm 
water discharges from smaller sites in all areas. Regulating only those 
sites within urbanized areas would have excluded a large number of 
potential contributors to water quality impairment and would not 
address large areas of new development occurring on the outer fringes 
of urbanized areas. In fact, designating only small construction 
discharges within urbanized areas might create a perverse incentive for 
building only outside urbanized areas. Such an incentive would be 
inconsistent with the Agency's intention behind designating to protect 
water quality. The Agency intends that designation to protect water 
quality in today's rule should be both remedial and preventive.
    A number of commenters encouraged EPA to cover municipal 
construction activities under the small MS4 general permit, instead of 
issuing a separate NPDES construction permit to these municipal 
construction projects. Similarly, a number of commenters supported EPA 
giving industrial facilities the option of having storm water from 
construction activities on the site covered by the industrial storm 
water permit. Several other commenters found that combining multiple 
permit types under one general permit introduced a degree of complexity 
which was confusing to permittees. Permitting authorities have the 
option of combining MS4 and construction permits or industrial and 
construction permits, however, specific requirements for each would 
still need to be included in the permit issued. EPA agrees that this 
would probably result in a more complex and confusing permit compared 
to the existing component permits.
    Several commenters supported an alternative for regulated small 
MS4s where a local qualified program alone, without an NPDES permit, is 
sufficient to enforce compliance with construction site discharge 
requirements. On the other hand, one commenter stated that linking the 
local construction erosion and sediment control program to the existing 
NPDES program for storm water from larger construction has driven 
improvements in many local programs. Another commenter stated that the 
potential fines under the NPDES program will encourage compliance and 
will be much stronger than any fines a local program may have. EPA 
agrees that the NPDES program is the best approach to address water 
quality impacts from construction sites and provides benefits such as 
accountability and federal enforcement.
    A number of commenters supported issuing one permit for each 
construction company, instead of a permit for each individual 
construction activity (also requested for storm water discharges from 
the larger, already regulated construction sites). Other commenters 
found that a `licensing' program for construction site operators would 
have many problems, including identifying who to permit and tracking 
information on active sites. EPA is regulating only the storm water 
discharges associated with construction activity from small sites, not 
the construction activity itself. Separate NPDES permits (either 
individual or general permit coverage) for construction site discharges 
avoid potential problems in tracking sites and operator accountability. 
Section 122.28(b)(2)(v) gives permitting authorities the option to 
issue a general permit without requiring an NOI. If an NOI is not 
required for each activity, permitting authorities could pursue other 
options such as a company-wide NOI, license instead of an NOI, or 
another mechanism.
2. Other Sources
    In the Storm Water Discharges Potentially Addressed by Phase II of 
the National Pollutant Discharge Elimination System Storm Water 
Program, Report to Congress, March 1995, (``Report'') submitted by EPA 
pursuant to CWA section 402(p)(5), EPA examined the remaining 
unregulated point sources of storm water for the potential to adversely 
affect water quality. Due to very limited national data on which to 
estimate pollutant loadings on the basis of discharge categories, the 
discussion of the extent of unregulated storm water discharges is 
limited to an analysis of the number and geographic distribution of the 
unregulated storm water discharges. Therefore, EPA is not designating 
any additional unregulated point sources of storm water on a 
nationwide, categorical basis. Instead, the remainder of the sources 
will be regulated based on case-by-case post-promulgation designations 
by the NPDES permitting authority.
    EPA did, however, evaluate a variety of categories of discharges 
for potential designation in the Report. EPA's efforts to identify 
sources and categories of unregulated storm water discharges for 
potential designation for regulation in today's rule started with an 
examination of approximately 7.7 million commercial, retail, 
industrial, and institutional facilities identified as ``unregulated.'' 
In general, the distribution of these facilities follows the 
distribution of population, with a large percentage of facilities 
concentrated within urbanized areas (see page 4-35 of the Report). This 
examination resulted in identification of two general classes of 
facilities with the potential for discharging pollutants to waters of 
the United States through storm water point sources.
    The first group (Group A) included sources that are very similar, 
or identical, to regulated ``storm water discharges associated with 
industrial activity'' but that were not included in the existing storm 
water regulations because EPA used SIC codes in defining the universe 
of regulated industrial activities. By relying on SIC codes, a 
classification system created to identify industries rather than 
environmental impacts from these industries discharges, some types of 
storm water discharges that might otherwise be considered 
``industrial'' were not included in the existing NPDES storm water 
program. The second general class of facilities (Group B) was 
identified on the basis of potential for activities and pollutants that 
could contribute to storm water contamination.
    EPA estimates that Group A has approximately 100,000 facilities. 
Discharges from facilities in this group, which may be of high priority 
due to their similarity to regulated storm water discharges from 
industrial facilities, include, for example, auxiliary facilities or 
secondary activities (e.g., maintenance of construction equipment and 
vehicles, local trucking for an unregulated facility such as a grocery 
store) and facilities intentionally omitted from existing storm water 
regulations (e.g., publicly owned treatment works with a design flow of 
less than 1 million gallons per day, landfills that have not received 
industrial waste).
    Group B consists of nearly one million facilities. EPA organized 
Group B sources into 18 sectors for the purposes of the Report. The 
automobile service sector (e.g., gas/service stations, general 
automobile repair, new and used car dealerships, car and truck rental) 
makes up more than one-third of the total number of facilities 
identified in all 18 sectors.
    EPA conducted a geographical analysis of the industrial and 
commercial facilities in Groups A and

[[Page 68780]]

B. The geographical analysis shows that the majority are located in 
urbanized areas (see Section 4.2.2, Geographic Extent of Facilities, in 
the Report). In general, about 61 percent of Group A facilities and 56 
percent of Group B facilities are located in urbanized areas. The 
analysis also showed that nearly twice as many industrial facilities 
are found in all urbanized areas as are found in large and medium 
municipalities alone. Notable exceptions to this generalization 
included lawn/garden establishments, small unregulated animal feedlots, 
wholesale livestock, farm and garden machinery repair, bulk petroleum 
wholesale, farm supplies, lumber and building materials, agricultural 
chemical dealers, and petroleum pipelines, which can frequently be 
located in smaller municipalities or rural areas.
    In identifying potential categories of sources for designation in 
today's notice, EPA considered designation of discharges from Group A 
and Group B facilities. EPA applied three criteria to each potential 
category in both groups to determine the need for designation: (1) The 
likelihood for exposure of pollutant sources included in that category, 
(2) whether such sources were adequately addressed by other 
environmental programs, and (3) whether sufficient data were available 
at this time on which to make a determination of potential adverse 
water quality impacts for the category of sources. As discussed 
previously, EPA searched for applicable nationwide data on the water 
quality impacts of such categories of facilities.
    By application of the first criterion, the likelihood for exposure, 
EPA considered the nature of potential pollutant sources in exposed 
portions of such sites. As precipitation contacts industrial materials 
or activities, the resultant runoff is likely to mobilize and become 
contaminated by pollutants. As the size of these exposed areas 
increases, EPA expects a proportional increase in the pollutant 
loadings leaving the site. If EPA concluded that a category of sources 
has a high potential for exposure of raw materials, intermediate 
products, final products, waste materials, byproducts, industrial 
machinery, or industrial activity to rainfall, the Agency rated that 
category of sources as having ``high'' potential for adverse water 
quality impact. EPA's application of the first criterion showed that a 
number of Group A and B sources have a high likelihood of exposure of 
pollutants.
    Through application of the second criterion, EPA assessed the 
likelihood that pollutant sources are regulated in a comprehensive 
fashion under other environmental protection programs, such as programs 
under the Resource Conservation and Recovery Act (RCRA) or the 
Occupational Health and Safety Act (OSHA). If EPA concluded that the 
category of sources was sufficiently addressed under another program, 
the Agency rated that source category as having ``low'' potential for 
adverse water quality impact. Application of the second criterion 
showed that some categories were likely to be adequately addressed by 
other programs.
    After application of the third criterion, availability of 
nationwide data on the various storm water discharge categories, EPA 
concluded that available data would not support any such nationwide 
designations. While such data could exist on a regional or local basis, 
EPA believes that permitting authorities should have flexibility to 
regulate only those categories of sources contributing to localized 
water quality impairments.
    EPA received comments requesting designation of additional 
industrial, commercial and retail sources (e.g. industrial activity 
``look-alikes'', roads, commercial facilities and institutions, and 
vehicle maintenance facilities) in the final rule, because the 
commenters believe that the data exist to support national designation 
of some of these sources. Other comments were received opposing 
designation of any additional sources. Today's rule does not designate 
any additional industrial or commercial category of sources either 
because EPA currently lacks information indicating a consistent 
potential for adverse water quality impact or because of EPA's belief 
that the likelihood of adverse impacts on water quality is low, with 
some possible exceptions on a more local basis. Since the time the 
Agency submitted the Report, EPA has continued to seek additional data 
and has requested available data from the FACA members. If sufficient 
regional or nationwide data become available in the future, the 
permitting authority could at that time designate a category of sources 
or individual sources on a case-by-case basis. Therefore, today's rule 
encourages control of storm water discharges from Groups A and B 
through self-initiated, voluntary BMPs, unless the discharge (or 
category of discharges) is designated for permitting by the permitting 
authority. See discussion in section I.D., EPA's Reports to Congress.
3. ISTEA Sources
    Provisions within the Intermodal Surface Transportation and 
Efficiency Act (ISTEA) of 1991 temporarily exempted storm water 
discharges associated with industrial activity that are owned or 
operated by municipalities serving populations less than 100,000 people 
(except for airports, power plants, and uncontrolled sanitary 
landfills) from the need to apply for or obtain a storm water discharge 
permit (section 1068(c) of ISTEA). Congress extended the NPDES 
permitting moratorium for these facilities to allow small 
municipalities additional time to comply with NPDES requirements for 
certain sources of industrial storm water. The August 7, 1995 storm 
water final rule (60 FR 40230) further extended this moratorium until 
August 7, 2001. However, today's rule changes this deadline so that 
previously exempted industrial facilities owned or operated by 
municipalities serving populations less than 100,000 people, must now 
submit an application for a permit within 3 years and 90 days from date 
of publication of today's rule.
    EPA received comments recommending that permit requirements for 
municipally owned or operated industrial storm water discharges, 
including those previously exempt under ISTEA, be included in a single 
NPDES permit for all MS4 storm water discharges. The existing NPDES 
regulations already provide permitting authorities the ability to issue 
a single ``combination'' permit for MS4 discharges. However, if the 
permitting authorities chose to issue this type of permit, they must 
make sure that in doing so, they are not creating a double standard for 
industrial facilities covered under the combination permit versus those 
covered under separate general or individual permits. In order to avoid 
this double standard, combination permits would have to contain 
requirements that are the same or very similar to the requirements 
found in separate MS4 and industrial permits, i.e., the minimum 
measures and other necessary requirements of an MS4 permit, and the 
SWPPP, monitoring and reporting requirements, and other necessary 
requirements of an industrial permit. If such a combined MS4 general 
permit were issued, the regulations require that each discharger submit 
NOIs for their respective discharges, except for discharges from small 
construction activities. Flexibility exists in developing a combination 
NOI which could reduce the need to submit duplicative information, e.g. 
owner/operator name and address. The combination NOI would still need 
to require specific information for each separate municipally owned or 
operated industrial location, including

[[Page 68781]]

construction projects disturbing 5 or more acres. The regulations at 
Sec. 122.28(b)(2)(ii) list the necessary contents of an NOI, which 
require: the facility name, facility address, type of facility or 
discharge and receiving stream for each industrial discharge location. 
When viewed in its entirety, a combination permit, which by necessity 
would need to contain all elements of otherwise separate industrial and 
MS4 permit requirements, and require NOI information for each separate 
industrial activity, may have few advantages when compared to obtaining 
separate MS4 and industrial general permit coverage.
    In order to allow the permitting authority to issue a single storm 
water permit for the MS4 and all municipally owned or operated 
industrial facilities, including those previously exempt under ISTEA, 
today's rule requires applications for ISTEA sources within 3 yrs and 
90 days from date of publication of today's rule. The permitting 
authority has the ultimate decision to determine whether or not a 
single all-encompassing MS4 permit is appropriate.
4. Residual Designation Authority
    The NPDES permitting authority's existing designation authority, as 
well as the petition provisions are being retained. Today's rule 
contains two provisions related to designation authority at 
Secs. 122.26(a)(9)(i)(C) and (D). Subsection (C) adds designation 
authority where storm water controls are needed for the discharge based 
upon wasteload allocations that are part of TMDLs that address the 
pollutant(s) of concern. EPA intends that the NPDES permitting 
authority have discretion in the matter of designations based on TMDLs 
under subsection (C). Subsection (D) carries forward residual 
designation authority under former Sec. 122.26(g), and has been 
modified to provide clarification on categorical designation. Under 
today's rule, EPA and authorized States continue to exercise the 
authority to designate remaining unregulated discharges composed 
entirely of storm water for regulation on a case-by-case basis 
(including Sec. 123.35). Individual sources are subject to regulation 
if EPA or the State, as the case may be, determines that the storm 
water discharge from the source contributes to a violation of a water 
quality standard or is a significant contributor of pollutants to 
waters of the United States. This standard is based on the text of 
section CWA 402(p). In today's rule, EPA believes, as Congress did in 
drafting section CWA 402(p)(2)(E), that individual instances of storm 
water discharge might warrant special regulatory attention, but do not 
fall neatly into a discrete, predetermined category. Today's rule 
preserves the regulatory authority to subsequently address a source (or 
category of sources) of storm water discharges of concern on a 
localized or regional basis. For example, as States and EPA implement 
TMDLs, permitting authorities may need to designate some point source 
discharges of storm water on a categorical basis either locally or 
regionally in order to assure progress toward compliance with water 
quality standards in the watershed.
    EPA received comments asking that Sec. 122.26(a)(9)(i)(D) as 
proposed be modified to include specific language clarifying the 
permitting authority's ability to designate additional sources on a 
categorical basis as explained in the preamble to the proposed rule. 
One comment requested that the designation language include 
``categories of sources on a Statewide basis.'' EPA agrees that the 
intent of the language may not have been clear regarding categorical 
designation. Today's rule modifies subsection (D) to clarify that the 
designation authority can be applied within different geographic areas 
to any single discharge (i.e., a specific facility), or category of 
discharges that are contributing to a violation of a water quality 
standard or are significant contributors of pollutants to waters of the 
United States. The added term ``within a geographic area'' allows 
``State-wide'' or ``watershed-wide'' designation within the meaning of 
the terms.
    One commenter questioned the Agency's legal authority to provide 
for such residual designation authority. The stakeholder argued that 
the lapse of the October 1, 1994, permitting moratorium under CWA 
section 402(p)(1) eliminated the significance of the CWA section 
402(p)(2) exceptions to the moratorium, including the exception for 
discharges of storm water determined to be contributing to a violation 
of a water quality standard or a significant contributor of pollutants 
under CWA section 402(p)(2)(E). The stakeholder further argued that 
EPA's authority to designate sources for regulation under CWA section 
402(p)(6) is limited to storm water discharges other than those 
described under CWA section 402(p)(2). Because CWA section 402(p)(2)(E) 
describes individually designated discharges, the stakeholder concluded 
that regulations under CWA section 402(p)(6) cannot provide for post-
promulgation designation of individual sources. EPA disagrees.
    First, as explained previously, EPA anticipates that NPDES 
permitting authorities may yet determine that individual unregulated 
point sources of storm water discharges require regulation on a case-
by-case basis. This conclusion is consistent with the Congress' 
recognition of the potential need for such designation under the first 
phase of storm water regulation as described in CWA section 
402(p)(2)(E). Under CWA section 402(p)(2)(E), Congress recognized the 
need for both EPA and the State to retain authority to regulate 
unregulated point sources of storm water under the NPDES permit 
program. Second, to the extent that CWA section 402(p)(6) requires 
designation of a ``category'' of sources, the permitting authority may 
designate such (as yet unidentified) sources as a category that should 
be regulated to protect water quality. Though such sources may exist 
and discharge today, if neither EPA nor the State/Tribal NPDES 
permitting authority has designated the source for regulation under CWA 
section 402(p)(2)(E) to date, then CWA section 402(p)(6) provides the 
authority to designate such sources.
    The Agency can designate a category of ``not yet identified'' 
sources to be regulated, based on local concerns, even if data do not 
exist to support nationwide regulation of such sources. EPA does not 
interpret the language in CWA section 402(p) to preclude States from 
exercising designation authority under these provisions because such 
designation (and subsequent regulation of designated sources) is within 
the ``scope'' of the NPDES program.
    EPA also believes that sources regulated pursuant to a State 
designation are part of (and regulated under) a federally approved 
State NPDES program, and thus subject to enforcement under CWA sections 
309 and 505. Under existing NPDES State program regulations, State 
programs that are ``greater in scope of coverage'' are not part of the 
federally-approved program. By contrast, any such State regulation of 
sources in this ``reserved category'' will be within the scope of the 
federal program because today's rule recognizes the need for such post 
promulgation designations of unregulated point sources of storm water. 
Such regulation will be ``more stringent'' than the federal program 
rather than ``greater in scope of coverage'' (40 CFR 123.1(h)).
    EPA does not interpret the congressional direction in CWA section 
402(p)(6) to preclude regulation of point sources of storm water that 
should be regulated to protect water quality. Under CWA section 510, 
Congress expressly recognized and preserved the authority of States to 
adopt and enforce

[[Page 68782]]

more stringent regulation of point sources, as well as any requirement 
respecting the control or abatement of pollution. Section 510 applies, 
``except as expressly provided'' in the CWA. CWA section 502(14) does 
expressly provide affirmative limitations on the regulation of certain 
pollutant sources through the point source control program, the NPDES 
permitting program. Section 502(14) excludes agricultural storm water 
and return flows from irrigated agriculture from the definition of 
point source, and section 402(l) limits applicability of the section 
402 permit program for return flows from irrigated agriculture, as well 
as for storm water runoff from certain oil, gas, and mining operations. 
Unlike sections 502(14) and 402(l), EPA does not interpret CWA section 
402(p)(6) as an express provision limiting the authority to designate 
point sources of storm water for regulation on a case-by-case basis 
after the promulgation of final regulations. Any source of storm water 
discharge is encouraged to assess its potential for storm water 
contamination and take preventive measures against contamination. Such 
proactive actions could result in the avoidance of future regulation.
    One comment was received requesting clarification of the term 
``non-municipal'' in Sec. 122.26(a)(9)(ii). The commenter is concerned 
that the term ``non-municipal,'' in this context, implies that 
municipally owned or operated facilities cannot be designated. The term 
``non-municipal'' in this context refers to the universe of unregulated 
industrial and commercial facilities that could potentially be 
designated according to Sec. 122.26(a)(9)(i) authority. There is no 
exemption for municipally owned or operated facilities under these 
designation provisions.
    Finally, EPA received comments and evaluated the proposal under 
which operators of regulated small, medium, and large MS4s would be 
responsible for controlling discharges from industrial and other 
facilities into their systems in lieu of requiring NPDES permit 
coverage for such facilities. EPA did not adopt this framework due to 
concerns with administrative and technical burden on the MS4 operators, 
as well as concerns about such an intergovernmental mandate.

J. Conditional Exclusion for ``No Exposure'' of Industrial Activities 
and Materials to Storm Water

1. Background
    In 1992, the Ninth Circuit court remanded to EPA for further 
rulemaking, a portion of the definition of ``storm water discharge 
associated with industrial activity'' that excluded the category of 
industrial activity identified as ``light industry'' when industrial 
materials and/or activities were not exposed to storm water. See NRDC 
v. EPA, 966 F.2d 1292, 1305 (9th Cir. 1992). Today's final rule 
responds to that remand. In the 1990 storm water regulations, EPA 
excluded the light industry category from the requirement for an NPDES 
permit if the industrial materials and/or activities were not 
``exposed'' to storm water (see Sec. 122.26(b)(14)). The Agency had 
reasoned that most of the activity at these types of facilities takes 
place indoors and that emissions from stacks, use of unhoused 
manufacturing equipment, outside material storage or disposal, and 
generation of large amounts of dust or particles would be atypical (55 
FR 48008, November 16, 1990).
    The Ninth Circuit determined that the exemption was arbitrary and 
capricious for two reasons. First, the court found that EPA had not 
established a record to support its assumption that light industry that 
was not exposed to storm water was not ``associated with industrial 
activity,'' particularly when other types of industrial activity not 
exposed to storm water remained ``associated with industrial 
activity.'' The court specifically found that ``[t]o exempt these 
industries from the normal permitting process based on an 
unsubstantiated assumption about this group of facilities is arbitrary 
and capricious.'' Second, the court concluded that the exemption 
impermissibly ``altered the statutory scheme'' for permitting because 
the exemption relied on the unverified judgment of the light industrial 
facility operator to determine non-applicability of the permit 
application requirements. In other words, the court was critical that 
the operator would determine for itself that there was ``no exposure'' 
and then simply not apply for a permit without any further action. 
Without a basis for ensuring the effective operation of the permitting 
scheme--either that facilities would self-report actual exposure or 
that EPA would be required to inspect and monitor such facilities--the 
court vacated and remanded the rule to EPA for further rulemaking.
    One of the major concerns expressed by the FACA Committee, was that 
EPA streamline and reinvent certain troublesome or problematic aspects 
of the existing permitting program for storm water discharges. One area 
identified was the mandatory applicability of the permitting program to 
all industrial facilities, even those ``light industrial'' activities 
that are of very low risk or of no risk to storm water contamination. 
Such dischargers may not have any industrial sources of storm water 
contamination on the plant site, yet they are still required to apply 
for an NPDES storm water permit and meet all permitting requirements. 
Examples of such facilities are a soap manufacturing plant (SIC Code 
28) or hazardous waste treatment and disposal facility, where all 
industrial activities, even loading docks, are inside a building or 
under a roof.
    Although they did not provide a written report, the FACA Committee 
members advised EPA that the existing storm water program should be 
revised to allow such facilities to seek an exclusion from the NPDES 
storm water permitting requirements. The Committee agreed that such an 
exclusion should also provide a strong incentive for other industrial 
facilities that conduct industrial activities outdoors to move the 
activities under cover or into buildings to prevent contamination of 
rainfall and storm water runoff. The committee believed that such a 
``no exposure'' permit exclusion could be a valuable incentive for 
storm water pollution prevention.
    In today's final rule, the Agency responds to both of the bases for 
the court's remand. The exclusion from permitting based on ``no 
exposure'' applies to all industrial categories listed in the existing 
storm water regulations except construction. The court's opinion 
rejected EPA's distinction between light industry and other industry, 
but it did not preclude an interpretation that treats all ``non-
exposed'' industrial facilities in the same fashion. Presuming that an 
industrial facility adequately prevents exposure of industrial 
materials and activities to storm water, today's rule treats discharges 
from ``non-exposed'' industrial facilities in a manner similar to the 
way Congress intended for discharges from administrative buildings and 
parking lots. Specifically, permits will not be required for storm 
water discharges from these facilities on a categorical basis.
    To assure that discharges from industrial facilities really are 
similar to discharges from administrative buildings and parking lots, 
and to respond to the second basis for the court's remand, the 
permitting exclusion is ``conditional''. The person responsible for a 
point source discharge from a ``no exposure'' industrial source must 
meet the conditions of the exclusion, and complete, sign and submit the 
certification to the permitting authority for tracking and

[[Page 68783]]

accountability purposes. EPA believes today's rule, therefore, is fully 
consistent with the direction provided by the court.
    EPA relied upon the ``no exposure'' concept discussed by the FACA 
Committee in developing the ``no exposure'' provisions of today's rule. 
EPA is deleting the sentence regarding ``no exposure'' for the 
facilities in Sec. 122.26(b)(14)(xi) and adding a new Sec. 122.26(g) 
titled ``Conditional Exclusion for No Exposure of Industrial Activities 
to Storm Water.'' The ``no exposure'' provision will make storm water 
discharges from all classes of industrial facilities eligible for 
exclusion, except storm water discharges from regulated construction 
activities. Regulated construction activities cannot claim ``no 
exposure'' because the main pollutants of concern (e.g., sediment) 
generally cannot entirely be sheltered from storm water.
    Today's rule represents a significant expansion in the scope of the 
``no exposure'' provision originally promulgated in the 1990 rule, 
which was only for storm water discharges from light industry. The 
intent of today's ``no exposure'' provision is to provide a simplified 
method for complying with the CWA to all industrial facilities that are 
entirely indoors. This includes facilities that are located within a 
large office building, or at which the only items permanently exposed 
to precipitation are roofs, parking lots, vegetated areas, and other 
non-industrial areas or activities.
    EPA received several comments related to storm water runoff from 
parking lots, roof tops, lawns, and other non-industrial areas of an 
industrial facility. Storm water discharges from these areas, which may 
contain pollutants or which may result in additional storm water flows, 
are not directly regulated under the existing storm water permitting 
program because they are not ``storm water discharges associated with 
industrial activity''. Many comments on this issue supported 
maintaining the exclusion from the existing regulations for storm water 
permitting for discharges from administrative buildings, parking lots, 
and other non-industrial areas. Other comments opposed allowing the 
continued exclusion for discharges from non-industrial areas of the 
site because discharges from these areas are potentially a significant 
cause of receiving water impairment. These comments urged that such 
discharges should not be excluded from NPDES permit coverage. Today's 
rule does not require permit coverage for discharges from a facility's 
exposed areas that are separate from industrial activities such as 
runoff from office buildings and accompanying parking lots, lawns and 
other non-industrial areas. This approach is consistent with the 
existing storm water rules which were based on Congress's intent to 
exclude non-industrial areas such as ``parking lots and administrative 
and employee buildings.'' 133 Cong. Rec. 985 (1987). EPA also lacks 
data indicating that discharges from these areas at an industrial 
facility cause significant receiving water impairments. Therefore, the 
non-industrial areas at a facility do not need to be assessed as part 
of the ``no exposure'' certification.
    EPA received comments related to industrial facilities that achieve 
``no exposure'' by constructing large amounts of impervious surfaces, 
such as roofs, where previously there were pervious or porous surfaces 
into which storm water could infiltrate. Some commenters made the point 
that large amounts of impervious area may cause a significant increase 
in storm water volume flowing off the industrial facility, and thus may 
cause adverse receiving water impacts simply due to the increased 
quantity of storm water flow. Some commenters said that storm water 
discharges from impervious areas at an industrial facility are 
generally more frequent, and often larger, than discharges from the 
pre-existing natural surfaces. They believe that these discharges will 
contain pollutants typical of commercial areas and roads and are an 
equal threat to direct human uses of the water and can cause equal 
damage to aquatic life and its habitat. Other commenters believe that 
if Congress or EPA addresses the issue of flow, it should be addressed 
on a broader scale than merely through the ``no exposure'' exclusion, 
and that EPA has no authority under any existing legal framework to 
regulate flow directly. Some commenters stated that developing federal 
parameters for the control of water quantity, i.e. flow, would result 
in federal intrusion into land use planning, an authority that they 
claim is solely within the purview of State governments and their 
political subdivisions.
    EPA is not attempting to regulate flow via the ``no exposure'' 
provisions. EPA does agree, however, that increases in impervious 
surfaces can result in increased runoff volumes from the site which in 
turn may increase pollutant loading. In addition, the Agency notes that 
in some States water quality standards include water quality criteria 
for flow or turbidity. Therefore, in order to provide a minimal amount 
of information on possible impacts from increased pollutant loading and 
runoff volume, EPA's ``no exposure'' certification form (see Appendix 
4) asks the discharger to indicate if they have paved or roofed over a 
formerly exposed, pervious area in order to qualify for the ``no 
exposure'' exclusion. If the answer is yes, the discharger must 
indicate, by choosing from three possible responses, approximately how 
much impervious area was created to achieve ``no exposure''. The 
choices are: (1) less than 1 acre, (2) 1 to 5 acres, and (3) more than 
5 acres. This requirement provides additional information that will aid 
in determining if discharges from the facility are causing adverse 
receiving water impacts. EPA intends to prevent water quality impacts 
resulting from increased discharges of pollutants, which may result 
from increased volume of runoff. In many cases, consideration of the 
increased flow rate, velocity and energy of storm water discharges, 
following construction of large amounts of impervious surfaces, must be 
taken into consideration in order to reduce the discharge of 
pollutants, to meet water quality standards and to prevent degradation 
of receiving streams. EPA recommends that dischargers consider these 
factors when making modifications to their site in order to qualify for 
the ``no exposure'' exclusion.
2. Today's Rule
    In order to claim relief under the ``no exposure'' provision, the 
discharger of an otherwise regulated facility must submit a no exposure 
certification that incorporates the questions of Sec. 122.26(g)(4)(iii) 
to the NPDES permitting authority once every 5 years. This provision 
applies across all categories of industrial activity covered by the 
existing program, except discharges from construction activities.
    In addition to submitting a ``no exposure'' certification every 5 
years, the facility must allow the NPDES permitting authority or 
operator of an MS4 (where there is a storm water discharge to the MS4) 
to inspect the facility and to make such inspection reports publicly 
available upon request. Also, upon request, the facility must submit a 
copy of the ``no exposure'' certification to the operator of the MS4 
into which the facility discharges (if applicable). All ``no exposure'' 
certifications must be signed in accordance with the signatory 
requirements of Sec. 122.22. The ``no exposure'' certification is non-
transferable. In the event that the facility operator changes, the new 
discharger must submit a new ``no exposure'' certification.

[[Page 68784]]

    Members of the FACA Committee urged that EPA not allow dischargers 
certifying ``no exposure'' to take actions to qualify for this 
provision that result in a net environmental detriment. In developing a 
regulatory implementation mechanism, however, EPA found that the phrase 
``no net environmental detriment,'' was too imprecise to use within 
this context. Therefore, today's rule addresses this issue by requiring 
information that should help the permitting authority to determine 
whether actions taken to qualify for the exclusion interfere with the 
attainment or maintenance of water quality standards, including 
designated uses. Permitting authorities will be able, where necessary, 
to make a determination by evaluating the activities that changed at 
the industrial site to achieve ``no exposure'', and assess whether 
these changes cause an adverse impact on, or have the reasonable 
potential to cause an instream excursion of, water quality standards, 
including designated uses. EPA anticipates that many efforts to achieve 
``no exposure'' will employ simple good housekeeping and contaminant 
cleanup activities. Other efforts may involve moving materials and 
industrial activities indoors into existing buildings or structures.
    In very limited cases, industrial operators may make major changes 
at a site to achieve ``no exposure''. These efforts may include 
constructing a new building or cover to eliminate exposure or 
constructing structures to prevent run-on and storm water contact with 
industrial materials or activities. Where major changes to achieve ``no 
exposure'' increase the impervious area of the site, the facility 
operator must provide this information on the ``no exposure'' 
certification form as discussed above. Using this and other available 
data and information, permitting authorities should be able to assess 
whether any major change has resulted in increased pollutant 
concentrations or loadings, toxicity of the storm water runoff, or a 
change in natural hydrological patterns that would interfere with the 
attainment and maintenance of water quality standards, including 
designated uses or appropriate narrative, chemical, biological, or 
habitat criteria where such State or Tribal water quality standards 
exist. In these instances, the facility operator and their NPDES 
permitting authority should take appropriate actions to ensure that 
attainment or maintenance of water quality standards can be achieved. 
The NPDES permitting authority should decide if the facility must 
obtain coverage under an individual or general permit to ensure that 
appropriate actions are taken to address adverse water quality impacts.
    While the intent of today's ``no exposure'' provision is to reduce 
the regulatory burdens on industrial facilities and government 
agencies, the FACA Committee suggested that the NPDES permitting 
authority consider a compliance assessment program to ensure that 
facilities that have availed themselves of this ``no exposure'' option 
meet the applicable requirements. Inspections could be conducted at the 
discretion of the NPDES authority and be coordinated with other 
facility inspections. EPA expects, however, that the permitting 
authority will conduct inspections when it becomes aware of potential 
water quality impacts possibly caused by the facility's storm water 
discharges or when requested to do so by adversely affected members of 
the public. The intent of this provision is that the 5 year ``no 
exposure'' certification be fully available to, and enforceable by, 
appropriate federal and State authorities under the CWA. Private 
citizens can enforce against facilities for discharges of storm water 
that are inconsistent with a ``no exposure'' certification if storm 
water discharges from such facilities are not otherwise permitted and 
in compliance with applicable requirements.
    EPA received comments from owners, operators and representatives of 
Phase I facilities classified as ``light industry'' as defined by the 
regulations at Sec. 122.26(b)(14)(xi). The comments recommended 
maintaining the approach of the existing regulations which does not 
require the discharger to submit any supporting documentation to the 
permitting authority in order to claim the ``no exposure'' exclusion 
from permitting. As discussed previously, the ``no exposure'' concept 
was developed in response to the Ninth Circuit court's remand of part 
of the existing rules back to EPA. The court found that EPA cannot rely 
on the ``unverified judgment'' of the facility. The comments opposing 
documentation did not address the ``unverified judgment'' concern.
    Today's rule is a ``conditional'' exclusion from permitting which 
requires all categories, including the ``light industrial'' facilities 
that have no exposure of materials to storm water, to submit a 
certification to the permitting authority. Upon receipt of a complete 
certification, the permitting authority can review the information, or 
call, or inspect the facility if there are doubts about the facility's 
``no exposure'' claim. Also, if the facility discharges into an MS4, 
the operator of the MS4 can request a copy of the certification, and 
can inspect the facility. The public can request a copy of the 
certification and/or inspection reports. In adopting these conditional 
``no exposure'' provisions, the Agency addressed the Ninth Circuit 
court's ruling regarding the discharger's unverified judgment.
    EPA received one comment requesting clarification on whether the 
anti-backsliding provisions in the regulations at Sec. 122.44(l) apply 
to industrial facilities that are currently covered under an NPDES 
storm water permit, and whether such facilities could qualify for the 
``no exposure'' exclusion under today's rule. The anti-backsliding 
provisions will not prevent most industrial facilities that can certify 
``no exposure'' under today's rule from qualifying for an exclusion 
from permitting. The anti-backsliding provisions contain 5 exceptions 
that allow permits to be renewed, reissued or modified with less 
stringent conditions. One exception at Sec. 122.44(l)(2)(A) allows less 
stringent conditions if ``material and substantial alterations or 
additions to the permitted facility occurred after permit issuance 
which justify the application of a less stringent effluent 
limitation.'' Section 122.44(l)(B)(1) also allows less stringent 
requirements if ``information is available which was not available at 
the time of permit issuance and which would have justified the 
application of less stringent effluent limitations at the time of 
permit issuance.'' Facility's operators who certify ``no exposure'' and 
submit the required information once every 5 years will have provided 
the permitting authority ``information that was not available at the 
time of permit issuance.'' Also, some facilities may, in order to 
achieve ``no exposure'', make ``material and substantial alterations or 
additions to the permitted facility.'' Therefore, most facilities 
covered under existing NPDES general permits for storm water (e.g., 
EPA's Multi-Sector General Permit) will be eligible for the conditional 
``no exposure'' exclusion from permitting without concern about the 
anti-backsliding provisions. Such dischargers will have met one or both 
of the anti-backsliding exceptions detailed above. Facilities that are 
covered under individual permits containing numeric limitations for 
storm water should consult with their permitting authority to determine 
whether the anti-backsliding provisions will prevent them from 
qualifying for the exclusion from permitting (for that discharge point) 
based on a certification of ``no exposure''.

[[Page 68785]]

    EPA received several comments regarding the timing of when the ``no 
exposure'' certification should be submitted. The proposed rule said 
that the ``no exposure'' certification notice must be submitted ``at 
the beginning of each permit term or prior to commencing discharges 
during a permit term.'' Some commenters interpreted this statement to 
mean that existing facilities can only submit the certification at the 
time a permit is being issued or renewed. EPA intended the phrase ``at 
the beginning of each permit term'' to mean ``once every 5 years'' and 
today's rule reflects this clarification. EPA envisions that the NPDES 
storm water program will be implemented primarily through general 
permits which are issued for a 5 year term. Likewise the ``no 
exposure'' certification term is 5 years. The NPDES permitting 
authority will maintain a simple registration list that should impose 
only a minor administrative burden on the permitting authority. The 
registration list will allow for tracking of industrial facilities 
claiming the exclusion. This change allows a facility to submit a ``no 
exposure'' certification at any time during the term of the permit, 
provided that a new certification is submitted every 5 years from the 
time it is first submitted (assuming that the facility maintains a ``no 
exposure'' status). Once a discharger has established that the facility 
meets the definition of ``no exposure'', and submits the necessary ``no 
exposure'' certification, the discharger must maintain their ``no 
exposure'' status. Failure to maintain ``no exposure'' at their 
facility could result in the unauthorized discharge of pollutants to 
waters of the United States and enforcement for violation of the CWA. 
Where a discharger believes that exposure could occur in the future due 
to some anticipated change at the facility, the discharger should 
submit an application and obtain coverage under an NPDES permit prior 
to such discharge to avoid penalties.
    Where EPA is the permitting authority, dischargers may submit a 
``no exposure'' certification at any time after the effective date of 
today's rule. Where EPA is not the permitting authority, dischargers 
may not be able to submit the certification until the non-federal 
permitting authority completes any necessary statutory or regulatory 
changes to adopt this ``no exposure'' provision. EPA recommends that 
the discharger contact the permitting authority for guidance on when 
the ``no exposure'' certification should be submitted.
    EPA received comments on the proposed rule requirement that the 
discharger ``must comply immediately with all the requirements of the 
storm water program including applying for and obtaining coverage under 
an NPDES permit,'' if changes occur at the facility which cause 
exposure of industrial activities or materials to storm water. The 
comments expressed the difficultly of immediate compliance. EPA expects 
that most facility changes can be anticipated, therefore dischargers 
should apply for and obtain NPDES permit coverage in advance of changes 
that result in exposure to industrial activities or materials. 
Permitting authorities may grant additional time, on a case-by-case 
basis, for preparation and implementation of a storm water pollution 
prevention plan.
    Finally, today's rule at Sec. 122.26(g)(4) includes the information 
which must be included on the ``no exposure'' certification. Authorized 
States, Tribes or U.S. Territories may develop their own form which 
includes this required information, at a minimum. EPA adopted the 
requirements (with modification) from the draft ``No Exposure 
Certification Form'' published as an appendix to the proposed rule. 
Modifications were made to the draft form to address comments received 
and to streamline the required information. EPA included these 
certification requirements in today's rule in order to preserve its 
integrity. Dischargers in areas where EPA is the permitting authority 
should use the ``No Exposure Certification'' form included in Appendix 
4.
3. Definition of ``No Exposure''
    For purposes of this section, ``no exposure'' means that all 
industrial materials or activities are protected by a storm resistant 
shelter to prevent exposure to rain, snow, snowmelt, and/or runoff. 
Industrial materials or activities include, but are not limited to, 
material handling equipment or activities, industrial machinery, raw 
materials, intermediate products, by-products, final products, or waste 
products. Material handling activities include the storage, loading and 
unloading, transportation, or conveyance of any raw material, 
intermediate product, final product or waste product. However, storm 
resistant shelter is not required for: (1) Drums, barrels, tanks, and 
similar containers that are tightly sealed, provided those containers 
are not deteriorated and do not leak; (2) adequately maintained 
vehicles used in material handling; and (3) final products, other than 
products that would be mobilized in storm water discharge (e.g., rock 
salt). Each of these three exceptions to the no exposure definition are 
discussed in more detail below.
    EPA intends the term ``storm resistant shelter'' to include 
completely roofed and walled buildings or structures, as well as 
structures with only a top cover but no side coverings, provided 
material under the structure is not otherwise subject to any run-on and 
subsequent runoff of storm water. While the Agency intends that this 
provision promote permanent ``no exposure'', EPA understands that 
certain vehicles could pass between buildings and, during passage, be 
exposed to rain and snow. Adequately maintained vehicles such as 
trucks, automobiles, forklifts, or other such general purpose vehicles 
at the industrial site that are not industrial machinery, and that are 
not leaking contaminants or are not otherwise a source of industrial 
pollutants, could be exposed to precipitation or runoff. Such 
activities alone does not prevent a discharger from being able to 
certify no exposure under this provision. Similarly, trucks or other 
vehicles awaiting maintenance at vehicle maintenance facilities, as 
defined at Sec. 122.26(b)(14)(viii), that are not leaking contaminants 
or are not otherwise a source of industrial pollutants, are not 
considered exposed.
    In addition, EPA recognizes that there are circumstances where 
permanent ``no exposure'' of industrial activities or materials is not 
possible. Under such conditions, materials and activities may be 
sheltered with temporary covers, such as tarps, between periods of 
permanent enclosure. The final rule does not specify every such 
situation. EPA intends that permitting authorities will address this 
issue on a case-by-case basis. Permitting authorities can determine the 
circumstances under which temporary structures will or will not meet 
the requirements of this section. Until permitting authorities 
specifically determine otherwise, EPA recommends application of the 
``no exposure'' exclusion for temporary sheltering of industrial 
materials or activities only during facility renovation or 
construction, provided that the temporary shelter achieves the intent 
of this section. Moreover, ``exposure'' that results from a leak in 
protective covering would only be considered ``exposure'' if not 
corrected prior to the next storm water discharge event. EPA received 
one comment requesting that this allowance for temporary shelter be 
limited to facility renovation or construction directly related to the 
industrial activity requiring temporary shelter, and be scheduled to 
minimize the use of temporary shelter. Another comment suggested 
placing time limits

[[Page 68786]]

on the use of temporary shelter. The commenter did not recommend a 
specific time period, rather the comment said that renovation in some 
instances may take years, and that EPA should not allow temporary 
shelter over prolonged periods. EPA agrees that the use of temporary 
shelter must be related to the renovation or construction at the site, 
and be scheduled or designed to minimize the use of temporary shelter. 
Further, EPA agrees that the use of temporary shelter should be limited 
in duration, but does not intend to define ``temporary'' or ``prolonged 
period''.
    Many final products are intended for outdoor use and pose little 
risk of storm water contamination, such as new cars. Therefore, final 
products, except those that can be mobilized in storm water discharge, 
can be ``exposed'' and still allow the discharge to certify ``no 
exposure''. EPA intends the term ``final products'' to mean those 
products that are not used in producing another product. Any product 
that can be used to make another product is considered an 
``intermediate product.'' For example, a facility that makes horse 
trailers can store the finished trailers outdoors as a final product. 
The storage of those final products does not prevent eligibility to 
claim ``no exposure''. However, any facility that makes parts for the 
horse trailers (e.g., metal tubing, sheet metal, paint) is not eligible 
for the ``no exposure'' exclusion from permitting if those 
``intermediate products'' are stored outdoors (i.e., ``exposed'').
    EPA received comments related to materials in drums, barrels, tanks 
and similar containers. Some comments objected to the language in the 
preamble to the proposed rule that would have recommended that the 
``exposure'' determination for drums and barrels be based on the 
``potential to leak.'' Those comments said that all drums and barrels 
have the potential to leak, thereby making certification impossible. 
They recommended allowing outdoor storage of drums and barrels except 
for those that ``are leaking'' at the time of certification. Other 
comments suggested allowing drums and barrels to be stored outside only 
if the drums and barrels: are empty; have secondary containment; or 
there is a spill contingency plan in place. Opposing comments suggested 
that allowing outdoor exposure of drums and barrels, based on existing 
integrity and condition, is inconsistent with the ``however packaged'' 
proposed rule language, and also would not satisfy the Ninth Circuit 
remand. The comments point out that the former rule was invalidated by 
the court in part because it relied on the ``unverified judgment'' of 
the light industrial facility operator to determine the non-
applicability of the permit requirements, and that allowing the 
facility operator to determine the condition of their drums and barrels 
would result in the same flaw.
    In response, EPA believes that drums and barrels that are stored 
outdoors pose little risk of storm water contamination unless they are 
open, deteriorated or leaking. The Agency has modified today's rule 
accordingly. EPA intends the term ``open'' to mean any container that 
is not tightly sealed and ``sealed'' to mean banded or otherwise 
secured and without operational taps or valves. Drums, barrels, tanks, 
and similar containers may only be stored outdoors under this 
conditional exclusion. The addition of material to or withdrawing of 
material from these containers while outside is deemed ``exposure''. 
Moving the containers while outside does not create ``exposure'' 
provided that the containers are not open, deteriorated or leaking. In 
order to complete the ``no exposure'' certification, a facility 
operator must inspect all drums, barrels, tanks or other containers 
stored outside to ensure that they are not open, deteriorated, or 
leaking. EPA recommends that the discharger designate someone at the 
facility to conduct frequent inspections to verify that the drums, 
barrels, tanks or other containers remain in a condition such that they 
are not open, deteriorated or leaking. Drums, barrels, tanks or other 
containers stored outside that have valves which are used to put 
material in or take material out of the container, and that have 
dripped or may drip, are considered to be ``leaking'' and must be under 
a storm resistant shelter in order to qualify for the no exposure 
exclusion. Likewise, leaking pipes containing contaminants exposed to 
storm water are deemed ``exposed.'' If at any time drums, barrels, 
tanks or similar containers are opened, deteriorated or leaking, the 
discharger should take immediate actions to close or replace the 
container. Any resulting unpermitted discharge would violate the CWA. 
The Director, the operator of the MS4, or the municipality may inspect 
the facility to verify that all of the applicable areas meet the ``no 
exposure'' conditions as specified in the rule language. In requiring 
submission of the conditional ``no exposure'' certification and 
allowing the permitting authority and the operator of the MS4 to 
inspect the facility, today's rule does not rely on the unverified 
judgment of the facility to determine that the no exposure provision is 
being met.
    EPA received several comments related to trash dumpsters that are 
located outside. The preamble to the proposed rule listed dumpsters in 
the same grouping as drums and barrels, which based exposure on the 
``potential to leak''. Today's rule distinguishes between dumpsters and 
drums/barrels. In the Phase I Question and Answer document (volume 1, 
question 52) the Agency noted that a covered dumpster containing waste 
material that is kept outside is not considered ``exposed'' as long as 
``the container is completely covered and nothing can drain out holes 
in the bottom, or is lost in loading onto a garbage truck.'' EPA 
affirms this approach today. Industrial refuse and industrial trash 
that is left uncovered is deemed ``exposed.''
    For purposes of this provision, particulate matter emissions from 
roof stacks/vents that are regulated and in compliance under other 
environmental protection programs, such as air quality control 
programs, and that do not cause storm water contamination, are 
considered ``not exposed.'' EPA received comments on the phrase in the 
draft ``no exposure'' certification form that asked whether 
``particulate emissions from roof stacks/vents not otherwise regulated, 
and in quantities detectable in the storm water outflow,'' are exposed 
to precipitation. One comment expressed concern that the phrase ``in 
quantities detectable in the storm water outflow'' implies that the 
facility must conduct monitoring prior to completing the checklist, and 
must continue to monitor after receiving the no exposure exclusion, in 
order to be able to verify compliance with the no exposure provision. 
Another comment said that current measurement technology allows 
detection of pollutants at levels that may not cause environmental 
harm. EPA does not intend to require monitoring of runoff from 
facilities with roof stacks/vents prior to or after completing and 
submitting the no exposure certification. EPA has thus replaced the 
phrase ``in quantities detectable'' with ``evident'' to convey the 
message that emissions from some roof stacks/vents have the potential 
to contaminate storm water discharges in quantities that are considered 
significant or that cause or contribute to a water quality standards 
violation. In those instances where the permitting authority determines 
that particulate emissions from facility roof stacks/vents are a 
significant contributor of pollutants or contributing to water quality 
violations, the permitting authority may require the discharger to 
apply for and obtain coverage under a

[[Page 68787]]

permit. Visible deposits of residuals (e.g., particulate matter) near 
roof or side vents are considered ``exposed''. Likewise, visible 
``track out'' (i.e., pollutants carried on the tires of vehicles) or 
windblown raw materials are deemed ``exposed.''
    EPA received a comment requesting an allowance under the ``no 
exposure'' provision for industrial facilities with several outfalls at 
a site where some, but not all of the outfalls drain non-exposed areas. 
The commenter provided an example of an industrial facility that has 5 
outfalls draining different areas of the site, where two of those 
outfalls drain areas where industrial activities or materials are not 
exposed to storm water. The comment requested that the facility in this 
example be allowed to submit a ``no exposure'' certification in order 
to be relieved of permitting obligations for discharges from those two 
outfalls.
    EPA agrees, but the comment would be implemented on an outfall-by-
outfall basis in the permitting process, not through the ``no 
exposure'' exclusion. The ``no exposure'' provision was developed to 
allow exclusion from permitting of discharges from entire industrial 
facilities (except construction), based on a claim of ``no exposure'' 
for all areas of the facility where industrial materials or activities 
occur. Where exposure to industrial materials or activities exist at 
some but not all areas of the facility, the ``no exposure'' exclusion 
from permitting is not allowed because permit coverage is still 
required for storm water discharges from the exposed areas. Relief from 
permit requirements for outfalls draining non-exposed areas should be 
addressed through the permit process, in coordination with the 
permitting authority. Most NPDES general permits for storm water 
discharge provide enough flexibility to allow minimal or no 
requirements for non-exposed areas at industrial facilities. If the 
permitting authority determines that additional flexibility is needed 
for this scenario, the permits could be modified as necessary.

K. Public Involvement/Public Role

    The Phase II FACA Subcommittee discussed the appropriate role of 
the public in successful implementation of a municipal storm water 
program. EPA believes that an educated and actively involved public is 
essential to a successful municipal storm water program. An educated 
public increases program compliance from residents and businesses as 
they realize their individual and collective responsibility for 
protecting water resources (e.g., the residents and businesses could be 
subject to a local ordinance that prohibits dumping used oil down storm 
sewers). Finally, the program is also more likely to receive public 
support and participation when the public is actively involved from the 
program's inception and allowed to participate in the decision making 
process.
    In a time of limited staff and financial resources, public 
volunteers offer diverse backgrounds and expertise that may be used to 
plan, develop, and implement a program that is tailored to local needs 
(e.g., participate in public meetings and other opportunities for 
input, perform lawful volunteer monitoring, assist in program 
coordination with other preexisting and related programs, aid in the 
development and distribution of educational materials, and provide 
public training activities). The public's participation is also useful 
in the areas of information dissemination/education and reporting of 
violators, where large numbers of community members can be more 
effective than a few regulators.
    The public can also petition the NPDES permitting authority to 
require an NPDES permit for a discharge composed entirely of storm 
water that contributes to a violation of a water quality standard or is 
a significant contributor of pollutants to waters of the United States. 
In evaluating such a petition, the NPDES permitting authority is 
encouraged to consider the set of designation criteria developed for 
the evaluation of small MS4s located outside of an urbanized area in 
places with a population of at least 10,000 and a population density of 
1,000 or more. Furthermore, any person can protect water bodies by 
taking civil action under section 505 of the CWA against any person who 
is alleged to be in violation of an effluent standard or permit 
condition. If civil action is taken, EPA encourages citizen plaintiffs 
to resolve any disagreements or concerns directly with the parties 
involved, either informally or through any available alternative 
dispute resolution process.
    EPA recognizes that public involvement and participation pose 
challenges. It requires a substantial initial investment of staff and 
financial resources, which could be very limited. Even with this 
investment, the public might not be interested in participating. In 
addition, public participation could slow down the decision making 
process. However, the benefits are numerous.
    EPA encourages members of the public to contact the NPDES 
permitting authority or local MS4s operator for information on the 
municipal storm water program and ways to participate. Such information 
may also be available from local environmental, nonprofit and industry 
groups.
    Some commenters stressed the need to suggest to the public that 
they have a responsibility to fund the municipal storm water program. 
While EPA believes it is important that the program be adequately 
funded, today's rule does not address appropriate mechanisms or levels 
for such funding.
    EPA received comments expressing concern that considerable public 
involvement requirements could result in increased litigation. EPA is 
not convinced there is a correlation between meaningful public 
education programs and any increased probability of litigation.
    Finally, EPA received comments stating that the Agency should not 
en courage volunteer monitoring unless proper procedures are followed. 
EPA agrees. EPA encourages only lawful monitoring, i.e., obtaining the 
necessary approval if there is any question about lawful access to 
sites. Moreover, as a matter of good practice and to enhance the 
validity and usefulness of the results, any party, public or private, 
conducting water quality monitoring is encouraged to use appropriate 
quality control procedures and approved sampling and analytic methods.

L. Water Quality Issues

1. Water Quality Based Effluent Limits
    In addition to technology based requirements, all point source 
discharges of industrial storm water are subject to more stringent 
NPDES permitting requirements when necessary to meet water quality 
standards. CWA sections 402(p)(3)(A) and 301(b)(1)(C). For municipal 
separate storm sewers, EPA or the State may determine that other permit 
provisions (e.g. one of the minimum measures) are appropriate to 
protect water quality and, for discharges to impaired waters, to 
achieve reasonable further progress toward attainment of water quality 
standards pending implementation of a TMDL. CWA section 
402(p)(3)(B)(iii). See Defenders of Wildlife, et al. Browner, No. 98-
71080 (9th cir., August 11, 1999). Discharges of storm water also must 
comply with applicable antidegradation policies and implementation 
methods to maintain and protect water quality. 40 CFR 131.12. Section 
122.34(a) emphasizes this point by specifically noting that a storm 
water management program designed to reduce the discharge of pollutants 
from the storm sewer system ``to the maximum extent practicable'' is 
also designed to protect water quality.

[[Page 68788]]

Permits issued to non-municipal sources of storm water must include 
water quality-based effluent limits where necessary to meet water 
quality standards.
    Commenters challenged EPA's interpretation of the CWA as requiring 
water quality-based effluent limits for MS4s when necessary to protect 
water quality. Commenters asserted that CWA 402(p)(3)(B), which 
addresses permit requirements for municipal discharges, limits the 
scope of municipal program requirements to an effective prohibition on 
non-storm water discharges to a separate storm sewer and to controls 
which reduce pollutants to the ``maximum extent practicable, including 
management practices, control techniques and system design and 
engineering methods.'' They asserted that the final rule should clarify 
that neither numeric nor narrative water quality-based limits are 
appropriate or authorized for MS4s.
    EPA disagrees that section 402(p)(3) divests permitting authorities 
of the tools necessary to issue permits to meet water quality 
standards. Section 402(p)(3)(B)(iii) specifically preserves the 
authority for EPA or the State to include other provisions determined 
appropriate to reduce pollutants in order to protect water quality. 
Defenders of Wildlife, slip op. at 11688. Small MS4s regulated under 
today's rule are designated under CWA 402(p)(6) ``to protect water 
quality.''
    Commenters argued that water quality standards, particularly 
numeric criteria, were not designed to address storm water discharges. 
The episodic nature and magnitude of storm water events, they argue, 
make it impossible to apply the ``end of pipe'' compliance assessment 
approach, for example, in the development of water quality based 
effluent limits.
    EPA's disagrees with the commenters arguments about the inability 
of water quality criteria to address high flow conditions. Today's 
final rule does, however, address the concern that numeric effluent 
limits will necessitate end of pipe treatment and the need to provide a 
workable alternative.
    Today's rule was developed under the approach outlined in the 
Interim Permitting Policy for Water Quality-Based Effluent Limitations 
in Storm Water Permits, issued on August 1, 1996. 61 FR 43761 (November 
26, 1996) (the ``Interim Permitting Policy''). EPA intends to issue 
NPDES permits consistent with the Interim Permitting Policy, which 
provides as follows:
    In response to recent questions regarding the type of water 
quality-based effluent limitations that are most appropriate for NPDES 
storm water permits, EPA is adopting an interim permitting approach for 
regulating wet weather storm water discharges. Due to the nature of 
storm water discharges, and the typical lack of information on which to 
base numeric water quality-based effluent limitations (expressed as 
concentration and mass), EPA will use an interim permitting approach 
for NPDES storm water permits.
    ``The interim permitting approach uses best management practices 
(BMPs) in first-round storm water permits, and expanded or better-
tailored BMPs in subsequent permits, where necessary, to provide for 
the attainment of water quality standards. In cases where adequate 
information exists to develop more specific conditions or limitations 
to meet water quality standards, these conditions or limitations are to 
be incorporated into storm water permits, as necessary and appropriate. 
This interim permitting approach is not intended to affect those storm 
water permits that already include appropriately derived numeric water 
quality-based effluent limitations. Since the interim permitting 
approach only addresses water quality-based effluent limitations, it 
also does not affect technology-based effluent limitations, such as 
those based on effluent limitations guidelines or developed using best 
professional judgment, that are incorporated into storm water permits.
    ``Each storm water permit should include a coordinated and cost-
effective monitoring program to gather necessary information to 
determine the extent to which the permit provides for attainment of 
applicable water quality standards and to determine the appropriate 
conditions or limitations of subsequent permits. Such a monitoring 
program may include ambient monitoring, receiving water assessment, 
discharge monitoring (as needed), or a combination of monitoring 
procedures designed to gather necessary information.
    ``This interim permitting approach applies only to EPA; however, 
EPA also encourages authorized States and Tribes to adopt similar 
policies for storm water permits. This interim permitting approach 
provides time, where necessary, to more fully assess the range of 
issues and possible options for the control of storm water discharges 
for the protection of water quality. This interim permitting approach 
may be modified as a result of the ongoing Urban Wet Weather Flows 
Federal Advisory Committee policy dialogue on this subject.''
    One commenter challenged the Interim Permitting Policy on a 
procedural basis, arguing that it was published without opportunity for 
public notice and comment. In response, EPA notes that the Policy was 
included verbatim and made available for public comment in the proposal 
to today's final rule. Prior to that proposal, the Agency defended the 
application of the Policy on a case-by-case basis in individual permit 
proceedings. Moreover, the essential elements of the Policy--that 
narrative effluent limitations are the most appropriate form of 
effluent limitations for storm water dischargers from municipal 
sources--was inherent in Sec. 122.34(a) of the proposed rule, and was 
the subject of extensive public comment. In any event, the Policy does 
not constitute a binding obligation. It is policy, not regulation.
    Consistent with the recognition of data needs underlying the 
Policy, EPA will evaluate the small MS4 storm water regulations after 
the second round of permit issuance. Section 122.34(e)(2) of today's 
rule expressly provides that for the interim ten-year period, ``EPA 
strongly recommends that until the evaluation of the storm water 
program in Sec. 122.37, no additional requirements beyond the minimum 
control measures be imposed on regulated small MS4s without the 
agreement of the operator of the affected small MS4, except where an 
approved TMDL or equivalent analysis provides adequate information to 
develop more specific measures to protect water quality.'' This 
approach addresses the concern for protecting water resources from the 
threat posed by storm water discharges with the important qualification 
that there must be adequate information on the watershed or a specific 
site as a basis for requiring tailored storm water controls beyond the 
minimum control measures. As indicated, the Interim Permitting Policy 
has several important limitations--it does not apply to technology-
based controls or to sources that already have numeric end of pipe 
effluent limitations. EPA encourages authorized States and Tribes to 
adopt policies similar to the Interim Permitting Policy when developing 
storm water discharge programs. For a discussion of appropriate 
monitoring activities, see Section H.3.d., Evaluation and Assessment.
    Where a water quality analysis indicates there is a need and basis 
for deriving water quality-based effluent limits in NPDES permits for 
storm water discharges regulated under today's rule, EPA believes that 
most of these cases would be satisfied by narrative effluent

[[Page 68789]]

limitations that require the implementation of BMPs. NPDES permit 
limits will in most cases continue to be based on the specific approach 
outlined in today's rule for the implementation of BMPs as the most 
appropriate form of effluent limitation to satisfy technology and water 
quality-based requirements. See Sec. 122.34(a). For storm water 
management plans with existing BMPs, this may require further tailoring 
of BMPs to address the pollutant(s) of concern, the nature of the 
discharge and the receiving water. If the permitting authority 
determines that, through implementation of appropriate BMPs required by 
the NPDES storm water permit, the discharge has the necessary controls 
to provide for attainment of water quality standards, additional 
controls are not needed in the permit. Conversely, if a discharger 
(MS4, industrial or construction) fails to adopt and implement adequate 
BMPs, the permittee and/or the permitting authority should consider a 
different mix of BMPs or more specific conditions to ensure water 
quality protection.
    Some commenters observed that there was no evidence from the 
experience of storm water dischargers regulated under the existing 
NPDES storm water program, or from studies or reports that allegedly 
support EPA's position, that implementation of BMPs to satisfy the six 
minimum control measures would meet applicable water quality standards 
for a regulated small MS4. In response, EPA acknowledges that the six 
minimum measures are intended to implement the statutory requirement to 
control discharges to the maximum extent practicable, and they may not 
result in the attainment of water quality standards in all cases. The 
control measures do, however, focus on and address well-documented 
threats to water quality associated with storm water discharges. Based 
on the collective expertise of the FACA Sub-committee, EPA believes 
that implementation of the six minimum measures will, for most 
regulated small MS4s, be adequate to protect water quality, and for 
other regulated small MS4s will substantially reduce the adverse 
impacts of their discharges on water quality.
    Some commenters asserted that analyses of existing water quality 
criteria suggest that numeric criteria for aquatic life may be 
overprotective if applied to storm water discharges. These comments 
maintained that an approach that prohibits exceedance of applicable 
water quality criteria is unworkable. Various commenters recommended 
wet weather specific criteria, variances to the criteria during wet 
weather events, and seasonal designated uses. Other commenters noted 
that water quality-based effluent limits in NPDES permits have 
traditionally been developed based on dry weather flow conditions 
(e.g., assuming critical low-flow conditions in the receiving water to 
ensure protection of aquatic life and human health). Wet weather 
discharges, however, typically occur under high-flow conditions in the 
receiving water. Assumptions regarding mass balance equations and size 
of mixing zones may also not be pertinent during wet weather.
    EPA acknowledges the need to devise a regulatory program that is 
both flexible enough to accommodate the episodic nature, variability 
and volume of wet weather discharges and prescriptive enough to ensure 
protection of the water resource. EPA believes that wet weather 
discharges can be adequately addressed in the existing regulations 
through refining designated uses and assigning criteria that are 
tailored to the level of water quality protection described by the 
refined designated use.
    EPA believes that lack of precision in assigning designated uses 
and corresponding criteria by States and Tribes, in many cases may 
result in application of water quality criteria that may not 
appropriately match the intended condition of the water body. States 
and Tribes have frequently designated uses without regard to site-
specific wet weather conditions. Because certain uses (swimming, for 
example) might not exist during high-intensity storm events or in the 
winter, States may factor such climatic conditions and seasonal uses 
into their use designations with appropriate analyses. This would 
acknowledge that a lower level of control, at lower compliance cost, 
would be appropriate to protect that use. Before modifying any 
designated use, however, States would need to evaluate the effect of 
less stringent water quality criteria on protecting other uses, 
including any threatened or endangered species, drinking water supplies 
and downstream uses. EPA will further evaluate these issues in the 
context of the Water Quality Standards Regulation, Advance Notice of 
Proposed Rule Making (ANPRM), 63 FR, 36742, July 7, 1998.
    One of the major themes presented by EPA in the ANPRM is that 
refinement in use designations and tailoring of water quality criteria 
to match refined use designations is an important future direction of 
the water quality standards program. In assigning criteria to protect 
general use classifications, a State or Tribe must ensure that the 
criteria are sufficiently protective to safeguard the full range of 
waters of the State, i.e., criteria would be based on the most 
sensitive use. This approach has been disputed, especially for aquatic 
life uses, where evidence suggests that the general use criteria will 
require controls more stringent than needed to protect the existing or 
potential aquatic life community for a specific water body. EPA 
recognizes that there is a growing need to more precisely tailor use 
descriptions and criteria to match site-specific conditions, ensuring 
that uses and criteria provide an appropriate level of protection, 
which, to the extent possible, are not overprotective. EPA is engaged 
in an ongoing evaluation of its regulations in this area through the 
ANPRM effort. At the same time, EPA continues to encourage States and 
Tribes to review the applicability of the designated uses and 
associated criteria using existing provisions in the water quality 
standards regulation.
2. Total Maximum Daily Loads and Analysis To Determine the Need for 
Water Quality-Based Limitations
    The development and implementation of total maximum daily loads 
(TMDLs) provide a link between water quality standards and effluent 
limitations. CWA section 303(d) requires States to develop TMDLs to 
provide more stringent water quality-based controls when technology-
based controls are inadequate to achieve applicable water quality 
standards. A TMDL is the sum of the individual wasteload allocations 
for point sources and load allocations for nonpoint sources, with 
consideration for natural background conditions. A TMDL quantifies the 
maximum allowable loading of a pollutant to a water body and allocates 
this maximum load to contributing point and nonpoint sources so that 
water quality criteria will not be exceeded and designated uses will be 
protected. A TMDL also includes a margin of safety to account for 
uncertainty about the relationship between pollutant loads and water 
quality.
    Today's final rule refers to TMDLs in several provisions. For the 
purpose of today's rule, EPA relies on the component of the TMDL that 
evaluates existing conditions and allocates loads. For discharges to 
waters that are not impaired and for which a TMDL has not been 
developed, today's rule also refers to an ``equivalent analysis.'' The 
discussion that follows uses the term ``TMDL'' for both.
    Under revised Sec. 122.26(a)(9)(i)(C), the permitting authority may 
designate

[[Page 68790]]

storm water discharges that require NPDES permits based on TMDLs that 
address the pollutants of concern. For storm water discharges 
associated with small construction activity, Sec. 122.26(b)(15)(i)(B) 
provides a waiver provision where it may be determined that storm water 
controls are not needed based on TMDLs that address sediment and any 
other pollutants of concern. The NPDES permitting authority may waive 
requirements under the program for certain small MS4s within urbanized 
areas serving less than 1,000 persons provided that, if the small MS4 
discharges any pollutant that has been identified as a cause of 
impairment of a water body into which it discharges, the discharge is 
in compliance with a wasteload allocation in a TMDL for the pollutant 
of concern. The permitting authority may also waive requirements for 
MS4s in urbanized areas serving between 1,000 and 10,000 persons, if 
the permitting authority determines that storm water controls are not 
needed, as provided in Sec. 123.35(d)(2). See Sec. 122.32(c).
    Under CWA section 303(d), States identify which of their water 
bodies need TMDLs and rank them in order of priority. Generally, once a 
TMDL has been completed for one or more pollutants in a water body, a 
wasteload allocation for each point source discharging the pollutant(s) 
is implemented as an enforceable condition in the NPDES permit. 
Regulated small MS4s are essentially like other point source discharges 
for purposes of the TMDL process.
    A TMDL and the resulting wasteload allocations for pollutant(s) of 
concern in a water body may not be available because the water body is 
not on the State's 303(d) list, the TMDL has not yet been completed, or 
the TMDL did not include specific pollutants of concern. In these 
cases, the permitting authority must determine whether point sources 
discharge pollutant(s) in amounts that cause, have the reasonable 
potential to cause, or contribute to excursions above State water 
quality standards, including narrative water quality criteria. This so-
called ``reasonable potential'' analysis is intended to determine 
whether and for what pollutants water quality based effluent limits are 
required. The analysis is, in effect, a substitute for a similar 
determination that would be made as part of a TMDL, where necessary. 
When ``reasonable potential'' exists, regulations at Sec. 122.44(d) 
require a water quality-based effluent limit for the pollutant(s) of 
concern in NPDES permits. The water quality-based effluent limits may 
be narrative requirements to implement BMPs or, where necessary, may be 
numeric pollutant effluent limitations.
    Commenters, generally from the regulated community, objected that, 
due to references to the need to develop a program ``to protect water 
quality'' and to additional NPDES permit requirements beyond the 
minimum control measures based on TMDLs or their equivalent, regulated 
small MS4s will be subject to uncertain permit limitations beyond the 
six minimum control measures. Commenters also asserted that through the 
imposition of a wasteload allocation under a TMDL in impaired water 
bodies, there is a likelihood that unattainable, yet enforceable 
narrative and numeric standards will be imposed on regulated small 
MS4s.
    As is discussed in the preceding section, NPDES permits must 
include any more stringent limitations when necessary to meet water 
quality standards. However, even if a regulated small MS4 is subject to 
water quality based effluent limits, such limits may be in the form of 
narrative effluent limitations that require the implementation of BMPs. 
As discussed earlier, EPA has adopted the Interim Permitting Policy and 
incorporated it in the development of today's rule to recognize the 
appropriateness of BMP-based limits developed on a case-by-case basis.
    EPA formed a Federal Advisory Committee to provide advice to EPA on 
identifying water quality-limited water bodies, establishing TMDLs for 
them as appropriate, and developing appropriate watershed protection 
programs for these impaired waters in accordance with CWA section 
303(d). Operating under the auspices of the National Advisory Council 
for Environmental Policy and Technology (NACEPT), the committee 
produced its Report of the Federal Advisory Committee on the Total 
Maximum Daily Load (TMDL) Program (July 1998). EPA recently published a 
proposed rule to implement the Report's recommendations (64 FR 46012, 
August 23, 1999).
3. Anti-Backsliding
    In general, the term ``anti-backsliding'' refers to statutory 
provisions at CWA sections 303(d)(4) and 402(o) and regulatory 
provisions at 40 CFR 122.44(l). These provisions prohibit the renewal, 
reissuance, or modification of an existing NPDES permit that contain 
effluent limits, permit terms, limitations and conditions, or standards 
that are less stringent than those established in the previous permit. 
There are also exceptions to this prohibition known as 
``antibacksliding exceptions.''
    The issue of backsliding from prior permit limits, standards, or 
conditions is not expected to initially apply to most storm water 
dischargers designated under today's proposal because they generally 
have not been previously authorized by an NPDES permit. However, the 
backsliding prohibition would apply if a storm water discharge was 
previously covered under another NPDES permit. Also, the backsliding 
prohibition could apply when an NPDES storm water permit is reissued, 
renewed, or modified. In most cases, however, EPA does not believe that 
these provisions would restrict revisions to storm water NPDES permits.
    One commenter questioned whether, if BMPs implemented by a 
regulated small MS4 operator fail to produce results in removal of 
pollutants and the permittee attempts to substitute a more effective 
BMP, the small MS4 operator could be accused of violating the anti-
backsliding provisions and also be exposed to citizen lawsuits. In 
response, EPA notes that in such circumstances the MS4's permit has not 
changed and, therefore, the prohibition against backsliding is not 
applicable. Further, any change in the mix of BMPs that was intended to 
be more effective at controlling pollutants would not be considered 
backsliding, even if it did not include all of the previously 
implemented BMPs.
4. Water Quality-Based Waivers and Designations
    Several sections of today's final rule refer to water quality 
standards in identifying those storm water discharges that are and are 
not required to be permitted under today's rule. As noted in 
Sec. 122.30 of today's rule, CWA section 402(p)(6) requires the 
designation of municipal storm water sources that need to be regulated 
to protect water quality and the establishment of a comprehensive storm 
water program to regulate these sources. Requirements applicable to 
certain municipal sources may be waived based on the absence of 
demonstrable water quality impacts. Section 122.32(c). The section 
402(p)(6) mandate to protect water quality also provides the basis for 
regulating discharges associated with small construction. See also 
Sec. 122.26(b)(15)(i). Further, today's rule carries forward the 
existing authority for the permitting authority to designate sources of 
storm water discharges based upon water quality considerations. Section 
122.26(a)(9)(i)(C) and (D).
    As is discussed above in sections II.H.2.e (for small MS4s) and 
II.I.1.b.ii

[[Page 68791]]

(for small construction), the requirements of today's rule may be 
waived based on wasteload allocations that are part of ``total maximum 
daily loads'' (TMDLs) that address the pollutants of concern or, in the 
case of small construction and municipalities serving between 1,000 and 
10,000 persons, the equivalents of TMDLs. One commenter stated that 
waivers would allow exemptions to the technology based requirements and 
would thus be inconsistent with the two-fold approach of the CWA (a 
technology based minimum and a water quality based overlay). EPA 
acknowledges that waivers are not allowed for other technology-based 
requirements under the CWA. A more flexible approach is allowed, 
however, for sources designated for regulation under 402(p)(6) to 
protect water quality. For such sources EPA may allow a waiver where it 
is demonstrated that an individual source does not present the threat 
to water quality that was the basis for EPA's designation.

III. Cost-Benefit Analysis

    EPA has determined that the range of the rule's benefits exceeds 
the range of regulatory costs. The estimated rule costs range from 
$847.6 million to $981.3 million annually with corresponding estimated 
monetized annual benefits which range from $671.5 million to $1.628 
billion, expected to exceed costs.
    The rule's cost and benefit estimates are based on an annual 
comparison of costs and benefits for a representative year (1998) in 
which the rule is implemented. This differs from the approach used for 
the proposed rule which projected cost and benefits over three permit 
terms. EPA has chosen to use the current approach because it determined 
that the ratio of annual benefits and costs would not change 
significantly over time. Moreover, because there is not an initial 
outlay of capital costs with benefits accruing in the future (i.e., 
benefits and costs are almost immediately at a steady state), it is not 
necessary to discount costs in order to account for a time 
differential.
    EPA developed detailed estimates of the costs and benefits of 
complying with each of the incremental requirements imposed by the 
rule. The Agency used two approaches, a national water quality model 
and national water quality assessment, to estimate the potential 
benefits of the rule. Both approaches show that the benefits are likely 
to exceed costs.
    These estimates, including descriptions of the methodology and 
assumptions used, are described in detail in the Economic Analysis of 
the Final Phase II Rule, which is included in the record of this rule 
making. Exhibit 3 summarizes costs and benefits associated with the 
basic elements of today's rule.

 Exhibit 3.--Comparison of Annual Compliance Cost and Benefit Estimates
                                   \1\
------------------------------------------------------------------------
                                 National water        National water
                                  quality model      quality assessment
     Monetized benefits         (millions of 1998     (millions of 1998
                                    dollars)              dollars)
------------------------------------------------------------------------
Municipal Minimum Measures..  ....................  $131.0-$410.2
Controls for Construction     ....................  $540.5-$686.0
 Sites.
                             -------------------------------------------
    Total Annual Benefits...  $1,628.5............  $671.5-$1,096.2


------------------------------------------------------------------------
            Costs                     Millions of 1998 dollars \2\
------------------------------------------------------------------------
Municipal Minimum Measures...  $297.3
Controls/Waivers for           $545.0-$678.7
 Construction Sites.
Federal/State Administrative   $5.3
 Costs.
                              ------------------------------------------
    Total Annual Costs         $847.6-$981.31
------------------------------------------------------------------------
\1\ National level benefits are not inclusive of all categories of
  benefits that can be expected to result from the regulation.
\2\ Total may not add due to rounding.

A. Costs

1. Municipal Costs
    Initially, to determine municipal costs for the proposed rule, EPA 
used anticipated expenditure data included in permit applications from 
a sample of 21 Phase I MS4s. Certain commenters criticized the Agency 
for using anticipated expenditures because they could be significantly 
different from the actual expenditures. These commenters suggested that 
the Agency use the actual cost incurred by the Phase I MS4s. Other 
comments stated that because the Phase I MS4s, in general, are large 
municipalities, they may not be representative of the Phase II MS4s for 
estimating regulatory costs. Finally, one commenter noted that the 
sample of 21 municipalities used to project cost was relatively small.
    To address the concerns of the commenters, EPA utilized a National 
Association of Flood and Stormwater Management Agencies (NAFSMA) survey 
of the Phase II community to obtain incremental cost estimates for 
Phase II municipalities. Using the list of potential Phase II designees 
published in the Federal Register (63 FR 1616), NAFSMA contacted more 
than 1,600 jurisdictions. The goal of the survey was to solicit 
information from those communities about the proposed Phase II NPDES 
storm water program. Several of the survey questions corresponded 
directly to the minimum measures required by the Phase II rule. One 
hundred twenty-one surveys were returned to NAFSMA and were used to 
develop municipal costs.
    Using the NAFSMA information, EPA estimated average annual per 
household program costs for automatically designated municipalities. 
EPA also estimated an average annual per household administrative cost 
for municipalities to address application, record keeping, and 
reporting requirements of the Rule. The total average per household 
cost of the rule is expected to $9.16 per household.
    To determine potential national level costs for municipalities, EPA 
multiplied the number of households (32.5 million) by the per household 
cost ($9.16). EPA estimates the annual cost of the Phase II municipal 
program at $298 million.
    As an alternative method, and point of comparison, to the NAFSMA-
based approach, EPA reviewed actual expenditures reported from 35 Phase 
I MS4s. The Agency targeted these 35 Phase I MS4s because they had 
participated in the NPDES program for

[[Page 68792]]

nearly one permit term, were smaller in size and had detailed data 
reflecting their actual program implementation costs. Of the 35 MS4s, 
appropriate cost data was only available for 26 of those MS4s. EPA 
analyzed the expenditure data and identified the relevant expenditures, 
excluding costs presented in the annual reports unrelated to the 
requirements of the Rule. The cost range and annual per household 
program costs of $9.08 are similar to those found using the NAFSMA 
survey data.
2. Construction Costs
    In order to estimate the rule's construction-related cost on a 
national level (the soil and erosion controls (SEC) requirements of the 
rule and the potential impacts of the post-construction municipal 
measure on construction), EPA estimated a per site cost for sites of 
one, three, and five acres and multiplied these costs by the total 
number of estimated Phase II construction starts across these size 
categories.
    To estimate the percentage of starts subject to the soil and 
erosion control requirements between 1 and 5 acres, with respect to 
each category of building permits (residential, commercial, etc.), EPA 
initially used data from Prince George's County (PGC), Maryland, and 
applied these percentages to national totals. In the proposal, EPA 
recognized that the PGC data may not be representative of the entire 
country and requested data that could be used to develop better 
estimates of the number of construction sites between 1 and 5 acres. 
EPA did not receive any substantiated national data from commenters.
    In view of the unavailability of national data from commenters, EPA 
made extensive efforts to collect construction site data around the 
country. The Agency contacted more than 75 municipalities. EPA 
determined that 14 of the contacted municipalities had useable 
construction site data. Using data from these 14 municipalities, EPA 
developed an estimate of the percentage of construction starts on one 
to five acres. EPA then multiplied this percentage by the number of 
building permits issued nationwide to determine the total number of 
construction starts occurring on one to five acres. Finally, to isolate 
the number of construction starts incrementally regulated by Phase II, 
EPA subtracted the number of activities regulated under equivalent 
programs (e.g., areas covered by the Coastal Zone Act Reauthorization 
Amendments of 1990, and areas covered by equivalent State level soil 
and erosion control requirements). Ultimately, EPA estimated that 
110,223 construction starts would be incrementally covered by the rule 
annually.
    EPA then used standard cost estimates from Building Construction 
Cost Data and Site Work Landscape Cost Data (R.S. Means, 1997a and 
1997b) to estimate construction BMP costs for 27 model sites in a 
variety of typical site conditions across the United States. The model 
sites included three different site sizes (one, three and five acres), 
three slope variations (3%, 7%, and 12%), and three soil erosivity 
conditions (low, medium, and high). EPA chose BMP combinations 
appropriate to the model site conditions. Based on the assumption that 
any combination of site factors is equally likely to occur in a given 
site, EPA developed average cost of sediment and erosion control for 
all model sites. EPA estimated that, on average, BMPs for a 1 acre site 
will cost $1,206, for a 3 acre site $4,598 and for a 5 acre site 
$8,709.
    EPA then estimated administrative costs per construction site for 
the following elements required under the rule: Submittal of a notice 
of intent for permit coverage; notification to municipalities; 
development of a storm water pollution prevention plan; record 
retention; and submittal of a notice of termination. EPA estimated the 
average total administrative cost per site to be $937.
    EPA also considered the cost implications of NPDES permit 
authorities waiving the applicability of requirements to storm water 
discharges from small construction sites based on two different 
criteria involving water quality impact and low rainfall. EPA received 
comments stating that a waiver would require a significant investment 
in training or acquisition of a consultant. Based on comments received, 
EPA eliminated one of the waiver conditions involving low soil loss 
threshold because it necessitated use of the Revised Universal Soil 
Loss Equation which could require extensive technical expertise.
    Based on the opinions of construction industry experts, EPA 
estimates that 15 percent of the construction sites that would 
otherwise be covered by today's rule will be eligible to receive 
waivers. Therefore, the Agency has excluded 15 percent of the 
construction sites when deriving costs of sediment and erosion control. 
The average cost for sites to qualify for the waiver is expected to be 
$34 per site. The construction cost analysis for the proposed rule did 
not include any costs for the preparation and submission of waiver 
applications because EPA believed those costs would be negligible. 
However, in response to public comments, EPA has estimated these 
potential costs.
    EPA has also estimated the potential costs for construction site 
operators to implement the post-construction minimum measure. These are 
costs that may be incurred by construction site operators if the MS4 
chooses to meet the post-construction minimum measure by requiring on-
site structural, site-by-site control of post-construction runoff. 
Municipalities may select from an array of structural and non-
structural options in implementing this measure, so the potential costs 
to construction operators is uncertain. Nonetheless, EPA developed 
average annual BMP costs for sites of one, three, five and seven acres. 
EPA's analysis accounted for varying levels of imperviousness that 
characterize residential, commercial, and institutional land uses. 
Nationwide, these costs are expected to range from $44 million to $178 
million annually.
    Finally, to establish national incremental annual costs for Phase 
II construction starts, EPA multiplied the total costs of compliance 
for the chosen site size categories by the total number of Phase II 
construction starts and added post-construction costs. EPA estimates 
the annual compliance cost to range from $545 million to $678.7 
million.

B. Quantitative Benefits

    In the Economic Analysis for the proposed rule, a ``top-down'' 
approach was used to estimate economic benefits. Under this approach, 
the combined economic benefits for wet weather programs were estimated 
first, and then were divided among various water programs on the basis 
of expert opinion. As a result, the benefits estimates for an 
individual program were rather uncertain. Moreover, this approach was 
inconsistent with the approach used to estimate the cost of the 
proposed storm water rule, which was developed using municipal-based 
and cost-based data to develop ``bottom-up'' costs. Therefore, EPA 
decided to use a ``bottom-up'' approach for estimating benefits of the 
Phase II rule. To adequately reflect the quantifiable benefits of the 
rule, EPA used two different methods: (1) National Water Quality Model 
and (2) National Water Quality Assessment.
    To monetize benefits in both approaches, the Agency applied Carson 
and Mitchell's (1993) estimates of household willingness-to-pay (WTP) 
for water quality improvement to estimates of waters impaired by storm 
water discharges. Carson and Mitchell's 1993 study reports the results 
of their 1983 national survey of WTP for incremental

[[Page 68793]]

improvements in fresh water quality. Carson and Mitchell estimate the 
WTP for three minimum levels of fresh water quality: boatable, 
fishable, and sizable. EPA adjusted the WTP amounts to account for 
inflation, growth in real per capita income, and increased attitudes 
towards pollution control. The adjusted WTP amounts for improvements in 
fresh water quality are $210 for boatable, $158 for fishable, and $177 
for sizable. A brief summary of the national water quality model and 
national water quality assessment approaches follow.
1. National Water Quality Model
    One approach EPA used to estimate the benefits of the Phase II 
municipal and construction site controls was the National Water 
Pollution Control Assessment Model (NWPCAM). NWPCAM estimates benefits 
of the storm water program at the national level, including the impact 
on small streams. This model estimates water quality and the resultant 
use support for the 632,000 miles of rivers and streams in the USEPA 
Reach File Version 1 (RF1), which covers the continental United States. 
The model analyzes water quality changes by stream reach. The 
parameters modeled in the NWPCAM are biological oxygen demand (BOD), 
total suspended solids (TSS), dissolved oxygen (DO), and fecal 
coliforms (FC).
    The model projects changes in water quality due to the Phase II 
municipal and construction site controls. To calculate the economic 
benefits of change in water quality, the number of households in the 
proximity of the stream reach are determined, by overlaying the model 
results on the 1990 Census of Populated Places and Minor Civil 
Divisions, and updating the population to 1998. Economic benefits are 
calculated using the Carson and Mitchell WTP values. The benefits are 
separately estimated for local and non-local waters on the basis of WTP 
values and proximity to water quality changes.
    The value of the change in use support for local waters is greater 
than the value of the non-local waters because of the opportunity to 
use local waters by the local population. This model assumes that if 
improvement occurs in waters that are not close to population centers 
the economic value is lower. Therefore, benefits are estimated for 
local and non-local waters separately. This assumption is based on 
Carson and Mitchell's survey which asked respondents to apportion each 
of their stated WTP values between achieving the water quality goals in 
their own State and achieving those goals in the nation as a whole. On 
average, respondents allocated 67% of their values to achieving in-
State water quality goals and the remainder to the nation as a whole. 
Carson and Mitchell argue that for valuing local water quality changes 
67% is a reasonable upper bound for the local multiplier and 33% for 
the non-local water quality changes. For the purposes of this analysis, 
the locality is defined as urban sites and associated populations 
linked into the NWPCAM framework. Using this methodology, the total 
monetized benefits of Phase II control of urban and construction site 
runoff is estimated to be $1.628 billion per year. The local and non-
local benefits due to Phase II controls are presented in Exhibit 4.

    Exhibit 4.--Local and Non-local Benefits Estimates Due to Phase II Controls National Water Quality Model
                                                    Estimate
----------------------------------------------------------------------------------------------------------------
                                                                                Non-local
                      Use support                          Local benefits      benefits \1\      Total benefits
                                                           ($million/yr)      ($million/yr)      ($million/yr)
----------------------------------------------------------------------------------------------------------------
Swimming, Fishing, and Boating.........................             306.20              60.60             366.80
Fishing and Boating....................................             395.10              51.90             447.00
Boating................................................             700.10             114.60             814.70
                                                        --------------------------------------------------------
    Total..............................................            1401.40             227.10           1628.50
----------------------------------------------------------------------------------------------------------------
\1\ To estimate non-local willingness to pay per household, the 33% of willingness is multiplied by the fraction
  of previously impaired national waters (in each use category) that attain the beneficial use as a result of
  the Phase II rule. To estimate the aggregate non-local benefits, non-local willingness to pay is multiplied
  with the total number of households in the US.

    While the numbers of miles that are estimated to change their use 
support are small, the benefits estimates are quite significant. This 
is because urban runoff and, to a large extent, construction activity 
occurs where the people actually reside and the water quality changes 
mostly occur close to these population centers. NWPCAM indicates that 
changes in pollution loads have the most effect immediately downstream 
of pollution changes. As a result, the aggregate WTP is large because 
large numbers of households in these population centers are associated 
with the local waters that reflect improvement in designated use 
support.
2. National Water Quality Assessment
    EPA also estimated benefits of the Phase II Storm Water program 
using the 1998 National Water Quality Inventory (305(b)) Report to 
Congress, rather than the NWPCAM as a basis for estimating impairment 
addressed by the rule. The Water Quality Assessment method separately 
estimates benefits associated with improvements to fresh water, marine 
water and construction site controls, and then aggregates these 
separate categories into an estimate of total annual benefits.
a. Municipal Measures

i. Fresh Waters Benefits

    In order to develop estimates for the potential value of the 
municipal measures (except storm water runoff controls for construction 
sites), EPA applied Carson & Mitchell WTP values to estimated existing 
and projected future fresh water impairment. Carson & Mitchell did not 
evaluate marine waters, so only fresh water values were available from 
their research. Even though the Carson and Mitchell estimates apply to 
all fresh water, it is not clear how these values would be apportioned 
among rivers, lakes, and the Great Lakes. The 305(b) data indicate that 
lakes are the most impaired by urban runoff/storm sewers, followed 
closely by the Great Lakes, and then rivers. Therefore, EPA applied the 
WTP values to the categories separately and assumed that the higher 
resulting value for lakes represents the high end of the range (i.e., 
assuming that lake impairment is more indicative of national fresh 
water impairment) and that the lower resulting value for impaired 
rivers represents the low end of a value range for all fresh waters 
(i.e., assuming that river impairment is more indicative of national 
fresh water impairment). In addition, EPA estimated that the post-
construction runoff

[[Page 68794]]

requirements of the municipal program might result in benefits of at 
least $16.8 million annually from avoided future runoff. The post-
construction estimate significantly underestimates potential program 
benefits because it does not account for avoided hydrologic changes and 
resulting water quality impairment associated with increases in 
imperviousness from development and redevelopment. Summing the benefits 
across the water quality use support levels yields an estimate of 
benefits ranging from approximately $121.9 million to $378.2 million 
per year.

ii. Marine Waters Benefits

    In addition to the fresh water benefits captured by the Carson and 
Mitchell study, EPA anticipates benefits as a result of improvements to 
marine waters. Sufficient methods have not been developed to quantify 
national-level benefits for commercial or recreational fishing. EPA 
used beach closure data and visitation estimates from its Beach Watch 
Program to estimate potential reductions in marine swimming visits due 
to storm water runoff contamination events in 1997. The estimated 
86,100 trips that did not occur because of beach closures in coastal 
Phase II communities is a lower bound because it represents only those 
beaches that report both closures and visitation data. EPA estimates 
potential swimming benefits from the rule to be at least $2.1 million 
annually.
    EPA developed an analysis of potential benefits associated with 
avoided health impacts from exposure to contaminants in storm sewer 
effluent. Based on a study of incremental illnesses found among people 
who swam within one yard of storm drains in Santa Monica Bay, EPA 
estimated a range of incremental illnesses (Haile et al., 1996). 
Depending on assumptions made about number of exposures to contaminants 
and contaminant concentrations, benefits ranged from $7.0 million to 
$29.9 million annually.
b. Construction Benefits
    The major pollutant resulting from construction activities is 
sediment. However, in addition to sediment, construction activities 
also yield pollutants such as pesticides, petroleum products, and 
solvents. Because circumstances will vary considerably from site to 
site, data is not available with which to develop estimates of benefits 
for each site and aggregate to obtain a national-level estimate.
    In the proposed rule, EPA estimated the combined benefits of all 
wet weather programs, and then used expert opinions to allocate them to 
different individual programs. To eliminate the possible overlap 
between the benefits of the soil and erosion control requirements, 
municipal measures, and other wet weather storm water programs, EPA 
chose to use an approach in today's final rule that directly estimates 
the benefits of soil and erosion requirements.
    A survey of North Carolina residents (Paterson et al., 1993) 
indicated that households are willing to pay for erosion and sediment 
controls similar to those in today's rule. Based on income and other 
indicators, the values derived from the study are expected to be 
similar to values held in the rest of the country. Using the mean value 
of the willingness to pay of $25 per household, EPA projects annual 
benefits of the soil and erosion requirements to range from $540.5-$686 
million.
c. Summary of Benefits From the National Water Quality Assessment
    Total benefits from municipal measures and construction site 
controls are expected to range from $671.5 million to $1.1 billion per 
year, including benefits of approximately $13.7 million per year 
associated with small stream improvements. A summary of the potential 
benefits is presented in Exhibit 5.
    As shown in Exhibit 5, it was not possible to monetize all 
categories of benefits using the WTP estimates. In particular, benefits 
for improving marine water quality such as fishing and passive use 
benefits are not included in the values used to estimate the potential 
benefits of the municipal minimum measures (excluding construction 
sites controls), and they are not estimated separately, because 
information is not currently available.

 Exhibit 5.--Potential Annual Benefits of the Phase II Storm Water Rule
               National Water Quality Assessment Estimate
------------------------------------------------------------------------
       Benefit category                        Annual WTP
------------------------------------------------------------------------
                     Municipal Minimum Measures \1\
------------------------------------------------------------------------
Fresh Water Use and Passive    $121.9-$378.2
 Use \2\.
Marine Recreational Swimming.  $2.1
Human Health (Marine Waters).  $7.0-$29.9
Other Marine Use and Passive   (+)
 Use.
------------------------------------------------------------------------
          Erosion and Sediment Controls for Construction Sites
------------------------------------------------------------------------
Fresh Water and Marine Use     $540.5-$686
 and Passive Use \3\.
------------------------------------------------------------------------
                         Total Phase II Program
------------------------------------------------------------------------
Total Use & Passive Use        >$671.5->$1,096.2
 (Fresh Water and Marine).
------------------------------------------------------------------------
+= positive benefits expected but not monetized.
\1\ Includes water quality benefit of municipal programs, based on 80%
  effectiveness of municipal programs.
\2\ Based on research by Carson and Mitchell (1993). Fresh water value
  only. Does not include commercial fishery, navigation, or diversionary
  (e.g. municipal drinking water cost savings or risk reductions)
  benefits. May not fully capture human health risk reduction or
  ecological values.
\3\ Based on research by Paterson et al. (1993). Although the survey's
  description of the benefits of reducing soil erosion from construction
  sites included reduced dredging, avoided flooding, and water storage
  capacity benefits, these benefit categories may not be fully
  incorporated in the WTP values. Small streams may account for over 2%
  of total benefits.

C. Qualitative Benefits

    There are additional benefits to storm water control that cannot be 
quantified or monetized. Thus, the current estimate of monetized 
benefits may understate the true value of storm water controls because 
it omits many ways in which society is likely to benefit from reduced 
storm water pollution, such as improved

[[Page 68795]]

aesthetic quality of waters, benefits to wildlife and to threatened and 
endangered species, cultural values, and biodiversity benefits.
    A benefit that EPA did not monetize completely is the flood control 
benefits attributable to municipal storm water controls reducing 
downstream flooding, although flood control benefits associated with 
sediment and erosion control are already reflected to some extent in 
the construction benefits. Similarly, the Agency could not value the 
benefits from increased property value due to storm water controls 
reflected in the rule, even though a commenter suggested inclusion of 
these benefits in the estimates.
    Moreover, while a number of commenters requested that EPA include 
ecological benefits, the Agency was not able to fully monetize these 
benefits. Urbanization usually increases the amount of sediment, 
nutrients, metals and other pollutants associated with land disturbance 
and development. Development usually not only results in a dramatic 
increase in the volume of water runoff, but also in a substantial 
decrease in that water's quality due to stream scour, runoff and 
dispersion of toxic pollutants, and oversiltation. These kinds of 
secondary benefits could not be fully reflected in the monetized 
benefits. EPA was able to only monetize the aquatic life support 
benefits for waters assumed to be impaired. Thus, only the aquatic life 
support benefits attributable to municipal controls, reflected through 
human satisfaction, are taken into account.
    Reduced nutrient level is another benefit of the storm water 
control which is not fully captured by the economic analysis. High 
nutrient levels often lead to eutrophication of the aquatic system. The 
quality change in ecological sources as the result of storm water 
controls to reduce pollutants is not fully reflected in the present 
benefits.

D. National Economic Impact

    Finally, the Agency determined that the rule will have minimal 
impacts on the economy or employment. This is because the final rule 
regulates small MS4s and construction sites under 5 acres, not the 
typical industrial plants or other non-construction activities that 
could directly impact production and thus those sectors of the economy.
    Discussions with representatives within the construction industry 
indicate that construction costs will likely be passed on to buyers, 
thus not seriously affecting the housing industry directly. One 
commenter argued that the rule will have a negative employment effect 
because the builders will build fewer homes requiring less building 
materials as a result of the declining demand induced by the cost of 
the soil and erosion controls. EPA disagrees with this argument because 
the cost of the controls, as the percentage of the price of a median 
home, is negligible and will be passed on to final buyers.
    Flexibility within the rule allows MS4s to tailor the storm water 
program requirements to their needs and financial position, minimizing 
impacts. For sedimentation and erosion controls on construction sites, 
the rule contemplates application of commonly used BMPs to reduce costs 
for the construction industry. Thus, the rule attempts to use existing 
practices to prevent pollution, which should minimize impacts on 
States, Tribes, municipalities and the construction industry.
    Thus, EPA concludes that the effect of the rule, if any, on the 
national economy will be minimal. The benefits of today's rule more 
than offset any cost impacts on the national economy.

IV. Regulatory Requirements

A. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved some of the 
information collection requirements contained in this final rule (i.e. 
those found in 40 CFR 122.26(g) and 123.35(b)) under the provisions of 
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned 
OMB control number 2040-0211.
    The burden and costs described below are for the information 
collection, reporting, and record keeping requirements for the three 
year period beginning with the effective date of today's rule. 
Additional information collection requirements for regulated small MS4s 
and small construction sites will occur after this initial three year 
period and will be counted in a subsequent information collection 
requirement. The total burden of the information collection 
requirements for the first three years of this rule is estimated at 
56,369 hours with a corresponding cost of $2,151,305 million annually. 
This burden and cost is for industrial facilities to complete and 
submit the no exposure certification, for NPDES-authorized States to 
process and review the no exposure certification, and for the NPDES-
authorized States to develop designation criteria and assess additional 
MS4s outside of urbanized areas. Compliance with the applicable 
information collection requirements imposed under this rule are 
mandatory, pursuant to CWA section 402.
    Exhibit 6 presents average annual burden and cost estimates for 
Phase II respondents for the first three years. Burden means the total 
time, effort, or financial resources expended by persons to generate, 
maintain, retain, disclose or provide information to or for a Federal 
agency. This includes the time needed to review instructions; develop, 
acquire, install, and utilize technology and systems for the purposes 
of collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust existing ways for complying with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information.

                  Exhibit 6.--Average Annual Burden and Cost Estimates for Phase II Respondents
----------------------------------------------------------------------------------------------------------------
                                                                    (A) x (B)=C
                                   A Respondents  B Burden hours      Annual       D Respondent     (C) x (D)=E
 Information collection activity     per year     per respondent    respondent    labor cost ($/    Annual Cost
                                    (projected)      per year      burden hours    hr) (1998 $)         ($)
                                        \1\         (predicted)     (projected)                     (projected)
----------------------------------------------------------------------------------------------------------------
Ind. No Expos. Facilities:\2\
    No Expos. Certification.....          36,377             1.0          36,377           44.35       1,613,320
                                                                 ----------------                ---------------
        Annual Subtotal.........  ..............  ..............          36,377  ..............       1,613,320
NPDES-Authorized States:\3\
    Designation of Addit. MS4s                15           332.8           4,892           26.91         131,644
     \4\........................

[[Page 68796]]

 
    No Exp. Cert. Proc. & Rev...          30,200             0.5          15,100           26.91         406,341
                                                                 ----------------                ---------------
        Annual Subtotal.........  ..............  ..............          19,992  ..............         537,985
                                                                 ----------------                ---------------
        Annual Totals...........  ..............  ..............          56,369  ..............       2,151,305
----------------------------------------------------------------------------------------------------------------
Notes:
\1\ Source: U.S. EPA, Office of Wastewater Management. Economic Analysis for the Storm Water Phase II Rule.
\2\ The total number of potential no exposure respondents was divided by 5 to estimate an annual total. It was
  assumed that the annual number of respondents for the no exposure certification would be spread over the five
  year period the exclusion applies.
\3\ The number of respondents in each category represents only those respondents located within the 44 NPDES-
  authorized States and Territories. The burden and cost estimates provided in this section are for the NPDES-
  authorized States in their role as the permitting authority for municipal designations and industrial no
  exposure.
\4\ The number of respondents for this activity, 15, represents the number of NPDES-authorized States and
  Territories that must develop designation criteria and assess small MS4s located outside of an urbanized area
  for possible Phase II coverage divided by the three year ICR period.

    Given the requirements of today's regulation, EPA believes there 
will be no capital startup and no operation and maintenance costs 
associated with information collection requirements of the rule.
    The government burden associated with today's rule will impact 
State, Tribal, and Territorial governments (NPDES-authorized 
governmental entities) that have storm water program authority, as well 
as the federal government (i.e., EPA), where it is the NPDES permitting 
authority. As of March 1999, 43 States and the Virgin Islands had NPDES 
authority.
    The annual burden imposed upon authorized governmental entities 
(delegated States and the Virgin Islands) and the federal government 
for the next three years is estimated to be 19,992 hours ($537,985) and 
4,087 hours ($115,948) respectively, for a total of 24,079 hours 
($653,933). This estimate is based on the average time that governments 
will expend to carry out the following activities: designate additional 
MS4s (332.8 hours) and process and review ``no exposure'' certificates 
from industrial dischargers (0.5 hour).
    Under the existing rule, storm water discharges from light 
industrial activities identified under Sec. 122.26(b)(14)(xi) were 
exempted from the permit application requirements if they were not 
exposed to storm water. Today's rule expands the applicability of the 
``no exposure'' exclusion to include all industrial activity regulated 
under Sec. 122.26(b)(14) (except category (x), construction). The ``no 
exposure'' provision is applied through the use of a written 
certification process, thus representing a slight reporting burden 
increase for ``light'' industries with ``no exposure'.
    In addition to the information collection, reporting, and record 
keeping burden for the next three years, today's rule contains 
information collection requirements that will not begin until three 
years or more from the effective date of today's rule. These 
information collection requirements were not included in the 
information collection request approved by OMB. EPA will submit these 
burden estimates for OMB approval when it submits ICR 2040-0211 to OMB 
for renewal in three years. The rule burdens for regulated small MS4s 
and small construction sites that will be included in the ICR renewal 
fall into three areas: application for an NPDES permit or submittal of 
waiver information, record keeping of storm water management 
activities, and submittal of reports to the permitting authority. There 
will also be an additional burden for the permitting authority to 
review this information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15. EPA is 
amending the table in 40 CFR Part 9 of currently approved ICR control 
numbers issued by OMB for various regulations to list the first three 
years of information requirements contained in this final rule.

B. Executive Order 12866

    Under Executive Order 12866, [58 FR 51,735 (October 4, 1993)] the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action''. As 
such, this action was submitted to OMB for review. Changes made in 
response to OMB suggestions or recommendations will be documented in 
the public record.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a

[[Page 68797]]

written statement is needed, section 205 of the UMRA generally requires 
EPA to identify and consider a reasonable number of regulatory 
alternatives and adopt the least costly, most cost-effective or least 
burdensome alternative that achieves the objectives of the rule. The 
provisions of section 205 do not apply when they are inconsistent with 
applicable law. Moreover, section 205 allows EPA to adopt an 
alternative other than the least costly, most cost-effective or least 
burdensome alternative if the Administrator publishes with the final 
rule an explanation why that alternative was not adopted.
    EPA has determined that today's rule contains a Federal mandate 
that may result in expenditures of $100 million or more in any one year 
for both State, local, and tribal governments, in the aggregate, and 
the private sector. Accordingly, EPA has prepared under section 202 of 
the UMRA a written statement which is summarized below.
1. Summary of UMRA Section 202 Written Statement
    EPA promulgates today's storm water regulation pursuant to the 
specific mandate of Clean Water Act section 402(p)(6), as well as 
sections 301, 308, 402, and 501. (33 U.S.C. sections 1342(p)(6), 1311, 
1318, 1342, 1361.) Section 402(p)(6) of the CWA requires that EPA 
designate sources to be regulated to protect water quality and 
establish a comprehensive program to regulate those sources.
    In the Economic Analysis of the Final Phase II Rule (EA), EPA 
describes the qualitative and monetized benefits associated with 
today's rule and then compares the monetized benefits with the 
estimated costs for the rule. EPA developed detailed estimates of the 
costs and benefits of complying with each of the incremental 
requirements imposed by the rule. These estimates, including 
descriptions of the methodology and assumptions used, are described in 
detail in the EA. The Agency used two approaches, a national water 
quality model and national water quality assessment, to estimate the 
potential benefits of the rule. Both approaches show that the benefits 
are likely to exceed costs. Exhibit 3 in section III of this preamble 
summarizes the costs and benefits associated with the basic elements of 
today's rule.
    There are additional benefits to storm water control that cannot be 
quantified or monetized. Thus, the current estimate of monetized 
benefits may understate the true value of storm water controls because 
it omits many ways by which society is likely to benefit from reduced 
storm water pollution, such as improved aesthetic quality of waters, 
benefits to wildlife and to threatened and endangered species, cultural 
values, and biodiversity benefits.
    Several commenters asserted that today's rule is an unfunded 
mandate and that, without funding, the monitoring of the already 
existing pollution control programs would suffer. In section II.D.3 of 
the preamble, EPA lists some of the programs that EPA anticipates may 
provide funds to help develop and, in limited circumstances, implement 
storm water management programs.
    In the EA, EPA reviewed the expected effect of today's rule on the 
national economy. The Agency determined that the rule will have minimal 
impacts on the economy or employment. This is because the final rule 
regulates small MS4s and construction sites under 5 acres, not the 
typical industrial plants or other non-construction activities that 
could directly impact production and thus those sectors of the economy.
    Discussions with representatives within the construction industry 
indicate that construction costs will likely be passed on to buyers, 
thus not seriously affecting the housing industry directly. Flexibility 
within the rule allows MS4s to tailor the storm water program 
requirements to their needs and financial position, minimizing impacts. 
For sedimentation and erosion controls on construction sites, the rule 
contemplates application of commonly used BMPs to reduce costs for the 
construction industry. Thus, the rule attempts to use existing 
practices to prevent pollution, which should minimize impacts on 
States, Tribes, municipalities and the construction industry.
    Thus, EPA concludes that the effect of the rule, if any, on the 
national economy would be minimal. The benefits of today's rule more 
than offset any cost impacts on the national economy.
    Consistent with the intergovernmental consultation provisions of 
section 204 of the UMRA and Executive Order 12875, ``Enhancing the 
Intergovernmental Partnership,'' EPA consulted with the governmental 
entities affected by this rule.
    First, EPA provided States, Tribal and local governments with the 
opportunity to comment on draft alternative approaches for the proposed 
rule through publishing a notice requesting information and public 
comment in the Federal Register on September 9, 1992 (57 FR 41344). 
This notice presented a full range of regulatory alternatives. At that 
time, EPA received more than 130 comments, including approximately 43 
percent from municipalities and 24 percent from State or Federal 
agencies. These comments were the genesis of many of the provisions in 
the today's rule, including reliance on the NPDES program framework 
(including general permits), providing State and local governments 
flexibility in selecting additional sources requiring regulation, and 
focusing on high priority polluters. These comments helped to focus on 
pollution prevention, watershed-based concerns and BMPs. They also led 
to certain exemptions for facilities that do not pollute national 
waters.
    In early 1993, EPA, in conjunction with the Rensselaerville 
Institute, held public and expert meetings to assist in developing and 
analyzing options for identifying unregulated storm water sources and 
possible controls. These meetings provided participants an additional 
opportunity to provide input into the CWA section 402(p)(6) program 
development process. The final rule addresses several of the key 
concerns identified in these groups, including provisions that provide 
flexibility to the States to select sources to be controlled and types 
of permits to be issued, and flexibility to MS4s in selecting BMPs.
    EPA also conducted outreach with representatives of small entities, 
including small government representatives, in conjunction with the 
convening of a Small Business Advocacy Review Panel under SBREFA which 
is discussed in section IV.E. of the preamble.
    In addition, EPA established the Urban Wet Weather Flows Advisory 
Committee under the Federal Advisory Committee Act (FACA). The Urban 
Wet Weather Flows Advisory Committee, in turn established the Storm 
Water Phase II Subcommittee. Consistent with FACA, the membership of 
the Committee and the Storm Water Phase II Subcommittee was balanced 
among EPA's various outside stakeholder interests, including 
representatives from State governments, municipal governments (both 
elected officials and appointed officials) and Tribal governments, as 
well as industrial and commercial sectors, agriculture, environmental 
and public interest groups.
    In general, municipal and Tribal government representatives 
supported the NPDES approach in today's rule for the following reasons: 
It will be uniformly applied on a nationwide basis; it provides 
flexibility to allow incorporation of State and local programs; it 
resolves the problem of donut holes that cause water quality impacts in 
urbanized areas; and it allows co-permitting of small regulated

[[Page 68798]]

MS4s with those regulated under the existing storm water program.
    In contrast, State representatives sought alternative approaches 
for State implementation of the storm water program for Phase II 
sources. State representatives asserted that a non-NPDES alternative 
approach best facilitated watershed management and avoided duplication 
and overlapping regulations. These representatives pointed out that 
there are a variety of State programs--not based on the CWA--
implementing effective storm water controls, and that EPA should 
provide incentives for their implementation and improvement in 
performance. EPA continues to believe that an NPDES approach is the 
best approach in order to adequately protect water quality. However, 
EPA has worked with States on an alternative approach that provides 
flexibility within the NPDES framework. The final rule allows States 
with a watershed permitting approach to phase in permit coverage for 
MS4s in jurisdictions with a population less than 10,000 and provides 
two waivers from coverage for small MS4s. This issue is discussed in 
section II.C of the preamble, Program Framework: NPDES Approach.
    Some municipal governments objected that the rule's minimum 
measures for small MS4s violate the Tenth Amendment insofar as they 
require the operators of MS4s to regulate third parties according to 
the ``minimum measures'' for municipal storm water management programs. 
EPA disagrees that today's rule is inconsistent with Tenth Amendment 
principles. Permits issued under today's rule will not compel political 
subdivisions of States to regulate in their sovereign capacities, but 
rather to effectively control discharges out of their storm sewer 
systems in their owner/operator capacities. For MS4s that do not accept 
this ``default'' minimum measures-based approach (to control discharges 
out of the storm sewer system by exercising local powers to control 
discharges into the storm sewer system), today's rule allows for 
alternative permits through individual permit applications. EPA made 
revisions to the rule to allow regulated small MS4s to opt out of the 
minimum measures approach and instead apply for an individual permit. 
This issue is discussed in section II.H.3.c.iii of the preamble, 
Alternative Permit Option/Tenth Amendment.
2. Selection of the Least Costly, Most Cost-Effective or Least 
Burdensome Alternative That Achieves the Objectives of the Statute
    Today's rule evolved over time and incorporated aspects of 
alternatives that responded to concerns presented by the various 
stakeholders. A primary characteristic of today's rule is the 
flexibility it offers both the permitting authority and the regulated 
sources (small MS4s and small construction sites), by the use of 
general permits, implementation of BMPs suited to specific locations, 
and allowing MS4s to develop their own program goals.
    In the administrative record supporting the proposed rule, EPA 
estimated ranges of costs associated with six different options, 
including a no action option, the proposed option, and four other 
options that considered various combinations of the following: Covering 
all the unregulated construction sites below 5 acres, all small MS4s, 
certain industrial and commercial activities, and all point sources. 
EPA developed detailed cost estimates for the incremental requirements 
imposed under the final regulation, and for each of the alternatives, 
and applied these estimates to the remaining unregulated point sources 
of storm water. The Agency compared the estimated annual range of costs 
imposed under today's rule and other major options considered. The 
range of values for each option included the costs for compliance, 
including paperwork requirements for the operators of small 
construction sites, industrial facilities, and MS4s and administrative 
costs for State and Federal NPDES permitting authorities.
    Today's rule reflects the least costly option that achieves the 
objectives of the statute, thus meeting the requirements of section 
205. EPA did not consider ``no regulation'' to be an ``option'' because 
it would not achieve the objectives of CWA section 402(p)(6). A portion 
of currently unregulated point sources of storm water need to reduce 
pollutants to protect water quality.
    Today's rule is estimated to range in cost from $847.6 million to 
$981.3 million annually, although the cost estimate for the proposed 
rule was reported as a range of $138 to $869 million annually. That 
range reflected a unit cost range for the municipal minimum measures 
and a cost range per construction site for soil erosion control. EPA 
has since revised its cost analysis to allow it to report the current 
estimate, which is toward the high end of the original cost range. The 
four other regulatory options considered at proposal involved higher 
regulatory costs and, therefore, were not selected. These four options 
and their estimated costs are as follows:
    (1) An option based on the August 7, 1995 direct final rule was 
estimated to cost between $2.2 billion and $78.9 billion per year.
    (2) A ``Plan B'' option was estimated to cost between $0.6 billion 
and $3.2 billion per year.
    (3) An option based on the September 30, 1996 draft proposed rule 
was estimated to cost between $0.2 billion and $3.7 billion per year.
    (4) An option based on the February 13, 1997 draft proposed rule, 
was estimated to cost between $0.2 billion and $3.5 billion.
    There are three reasons why the costs for these four options 
exceeded the estimated cost range for the proposed rule. The first two 
options regulated substantially more municipal governments. The first, 
third, and fourth options required industrial facilities to apply for 
permits. Finally, the first three options applied permit requirements 
to construction sites below 1 acre. Consequently, these options would 
be more costly than today's rule even with the revised analysis methods 
used to estimate costs.
3. Effects on Small Governments
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements. EPA 
has determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments. Although 
today's rule expands the NPDES program (with modifications) to certain 
MS4s serving populations below 100,000 and although many MS4s are owned 
by small governments, EPA does not believe today's rule significantly 
or uniquely affects small governments. As explained in section IV.E. of 
the preamble, EPA today certifies that the rule will not have a 
significant impact on small governmental jurisdictions. In addition, 
the rule will not have a unique impact on small governments because the 
rule will affect small governments in

[[Page 68799]]

to the same extent as (or to a lesser extent than) larger governments 
that are already covered by the existing storm water rules. Thus, 
today's rule is not subject to the requirements of section 203 of UMRA.
    Notwithstanding this finding, in developing today's rule, EPA 
provided notice of the requirements to potentially affected small 
governments; enabled officials of affected small governments to provide 
meaningful and timely input in the development of regulatory proposals; 
and informed, educated and advised small governments on compliance with 
the requirements.
    Concerning notice, EPA provided States, local, and Tribal 
governments with the opportunity to comment on alternative approaches 
for an early draft of the proposed rule by publishing a notice 
requesting information and public comment in the Federal Register on 
September 9, 1992 (57 FR 41344). This notice presented a full range of 
regulatory alternatives. At that time, EPA received more than 130 
comments, including approximately 43 percent from municipalities and 24 
percent from State or Federal agencies.
    The Agency also provided, through the SBREFA panel process and the 
FACA process, the opportunity for elected officials of small 
governments (and their representatives) to meaningfully participate in 
the development of the rule. Through such participation and exchange, 
EPA not only notified potentially affected small governments of 
requirements of the developing rule, but also allowed officials of 
affected small governments to have meaningful and timely input into the 
development of regulatory proposals.
    In addition to involving municipalities in the development of the 
rule, EPA also continues to inform, educate, and advise small 
governments on compliance with the requirements of today's rule. For 
example, EPA supported 10 workshops, presented by the American Public 
Works Association from September 1998 through May 1999, designed to 
educate local governments on the implementation of the rule. The 
workshop curriculum included information on a variety of key issues 
such as anticipated regulatory requirements, agency reporting, best 
management practices, construction site controls, post construction 
management for new and redeveloped sites, public education and public 
involvement strategies, detection and control of illicit discharges, 
and good housekeeping practices. Moreover, EPA has prepared a series of 
fact sheets, available on the EPA website at www.epa.gov/owm/sw/
toolbox, that explains the rule in detail.
    Finally, to assist small governments in implementing the Phase II 
program, EPA is committed to the following: (1) developing a tool box 
of implementation strategies; (2) providing written technical 
assistance, including guidance on developing BMPs and measurable goals; 
and (3) compiling a comprehensive evaluation of the NPDES municipal 
storm water Phase II program over the next 13 years.

D. Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    If EPA complies by consulting, Executive Order 13132 requires EPA 
to provide to the Office of Management and Budget (OMB), in a 
separately identified section of the preamble to the rule, a federalism 
summary impact statement (FSIS). The FSIS must include a description of 
the extent of EPA's prior consultation with State and local officials, 
a summary of the nature of their concerns and the agency's position 
supporting the need to issue the regulation, and a statement of the 
extent to which the concerns of State and local officials have been 
met. For final rules subject to Executive Order 13132, EPA also must 
submit to OMB a statement from the agency's Federalism Official 
certifying that EPA has fulfilled the Executive Order's requirements.
    EPA has concluded that this final rule may have federalism 
implications. As discussed above in section IV.C., the rule contains a 
Federal mandate that may result in the expenditure by State, local and 
tribal governments, in the aggregate, of $100 million or more in any 
one year. Accordingly, the rule may have substantial direct effects on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
Moreover, the rule will impose substantial direct compliance costs on 
State or local governments. Accordingly, EPA provides the following 
FSIS under section 6(b) of Executive Order 13132.
1. Description of the Extent of the Agency's Prior Consultation with 
State and Local Governments
    Although this rule was proposed long before the November 2, 1999 
effective date of Executive Order 13132, EPA consulted extensively with 
affected State and local governments pursuant to the intergovernmental 
consultation provisions of Executive Order 12875, ``Enhancing the 
Intergovernmental Partnership'' (now revoked by Executive Order 13132) 
and section 204 of UMRA.
    First, EPA provided State and local governments the opportunity to 
comment on draft alternative approaches for the proposed rule through 
publishing a notice requesting information and public comment in the 
Federal Register on September 9, 1992 (57 FR 41344). This notice 
presented a full range of regulatory alternatives. At that time, EPA 
received more than 130 comments, including approximately 43 percent 
from municipalities and 24 percent from State or Federal agencies. 
These comments were the genesis of many of the provisions in the 
today's rule, including reliance on the NPDES program framework 
(including general permits), providing State and local governments 
flexibility in selecting additional sources requiring regulation, and 
focusing on high priority polluters. These comments helped to focus on 
pollution prevention, watershed-based concerns and BMPs. They also led 
to certain exemptions for facilities that do not pollute national 
waters.
    In early 1993, EPA, in conjunction with the Rensselaerville 
Institute, held public and expert meetings to assist in developing and 
analyzing options for identifying unregulated storm water sources and 
possible controls. These meetings provided participants an additional 
opportunity to provide input into the CWA section 402(p)(6) program

[[Page 68800]]

development process. The final rule addresses several of the key 
concerns identified in these groups, including provisions that provide 
flexibility to the States to select sources to be controlled and types 
of permits to be issued, and flexibility to MS4s in selecting BMPs.
    EPA also conducted outreach with representatives of small entities, 
including small governments, in conjunction with the convening of a 
Small Business Advocacy Review Panel under SBREFA which is discussed in 
section III.F. of the preamble.
    In addition, EPA established the Urban Wet Weather Flows Advisory 
Committee (FACA), which in turn established the Storm Water Phase II 
Subcommittee. Consistent with the Federal Advisory Committee Act, the 
membership of the Committee and the Storm Water Phase II Subcommittee 
was balanced among EPA's various outside stakeholder interests, 
including representatives from State governments, municipal governments 
(both elected officials and appointed officials) and Tribal 
governments, as well as industrial and commercial sectors, agriculture, 
environmental and public interest groups.
2. Summary of Nature of State and Local Government Concerns, and 
Statement of the Extent to Which Those Concerns Have Been Met
    In general, municipal government representatives supported the 
NPDES approach in today's rule for the following reasons: it will be 
uniformly applied on a nationwide basis; it provides flexibility to 
allow incorporation of State and local programs; it resolves the 
problem of donut holes that cause water quality impacts in urbanized 
areas; and it allows co-permitting of small regulated MS4s with those 
regulated under the existing storm water program.
    In contrast, State representatives sought alternative approaches 
for State implementation of the storm water program for Phase II 
sources. State representatives asserted that a non-NPDES alternative 
approach best facilitated watershed management and avoided duplication 
and overlapping regulations. These representatives pointed out that 
there are a variety of State programs--not based on the CWA--
implementing effective storm water controls, and that EPA should 
provide incentives for their implementation and improvement in 
performance. EPA continues to believe that an NPDES approach is the 
best approach in order to adequately protect water quality. However, 
EPA has worked with States on an alternative approach that provides 
flexibility within the NPDES framework. The final rule allows States 
with a watershed permitting approach to phase in permit coverage for 
MS4s in jurisdictions with a population less than 10,000 and provides 
two waivers from coverage for small MS4s. This issue is discussed in 
section II.C of the preamble, Program Framework: NPDES Approach.
    Some municipal governments objected that the rule's minimum 
measures for small MS4s violate the Tenth Amendment insofar as they 
require the operators of MS4s to regulate third parties according to 
the ``minimum measures'' for municipal storm water management programs. 
EPA disagrees that today's rule is inconsistent with Tenth Amendment 
principles. Permits issued under today's rule will not compel political 
subdivisions of States to regulate in their sovereign capacities, but 
rather to effectively control discharges out of their storm sewer 
systems in their owner/operator capacities. For MS4s that do not accept 
this ``default'' minimum measures-based approach (to control discharges 
out of the storm sewer system by exercising local powers to control 
discharges into the storm sewer system), today's rule allows for 
alternative permits through individual permit applications. EPA made 
revisions to the rule to allow regulated small MS4s to opt out of the 
minimum measures approach and instead apply for an individual permit. 
This issue is discussed in section II.H.3.c.iii of the preamble, 
Alternative Permit Option/Tenth Amendment.
3. Summary of the Agency's Position Supporting the Need To Issue the 
Regulation
    As discussed more fully in section I.B. above, today's rule is 
needed because uncontrolled storm water discharges from areas of urban 
development and construction activity have been shown to have negative 
impacts on receiving waters by changing the physical, biological, and 
chemical composition of the water, resulting in an unhealthy 
environment for aquatic organisms, wildlife, and people. As discussed 
in section II.C., the NPDES approach in today's rule is needed to 
ensure uniform application on a nationwide basis, to provide 
flexibility to allow incorporation of State and local programs, to 
resolve the problem of donut holes that cause water quality impacts in 
urbanized areas, and to allow co-permitting of small regulated MS4s 
with those regulated under the existing storm water program.
    The draft final rule was transmitted to OMB on July 6, 1999. 
Because transmittal occurred before the November 2, 1999 effective date 
of Executive Order 13132, certification under section 8 of the 
Executive Order is not required.

E. Regulatory Flexibility Act (RFA), as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an Agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impact of today's rule on small 
entities, small entity is defined as: (1) a building contractor (SIC 
15) with up to $17.0 million in annual revenue; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district, or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    Although this final rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless has 
tried to reduce the impact of this rule on small entities.
    For purposes of evaluating the economic impact of this rule on 
small governmental jurisdictions, EPA compared annual compliance costs 
with annual government revenues obtained from the 1992 Census of 
Governments, using state-specific estimates of annual revenue per 
capita for municipalities in three population size categories (fewer 
than 10,000, 10,000-25,000, and 25,000-50,000).
    In order to estimate the annual compliance cost for small 
governmental jurisdictions, EPA used the mean variable municipal cost 
of $8.93 per household as calculated in a 1998 study of 121 
municipalities conducted by the national Association of Flood and 
Stormwater Management Agencies (NAFSMA). In addition, EPA used the 
estimated fixed administrative costs of $1,545 per municipality for 
reporting,

[[Page 68801]]

recordkeeping, and application requirements for today's rule.
    In evaluating the economic impact of this rule on small 
governmental jurisdictions, EPA determined that compliance costs 
represent more than 1 percent of estimated revenues for only 10 percent 
of small governments and more than 3 percent of the revenue for 0.7 
percent of these entities. In both absolute and relative terms, EPA 
does not consider this a significant economic impact on a substantial 
number of small entities.
    EPA normally uses the ``sales test'' for determining the economic 
impact on small businesses. Under a sales test, annual compliance costs 
are compared with the small business's total annual sales. However, the 
direct application of the sales test is not suitable in this case, 
because of the uncertainty associated with estimating the number of 
units an ``average'' developer/contractor develops or builds in a 
typical year. For this rule, EPA has approximated the sales test by 
estimating compliance costs for three sizes of construction sites and 
comparing them with a representative sale price for three building 
categories. Although EPA's analysis is not exactly a ``sales test,'' it 
is similar to the sales test, producing comparable results.
    For small building contractors, EPA estimated administrative 
compliance costs of $870 per site for applying for coverage, reporting, 
record keeping, monitoring and preparing a storm water pollution 
prevention plan. EPA estimated compliance costs for installing soil and 
erosion controls as ranging from $1,206 to $8,709 per site. EPA 
compliance cost estimates are based on 27 theoretical model 
construction sites designed to mimic the mostly likely used best 
management practices around the country.
    In evaluating the economic impact on small building contractors, 
EPA divided the revised compliance costs per construction start by the 
appropriate homes-to-site ratio for each of the three sizes of 
construction sites. The average compliance cost per home ranges from 
approximately $450 to $650. EPA concluded that compliance costs are 
roughly 0.22 to 0.43 percent of both the mean, $181,300, and median, 
$151,000, sale price of a home.
    The absence of data to specifically assess annual compliance costs 
for building contractors as a percentage of annual sales (i.e., a very 
direct estimate of the impact on potentially affected small businesses) 
led EPA to perform additional market analysis to examine the ability of 
potentially affected firms to pass along regulatory costs to buyers for 
single-family homes constructed subject to today's rule. If the small 
building contractors covered by the rule are able to pass on the costs 
of compliance, either completely or partially, to their purchasers, 
then the rule's impact on these small business entities is 
significantly reduced. The market analysis shows that demand for homes 
is not overly sensitive to small changes in price, therefore builders 
should be able to pass on at least a significant fraction of the 
compliance costs to buyers.
    EPA also assessed the effect of the building contractors' costs on 
average monthly mortgage rates and on the demand for new homes. Based 
on that screening analysis, EPA concludes that the costs to building 
contractors, and the potential changes in housing prices and monthly 
mortgage payments for single-family home buyers, are not expected to 
have a significant impact on the market for single-family houses. In 
both absolute and relative terms, EPA does not consider this a 
significant economic impact on a substantial number of small entities.
    EPA also certified this rule at proposal. Even though the Agency 
was not required to, we convened a Small Business Advocacy Review Panel 
(``Panel'') in June 1997. A number of small entity representatives had 
already been actively involved with EPA through the FACA process, and 
were, therefore, broadly knowledgeable about the development of the 
proposed and final rules. Prior to convening the Panel, EPA consulted 
with the Small Business Administration to identify a group of small 
entity representatives to advise the Panel. The Agency distributed a 
briefing package describing its preliminary analysis under the RFA to 
the small entity representatives (as well as to representatives from 
OMB and SBA) and conducted two telephone conference calls and an all-
day meeting at EPA Headquarters in May of 1997 with small entity 
representatives. With this preliminary work complete, in June 1997, EPA 
formally convened the SBREFA Panel, comprising representatives from 
OMB, SBA, EPA's Office of Water and EPA's Small Business Advocacy 
Chair. The Panel received written comments from small entity 
representatives based on their involvement in the earlier meetings, and 
invited additional comments.
    Consistent with requirements of the RFA, the Panel evaluated the 
assembled materials and small-entity comments on issues related to: (1) 
a description and the number of small entities that would be regulated; 
(2) a description of the projected record keeping, reporting and other 
compliance requirements applicable to small entities; (3) 
identification of other Federal rules that may duplicate, overlap, or 
conflict with the proposal to the final rule; and (4) regulatory 
alternatives that would minimize any significant economic impact of the 
rule on small entities while accomplishing the stated objectives of the 
CWA section 402(p)(6).
    On August 7, 1997, the Panel provided a Final Report (hereinafter, 
``Report'') to the EPA Administrator. A copy of the Report is included 
in the docket for the rule. The Panel acknowledged and commended EPA's 
efforts to work with stakeholders, including small entities, through 
the FACA process. The SBREFA Panel stated that, because of EPA's 
extensive outreach and responsiveness in addressing stakeholder 
concerns, commenters during the SBREFA process raised fewer concerns 
than might otherwise have been expected. Based on the advice and 
recommendations of the Panel, today's rule includes a number of 
provisions designed to minimize any significant impact on small 
entities. (See Appendix 5).

F. National Technology Transfer And Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standard bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This action does not mandate the use of any particular technical 
standards, although in designing appropriate BMPs regulated small MS4s 
and small construction sites are encouraged to use any voluntary 
consensus standards that may be applicable and appropriate. Because no 
specific technical standards are included in the rule, section 12(d) of 
the NTTAA is not applicable.

G. Executive Order 13045

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically

[[Page 68802]]

significant'' as defined under E.O. 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This final rule is not subject to E.O. 13045 because it does not 
concern an environmental health or safety risk that may have a 
disproportionate effect on children. The rule expands the scope of the 
existing NPDES permitting program to require small municipalities and 
small construction sites to regulate their storm water discharges. The 
rule does not itself, however, establish standards or criteria that 
would be included in permits for those sources. Such standards or 
criteria will be developed through other actions, for example, in the 
establishment of water quality standards or subsequently in the 
issuance of permits themselves. As such, today's action does not 
concern an environmental health or safety risk that may have a 
disproportionate effect on children. To the extent it does address a 
risk that may have a disproportionate effect on children, expanding the 
scope of the permitting program will have a corresponding 
disproportionate benefit to children to protect them from such risk.

H. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the Tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected Tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian Tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian Tribal governments. Even though the Agency is not 
required to address Tribes under the Regulatory Flexibility Act, EPA 
used the same revenue test that was used for municipalities to assess 
the impact of the rule on communities of Tribal governments and 
determine that they will not be significantly affected. In addition, 
the rule will not have a unique impact on the communities of Tribal 
governments because small municipal governments are also covered by 
this rule and larger municipal governments are already covered by the 
existing storm water rules. Accordingly, the requirements of section 
3(b) of Executive Order 13084 do not apply to this rule.

I. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and the Comptroller General 
of the United States. EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This rule is a ``major rule'' as defined by 5 U.S.C. 804(2). 
This rule will be effective on February 7, 2000.

List of Subjects

40 CFR Part 9

    Environmental protection, Reporting and recordkeeping requirements.

40 CFR Part 122

    Administrative practice and procedure, Confidential business 
information, Environmental protection, Hazardous substances, 
Incorporation by reference, Reporting and recordkeeping requirements, 
Sewage disposal, Waste treatment and disposal, Water pollution control.

40 CFR Part 123

    Administrative practice and procedure, Confidential business 
information, Hazardous materials, Indians--lands, Intergovernmental 
relations, Penalties, Reporting and recordkeeping requirements, Sewage 
disposal, Waste treatment and disposal, Water pollution control, 
Penalties.

40 CFR Part 124

    Administrative practice and procedure, Air pollution control, 
Hazardous waste, Indians--lands, Reporting and recordkeeping 
requirements, Water pollution control, Water supply.

    Dated: October 29, 1999.
Carol M. Browner,
Administrator.

Appendices to the Preamble

   Appendix 1 to Preamble--Federally-Recognized American Indian Areas
   Located Fully or Partially in Bureau of the Census Urbanized Areas
                       [Based on 1990 Census data]
------------------------------------------------------------------------
  State             American Indian Area               Urbanized Area
------------------------------------------------------------------------
AZ......  Pascua Yacqui Reservation (pt.): Pascua   Tucson, AZ (Phase
           Yacqui Tribe of Arizona.                  I).
AZ......  Salt River Reservation (pt.): Salt River  Phoenix, AZ (Phase
           Pima-Maricopa Indian Community of the     I).
           Salt River Reservation, California.
AZ......  San Xavier Reservation (pt.): Tohono      Tucson, AZ (Phase
           O'odham Nation of Arizona (formerly       I).
           known as the Papago Tribe of the Sells,
           Gila Bend & San Xavier Reservation).
CA......  Augustine Reservation: Augustine Band of  Indio-Coachella, CA
           Cahuilla Mission of Indians of the        (Phase I).
           Augustine Reservation, CA.
CA......  Cabazon Reservation: Cabazon Band of      Indio-Coachella, CA
           Cahuilla Mission Indians of the Cabazon   (Phase I).
           Reservation, CA.

[[Page 68803]]

 
CA......  Fort Yuma (Quechan) (pt.): Quechan Tribe  Yuma, AZ-CA.
           of the Fort Yuma Indian Reservation,
           California & Arizona.
CA......  Redding Rancheria: Redding Rancheria of   Redding, CA.
           California.
FL......  Hollywood Reservation: Seminole Tribe...  Fort Lauderdale, FL
                                                     (Phase I).
FL......  Seminole Trust Lands: Seminole Tribe of   Fort Lauderdale, FL
           Florida, Dania, Big Cypress & Brighton    (Phase I).
           Reservations.
ID......  Fort Hall Reservation and Trust Lands:    Pocatello, ID.
           Shosone-Bannock Tribes of the Fort Hall
           Reservation of Idaho.
ME......  Penobscot Reservation and Trust Lands     Bangor, ME.
           (pt.): Penobscot Tribe of Maine.
MN......  Shakopee Community: Shakopee Mdewakanton  Minneapolis-St.
           Sioux Community of Minnesota (Prior       Paul, MN (Phase I).
           Lake).
NM......  Sandia Pueblo (pt.): Pueblo of Sandia,    Albuquerque, NM
           New Mexico.                               (Phase I).
NV......  Las Vegas Colony: Las Vegas Tribe of      Las Vegas, NV (Phase
           Paiute Indians of the Las Vegas Indian    I).
           Colony, Nevada.
NV......  Reno-Sparks Colony: Reno-Sparks Indian    Reno, NV (Phase I).
           Colony, Nevada.
OK......  Osage Reservation (pt.): Osage Nation of  Tulsa, OK (Phase I).
           Oklahoma.
OK......  Absentee Shawnee-Citizens Band of         Oklahoma City, OK
           Potawatomi TJSA (pt.): Absentee-Shawnee   (Phase I).
           Tribe of Indians of Oklahoma; Citizen
           Potawatomi Nation, Oklahoma.
OK......  Cherokee TJSA 9 (pt.): Cherokee Nation    Ft. Smith, AR-OK;
           of Oklahoma; United Keetoowah Band of     Tulsa, OK (Phase
           Cherokee Indians of Oklahoma.             I).
OK......  Cheyenne-Arapaho TJSA (pt.): Cheyenne-    Oklahoma City, OK
           Arapaho Tribes of Oklahoma.               (Phase I).
OK......  Choctaw TJSA (pt.): Choctaw Nation of     Ft. Smith, AR-OK
           Oklahoma.                                 (Phase I).
OK......  Creek TJSA (pt.): Alabama-Quassarte       Tulsa, OK (Phase I).
           Tribal Town of the Creek Nation of
           Oklahoma; Kialegee Tribal Town of the
           Creek Indian Nation of Oklahoma;
           Muscogee (Creek) Nation of Oklahoma;
           Thlopthlocco Tribal Town of the Creek
           Nation of Oklahoma.
OK......  Kiowa-Comanche-Apache-Ft. Sill Apache:    Lawton, OK.
           Apache Tribe of Oklahoma; Comanche
           Indian Tribe, Oklahoma; Fort Sill
           Apache Tribe of Oklahoma; Kiowa Indian
           Tribe of Oklahoma.
TX......  Ysleta del Sur Reservation: Ysleta Del    El Paso, TX-NM
           Sur Pueblo of Texas.                      (Phase I).
WA......  Muckleshoot Reservation and Trust Lands   Seattle, WA (Phase
           (pt.): Muckleshoot Indian Tribe of the    I).
           Muckleshoot Reservation.
WA......  Puyallup Reservation and Trust Lands      Tacoma, WA (Phase
           (pt.): Puyallup Tribe of the Puyallup     I).
           Reservation, WA.
WA......  Yakima Reservation (pt.): Confederated    Yakima, WA.
           Tribes and Bands of the Yakama Indian
           Nation of the Yakama Reservation, WA.
WI......  Oneida (West) (pt.): Oneida Tribe of      Green Bay, WI.
           Wisconsin.
------------------------------------------------------------------------

Please Note

    ``(pt.)'' indicates that the American Indian Area (AIA) listed 
is only partially located within the referenced urbanized area.
    The first line under ``American Indian Area'' is the name of the 
federally-recognized reservation/colony/rancheria or trust land as 
it appears in the Bureau of the Census data. After this first line, 
the names of the tribes included in the AIA are listed as they 
appear in the Bureau of Indian Affairs' list of Federally Recognized 
Indian Tribes. [Federal Register: Nov. 13, 1996, Vol. 66, No. 220, 
pgs. 58211-58216]
    ``TJSAs'' are Tribal Jurisdiction Statistical Areas in Oklahoma 
that are defined in conjunction with the federally-recognized tribes 
in Oklahoma who have definite land areas under their jurisdiction, 
but do not have reservation status.
    ``(Phase I)'' indicates that the referenced urbanized area 
includes a medium or large MS4 currently regulated under the 
existing NPDES storm water program (i.e., Phase I). Any Tribally 
operated MS4 within these such urban areas would not automatically 
have been covered under Phase I, however.

Sources

    Michael Ratcliffe, Geographic Concepts Division, Bureau of the 
Census, U.S. Department of Commerce.
    1990 Census of Population and Housing, Summary Population and 
Housing Characteristics, United States. Tables 9 & 10. [1990 CPH-1-
1]. Bureau of the Census, U.S. Department of Commerce.

BILLING CODE 6560-50-P

[[Page 68804]]

[GRAPHIC] [TIFF OMITTED] TR08DE99.001


BILLING CODE 6560-50-C

[[Page 68805]]

Appendix 3 to the Preamble--Urbanized Areas of the United States 
and Puerto Rico

(Source: 1990 Census of Population and Housing, U.S. Bureau of the 
Census--This list is subject to change with the Decennial Census)

Alabama

Anniston
Auburn-Opelika
Birmingham
Columbus, GA-AL
Decatur
Dothan
Florence
Gadsden
Huntsville
Mobile
Montgomery
Tuscaloosa

Alaska

Anchorage

Arizona

Phoenix
Tucson
Yuma, AZ-CA

Arkansas

Fayetteville-Springdale
Fort Smith, AR-OK
Little Rock-North Little Rock
Memphis, TN-AR-MS
Pine Bluff
Texarkana, AR-TX

California

Antioch-Pittsburgh
Bakersfield
Chico
Davis
Fairfield
Fresno
Hemet-San Jacinto
Hesperia-Apple Valley-Victorville
Indio-Coachella
Lancaster-Palmdale
Lodi
Lompoc
Los Angeles
Merced
Modesto
Napa
Oxnard-Ventura
Palm Springs
Redding
Riverside-San Bernardino
Sacramento
Salinas
San Diego
San Francisco-Oakland
San Jose
San Luis Obispo
Santa Barbara
Santa Cruz
Santa Maria
Santa Rosa
Seaside-Monterey
Simi Valley
Stockton
Vacaville
Visalia
Watsonville
Yuba City
Yuma

Colorado

Boulder
Colorado Springs
Denver
Fort Collins
Grand Junction
Greeley
Longmont
Pueblo

Connecticut

Bridgeport-Milford
Bristol
Danbury, CT-NY
Hartford-Middletown
New Britain
New Haven-Meriden
New London-Norwich
Norwalk
Springfield, MA-CT
Stamford, CT-NY
Waterbury
Worcester, MA-CT

Delaware

Dover
Wilmington, DE-NJ-MD-PA

District of Columbia

Washington, DC-MD-VA

Florida

Daytona Beach
Deltona
Fort Lauderdale-Hollywood-Pompano Beach
Fort Myers-Cape Coral
Fort Pierce
Fort Walton Beach
Gainesville
Jacksonville
Kissimmee
Lakeland
Melbourne-Palm Bay
Miami-Hialeah
Naples
Ocala
Orlando
Panama City
Pensacola
Punta Gorda
Sarasota-Bradenton
Spring Hill
Stuart
Tallahassee
Tampa-St. Petersburg-Clearwater
Titusville
Vero Beach
West Palm Beach-Boca Raton-Delray Beach
Winter Haven

Georgia

Albany
Athens
Atlanta
Augusta
Brunswick
Chattanooga
Columbus
Macon
Rome
Savannah
Warner Robins

Hawaii

Honolulu
Kailua

Idaho

Boise City
Idaho Falls
Pocatello

Illinois

Alton
Aurora
Beloit, WI-IL
Bloomington-Normal
Champaign-Urbana
Chicago, IL-Northwestern IN
Crystal Lake
Davenport-Rock Island-Moline, IA-IL
Decatur
Dubuque
Elgin
Joliet
Kankakee
Peoria
Rockford
Round Lake Beach-McHenry, IL-WI
St. Louis, MO-IL
Springfield

Indiana

Anderson
Bloomington
Chicago, IL-Northwestern IN
Elkhart-Goshen
Evansville, IN-KY
Fort Wayne
Indianapolis
Kokomo
Lafayette-West Lafayette
Louisville, KY-IN
Muncie
South Bend-Mishawaka, IN-MI
Terre Haute

Iowa

Cedar Rapids
Davenport-Rock Island-Moline, IA-IL
Des Moines
Dubuque, IA-IL-WI
Iowa City
Omaha, NE-IA
Sioux City, IA-NE-SD
Waterloo-Cedar Falls

Kansas

Kansas City, MO-KS
Lawrence
St. Joseph, MO-KS
Topeka
Wichita

Kentucky

Cincinnati, OH-KY
Clarksville, TN-KY
Evansville, IN-KY
Huntington-Ashland, WV-KY-OH
Lexington-Fayette
Louisville, KY-IN
Owensboro

Louisiana

Alexandria
Baton Rouge
Houma
Lafayette
Lake Charles
Monroe
New Orleans
Shreveport

[[Page 68806]]

Slidell

Maine

Bangor
Lewiston-Auburn
Portland
Portsmouth-Dover-Rochester, NH-ME

Maryland

Annapolis
Baltimore
Cumberland
Frederick
Hagerstown, MD-PA-WV
Washington, DC-MD-VA
Wilmington, DE-NJ-MD-PA

Massachusetts

Boston
Brockton
Fall River, MA-RI
Fitchburg-Leominster
Hyannis
Lawrence-Haverhill, MA-NH
Lowell, MA-NH
New Bedford
Pittsfield
Providence-Pawtucket, RI-MA
Springfield, MA-CT
Taunton
Worcester, MA-CT

Michigan

Ann Arbor
Battle Creek
Bay City
Benton Harbor
Detroit
Flint
Grand Rapids
Holland
Jackson
Kalamazoo
Lansing-East Lansing
Muskegon
Port Huron
Saginaw
South Bend-Mishawaka, IN-MI
Toledo, OH-MI

Minnesota

Duluth, MN-WI
Fargo-Moorhead, ND-MN
Grand Forks, ND-MN
La Crosse, WI-MN
Minneapolis-St.Paul
Rochester
St. Cloud

Mississippi

Biloxi-Gulfport
Hattiesburg
Jackson
Memphis, TN-AR-MS
Pascagoula

Missouri

Columbia
Joplin
Kansas City, MO-KS
St. Joseph, MO-KS
St. Louis, MO-IL
Springfield

Montana

Billings
Great Falls
Missoula

Nebraska

Lincoln
Omaha, NE-IA
Sioux City, IA-NE-SD

Nevada

Las Vegas
Reno

New Hampshire

Lawrence-Haverhill, MA-NH
Lowell, MA-NH
Manchester
Nashua
Portsmouth-Dover-Rochester, NH-ME

New Jersey

Allentown-Bethlehem-Easton, PA-NJ
Atlantic City
New York, NY-Northeastern NJ
Philadelphia, PA-NJ
Trenton, NJ-PA
Vineland-Millville
Wilmington, DE-NJ-MD-PA

New Mexico

Albuquerque
El Paso
Las Cruces
Santa Fe

New York

Albany-Schenectady-Troy
Binghamton
Buffalo-Niagara Falls
Danbury, CT-NY
Elmira
Glens Falls
Ithaca
Newburgh
New York, NY-Northeastern NJ
Poughkeepsie
Rochester
Stamford, CT-NY
Syracuse
Utica-Rome

North Carolina

Asheville
Burlington
Charlotte
Durham
Fayetteville
Gastonia
Goldsboro
Greensboro
Greenville
Hickory
High Point
Jacksonville
Kannapolis
Raleigh
Rocky Mount
Wilmington
Winston-Salem

North Dakota

Bismark
Fargo-Moorhead, ND-MN
Grand Forks, ND-MN

Ohio

Akron
Canton
Cincinnati, OH-KY
Cleveland
Columbus
Dayton
Hamilton
Huntington-Ashland, WV-KY-OH
Lima
Lorain-Elyria
Mansfield
Middletown
Newark
Parkersburg, WV-OH
Sharon, PA-OH
Springfield
Steubenville-Weirton, OH-WV-PA
Toledo, OH-MI
Wheeling, WV-OH
Youngstown-Warren

Oklahoma

Fort Smith, AR-OK
Lawton
Oklahoma City
Tulsa

Oregon

Eugene-Springfield
Longview
Medford
Portland-Vancouver, OR-WA
Salem

Pennsylvania

Allentown-Bethlehem-Easton, PA-NJ
Altoona
Erie
Hagerstown, MD-PA-WV
Harrisburg
Johnstown
Lancaster
Monessen
Philadelphia, PA-NJ
Pittsburgh
Pottstown
Reading
Scranton-Wilkes-Barre
Sharon, PA-OH
State College
Steubenville-Weirton, OH-WV-PA
Trenton, NJ-PA
Williamsport
Wilmington, DE-NJ-MD-PA
York

Rhode Island

Fall River, MA-RI
Newport
Providence-Pawtucket, RI-MA

South Carolina

Anderson
Augusta, GA-SC
Charleston
Columbia
Florence
Greenville
Myrtle Beach
Rock Hill
Spartanburg
Sumter

South Dakota

Rapid City
Sioux City, IA-NE-SD
Sioux Falls

Tennessee

Bristol, TN-Bristol, VA

[[Page 68807]]

Chattanooga, TN-GA
Clarksville, TN-KY
Jackson
Johnson City
Kingsport, TN-VA
Knoxville
Memphis, TN-AR-MS
Nashville

Texas

Abilene
Amarillo
Austin
Beaumont
Brownsville
Bryan-College Station
Corpus Christi
Dallas-Fort Worth
Denton
El Paso, TX-NM
Galveston
Harlingen
Houston
Killeen
Laredo
Lewisville
Longview
Lubbock
McAllen-Edinburg-Mission
Midland
Odessa
Port Arthur
San Angelo
San Antonio
Sherman-Denison
Temple
Texarkana, TX-Texarkana, AR
Texas City
Tyler
Victoria
Waco
Wichita Falls

Utah

Logan
Ogden
Provo-Orem
Salt Lake City

Vermont

Burlington

Virginia

Bristol, TN-Bristol, VA
Charlottesville
Danville
Fredericksburg
Kingsport, TN-VA
Lynchburg
Norfolk-Virginia Beach-Newport News
Petersburg
Richmond
Roanoke
Washington, DC-MD-VA

Washington

Bellingham
Bremerton
Longview, WA-OR
Olympia
Portland-Vancouver, OR-WA
Richland-Kennewick-Pasco
Seattle
Spokane
Tacoma
Yakima

West Virginia

Charleston
Cumberland, MD-WV
Hagerstown, MD-PA-WV
Huntington-Ashland, WV-KY-OH
Parkersburg, WV-OH
Steubenville-Weirton, OH-WV-PA
Wheeling, WV-OH

Wisconsin

Appleton-Neenah
Beloit, WI-IL
Duluth, MN-WI
Eau Claire
Green Bay
Janesville
Kenosha
La Crosse, WI-MN
Madison
Milwaukee
Oshkosh
Racine
Round Lake Beach-McHenry, IL-WI
Sheboygan
Wausau

Wyoming

Casper
Cheyenne

Puerto Rico

Aquadilla
Arecibo
Caguas
Cayey
Humacao
Mayaguez
Ponce
San Juan
Vega Baja-Manati

BILLING CODE 6560-50-P

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Appendix 4 to the Preamble--No Exposure Certification Form
[GRAPHIC] [TIFF OMITTED] TR08DE99.003


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[GRAPHIC] [TIFF OMITTED] TR08DE99.002



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[GRAPHIC] [TIFF OMITTED] TR08DE99.005


BILLING CODE 6560-50-C

Appendix 5 to Preamble--Regulatory Flexibility for Small Entities

A. Regulatory Flexibility for Small Municipal Storm Sewer Systems 
(MS4s)

Different Compliance, Reporting, or Timetables That Are Responsive 
to Resources of Small Entities

    NPDES permitting authorities can issue general permits instead 
of requiring individual permits. This flexibility avoids the high 
application costs and administrative burden associated with 
individual permits.
    NPDES permitting authorities can specify a time period of up to 
five years for small MS4s to fully develop and implement their 
program
    Analytic monitoring is not required.
    After the first permit term and subsequent permit terms, 
submittal of a summary report is only required in years two and four 
(Phase I municipalities are currently required to submit a detailed 
report each year).
    A brief reporting format is encouraged to facilitate compiling 
and analyzing data from submitted reports. EPA intends to develop a 
model form for this purpose.
    NPDES Permitting Authorities can phase in permit coverage for 
small MS4s serving jurisdictions with a population under 10,000 on a 
schedule consistent with a State watershed permitting approach.

Clarifying, Consolidating, or Simplifying Compliance and Reporting 
Requirements

    The rule avoids duplication in permit requirements by allowing 
NPDES permitting authorities to include permit conditions that 
direct an MS4 to follow the requirements of a qualifying local 
program rather than the requirements of a minimum measure. 
Compliance with these programs is considered compliance with the 
NPDES general permit.
    The rule allows NPDES permitting authorities to recognize 
existing responsibilities among different municipal entities to 
satisfy obligations for the minimum control measures.
    A further alternative allows a small MS4 to satisfy its NPDES 
permit obligations if another governmental entity is already 
implementing a minimum control measure in the jurisdiction of the 
small MS4. The following conditions must be met:
    1. The other entity is implementing the control measure,
    2. The particular control measure (or component thereof) is at 
least as stringent as the corrersponding NPDES permit requirement, 
and
    3. The other entity agrees to implement the control measure on 
your behalf.
    The rule allows a covered small MS4 to ``piggy-back'' on to the 
storm water management program of an adjoining Phase I MS4. A small 
MS4 is waived from the application requirements of 
Sec. 122.26(d)(1)(iii), (iv) and (d)(2)(iii) [discharge 
characterization] and may satisfy the requirements of 
Sec. 122.26(d)(1)(v) and (d)(2)(iv) [identifying a management plan] 
by referencing the adjoining Phase I MS4's storm water management 
plan.
    The rule accommodates the use of the watershed approach through 
NPDES general permits that could be issued on a watershed basis. The 
small MS4 can develop measures that are tailored to meet their 
watershed requirements. The small MS4's storm water management 
program can tie into watershed-wide plans.

Performance Rather Than Design Standards for Small Entities

    Small governmental jurisdictions whose MS4s are covered by this 
rule are allowed to choose the best management practices (BMPs) to 
be implemented and the measurable goals for each of the minimum 
control measures:
    1. Public education and outreach on storm water impacts
    2. Public Involvement/Participation
    3. Illicit discharge detection and elimination

[[Page 68812]]

    4. Construction site storm water runoff control
    5. Post-construction storm water management in new development 
and redevelopment
    6. Pollution prevention/good housekeeping for municipal 
operations
    EPA will provide guidance and recommend, but not mandate, 
certain BMPs for some of the minimum control measures listed above. 
States can provide guidance to supplement or supplant EPA guidance.
    Small MS4s can identify the measurable goals for each of the 
minimum control measures listed above. In their reports to the NPDES 
permitting authority, the small MS4s must evaluate their progress 
towards achievement of their identified measurable goals.

Waivers for Small Entities From Coverage

    The rule allows permitting authorities to waive from coverage 
MS4s operated by small governmental jurisdictions located within an 
urbanized area and serving a population less than 1,000 people where 
the permitting authority has determined the MS4 is not contributing 
substantially to the pollutant loadings of an interconnected MS4 
and, if the MS4 discharges pollutants that have been identified as a 
cause of impairment in the receiving water of the MS4 then the 
permitting authority has determined that storm water controls are 
not needed based on a TMDL that addresses the pollutants of concern.
    The rule allows the permitting authority to waive from coverage 
MS4s serving a population under 10,000 where the permitting 
authority has evaluated all waters that receive a discharge from the 
MS4 and the permitting authority has determined that storm water 
controls are not needed based on a TMDL that addresses the 
pollutants of concern and future discharges do not have the 
potential to result in exceedances of water quality standards.

B. Regulatory Flexibility for Small Construction Activities

Different Compliance, Reporting, or Timetables That Are Responsive 
to Resources of Small Entities

    The rule gives NPDES permitting authorities discretion not to 
require the submittal of a notice of intent (NOI) for coverage under 
a NPDES general permit, thereby reducing administrative and 
financial burden. All construction sites disturbing greater than 5 
acres must submit an NOI.

Clarifying, Consolidating, or Simplifying Compliance and Reporting 
Requirements

    The rule avoids duplication by allowing the NPDES permitting 
authority to incorporate by reference State, Tribal, or local 
programs under a NPDES general permit. Compliance with these 
programs is considered compliance with the NPDES general permit.

Performance Rather Than Design Standards for Small Entities

    The operator of a covered construction activity selects and 
implement the BMPs most appropriate for the construction site based 
on the operator's storm water pollution prevention plan.

Waivers for Small Entities From Coverage

    Waivers could be granted based on the use of a rainfall 
erosivity factor or a comprehensive analysis of water quality 
impacts.
    (A) Low rainfall waiver: When the rainfall erosivity factor 
(``R'' from Revised Universal Soil Loss Equation) is less than 5 
during the period of construction activity, a permit is not 
required.
    (B) Determination based on Water Quality Analysis: The NPDES 
permitting authority can waive from coverage construction activities 
disturbing from 1 acre up to 5 acres of land where storm water 
controls are not needed based on:
    1. A TMDL approved or established by EPA that addresses the 
pollutants of concern, or
    2. For non-impaired waters, an equivalent analysis that 
determines that such allocations are not needed to protect water 
quality based on consideration of existing in-stream concentrations, 
expected growth in pollutant contributions from all sources, and a 
margin of safety.

C. Regulatory Flexibility for Industrial/Commercial Facilities

Waivers for Small Entities From Coverage

    The rule provides a ``no-exposure'' waiver provision for Phase I 
industrial/commercial facilities. Qualifying facilities seeking this 
provision simply need to complete a self-certification form 
indicating that no industrial materials or activities are exposed to 
rain, snow, snow melt and/or runoff.

Appendix 6 of Preamble--Governmental Entities Located Fully or 
Partially Within an Urbanized Area

    (This is a reference list only, not a list of all operators of 
small MS4s subject to Secs. 122.32-122.36. For example, a listed 
governmental entity is only regulated if it operates a small MS4 
within an ``urbanized area'' boundary as determined by the Bureau of 
the Census. Furthermore, entities such as military bases, large 
hospitals, prison complexes, universities, sewer districts, and 
highway departments that operate a small MS4 within an urbanized 
area are also subject to the permitting regulations but are not 
individually listed here. See Sec. 122.26(b)(16) for the definition 
of a small MS4 and Sec. 122.32(a) for the definition of a regulated 
small MS4.)
    (Source: 1990 Census of Population and Housing, U.S. Bureau of 
the Census. This list is subject to change with the Decennial 
Census)
AL  Anniston city
AL  Attalla city
AL  Auburn city
AL  Autauga County
AL  Blue Mountain town
AL  Calhoun County
AL  Colbert County
AL  Dale County
AL  Decatur city
AL  Dothan city
AL  Elmore County
AL  Etowah County
AL  Flint City town
AL  Florence city
AL  Gadsden city
AL  Glencoe city
AL  Grimes town
AL  Hartselle city
AL  Hobson City town
AL  Hokes Bluff city
AL  Houston County
AL  Kinsey town
AL  Lauderdale County
AL  Lee County
AL  Limestone County
AL  Madison County
AL  Midland City town
AL  Montgomery County
AL  Morgan County
AL  Muscle Shoals city
AL  Napier Field town
AL  Northport city
AL  Opelika city
AL  Oxford city
AL  Phenix City city
AL  Prattville city
AL  Priceville town
AL  Rainbow City city
AL  Russell County
AL  Sheffield city
AL  Southside city
AL  Sylvan Springs town
AL  Talladega County
AL  Tuscaloosa city
AL  Tuscaloosa County
AL  Tuscumbia city
AL  Weaver city
AR  Alexander town
AR  Barling city
AR  Benton County
AR  Cammack Village city
AR  Crawford County
AR  Crittenden County
AR  Farmington city
AR  Fayetteville city
AR  Fort Smith city
AR  Greenland town
AR  Jacksonville city
AR  Jefferson County
AR  Johnson city
AR  Marion city
AR  Miller County
AR  North Little Rock city
AR  Pine Bluff city
AR  Pulaski County
AR  Saline County
AR  Sebastian County
AR  Shannon Hills city
AR  Sherwood city
AR  Springdale city
AR  Sunset town
AR  Texarkana city
AR  Van Buren city
AR  Washington County
AR  West Memphis city
AR  White Hall city
AZ  Apache Junction city
AZ  Chandler city
AZ  El Mirage town
AZ  Gilbert town
AZ  Guadalupe town
AZ  Maricopa County
AZ  Oro Valley town
AZ  Paradise Valley town
AZ  Peoria city
AZ  Pinal County

[[Page 68813]]

AZ  South Tucson city
AZ  Surprise town
AZ  Tolleson city
AZ  Youngtown town
AZ  Yuma city
AZ  Yuma County
CA  Apple Valley town
CA  Belvedere city
CA  Benicia city
CA  Brentwood city
CA  Butte County
CA  Capitola city
CA  Carmel-by-the-Sea city
CA  Carpinteria city
CA  Ceres city
CA  Chico city
CA  Compton city
CA  Corte Madera town
CA  Cotati city
CA  Davis city
CA  Del Rey Oaks city
CA  Fairfax town
CA  Hesperia city
CA  Imperial County
CA  Lakewood city
CA  Lancaster city
CA  Larkspur city
CA  Lodi city
CA  Lompoc city
CA  Marin County
CA  Marina city
CA  Marysville city
CA  Merced city
CA  Merced County
CA  Mill Valley city
CA  Monterey city
CA  Monterey County
CA  Morgan Hill city
CA  Napa city
CA  Napa County
CA  Novato city
CA  Pacific Grove city
CA  Palm Desert city
CA  Palmdale city
CA  Piedmont city
CA  Placer County
CA  Redding city
CA  Rocklin city
CA  Rohnert Park city
CA  Roseville city
CA  Ross town
CA  San Anselmo town
CA  San Buenaventura (Ventura) city
CA  San Francisco city
CA  San Joaquin County
CA  San Luis Obispo city
CA  San Luis Obispo County
CA  San Rafael city
CA  Sand City city
CA  Santa Barbara city
CA  Santa Barbara County
CA  Santa Cruz city
CA  Santa Cruz County
CA  Santa Maria city
CA  Sausalito city
CA  Scotts Valley city
CA  Seaside city
CA  Shasta County
CA  Solano County
CA  Sonoma County
CA  Stanislaus County
CA  Suisun City city
CA  Sutter County
CA  Tiburon town
CA  Tulare County
CA  Vacaville city
CA  Victorville city
CA  Villa Park city
CA  Visalia city
CA  Watsonville city
CA  West Sacramento city
CA  Yolo County
CA  Yuba City city
CA  Yuba County
CO  Adams County
CO  Arvada city
CO  Boulder city
CO  Boulder County
CO  Bow Mar town
CO  Broomfield city
CO  Cherry Hills Village city
CO  Columbine Valley town
CO  Commerce City city
CO  Douglas County
CO  Edgewater city
CO  El Paso County
CO  Englewood city
CO  Evans city
CO  Federal Heights city
CO  Fort Collins city
CO  Fountain city
CO  Garden City town
CO  Glendale city
CO  Golden city
CO  Grand Junction city
CO  Greeley city
CO  Greenwood Village city
CO  Jefferson County
CO  La Salle town
CO  Lakeside town
CO  Larimer County
CO  Littleton city
CO  Longmont city
CO  Manitou Springs city
CO  Mesa County
CO  Mountain View town
CO  Northglenn city
CO  Pueblo city
CO  Pueblo County
CO  Sheridan city
CO  Thornton city
CO  Weld County
CO  Westminster city
CO  Wheat Ridge city
CT  Ansonia city
CT  Avon town
CT  Beacon Falls town
CT  Berlin town
CT  Bethel town
CT  Bloomfield town
CT  Bozrah town
CT  Branford town
CT  Bridgeport city
CT  Bristol city
CT  Brookfield town
CT  Burlington town
CT  Cheshire town
CT  Cromwell town
CT  Danbury city
CT  Darien town
CT  Derby city
CT  Durham town
CT  East Granby town
CT  East Hartford town
CT  East Haven town
CT  East Lyme town
CT  East Windsor town
CT  Easton town
CT  Ellington town
CT  Enfield town
CT  Fairfield County
CT  Fairfield town
CT  Farmington town
CT  Franklin town
CT  Glastonbury town
CT  Greenwich town
CT  Groton city
CT  Groton town
CT  Guilford town
CT  Hamden town
CT  Hartford city
CT  Hartford County
CT  Ledyard town
CT  Lisbon town
CT  Litchfield County
CT  Manchester town
CT  Meriden city
CT  Middlebury town
CT  Middlefield town
CT  Middlesex County
CT  Middletown city
CT  Milford city (remainder)
CT  Monroe town
CT  Montville town
CT  Naugatuck borough
CT  New Britain city
CT  New Canaan town
CT  New Fairfield town
CT  New Haven city
CT  New Haven County
CT  New London city
CT  New London County
CT  New Milford town
CT  Newington town
CT  Newtown town
CT  North Branford town
CT  North Haven town
CT  Norwalk city
CT  Norwich city
CT  Orange town
CT  Oxford town
CT  Plainville town
CT  Plymouth town
CT  Portland town
CT  Preston town
CT  Prospect town
CT  Rocky Hill town
CT  Seymour town
CT  Shelton city
CT  Sherman town
CT  Somers town
CT  South Windsor town
CT  Southington town
CT  Sprague town
CT  Stonington town
CT  Stratford town
CT  Suffield town
CT  Thomaston town
CT  Thompson town
CT  Tolland County
CT  Tolland town
CT  Trumbull town
CT  Vernon town
CT  Wallingford town
CT  Waterbury city
CT  Waterford town
CT  Watertown town
CT  West Hartford town
CT  West Haven city
CT  Weston town
CT  Westport town
CT  Wethersfield town
CT  Wilton town
CT  Windham County
CT  Windsor Locks town
CT  Windsor town
CT  Wolcott town
CT  Woodbridge town

[[Page 68814]]

CT  Woodmont borough
DE  Camden town
DE  Dover city
DE  Kent County
DE  Newark city
DE  Wyoming town
FL  Alachua County
FL  Baldwin town
FL  Bay County
FL  Belleair Shore town
FL  Biscayne Park village
FL  Brevard County
FL  Callaway city
FL  Cape Canaveral city
FL  Cedar Grove town
FL  Charlotte County
FL  Cinco Bayou town
FL  Clay County
FL  Cocoa Beach city
FL  Cocoa city
FL  Collier County
FL  Daytona Beach city
FL  Daytona Beach Shores city
FL  Destin city
FL  Edgewater city
FL  El Portal village
FL  Florida City city
FL  Fort Pierce city
FL  Fort Walton Beach city
FL  Gainesville city
FL  Gulf Breeze city
FL  Hernando County
FL  Hillsboro Beach town
FL  Holly Hill city
FL  Indialantic town
FL  Indian Harbour Beach city
FL  Indian River County
FL  Indian River Shores town
FL  Indian Shores town
FL  Kissimmee city
FL  Lazy Lake village
FL  Lynn Haven city
FL  Malabar town
FL  Marion County
FL  Martin County
FL  Mary Esther city
FL  Melbourne Beach town
FL  Melbourne city
FL  Melbourne Village town
FL  Naples city
FL  New Smyrna Beach city
FL  Niceville city
FL  Ocala city
FL  Ocean Breeze Park town
FL  Okaloosa County
FL  Orange Park town
FL  Ormond Beach city
FL  Osceola County
FL  Palm Bay city
FL  Panama City city
FL  Parker city
FL  Ponce Inlet town
FL  Port Orange city
FL  Port St. Lucie city
FL  Punta Gorda city
FL  Rockledge city
FL  Santa Rosa County
FL  Satellite Beach city
FL  Sewall's Point town
FL  Shalimar town
FL  South Daytona city
FL  Springfield city
FL  St. Johns County
FL  St. Lucie County
FL  St. Lucie village
FL  Stuart city
FL  Sweetwater city
FL  Titusville city
FL  Valparaiso city
FL  Vero Beach city
FL  Virginia Gardens village
FL  Volusia County
FL  Walton County
FL  Weeki Wachee city
FL  West Melbourne city
FL  Windermere town
GA  Albany city
GA  Athens city
GA  Bartow County
GA  Brunswick city
GA  Catoosa County
GA  Centerville city
GA  Chattahoochee County
GA  Cherokee County
GA  Chickamauga city
GA  Clarke County
GA  Columbia County
GA  Conyers city
GA  Dade County
GA  Dougherty County
GA  Douglas County
GA  Douglasville city
GA  Fayette County
GA  Floyd County
GA  Fort Oglethorpe city
GA  Glynn County
GA  Grovetown city
GA  Henry County
GA  Houston County
GA  Jones County
GA  Lee County
GA  Lookout Mountain city
GA  Mountain Park city
GA  Oconee County
GA  Payne city
GA  Rockdale County
GA  Rome city
GA  Rossville city
GA  Stockbridge city
GA  Vernonburg town
GA  Walker County
GA  Warner Robins city
GA  Winterville city
GA  Woodstock city
IA  Altoona city
IA  Asbury city
IA  Bettendorf city
IA  Black Hawk County
IA  Buffalo city
IA  Carter Lake city
IA  Cedar Falls city
IA  Clive city
IA  Coralville city
IA  Council Bluffs city
IA  Dallas County
IA  Dubuque city
IA  Dubuque County
IA  Elk Run Heights city
IA  Evansdale city
IA  Hiawatha city
IA  Iowa City city
IA  Johnson County
IA  Johnston city
IA  Le Claire city
IA  Linn County
IA  Marion city
IA  Norwalk city
IA  Panorama Park city
IA  Pleasant Hill city
IA  Polk County
IA  Pottawattamie County
IA  Raymond city
IA  Riverdale city
IA  Robins city
IA  Scott County
IA  Sergeant Bluff city
IA  Sioux City city
IA  University Heights city
IA  Urbandale city
IA  Warren County
IA  Waterloo city
IA  West Des Moines city
IA  Windsor Heights city
IA  Woodbury County
ID  Ada County
ID  Ammon city
ID  Bannock County
ID  Bonneville County
ID  Chubbuck city
ID  Idaho Falls city
ID  Iona city
ID  Pocatello city
ID  Power County
IL  Addison township
IL  Addison village
IL  Algonquin township
IL  Algonquin village
IL  Alorton village
IL  Alsip village
IL  Alton city
IL  Antioch township
IL  Antioch village
IL  Arlington Heights village
IL  Aroma Park village
IL  Aroma township
IL  Aurora city
IL  Aurora township
IL  Avon township
IL  Ball township
IL  Bannockburn village
IL  Barrington township
IL  Barrington village
IL  Bartlett village
IL  Bartonville village
IL  Batavia city
IL  Batavia township
IL  Beach Park village
IL  Bedford Park village
IL  Belleville city
IL  Bellevue village
IL  Bellwood village
IL  Bensenville village
IL  Benton township
IL  Berkeley village
IL  Berwyn city
IL  Bethalto village
IL  Blackhawk township
IL  Bloom township
IL  Bloomingdale township
IL  Bloomingdale village
IL  Bloomington city
IL  Bloomington township
IL  Blue Island city
IL  Bolingbrook village
IL  Bourbonnais township
IL  Bourbonnais village
IL  Bowling township
IL  Bradley village
IL  Bremen township
IL  Bridgeview village
IL  Bristol township
IL  Broadview village
IL  Brookfield village
IL  Brooklyn village
IL  Buffalo Grove village
IL  Burbank city
IL  Burnham village
IL  Burr Ridge village

[[Page 68815]]

IL  Burritt township
IL  Burton township
IL  Cahokia village
IL  Calumet City city
IL  Calumet Park village
IL  Calumet township
IL  Canteen township
IL  Capital township
IL  Carbon Cliff village
IL  Carol Stream village
IL  Carpentersville Village
IL  Cary village
IL  Caseyville township
IL  Caseyville village
IL  Centreville city
IL  Centreville township
IL  Champaign city
IL  Champaign County
IL  Champaign township
IL  Channahon township
IL  Cherry Valley township
IL  Cherry Valley village
IL  Chicago city
IL  Chicago Heights city
IL  Chicago Ridge village
IL  Chouteau township
IL  Cicero town
IL  Cincinnati township
IL  Clarendon Hills village
IL  Coal Valley township
IL  Coal Valley village
IL  Collinsville city
IL  Collinsville township
IL  Colona township
IL  Colona village
IL  Columbia city
IL  Country Club Hills city
IL  Countryside city
IL  Crest Hill city
IL  Crestwood village
IL  Crete township
IL  Crete village
IL  Creve Coeur village
IL  Crystal Lake city
IL  Cuba township
IL  Curran township
IL  Darien city
IL  Decatur city
IL  Decatur township
IL  Deer Park village
IL  Deerfield township
IL  Deerfield village
IL  Des Plaines city
IL  Dixmoor village
IL  Dolton village
IL  Dorr township
IL  Downers Grove township
IL  Downers Grove village
IL  Dry Grove township
IL  Du Page township
IL  Dundee township
IL  Dunleith township
IL  Dupo village
IL  East Alton village
IL  East Dubuque city
IL  East Dundee village
IL  East Hazel Crest village
IL  East Moline city
IL  East Peoria city
IL  East St. Louis city
IL  Edwardsville city
IL  Edwardsville township
IL  Ela township
IL  Elgin city
IL  Elgin township
IL  Elk Grove township
IL  Elk Grove Village village
IL  Elm Grove township
IL  Elmhurst city
IL  Elmwood Park village
IL  Evanston city
IL  Evergreen Park village
IL  Fairmont City village
IL  Fairview Heights city
IL  Flossmoor village
IL  Fondulac township
IL  Ford Heights village
IL  Forest Park village
IL  Forest View village
IL  Forsyth village
IL  Fort Russell township
IL  Foster township
IL  Fox Lake village
IL  Fox River Grove village
IL  Frankfort township
IL  Frankfort village
IL  Franklin Park village
IL  Fremont township
IL  Gardner township
IL  Geneva city
IL  Geneva township
IL  Gilberts village
IL  Glen Carbon village
IL  Glen Ellyn village
IL  Glencoe village
IL  Glendale Heights village
IL  Glenview village
IL  Glenwood village
IL  Godfrey township
IL  Golf village
IL  Grafton township
IL  Grandview village
IL  Granite City city
IL  Grant township
IL  Grayslake village
IL  Green Oaks village
IL  Green Rock city
IL  Groveland township
IL  Gurnee village
IL  Hainesville village
IL  Hampton township
IL  Hampton village
IL  Hanna township
IL  Hanover Park village
IL  Hanover township
IL  Harlem township
IL  Harristown township
IL  Harristown village
IL  Hartford village
IL  Harvey city
IL  Harwood Heights village
IL  Hawthorn Woods village
IL  Hazel Crest village
IL  Henry County
IL  Hensley township
IL  Hickory Hills city
IL  Hickory Point township
IL  Highland Park city
IL  Highwood city
IL  Hillside village
IL  Hinsdale village
IL  Hodgkins village
IL  Hoffman Estates village
IL  Hollis township
IL  Homer township
IL  Hometown city
IL  Homewood village
IL  Indian Creek village
IL  Indian Head Park village
IL  Inverness village
IL  Itasca village
IL  Jarvis township
IL  Jerome village
IL  Jo Daviess County
IL  Joliet city
IL  Joliet township
IL  Justice village
IL  Kane County
IL  Kankakee city
IL  Kankakee County
IL  Kankakee township
IL  Kendall County
IL  Kenilworth village
IL  Kickapoo township
IL  Kildeer village
IL  La Grange Park village
IL  La Grange village
IL  Lake Barrington village
IL  Lake Bluff village
IL  Lake Forest city
IL  Lake in the Hills village
IL  Lake Villa township
IL  Lake Villa village
IL  Lake Zurich village
IL  Lakemoor village
IL  Lakewood village
IL  Lansing village
IL  Leland Grove city
IL  Lemont township
IL  Leyden township
IL  Libertyville township
IL  Libertyville village
IL  Limestone township
IL  Lincolnshire village
IL  Lincolnwood village
IL  Lindenhurst village
IL  Lisle township
IL  Lisle village
IL  Lockport city
IL  Lockport township
IL  Lombard village
IL  Long Creek township
IL  Long Grove village
IL  Loves Park city
IL  Lynwood village
IL  Lyons township
IL  Lyons village
IL  Machesney Park village
IL  Macon County
IL  Madison city
IL  Madison County
IL  Maine township
IL  Markham city
IL  Marquette Heights city
IL  Maryville village
IL  Matteson village
IL  Maywood village
IL  McCook village
IL  McCullom Lake village
IL  McHenry city
IL  McHenry County
IL  McHenry township
IL  McLean County
IL  Medina township
IL  Melrose Park village
IL  Merrionette Park village
IL  Midlothian village
IL  Milan village
IL  Milton township
IL  Moline city
IL  Moline township
IL  Monee township
IL  Monroe County
IL  Montgomery village
IL  Moro township
IL  Morton Grove village
IL  Morton township
IL  Morton village

[[Page 68816]]

IL  Mount Prospect village
IL  Mount Zion township
IL  Mount Zion village
IL  Mundelein village
IL  Nameoki township
IL  Naperville city
IL  Naperville township
IL  National City village
IL  New Lenox township
IL  New Lenox village
IL  New Millford village
IL  New Trier township
IL  Newport township
IL  Niles township
IL  Niles village
IL  Normal town
IL  Normal township
IL  Norridge village
IL  North Aurora village
IL  North Barrington village
IL  North Chicago city
IL  North Pekin village
IL  North Riverside village
IL  Northbrook village
IL  Northfield township
IL  Northfield village
IL  Northlake city
IL  Norwood Park township
IL  Norwood village
IL  Nunda township
IL  Oak Brook village
IL  Oak Forest city
IL  Oak Grove village
IL  Oak Lawn village
IL  Oak Park village
IL  Oakbrook Terrace city
IL  Oakley township
IL  Oakwood Hills village
IL  O'Fallon city
IL  O'Fallon township
IL  Olympia Fields village
IL  Orland Hills village
IL  Orland Park village
IL  Orland township
IL  Oswego township
IL  Oswego village
IL  Otto township
IL  Owen township
IL  Palatine township
IL  Palatine village
IL  Palos Heights city
IL  Palos Hills city
IL  Palos Park village
IL  Palos township
IL  Park City city
IL  Park Forest village
IL  Park Ridge city
IL  Pekin city
IL  Pekin township
IL  Peoria city
IL  Peoria County
IL  Peoria Heights village
IL  Phoenix village
IL  Pin Oak township
IL  Plainfield township
IL  Plainfield village
IL  Pontoon Beach village
IL  Posen village
IL  Precinct 10
IL  Prospect Heights city
IL  Proviso township
IL  Rich township
IL  Richton Park village
IL  Richwoods township
IL  River Forest village
IL  River Grove village
IL  Riverdale village
IL  Riverside township
IL  Riverside village
IL  Riverwoods village
IL  Robbins village
IL  Rochester township
IL  Rock Island city
IL  Rock Island County
IL  Rock Island township
IL  Rockdale village
IL  Rockford township
IL  Rockton township
IL  Rockton village
IL  Rolling Meadows city
IL  Romeoville village
IL  Roscoe township
IL  Roscoe village
IL  Roselle village
IL  Rosemont village
IL  Round Lake Beach village
IL  Round Lake Heights village
IL  Round Lake Park village
IL  Round Lake village
IL  Roxana village
IL  Rutland township
IL  Sangamon County
IL  Sauget village
IL  Sauk Village village
IL  Savoy village
IL  Schaumburg township
IL  Schaumburg village
IL  Schiller Park village
IL  Shields township
IL  Shiloh Valley township
IL  Shiloh village
IL  Shorewood village
IL  Silvis city
IL  Skokie village
IL  Sleepy Hollow village
IL  Somer township
IL  South Beloit city
IL  South Chicago Heights village
IL  South Elgin village
IL  South Holland village
IL  South Moline township
IL  South Rock Island township
IL  South Roxana village
IL  South Wheatland township
IL  Southern View village
IL  Spring Bay township
IL  Springfield city
IL  Springfield township
IL  St. Charles city
IL  St. Charles township
IL  St. Clair County
IL  St. Clair township
IL  Steger village
IL  Stickney township
IL  Stickney village
IL  Stites township
IL  Stone Park village
IL  Stookey township
IL  Streamwood village
IL  Sugar Grove township
IL  Sugar Loaf township
IL  Summit village
IL  Sunnyside village

IL  Swansea village
IL  Tazewell County
IL  Thornton township
IL  Thornton village
IL  Tinley Park village
IL  Tolono township
IL  Tower Lakes village
IL  Tremont township
IL  Troy city
IL  Troy township
IL  University Park village
IL  Urbana city
IL  Urbana township
IL  Venice city
IL  Venice township
IL  Vernon Hills village
IL  Vernon township
IL  Villa Park village
IL  Warren township
IL  Warrenville city
IL  Washington city
IL  Washington Park village
IL  Washington township
IL  Wauconda township
IL  Waukegan city
IL  Waukegan township
IL  Wayne township
IL  West Chicago city
IL  West Deerfield township
IL  West Dundee village
IL  West Peoria township
IL  Westchester village
IL  Western Springs village
IL  Westmont village
IL  Wheatland township
IL  Wheaton city
IL  Wheeling township
IL  Wheeling village
IL  Whitmore township
IL  Will County
IL  Willow Springs village
IL  Willowbrook village
IL  Wilmette village
IL  Winfield township
IL  Winfield village
IL  Winnebago County
IL  Winnetka village
IL  Winthrop Harbor village
IL  Wood Dale city
IL  Wood River city
IL  Wood River township
IL  Woodford County
IL  Woodridge village
IL  Woodside township
IL  Worth township
IL  Worth village
IL  York township
IL  Zion city
IN  Aboite township
IN  Adams township
IN  Allen County
IN  Anderson city
IN  Anderson township
IN  Baugo township
IN  Beech Grove city
IN  Bloomington city
IN  Bloomington township
IN  Boone County
IN  Buck Creek township
IN  Calumet township
IN  Carmel city
IN  Castleton town
IN  Cedar Creek township
IN  Center township
IN  Centre township
IN  Chesterfield town
IN  Chesterton town
IN  Clark County
IN  Clarksville town
IN  Clay township
IN  Clermont town
IN  Cleveland township
IN  Concord township
IN  Country Club Heights town

[[Page 68817]]

IN  Crown Point city
IN  Crows Nest town
IN  Cumberland town
IN  Daleville town
IN  Delaware County
IN  Delaware township
IN  Dyer town
IN  Eagle township
IN  East Chicago city
IN  Edgewood town
IN  Elkhart city
IN  Elkhart County
IN  Elkhart township
IN  Evansville city
IN  Fairfield township
IN  Fall Creek township
IN  Fishers town
IN  Floyd County
IN  Fort Wayne city
IN  Franklin township
IN  Gary city
IN  German township
IN  Goshen city
IN  Greenwood city
IN  Griffith town
IN  Hamilton County
IN  Hamilton township
IN  Hammond city
IN  Hancock County
IN  Hanover township
IN  Harris township
IN  Harrison township
IN  Hendricks County
IN  Highland town
IN  Hobart city
IN  Hobart township
IN  Homecroft town
IN  Honey Creek township
IN  Howard County
IN  Howard township
IN  Indian Village town
IN  Jackson township
IN  Jefferson township
IN  Jeffersonville city
IN  Jeffersonville township
IN  Johnson County
IN  Knight township
IN  Kokomo city
IN  Lafayette city
IN  Lafayette township
IN  Lake County
IN  Lake Station city
IN  Lawrence city
IN  Lawrence township
IN  Liberty township
IN  Lincoln township
IN  Lost Creek township
IN  Madison County
IN  Meridian Hills town
IN  Merrillville town
IN  Mishawaka city
IN  Monroe County
IN  Mount Pleasant township
IN  Muncie city
IN  Munster town
IN  New Albany city
IN  New Albany township
IN  New Chicago town
IN  New Haven city
IN  New Whiteland town
IN  Newburgh town
IN  North Crows Nest town
IN  North township
IN  Ogden Dunes town
IN  Ohio township
IN  Osceola town
IN  Osolo township
IN  Otter Creek township
IN  Penn township
IN  Perry township
IN  Pigeon township
IN  Pike township
IN  Pleasant township
IN  Portage city
IN  Portage township
IN  Porter County
IN  Porter town
IN  Richland township
IN  Riley township
IN  River Forest town
IN  Rocky Ripple town
IN  Roseland town
IN  Ross township
IN  Salem township
IN  Schererville town
IN  Seelyville town
IN  Sellersburg town
IN  Selma town
IN  Silver Creek township
IN  South Bend city
IN  Southport city
IN  Speedway town
IN  Spring Hill town
IN  St. John town
IN  St. John township
IN  St. Joseph County
IN  St. Joseph township
IN  Sugar Creek township
IN  Taylor township
IN  Terre Haute city
IN  Tippecanoe County
IN  Tippecanoe township
IN  Union township
IN  Utica township
IN  Van Buren township
IN  Vanderburgh County
IN  Vigo County
IN  Wabash township
IN  Warren Park town
IN  Warren township
IN  Warrick County
IN  Washington township
IN  Wayne township
IN  Wea township
IN  West Lafayette city
IN  West Terre Haute town
IN  Westchester township
IN  Westfield town
IN  White River township
IN  Whiteland town
IN  Whiting city
IN  Williams Creek town
IN  Woodlawn Heights town
IN  Wynnedale town
IN  Yorktown town
IN  Zionsville town
KS  Attica township
KS  Bel Aire city
KS  Countryside city
KS  Delano township
KS  Doniphan County
KS  Douglas County
KS  Eastborough city
KS  Elwood city
KS  Fairway city
KS  Gypsum township
KS  Haysville city
KS  Johnson County
KS  Kechi city
KS  Kechi township
KS  Lake Quivira city
KS  Lawrence city
KS  Leawood city
KS  Lenexa city
KS  Merriam city
KS  Minneha township
KS  Mission city
KS  Mission Hills city
KS  Mission township
KS  Mission Woods city
KS  Monticello township
KS  Ohio township
KS  Olathe city
KS  Olathe township
KS  Park City city
KS  Park township
KS  Prairie Village city
KS  Riverside township
KS  Roeland Park city
KS  Salem township
KS  Sedgwick County
KS  Shawnee city
KS  Shawnee County
KS  Shawnee township
KS  Soldier township
KS  Tecumseh township
KS  Topeka township
KS  Waco township
KS  Wakarusa township
KS  Washington township
KS  Westwood city
KS  Westwood Hills city
KS  Williamsport township
KS  Wyandotte County
KY  Alexandria city
KY  Ashland city
KY  Bellefonte city
KY  Bellevue city
KY  Boone County
KY  Boyd County
KY  Bromley city
KY  Bullitt County
KY  Campbell County
KY  Catlettsburg city
KY  Christian County
KY  Covington city
KY  Crescent Park city
KY  Crescent Springs city
KY  Crestview city
KY  Crestview Hills city
KY  Daviess County
KY  Dayton city
KY  Edgewood city
KY  Elsmere city
KY  Erlanger city
KY  Fairview city
KY  Flatwoods city
KY  Florence city
KY  Forest Hills city
KY  Fort Mitchell city
KY  Fort Thomas city
KY  Fort Wright city
KY  Fox Chase city
KY  Greenup County
KY  Hebron Estates city
KY  Henderson city
KY  Henderson County
KY  Highland Heights city
KY  Hillview city
KY  Hunters Hollow city
KY  Independence city
KY  Jessamine County
KY  Kenton County
KY  Kenton Vale city
KY  Lakeside Park city
KY  Latonia Lakes city
KY  Ludlow city
KY  Melbourne city

[[Page 68818]]

KY  Newport city
KY  Oak Grove city
KY  Owensboro city
KY  Park Hills city
KY  Pioneer Village city
KY  Raceland city
KY  Russell city
KY  Silver Grove city
KY  Southgate city
KY  Taylor Mill city
KY  Villa Hills city
KY  Wilder city
KY  Woodlawn city
KY  Wurtland city
LA  Alexandria city
LA  Baker city
LA  Ball town
LA  Bossier City city
LA  Bossier Parish
LA  Broussard town
LA  Caddo Parish
LA  Calcasieu Parish
LA  Carencro city
LA  Denham Springs city
LA  Houma city
LA  Lafayette city
LA  Lafayette Parish
LA  Lafourche Parish
LA  Lake Charles city
LA  Livingston Parish
LA  Monroe city
LA  Ouachita Parish
LA  Pineville city
LA  Plaquemines Parish
LA  Port Allen city
LA  Rapides Parish
LA  Richwood town
LA  Scott town
LA  Slidell city
LA  St. Bernard Parish
LA  St. Charles Parish
LA  St. Tammany Parish
LA  Sulphur city
LA  Terrebonne Parish
LA  West Baton Rouge Parish
LA  West Monroe city
LA  Westlake city
LA  Zachary city
MA  Abington town
MA  Acton town
MA  Acushnet town
MA  Agawam town
MA  Amesbury town
MA  Andover town
MA  Arlington town
MA  Ashland town
MA  Attleboro city
MA  Auburn town
MA  Avon town
MA  Barnstable County
MA  Barnstable town
MA  Bedford town
MA  Bellingham town
MA  Belmont town
MA  Berkshire County
MA  Beverly city
MA  Billerica town
MA  Blackstone town
MA  Boxborough town
MA  Boylston town
MA  Braintree town
MA  Bridgewater town
MA  Bristol County
MA  Brockton city
MA  Brookline town
MA  Burlington town
MA  Cambridge city
MA  Canton town
MA  Charlton town
MA  Chelmsford town
MA  Chelsea city
MA  Chicopee city
MA  Cohasset town
MA  Concord town
MA  Dalton town
MA  Danvers town
MA  Dartmouth town
MA  Dedham town
MA  Dennis town
MA  Dighton town
MA  Dover town
MA  Dracut town
MA  Dudley town
MA  East Bridgewater town
MA  East Longmeadow town
MA  Easthampton town
MA  Easton town
MA  Essex County
MA  Essex town
MA  Everett city
MA  Fairhaven town
MA  Fall River city
MA  Fitchburg city
MA  Foxborough town
MA  Framingham town
MA  Franklin town
MA  Freetown town
MA  Georgetown town
MA  Gloucester city
MA  Grafton town
MA  Granby town
MA  Groton town
MA  Groveland town
MA  Hadley town
MA  Halifax town
MA  Hamilton town
MA  Hampden County
MA  Hampden town
MA  Hampshire County
MA  Hanover town
MA  Hanson town
MA  Haverhill city
MA  Hingham town
MA  Hinsdale town
MA  Holbrook town
MA  Holden town
MA  Holliston town
MA  Holyoke city
MA  Hudson town
MA  Hull town
MA  Lanesborough town
MA  Lawrence city
MA  Leicester town
MA  Leominster city
MA  Lexington town
MA  Lincoln town
MA  Littleton town
MA  Longmeadow town
MA  Lowell city
MA  Ludlow town
MA  Lunenburg town
MA  Lynn city
MA  Lynnfield town
MA  Malden city
MA  Manchester town
MA  Mansfield town
MA  Marblehead town
MA  Marlborough city
MA  Mashpee town
MA  Maynard town
MA  Medfield town
MA  Medford city
MA  Medway town
MA  Melrose city
MA  Merrimac town
MA  Methuen town
MA  Middlesex County
MA  Middleton town
MA  Millbury town
MA  Millis town
MA  Millville town
MA  Milton town
MA  Nahant town
MA  Natick town
MA  Needham town
MA  New Bedford city
MA  Newton city
MA  Norfolk town
MA  North Andover town
MA  North Attleborough town
MA  North Reading town
MA  Northampton city
MA  Northborough town
MA  Northbridge town
MA  Norton town
MA  Norwell town
MA  Norwood town
MA  Oxford town
MA  Paxton town
MA  Peabody city
MA  Pembroke town
MA  Pittsfield city
MA  Plainville town
MA  Plymouth County
MA  Quincy city
MA  Randolph town
MA  Raynham town
MA  Reading town
MA  Rehoboth town
MA  Revere city
MA  Rockland town
MA  Rockport town
MA  Salem city
MA  Sandwich town
MA  Saugus town
MA  Scituate town
MA  Seekonk town
MA  Sharon town
MA  Shrewsbury town
MA  Somerset town
MA  Somerville city
MA  South Hadley town
MA  Southampton town
MA  Southborough town
MA  Southwick town
MA  Springfield city
MA  Stoneham town
MA  Stoughton town
MA  Stow town
MA  Sudbury town
MA  Sutton town
MA  Swampscott town
MA  Swansea town
MA  Taunton city
MA  Tewksbury town
MA  Tyngsborough town
MA  Uxbridge town
MA  Wakefield town
MA  Walpole town
MA  Waltham city
MA  Watertown town
MA  Wayland town
MA  Webster town
MA  Wellesley town
MA  Wenham town
MA  West Boylston town
MA  West Bridgewater town
MA  West Springfield town

[[Page 68819]]

MA  Westborough town
MA  Westfield city
MA  Westford town
MA  Westminster town
MA  Weston town
MA  Westport town
MA  Westwood town
MA  Weymouth town
MA  Whitman town
MA  Wilbraham town
MA  Williamsburg town
MA  Wilmington town
MA  Winchester town
MA  Winthrop town
MA  Woburn city
MA  Worcester County
MA  Wrentham town
MA  Yarmouth town
MD  Allegany County
MD  Annapolis city
MD  Bel Air town
MD  Berwyn Heights town
MD  Bladensburg town
MD  Bowie city
MD  Brentwood town
MD  Brookeville town
MD  Capitol Heights town
MD  Cecil County
MD  Cheverly town
MD  Chevy Chase Section Five village
MD  Chevy Chase Section Three village
MD  Chevy Chase town
MD  Chevy Chase Village town
MD  College Park city
MD  Colmar Manor town
MD  Cottage City town
MD  Cumberland city
MD  District Heights city
MD  Edmonston town
MD  Elkton town
MD  Fairmount Heights town
MD  Forest Heights town
MD  Frederick city
MD  Frostburg city
MD  Funkstown town
MD  Gaithersburg city
MD  Garrett Park town
MD  Glen Echo town
MD  Glenarden town
MD  Greenbelt city
MD  Hagerstown city
MD  Highland Beach town
MD  Hyattsville city
MD  Kensington town
MD  Landover Hills town
MD  Laurel city
MD  Martin's Additions village
MD  Morningside town
MD  Mount Rainier city
MD  New Carrollton city
MD  North Brentwood town
MD  Riverdale town
MD  Rockville city
MD  Seat Pleasant city
MD  Smithsburg town
MD  Somerset town
MD  Takoma Park city
MD  University Park town
MD  Walkersville town
MD  Washington Grove town
MD  Williamsport town
ME  Androscoggin County
ME  Auburn city
ME  Bangor city
ME  Berwick town
ME  Brewer city
ME  Cape Elizabeth town
ME  Cumberland County
ME  Eliot town
ME  Falmouth town
ME  Gorham town
ME  Kittery town
ME  Lebanon town
ME  Lewiston city
ME  Lisbon town
ME  Old Town city
ME  Orono town
ME  Penobscot County
ME  Penobscot Indian Island Reservation
ME  Portland city
ME  Sabattus town
ME  Scarborough town
ME  South Berwick town
ME  South Portland city
ME  Veazie town
ME  Westbrook city
ME  York County
MI  Ada township
MI  Allegan County
MI  Allen Park city
MI  Alpine township
MI  Ann Arbor township
MI  Auburn Hills city
MI  Bangor township
MI  Bath township
MI  Battle Creek city
MI  Bay City city
MI  Bay County
MI  Bedford township
MI  Belleville city
MI  Benton Charter township
MI  Benton Harbor city
MI  Berkley city
MI  Berlin township
MI  Berrien County
MI  Beverly Hills village
MI  Bingham Farms village
MI  Birmingham city
MI  Blackman township
MI  Bloomfield Hills city
MI  Bloomfield township
MI  Bridgeport township
MI  Brownstown township
MI  Buena Vista Charter township
MI  Burtchville township
MI  Burton city
MI  Byron township
MI  Calhoun County
MI  Canton township
MI  Carrollton township
MI  Cascade township
MI  Cass County
MI  Center Line city
MI  Chesterfield township
MI  Clarkston village
MI  Clawson city
MI  Clay township
MI  Clayton township
MI  Clinton County
MI  Clinton township
MI  Clio city
MI  Clyde township
MI  Commerce township
MI  Comstock township
MI  Cooper township
MI  Dalton township
MI  Davison city
MI  Davison township
MI  De Witt township
MI  Dearborn city
MI  Dearborn Heights city
MI  Delhi Charter township
MI  Delta township
MI  Detroit city
MI  East China township
MI  East Detroit city
MI  East Grand Rapids city
MI  East Lansing city
MI  Eaton County
MI  Ecorse city
MI  Emmett township
MI  Erie township
MI  Essexville city
MI  Farmington city
MI  Farmington Hills city
MI  Ferndale city
MI  Fillmore township
MI  Flat Rock city
MI  Flint township
MI  Flushing city
MI  Flushing township
MI  Fort Gratiot township
MI  Frankenlust township
MI  Franklin village
MI  Fraser city
MI  Fruitport township
MI  Gaines township
MI  Garden City city
MI  Genesee County
MI  Genesee township
MI  Georgetown township
MI  Gibraltar city
MI  Grand Blanc city
MI  Grand Blanc township
MI  Grand Rapids Charter township
MI  Grandville city
MI  Grosse Ile township
MI  Grosse Pointe city
MI  Grosse Pointe Farms city
MI  Grosse Pointe Park city
MI  Grosse Pointe Shores village
MI  Grosse Pointe Woods city
MI  Hampton township
MI  Hamtramck city
MI  Harper Woods city
MI  Harrison township
MI  Hazel Park city
MI  Highland Park city
MI  Highland township
MI  Holland city
MI  Holland township
MI  Howard township
MI  Hudsonville city
MI  Huntington Woods city
MI  Huron township
MI  Independence township
MI  Ingham County
MI  Inkster city
MI  Ira township
MI  Jackson city
MI  Jackson County
MI  James township
MI  Kalamazoo city
MI  Kalamazoo County
MI  Kalamazoo township
MI  Keego Harbor city
MI  Kent County
MI  Kentwood city
MI  Kimball township
MI  Kochville township
MI  Lake Angelus city
MI  Laketon township
MI  Laketown township
MI  Lansing city
MI  Lansing township
MI  Lathrup Village city
MI  Leoni township
MI  Lincoln Park city

[[Page 68820]]

MI  Lincoln township
MI  Livonia city
MI  Macomb County
MI  Macomb township
MI  Madison Heights city
MI  Marysville city
MI  Melvindale city
MI  Meridian township
MI  Milford township
MI  Milton township
MI  Monitor township
MI  Monroe County
MI  Mount Clemens city
MI  Mount Morris city
MI  Mount Morris township
MI  Mundy township
MI  Muskegon city
MI  Muskegon County
MI  Muskegon Heights city
MI  Muskegon township
MI  New Baltimore city
MI  Niles city
MI  Niles township
MI  North Muskegon city
MI  Northville city
MI  Northville township
MI  Norton Shores city
MI  Novi city
MI  Novi township
MI  Oak Park city
MI  Oakland Charter township
MI  Oakland County
MI  Orchard Lake Village city
MI  Orion township
MI  Oshtemo township
MI  Ottawa County
MI  Parchment city
MI  Park township
MI  Pavilion township
MI  Pennfield township
MI  Pittsfield township
MI  Plainfield township
MI  Pleasant Ridge city
MI  Plymouth city
MI  Plymouth township
MI  Pontiac city
MI  Port Huron city
MI  Port Huron township
MI  Portage city
MI  Portsmouth township
MI  Redford township
MI  Richfield township
MI  River Rouge city
MI  Riverview city
MI  Rochester city
MI  Rochester Hills city
MI  Rockwood city
MI  Romulus city
MI  Roosevelt Park city
MI  Roseville city
MI  Ross township
MI  Royal Oak city
MI  Royal Oak township
MI  Saginaw city
MI  Saginaw County
MI  Saginaw township
MI  Schoolcraft township
MI  Scio township
MI  Shelby township
MI  Shoreham village
MI  Sodus township
MI  South Rockwood village
MI  Southfield city
MI  Southfield township
MI  Southgate city
MI  Spaulding township
MI  Spring Arbor township
MI  Springfield city
MI  Springfield township
MI  St. Clair city
MI  St. Clair County
MI  St. Clair Shores city
MI  St. Clair township
MI  St. Joseph Charter township
MI  St. Joseph city
MI  Stevensville village
MI  Sullivan township
MI  Summit township
MI  Sumpter township
MI  Superior township
MI  Swartz Creek city
MI  Sylvan Lake city
MI  Taylor city
MI  Texas township
MI  Thetford township
MI  Thomas township
MI  Trenton city
MI  Troy city
MI  Utica city
MI  Van Buren township
MI  Vienna township
MI  Walker city
MI  Walled Lake city
MI  Washington township
MI  Washtenaw County
MI  Waterford township
MI  Wayne city
MI  West Bloomfield township
MI  Westland city
MI  White Lake township
MI  Whiteford township
MI  Williamstown township
MI  Wixom city
MI  Wolverine Lake village
MI  Woodhaven city
MI  Wyandotte city
MI  Wyoming city
MI  Ypsilanti city
MI  Ypsilanti township
MI  Zeeland city
MI  Zilwaukee city
MN  Andover city
MN  Anoka city
MN  Anoka County
MN  Apple Valley city
MN  Arden Hills city
MN  Benton County
MN  Birchwood Village city
MN  Blaine city
MN  Bloomington city
MN  Brooklyn Center city
MN  Brooklyn Park city
MN  Burnsville city
MN  Carver County
MN  Cascade township
MN  Champlin city
MN  Chanhassen city
MN  Circle Pines city
MN  Clay County
MN  Coon Rapids city
MN  Cottage Grove city
MN  Credit River township
MN  Crystal city
MN  Dakota County
MN  Dayton city
MN  Deephaven city
MN  Dilworth city
MN  Duluth city
MN  Eagan city
MN  East Grand Forks city
MN  Eden Prairie city
MN  Excelsior city
MN  Falcon Heights city
MN  Farmington city
MN  Fort Snelling unorg.
MN  Fridley city
MN  Gem Lake city
MN  Golden Valley city
MN  Grant township
MN  Greenwood city
MN  Ham Lake city
MN  Haven township
MN  Hennepin County
MN  Hermantown city
MN  Hilltop city
MN  Hopkins city
MN  Houston County
MN  Inver Grove Heights city
MN  La Crescent city
MN  La Crescent township
MN  Lake Elmo city
MN  Lakeville city
MN  Landfall city
MN  Lauderdale city
MN  Le Sauk township
MN  Lexington city
MN  Lilydale city
MN  Lino Lakes city
MN  Little Canada city
MN  Long Lake city
MN  Loretto city
MN  Mahtomedi city
MN  Maple Grove city
MN  Maple Plain city
MN  Maplewood city
MN  Marion township
MN  Medicine Lake city
MN  Medina city
MN  Mendota city
MN  Mendota Heights city
MN  Midway township
MN  Minden township
MN  Minnetonka Beach city
MN  Minnetonka city
MN  Minnetrista city
MN  Moorhead city
MN  Moorhead township
MN  Mound city
MN  Mounds View city
MN  New Brighton city
MN  New Hope city
MN  Newport city
MN  North Oaks city
MN  North St. Paul city
MN  Oakdale city
MN  Oakport township
MN  Olmsted County
MN  Orono city
MN  Osseo city
MN  Plymouth city
MN  Polk County
MN  Prior Lake city
MN  Proctor city
MN  Ramsey city
MN  Robbinsdale city
MN  Rochester city
MN  Rochester township
MN  Rosemount city
MN  Roseville city
MN  Sartell city
MN  Sauk Rapids city
MN  Sauk Rapids township
MN  Savage city
MN  Scott County
MN  Sherburne County
MN  Shoreview city
MN  Shorewood city
MN  South St. Paul city

[[Page 68821]]

MN  Spring Lake Park city
MN  Spring Park city
MN  St. Anthony city
MN  St. Cloud city
MN  St. Cloud township
MN  St. Louis County
MN  St. Paul Park city
MN  Stearns County
MN  Sunfish Lake city
MN  Tonka Bay city
MN  Vadnais Heights city
MN  Victoria city
MN  Waite Park city
MN  Washington County
MN  Wayzata city
MN  West St. Paul city
MN  White Bear Lake city
MN  White Bear township
MN  Willernie city
MN  Woodbury city
MN  Woodland city
MN  Wright County
MO  Airport Drive village
MO  Airport township
MO  Andrew County
MO  Arnold city
MO  Avondale city
MO  Ballwin city
MO  Battlefield town
MO  Bella Villa city
MO  Bellefontaine Neighbors city
MO  Bellerive village
MO  Bel-Nor village
MO  Bel-Ridge village
MO  Belton city
MO  Berkeley city
MO  Beverly Hills city
MO  Big Creek township
MO  Birmingham village
MO  Black Jack city
MO  Blanchette township
MO  Blue Springs city
MO  Blue township
MO  Bonhomme township
MO  Boone County
MO  Boone township
MO  Breckenridge Hills village
MO  Brentwood city
MO  Bridgeton city
MO  Brooking township
MO  Buchanan County
MO  Calverton Park village
MO  Campbell No. 1 township
MO  Campbell No. 2 township
MO  Carl Junction city
MO  Carroll township
MO  Carterville city
MO  Cass County
MO  Cedar township
MO  Center township
MO  Charlack city
MO  Chesterfield city
MO  Chouteau township
MO  Christian County
MO  Clarkson Valley city
MO  Clay County
MO  Clay township
MO  Claycomd village
MO  Clayton city
MO  Clayton township
MO  Cliff Village village
MO  Columbia city
MO  Columbia township
MO  Concord township
MO  Cool Valley city
MO  Cottleville town
MO  Cottleville township
MO  Country Club Hills city
MO  Country Club village
MO  Country Life Acres village
MO  Crestwood city
MO  Creve Coeur city
MO  Creve Coeur township
MO  Crystal Lake Park city
MO  Dardenne township
MO  Dellwood city
MO  Dennis Acres village
MO  Des Peres city
MO  Duquesne village
MO  Edmundson village
MO  Ellisville city
MO  Fenton city
MO  Ferguson city
MO  Ferguson township
MO  Flordell Hills city
MO  Florissant city
MO  Florissant township
MO  Fox township
MO  Friedens township
MO  Frontenac city
MO  Galena township
MO  Gallatin township
MO  Gladstone city
MO  Glen Echo Park village
MO  Glenaire village
MO  Glendale city
MO  Grandview city
MO  Grantwood Village town
MO  Gravois township
MO  Greendale city
MO  Greene County
MO  Hadley township
MO  Hanley Hills village
MO  Harvester township
MO  Hazelwood city
MO  High Ridge township
MO  Hillsdale village
MO  Houston Lake city
MO  Huntleigh city
MO  Imperial township
MO  Iron Gates village
MO  Jackson County
MO  Jasper County
MO  Jefferson County
MO  Jefferson township
MO  Jennings city
MO  Joplin city
MO  Joplin township
MO  Kickapoo township
MO  Kimmswick city
MO  Kinloch city
MO  Kirkwood city
MO  Ladue city
MO  Lake St. Louis city
MO  Lake Tapawingo city
MO  Lake Waukomis city
MO  Lakeshire city
MO  Leawood village
MO  Lee's Summit city
MO  Lemay township
MO  Lewis and Clark township
MO  Liberty city
MO  Liberty township
MO  Mac Kenzie village
MO  Manchester city
MO  Maplewood city
MO  Marlborough village
MO  Maryland Heights city
MO  May township
MO  Meramec township
MO  Midland township
MO  Mineral township
MO  Missouri River township
MO  Missouri township
MO  Moline Acres city
MO  Mount Pleasant township
MO  Newton County
MO  Normandy city
MO  Normandy township
MO  North Campbell No. 1 township
MO  North Campbell No. 2 township
MO  North Campbell No. 3 township
MO  North Kansas City city
MO  North View township
MO  Northmoor city
MO  Northwest township
MO  Northwoods city
MO  Norwood Court town
MO  Oakland city
MO  Oakland Park village
MO  Oaks village
MO  Oakview village
MO  Oakwood Park village
MO  Oakwood village
MO  O'Fallon city
MO  O'Fallon township
MO  Olivette city
MO  Overland city
MO  Pagedale city
MO  Parkdale town
MO  Parkville city
MO  Pasadena Hills city
MO  Pasadena Park village
MO  Pettis township
MO  Pine Lawn city
MO  Platte County
MO  Platte township
MO  Platte Woods city
MO  Pleasant Valley city
MO  Prairie township
MO  Queeny township
MO  Randolph village
MO  Raymore city
MO  Raymore township
MO  Raytown city
MO  Redings Mill village
MO  Richmond Heights city
MO  Rivers township
MO  Riverside city
MO  Riverview village
MO  Rock Hill city
MO  Rock township
MO  Rocky Fork township
MO  Saginaw village
MO  Shoal Creek Drive village
MO  Shoal Creek township
MO  Shrewsbury city
MO  Silver Creek village
MO  Sioux township
MO  Sni-A-Bar township
MO  Spanish Lake township
MO  Spencer Creek township
MO  St. Ann city
MO  St. Charles city
MO  St. Ferdinand township
MO  St. George city
MO  St. John city
MO  St. Joseph city
MO  St. Louis city
MO  St. Peters city
MO  St. Peters township
MO  Sugar Creek city
MO  Sunset Hills city
MO  Sycamore Hills village
MO  Town and Country city
MO  Twin Groves township
MO  Twin Oaks village
MO  Unity Village village

[[Page 68822]]

MO  University City city
MO  Uplands Park village
MO  Valley Park city
MO  Velda Village city
MO  Velda Village Hills village
MO  Vinita Park city
MO  Vinita Terrace village
MO  Warson Woods city
MO  Washington township
MO  Wayne township
MO  Weatherby Lake city
MO  Webb City city
MO  Webster Groves city
MO  Wellston city
MO  Wentzville township
MO  Westwood village
MO  Wilbur Park village
MO  Wilson township
MO  Winchester city
MO  Windsor township
MO  Woodson Terrace city
MO  Zumbehl township
MS  Bay St. Louis city
MS  Biloxi city
MS  Brandon city
MS  Clinton city
MS  DeSoto County
MS  D'Iberville city
MS  Flowood town
MS  Forrest County
MS  Gautier city
MS  Gulfport city
MS  Hancock County
MS  Harrison County
MS  Hattiesburg city
MS  Hinds County
MS  Horn Lake city
MS  Jackson County
MS  Lamar County
MS  Long Beach city
MS  Madison city
MS  Madison County
MS  Moss Point city
MS  Ocean Springs city
MS  Pascagoula city
MS  Pass Christian city
MS  Pearl city
MS  Petal city
MS  Rankin County
MS  Richland city
MS  Ridgeland city
MS  Southaven city
MS  Waveland city
MT  Billings city
MT  Cascade County
MT  Great Falls city
MT  Missoula city
MT  Missoula County
MT  Yellowstone County
NC  Alamance County
NC  Apex town
NC  Archdale city
NC  Asheville city
NC  Belmont city
NC  Belville town
NC  Bessemer City city
NC  Biltmore Forest town
NC  Black Mountain town
NC  Brookford town
NC  Brunswick County
NC  Buncombe County
NC  Burke County
NC  Burlington city
NC  Cabarrus County
NC  Carrboro town
NC  Cary town
NC  Catawba County
NC  Chapel Hill town
NC  China Grove town
NC  Clemmons village
NC  Concord city
NC  Conover city
NC  Cramerton town
NC  Dallas town
NC  Davidson County
NC  Durham County
NC  Edgecombe County
NC  Elon College town
NC  Fletcher town
NC  Forsyth County
NC  Garner town
NC  Gaston County
NC  Gastonia city
NC  Gibsonville town
NC  Goldsboro city
NC  Graham city
NC  Greenville city
NC  Guilford County
NC  Harnett County
NC  Haw River town
NC  Henderson County
NC  Hickory city
NC  High Point city
NC  Hildebran town
NC  Hope Mills town
NC  Indian Trail town
NC  Jacksonville city
NC  Jamestown town
NC  Kannapolis city
NC  Landis town
NC  Leland town
NC  Long View town
NC  Lowell city
NC  Matthews town
NC  McAdenville town
NC  Mebane city
NC  Mecklenburg County
NC  Mint Hill town
NC  Montreat town
NC  Mount Holly city
NC  Nash County
NC  New Hanover County
NC  Newton city
NC  Onslow County
NC  Orange County
NC  Pineville town
NC  Pitt County
NC  Randolph County
NC  Ranlo town
NC  Rocky Mount city
NC  Rowan County
NC  Rural Hall town
NC  Spring Lake town
NC  Stallings town
NC  Thomasville city
NC  Union County
NC  Wake County
NC  Walkertown town
NC  Wayne County
NC  Weaverville town
NC  Wilmington city
NC  Winterville town
NC  Woodfin town
NC  Wrightsville Beach town
ND  Barnes township
ND  Bismarck city
ND  Bismarck unorg.
ND  Burleigh County
ND  Captain's Landing township
ND  Cass County
ND  Fargo city
ND  Grand Forks city
ND  Grand Forks County
ND  Grand Forks township
ND  Hay Creek township
ND  Lincoln city
ND  Mandan city
ND  Mandan unorg.
ND  Morton County
ND  Reed township
ND  West Fargo city
NE  Bellevue city
NE  Bellevue No. 2 precinct
NE  Benson precinct
NE  Boys Town village
NE  Chicago precinct
NE  Covington precinct
NE  Dakota County
NE  Douglas County
NE  Douglas precinct
NE  Florence precinct
NE  Garfield precinct
NE  Gilmore No. 1 precinct
NE  Gilmore No. 2 precinct
NE  Gilmore No. 3 precinct
NE  Grant precinct
NE  Highland No. 1 precinct
NE  Highland No. 2 precinct
NE  Jefferson precinct
NE  La Platte precinct
NE  La Vista city
NE  Lancaster County
NE  Lancaster precinct
NE  McArdle precinct
NE  Millard precinct
NE  Papillion city
NE  Papillion No. 2 precinct
NE  Pawnee precinct
NE  Ralston city
NE  Richland No. 1 precinct
NE  Richland No. 2 precinct
NE  Richland No. 3 precinct
NE  Sarpy County
NE  South Sioux City city
NE  Union precinct
NE  Yankee Hill precinct
NH  Amherst town
NH  Auburn town
NH  Bedford town
NH  Dover city
NH  Durham town
NH  Goffstown town
NH  Hillsborough County
NH  Hollis town
NH  Hooksett town
NH  Hudson town
NH  Litchfield town
NH  Londonderry town
NH  Madbury town
NH  Manchester city
NH  Merrimack County
NH  Merrimack town
NH  Nashua city
NH  New Castle town
NH  Newington town
NH  Pelham town
NH  Plaistow town
NH  Portsmouth city
NH  Rochester city
NH  Rockingham County
NH  Rollinsford town
NH  Rye town
NH  Salem town
NH  Somersworth city
NH  Strafford County
NH  Windham town
NJ  Aberdeen township
NJ  Absecon city

[[Page 68823]]

NJ  Allendale borough
NJ  Allenhurst borough
NJ  Alpha borough
NJ  Alpine borough
NJ  Asbury Park city
NJ  Atlantic City city
NJ  Atlantic County
NJ  Atlantic Highlands borough
NJ  Audubon borough
NJ  Audubon Park borough
NJ  Avon-by-the-Sea borough
NJ  Barrington borough
NJ  Bay Head borough
NJ  Bayonne city
NJ  Beachwood borough
NJ  Bedminster township
NJ  Belleville township
NJ  Bellmawr borough
NJ  Belmar borough
NJ  Bergenfield borough
NJ  Berkeley Heights township
NJ  Berkeley township
NJ  Berlin borough
NJ  Berlin township
NJ  Bernards township
NJ  Bernardsville borough
NJ  Beverly city
NJ  Bloomfield township
NJ  Bloomingdale borough
NJ  Bogota borough
NJ  Boonton town
NJ  Boonton township
NJ  Bordentown city
NJ  Bordentown township
NJ  Bound Brook borough
NJ  Bradley Beach borough
NJ  Branchburg township
NJ  Brick township
NJ  Bridgewater township
NJ  Brielle borough
NJ  Brigantine city
NJ  Brooklawn borough
NJ  Buena borough
NJ  Buena Vista township
NJ  Burlington city
NJ  Burlington County
NJ  Burlington township
NJ  Butler borough
NJ  Byram township
NJ  Caldwell Borough township
NJ  Camden city
NJ  Cape May County
NJ  Carlstadt borough
NJ  Carneys Point township
NJ  Carteret borough
NJ  Cedar Grove township
NJ  Chatham borough
NJ  Chatham township
NJ  Cherry Hill township
NJ  Chesilhurst borough
NJ  Chester township
NJ  Chesterfield township
NJ  Cinnaminson township
NJ  City of Orange township
NJ  Clark township
NJ  Clayton borough
NJ  Clementon borough
NJ  Cliffside Park borough
NJ  Clifton city
NJ  Closter borough
NJ  Collingswood borough
NJ  Colts Neck township
NJ  Commercial township
NJ  Cranford township
NJ  Cresskill borough
NJ  Cumberland County
NJ  Deal borough
NJ  Delanco township
NJ  Delran township
NJ  Demarest borough
NJ  Denville township
NJ  Deptford township
NJ  Dover town
NJ  Dover township
NJ  Dumont borough
NJ  Dunellen borough
NJ  East Brunswick township
NJ  East Greenwich township
NJ  East Hanover township
NJ  East Newark borough
NJ  East Orange city
NJ  East Rutherford borough
NJ  Eastampton township
NJ  Eatontown borough
NJ  Edgewater borough
NJ  Edgewater Park township
NJ  Edison township
NJ  Egg Harbor township
NJ  Elizabeth city
NJ  Elk township
NJ  Elmwood Park borough
NJ  Emerson borough
NJ  Englewood city
NJ  Englewood Cliffs borough
NJ  Englishtown borough
NJ  Essex Fells township
NJ  Evesham township
NJ  Ewing township
NJ  Fair Haven borough
NJ  Fair Lawn borough
NJ  Fairfield township
NJ  Fairview borough
NJ  Fanwood borough
NJ  Fieldsboro borough
NJ  Florence township
NJ  Florham Park borough
NJ  Fort Lee borough
NJ  Franklin Lakes borough
NJ  Franklin township
NJ  Freehold borough
NJ  Freehold township
NJ  Galloway township
NJ  Garfield city
NJ  Garwood borough
NJ  Gibbsboro borough
NJ  Glassboro borough
NJ  Glen Ridge Borough township
NJ  Glen Rock borough
NJ  Gloucester City city
NJ  Gloucester County
NJ  Gloucester township
NJ  Green Brook township
NJ  Greenwich township
NJ  Guttenberg town
NJ  Hackensack city
NJ  Haddon Heights borough
NJ  Haddon township
NJ  Haddonfield borough
NJ  Hainesport township
NJ  Haledon borough
NJ  Hamilton township
NJ  Hanover township
NJ  Harding township
NJ  Harrington Park borough
NJ  Harrison town
NJ  Hasbrouck Heights borough
NJ  Haworth borough
NJ  Hawthorne borough
NJ  Hazlet township
NJ  Helmetta borough
NJ  Highland Park borough
NJ  Highlands borough
NJ  Hillsborough township
NJ  Hillsdale borough
NJ  Hillside township
NJ  Hi-Nella borough
NJ  Hoboken city
NJ  Ho-Ho-Kus borough
NJ  Holmdel township
NJ  Hopatcong borough
NJ  Hopewell township
NJ  Howell township
NJ  Hunterdon County
NJ  Interlaken borough
NJ  Irvington township
NJ  Island Heights borough
NJ  Jackson township
NJ  Jamesburg borough
NJ  Jefferson township
NJ  Jersey City city
NJ  Keansburg borough
NJ  Kearny town
NJ  Kenilworth borough
NJ  Keyport borough
NJ  Kinnelon borough
NJ  Lakehurst borough
NJ  Lakewood township
NJ  Laurel Springs borough
NJ  Lavallette borough
NJ  Lawnside borough
NJ  Lawrence township
NJ  Leonia borough
NJ  Lincoln Park borough
NJ  Linden city
NJ  Lindenwold borough
NJ  Linwood city
NJ  Little Falls township
NJ  Little Ferry borough
NJ  Little Silver borough
NJ  Livingston township
NJ  Loch Arbour village
NJ  Lodi borough
NJ  Long Branch city
NJ  Longport borough
NJ  Lopatcong township
NJ  Lumberton township
NJ  Lyndhurst township
NJ  Madison borough
NJ  Magnolia borough
NJ  Mahwah township
NJ  Manalapan township
NJ  Manasquan borough
NJ  Manchester township
NJ  Mantoloking borough
NJ  Mantua township
NJ  Manville borough
NJ  Maple Shade township
NJ  Maplewood township
NJ  Margate City city
NJ  Marlboro township
NJ  Matawan borough
NJ  Maywood borough
NJ  Medford Lakes borough
NJ  Medford township
NJ  Mendham borough
NJ  Mendham township
NJ  Mercer County
NJ  Merchantville borough
NJ  Metuchen borough
NJ  Middlesex borough
NJ  Middlesex County
NJ  Middletown township
NJ  Midland Park borough
NJ  Millburn township
NJ  Millstone borough
NJ  Milltown borough
NJ  Millville city
NJ  Mine Hill township

[[Page 68824]]

NJ  Monmouth Beach borough
NJ  Monmouth County
NJ  Monroe township
NJ  Montclair township
NJ  Montvale borough
NJ  Montville township
NJ  Moonachie borough
NJ  Moorestown township
NJ  Morris County
NJ  Morris Plains borough
NJ  Morris township
NJ  Morristown town
NJ  Mount Arlington borough
NJ  Mount Ephraim borough
NJ  Mount Holly township
NJ  Mount Laurel township
NJ  Mount Olive township
NJ  Mountain Lakes borough
NJ  Mountainside borough
NJ  National Park borough
NJ  Neptune City borough
NJ  Neptune township
NJ  Netcong borough
NJ  New Brunswick city
NJ  New Milford borough
NJ  New Providence borough
NJ  Newark city
NJ  Newfield borough
NJ  North Arlington borough
NJ  North Bergen township
NJ  North Brunswick township
NJ  North Caldwell township
NJ  North Haledon borough
NJ  North Plainfield borough
NJ  Northfield city
NJ  Northvale borough
NJ  Norwood borough
NJ  Nutley township
NJ  Oakland borough
NJ  Oaklyn borough
NJ  Ocean City city
NJ  Ocean County
NJ  Ocean Gate borough
NJ  Ocean township
NJ  Oceanport borough
NJ  Old Bridge township
NJ  Old Tappan borough
NJ  Oradell borough
NJ  Palisades Park borough
NJ  Palmyra borough
NJ  Paramus borough
NJ  Park Ridge borough
NJ  Parsippany-Troy Hills township
NJ  Passaic city
NJ  Passaic County
NJ  Passaic township
NJ  Paterson city
NJ  Paulsboro borough
NJ  Pennington borough
NJ  Penns Grove borough
NJ  Pennsauken township
NJ  Pennsville township
NJ  Pequannock township
NJ  Perth Amboy city
NJ  Phillipsburg town
NJ  Pine Beach borough
NJ  Pine Hill borough
NJ  Pine Valley borough
NJ  Piscataway township
NJ  Pitman borough
NJ  Pittsgrove township
NJ  Plainfield city
NJ  Pleasantville city
NJ  Pohatcong township
NJ  Point Pleasant Beach borough
NJ  Point Pleasant borough
NJ  Pompton Lakes borough
NJ  Prospect Park borough
NJ  Rahway city
NJ  Ramsey borough
NJ  Randolph township
NJ  Raritan borough
NJ  Readington township
NJ  Red Bank borough
NJ  Ridgefield borough
NJ  Ridgefield Park village
NJ  Ridgewood village
NJ  Ringwood borough
NJ  River Edge borough
NJ  River Vale township
NJ  Riverdale borough
NJ  Riverside township
NJ  Riverton borough
NJ  Rochelle Park township
NJ  Rockaway borough
NJ  Rockaway township
NJ  Rockleigh borough
NJ  Roseland borough
NJ  Roselle borough
NJ  Roselle Park borough
NJ  Roxbury township
NJ  Rumson borough
NJ  Runnemede borough
NJ  Rutherford borough
NJ  Saddle Brook township
NJ  Saddle River borough
NJ  Salem County
NJ  Sayreville borough
NJ  Scotch Plains township
NJ  Sea Bright borough
NJ  Sea Girt borough
NJ  Seaside Heights borough
NJ  Seaside Park borough
NJ  Secaucus town
NJ  Shamong township
NJ  Shrewsbury borough
NJ  Shrewsbury township
NJ  Somerdale borough
NJ  Somers Point city
NJ  Somerset County
NJ  Somerville borough
NJ  South Amboy city
NJ  South Belmar borough
NJ  South Bound Brook borough
NJ  South Brunswick township
NJ  South Hackensack township
NJ  South Orange Village township
NJ  South Plainfield borough
NJ  South River borough
NJ  South Toms River borough
NJ  Spotswood borough
NJ  Spring Lake borough
NJ  Spring Lake Heights borough
NJ  Springfield township
NJ  Stanhope borough
NJ  Stratford borough
NJ  Summit city
NJ  Sussex County
NJ  Tabernacle township
NJ  Tavistock borough
NJ  Teaneck township
NJ  Tenafly borough
NJ  Teterboro borough
NJ  Tinton Falls borough
NJ  Totowa borough
NJ  Trenton city
NJ  Union Beach borough
NJ  Union City city
NJ  Union township
NJ  Upper Saddle River borough
NJ  Upper township
NJ  Ventnor City city
NJ  Verona township
NJ  Victory Gardens borough
NJ  Vineland city
NJ  Voorhees township
NJ  Waldwick borough
NJ  Wall township
NJ  Wallington borough
NJ  Wanaque borough
NJ  Warren County
NJ  Warren township
NJ  Washington township
NJ  Watchung borough
NJ  Waterford township
NJ  Wayne township
NJ  Weehawken township
NJ  Wenonah borough
NJ  West Caldwell township
NJ  West Deptford township
NJ  West Long Branch borough
NJ  West New York town
NJ  West Orange township
NJ  West Paterson borough
NJ  Westampton township
NJ  Westfield town
NJ  Westville borough
NJ  Westwood borough
NJ  Wharton borough
NJ  Willingboro township
NJ  Winfield township
NJ  Winslow township
NJ  Woodbridge township
NJ  Woodbury city
NJ  Woodbury Heights borough
NJ  Woodcliff Lake borough
NJ  Woodlynne borough
NJ  Wood-Ridge borough
NJ  Wyckoff township
NM  Bernalillo County
NM  Corrales village
NM  Dona Ana County
NM  Las Cruces city
NM  Los Ranchos de Albuquerque village
NM  Mesilla town
NM  Rio Rancho city
NM  Sandoval County
NM  Santa Fe city
NM  Santa Fe County
NM  Sunland Park city
NY  Albany city
NY  Albany County
NY  Amherst town
NY  Amityville village
NY  Ardsley village
NY  Ashland town
NY  Atlantic Beach village
NY  Babylon town
NY  Babylon village
NY  Baldwinsville village
NY  Ballston town
NY  Barker town
NY  Baxter Estates village
NY  Bayville village
NY  Beacon city
NY  Bedford town
NY  Belle Terre village
NY  Bellerose village
NY  Bellport village
NY  Bethlehem town
NY  Big Flats town
NY  Binghamton city
NY  Binghamton town
NY  Blasdell village
NY  Boston town
NY  Briarcliff Manor village
NY  Brighton town
NY  Brightwaters village

[[Page 68825]]

NY  Bronxville village
NY  Brookhaven town
NY  Brookville village
NY  Broome County
NY  Brunswick town
NY  Buchanan village
NY  Buffalo city
NY  Camillus town
NY  Camillus village
NY  Carmel town
NY  Cayuga Heights village
NY  Cedarhurst village
NY  Charlton town
NY  Cheektowaga town
NY  Chemung County
NY  Chenango town
NY  Chestnut Ridge village
NY  Chili town
NY  Cicero town
NY  Clarence town
NY  Clarkstown town
NY  Clay town
NY  Clayville village
NY  Clifton Park town
NY  Clinton village
NY  Cohoes city
NY  Colonie town
NY  Colonie village
NY  Conklin town
NY  Cornwall on Hudson village
NY  Cornwall town
NY  Cortlandt town
NY  Croton-on-Hudson village
NY  De Witt town
NY  Deerfield town
NY  Depew village
NY  Dickinson town
NY  Dobbs Ferry village
NY  Dryden town
NY  Dutchess County
NY  East Fishkill town
NY  East Greenbush town
NY  East Hills village
NY  East Rochester village
NY  East Rockaway village
NY  East Syracuse village
NY  East Williston village
NY  Eastchester town
NY  Elma town
NY  Elmira city
NY  Elmira Heights village
NY  Elmira town
NY  Elmsford village
NY  Endicott village
NY  Erie County
NY  Evans town
NY  Fairport village
NY  Farmingdale village
NY  Fayetteville village
NY  Fenton town
NY  Fishkill town
NY  Fishkill village
NY  Floral Park village
NY  Flower Hill village
NY  Floyd town
NY  Fort Edward town
NY  Fort Edward village
NY  Frankfort town
NY  Freeport village
NY  Garden City village
NY  Gates town
NY  Geddes town
NY  Glen Cove city
NY  Glens Falls city
NY  Glenville town
NY  Grand Island town
NY  Grand View-on-Hudson village
NY  Great Neck Estates village
NY  Great Neck Plaza village
NY  Great Neck village
NY  Greece town
NY  Green Island village
NY  Greenburgh town
NY  Guilderland town
NY  Halfmoon town
NY  Hamburg town
NY  Hamburg village
NY  Harrison village
NY  Hastings-on-Hudson village
NY  Haverstraw town
NY  Haverstraw village
NY  Hempstead town
NY  Hempstead village
NY  Henrietta town
NY  Herkimer County
NY  Hewlett Bay Park village
NY  Hewlett Harbor village
NY  Hewlett Neck village
NY  Hillburn village
NY  Horseheads town
NY  Horseheads village
NY  Hudson Falls village
NY  Huntington Bay village
NY  Huntington town
NY  Hyde Park town
NY  Irondequoit town
NY  Irvington village
NY  Island Park village
NY  Islandia village
NY  Islip town
NY  Ithaca city
NY  Ithaca town
NY  Johnson City village
NY  Kenmore village
NY  Kensington village
NY  Kent town
NY  Kings Point village
NY  Kingsbury town
NY  Kirkland town
NY  Kirkwood town
NY  La Grange town
NY  Lackawanna city
NY  LaFayette town
NY  Lake Grove village
NY  Lake Success village
NY  Lancaster town
NY  Lancaster village
NY  Lansing town
NY  Lansing village
NY  Larchmont village
NY  Lattingtown village
NY  Lawrence village
NY  Lee town
NY  Lewiston town
NY  Lewiston village
NY  Lindenhurst village
NY  Liverpool village
NY  Lloyd Harbor village
NY  Lloyd town
NY  Long Beach city
NY  Lynbrook village
NY  Lysander town
NY  Malta town
NY  Malverne village
NY  Mamaroneck town
NY  Mamaroneck village
NY  Manlius town
NY  Manlius village
NY  Manorhaven village
NY  Marcy town
NY  Massapequa Park village
NY  Matinecock village
NY  Menands village
NY  Mill Neck village
NY  Mineola village
NY  Minoa village
NY  Monroe County
NY  Montebello village
NY  Montgomery town
NY  Moreau town
NY  Mount Kisco village
NY  Mount Pleasant town
NY  Mount Vernon city
NY  Munsey Park village
NY  Muttontown village
NY  New Castle town
NY  New Hartford town
NY  New Hartford village
NY  New Hempstead village
NY  New Hyde Park village
NY  New Rochelle city
NY  New Square village
NY  New Windsor town
NY  New York Mills village
NY  Newburgh city
NY  Newburgh town
NY  Niagara County
NY  Niagara Falls city
NY  Niagara town
NY  Niskayuna town
NY  North Castle town
NY  North Greenbush town
NY  North Hempstead town
NY  North Hills village
NY  North Syracuse village
NY  North Tarrytown village
NY  North Tonawanda city
NY  Northport village
NY  Nyack village
NY  Ogden town
NY  Old Brookville village
NY  Old Westbury village
NY  Oneida County
NY  Onondaga County
NY  Onondaga town
NY  Orange County
NY  Orangetown town
NY  Orchard Park town
NY  Orchard Park village
NY  Oriskany village
NY  Ossining town
NY  Ossining village
NY  Oswego County
NY  Owego town
NY  Oyster Bay town
NY  Paris town
NY  Patchogue village
NY  Patterson town
NY  Peekskill city
NY  Pelham Manor village
NY  Pelham town
NY  Pelham village
NY  Pendleton town
NY  Penfield town
NY  Perinton town
NY  Philipstown town
NY  Phoenix village
NY  Piermont village
NY  Pittsford town
NY  Pittsford village
NY  Plandome Heights village
NY  Plandome Manor village
NY  Plandome village
NY  Pleasant Valley town
NY  Pleasantville village
NY  Poestenkill town
NY  Pomona village
NY  Poospatuck Reservation

[[Page 68826]]

NY  Poquott village
NY  Port Chester village
NY  Port Dickinson village
NY  Port Jefferson village
NY  Port Washington North village
NY  Poughkeepsie city
NY  Poughkeepsie town
NY  Pound Ridge town
NY  Putnam County
NY  Putnam Valley town
NY  Queensbury town
NY  Ramapo town
NY  Rensselaer city
NY  Rensselaer County
NY  Riverhead town
NY  Rochester city
NY  Rockville Centre village
NY  Rome city
NY  Roslyn Estates village
NY  Roslyn Harbor village
NY  Roslyn village
NY  Rotterdam town
NY  Russell Gardens village
NY  Rye Brook village
NY  Rye city
NY  Rye town
NY  Saddle Rock village
NY  Salina town
NY  Sands Point village
NY  Saratoga County
NY  Scarsdale town
NY  Scarsdale village
NY  Schaghticoke town
NY  Schenectady city
NY  Schenectady County
NY  Schodack town
NY  Schroeppel town
NY  Schuyler town
NY  Scotia village
NY  Sea Cliff village
NY  Shoreham village
NY  Sloan village
NY  Sloatsburg village
NY  Smithtown town
NY  Solvay village
NY  Somers town
NY  South Floral Park village
NY  South Glens Falls village
NY  South Nyack village
NY  Southampton town
NY  Southport town
NY  Spencerport village
NY  Spring Valley village
NY  Stewart Manor village
NY  Stony Point town
NY  Suffern village
NY  Suffolk County
NY  Syracuse city
NY  Tarrytown village
NY  Thomaston village
NY  Tioga County
NY  Tompkins County
NY  Tonawanda city
NY  Tonawanda town
NY  Troy city
NY  Tuckahoe village
NY  Ulster County
NY  Union town
NY  Upper Brookville village
NY  Upper Nyack village
NY  Utica city
NY  Valley Stream village
NY  Van Buren town
NY  Vestal town
NY  Veteran town
NY  Village of the Branch village
NY  Wappinger town
NY  Wappingers Falls village
NY  Warren County
NY  Washington County
NY  Waterford town
NY  Waterford village
NY  Watervliet city
NY  Webster town
NY  Webster village
NY  Wesley Hills village
NY  West Haverstraw village
NY  West Seneca town
NY  Westbury village
NY  Westchester County
NY  Western town
NY  Wheatfield town
NY  White Plains city
NY  Whitesboro village
NY  Whitestown town
NY  Williamsville village
NY  Williston Park village
NY  Woodsburgh village
NY  Yonkers city
NY  Yorktown town
NY  Yorkville village
OH  Addyston village
OH  Allen County
OH  Allen township
OH  Amberley village
OH  Amelia village
OH  American township
OH  Amherst city
OH  Amherst township
OH  Anderson township
OH  Arlington Heights village
OH  Auglaize County
OH  Aurora city
OH  Austintown township
OH  Avon city
OH  Avon Lake city
OH  Bainbridge township
OH  Barberton city
OH  Batavia township
OH  Bath township
OH  Bay Village city
OH  Beachwood city
OH  Beaver township
OH  Beavercreek city
OH  Beavercreek township
OH  Bedford city
OH  Bedford Heights city
OH  Bellaire city
OH  Bellbrook city
OH  Belmont County
OH  Belpre city
OH  Belpre township
OH  Bentleyville village
OH  Berea city
OH  Bethel township
OH  Bexley city
OH  Blendon township
OH  Blue Ash city
OH  Boardman township
OH  Brady Lake village
OH  Bratenahl village
OH  Brecksville city
OH  Brice village
OH  Bridgeport village
OH  Brilliant village
OH  Brimfield township
OH  Broadview Heights city
OH  Brook Park city
OH  Brookfield township
OH  Brooklyn city
OH  Brooklyn Heights village
OH  Brookside village
OH  Brown township
OH  Brownhelm township
OH  Brunswick city
OH  Brunswick Hills township
OH  Butler County
OH  Butler township
OH  Campbell city
OH  Canfield city
OH  Canfield township
OH  Canton city
OH  Canton township
OH  Carlisle township
OH  Carlisle village
OH  Centerville city
OH  Chagrin Falls township
OH  Chagrin Falls village
OH  Champion township
OH  Chesapeake village
OH  Cheviot city
OH  Chippewa township
OH  Cincinnati city
OH  Clark County
OH  Clear Creek township
OH  Clermont County
OH  Cleveland city
OH  Cleveland Heights city
OH  Cleves village
OH  Clinton township
OH  Coal Grove village
OH  Coitsville township
OH  Colerain township
OH  Columbia township
OH  Concord township
OH  Copley township
OH  Coventry township
OH  Cridersville village
OH  Cross Creek township
OH  Cuyahoga County
OH  Cuyahoga Falls city
OH  Cuyahoga Heights village
OH  Deer Park city
OH  Deerfield township
OH  Delaware County
OH  Delhi township
OH  Doylestown village
OH  Dublin city
OH  Duchouquet township
OH  East Cleveland city
OH  Eastlake city
OH  Eaton township
OH  Elmwood Place village
OH  Elyria city
OH  Elyria township
OH  Englewood city
OH  Erie County
OH  Etna township
OH  Euclid city
OH  Evendale village
OH  Fairborn city
OH  Fairfax village
OH  Fairfield city
OH  Fairfield County
OH  Fairfield township
OH  Fairlawn city
OH  Fairport Harbor village
OH  Fairview Park city
OH  Fayette township
OH  Forest Park city
OH  Fort Shawnee village
OH  Franklin city
OH  Franklin County
OH  Franklin township
OH  Gahanna city
OH  Garfield Heights city
OH  Geauga County
OH  Genoa township

[[Page 68827]]

OH  German township
OH  Girard city
OH  Glendale village
OH  Glenwillow village
OH  Golf Manor village
OH  Goshen township
OH  Grand River village
OH  Grandview Heights city
OH  Green township
OH  Green village
OH  Greene County
OH  Greenhills village
OH  Grove City city
OH  Groveport village
OH  Hamilton city
OH  Hamilton County
OH  Hamilton township
OH  Hanging Rock village
OH  Hanover township
OH  Harbor View village
OH  Harrison township
OH  Hartville village
OH  Heath city
OH  Highland Heights city
OH  Hilliard city
OH  Hills and Dales village
OH  Hinckley township
OH  Holland village
OH  Howland township
OH  Hubbard city
OH  Hubbard township
OH  Huber Heights city
OH  Hudson township
OH  Hudson village
OH  Independence city
OH  Ironton city
OH  Island Creek township
OH  Jackson township
OH  Jefferson County
OH  Jefferson township
OH  Jerome township
OH  Kent city
OH  Kettering city
OH  Kirtland city
OH  Lake County
OH  Lake township
OH  Lakeline village
OH  Lakemore village
OH  Lakewood city
OH  Lawrence County
OH  Lawrence township
OH  Lemon township
OH  Lexington village
OH  Liberty township
OH  Licking County
OH  Licking township
OH  Lima city
OH  Lima township
OH  Lincoln Heights city
OH  Linndale village
OH  Lockland village
OH  Lorain city
OH  Lorain County
OH  Louisville city
OH  Loveland city
OH  Lowellville village
OH  Lucas County
OH  Lyndhurst city
OH  Macedonia city
OH  Mad River township
OH  Madeira city
OH  Madison township
OH  Mahoning County
OH  Maineville village
OH  Mansfield city
OH  Maple Heights city
OH  Marble Cliff village
OH  Mariemont village
OH  Martins Ferry city
OH  Mason city
OH  Massillon city
OH  Maumee city
OH  Mayfield Heights city
OH  Mayfield village
OH  McDonald village
OH  Mead township
OH  Medina County
OH  Mentor city
OH  Mentor-on-the-Lake city
OH  Meyers Lake village
OH  Miami County
OH  Miami township
OH  Miamisburg city
OH  Middleburg Heights city
OH  Middletown city
OH  Mifflin township
OH  Milford city
OH  Millbury village
OH  Millville village
OH  Minerva Park village
OH  Mingo Junction city
OH  Mogadore village
OH  Monclova township
OH  Monroe township
OH  Monroe village
OH  Montgomery city
OH  Montgomery County
OH  Moorefield township
OH  Moraine city
OH  Moreland Hills village
OH  Mount Healthy city
OH  Munroe Falls village
OH  New Miami village
OH  New Middletown village
OH  New Rome village
OH  Newark city
OH  Newark township
OH  Newburgh Heights village
OH  Newton township
OH  Newtown village
OH  Niles city
OH  Nimishillen township
OH  North Bend village
OH  North Canton city
OH  North College Hill city
OH  North Olmsted city
OH  North Randall village
OH  North Ridgeville city
OH  North Royalton city
OH  Northfield Center township
OH  Northfield village
OH  Northwood city
OH  Norton city
OH  Norwich township
OH  Norwood city
OH  Oakwood city
OH  Oakwood village
OH  Obetz village
OH  Ohio township
OH  Olmsted Falls city
OH  Olmsted township
OH  Ontario village
OH  Orange township
OH  Orange village
OH  Oregon city
OH  Ottawa County
OH  Ottawa Hills village
OH  Painesville city
OH  Painesville township
OH  Palmyra township
OH  Parma city
OH  Parma Heights city
OH  Pease township
OH  Pepper Pike city
OH  Perry township
OH  Perrysburg city
OH  Perrysburg city
OH  Perrysburg township
OH  Pierce township
OH  Plain township
OH  Pleasant township
OH  Poland township
OH  Poland village
OH  Portage County
OH  Powell village
OH  Prairie township
OH  Proctorville village
OH  Pultney township
OH  Randolph township
OH  Ravenna city
OH  Ravenna township
OH  Reading city
OH  Reminderville village
OH  Reynoldsburg city
OH  Richfield township
OH  Richfield village
OH  Richland County
OH  Richmond Heights city
OH  Riveredge township
OH  Riverlea village
OH  Riverside village
OH  Rocky River city
OH  Rome township
OH  Ross township
OH  Rossford city
OH  Russell township
OH  Russia township
OH  Sagamore Hills township
OH  Seven Hills city
OH  Shadyside village
OH  Shaker Heights city
OH  Sharon township
OH  Sharonville city
OH  Shawnee Hills village
OH  Shawnee township
OH  Sheffield Lake city
OH  Sheffield township
OH  Sheffield village
OH  Silver Lake village
OH  Silverton city
OH  Solon city
OH  South Amherst village
OH  South Euclid city
OH  South Point village
OH  South Russell village
OH  Springboro city
OH  Springdale city
OH  Springfield city
OH  Springfield township
OH  St. Bernard city
OH  St. Clair township
OH  Stark County
OH  Steubenville city
OH  Steubenville township
OH  Stow city
OH  Strongsville city
OH  Struthers city
OH  Suffield township
OH  Sugar Bush Knolls village
OH  Sugar Creek township
OH  Summit County
OH  Sycamore township
OH  Sylvania city
OH  Sylvania township
OH  Symmes township
OH  Tallmadge city
OH  Terrace Park village
OH  The Village of Indian Hill city

[[Page 68828]]

OH  Timberlake village
OH  Trenton city
OH  Trotwood city
OH  Troy township
OH  Trumbull County
OH  Truro township
OH  Turtle Creek township
OH  Tuscarawas township
OH  Twinsburg city
OH  Twinsburg township
OH  Union city
OH  Union County
OH  Union township
OH  University Heights city
OH  Upper Arlington city
OH  Upper township
OH  Urbancrest village
OH  Valley View village
OH  Valleyview village
OH  Vandalia city
OH  Vermilion city
OH  Vermilion township
OH  Violet township
OH  Wadsworth city
OH  Wadsworth township
OH  Waite Hill village
OH  Walbridge village
OH  Walton Hills village
OH  Warren city
OH  Warren County
OH  Warren township
OH  Warrensville Heights city
OH  Warrensville township
OH  Washington County
OH  Washington township
OH  Wayne County
OH  Wayne township
OH  Weathersfield township
OH  Wells township
OH  West Carrollton City city
OH  West Milton village
OH  Westerville city
OH  Westlake city
OH  Whitehall city
OH  Whitewater township
OH  Wickliffe city
OH  Willoughby city
OH  Willoughby Hills city
OH  Willowick city
OH  Wintersville village
OH  Wood County
OH  Woodlawn village
OH  Woodmere village
OH  Worthington city
OH  Wyoming city
OH  Youngstown city
OK  Arkoma town
OK  Bethany city
OK  Bixby city
OK  Broken Arrow city
OK  Canadian County
OK  Catoosa city
OK  Choctaw city
OK  Cleveland County
OK  Comanche County
OK  Creek County
OK  Del City city
OK  Edmond city
OK  Forest Park town
OK  Hall Park town
OK  Harrah town
OK  Jenks city
OK  Jones town
OK  Lake Aluma town
OK  Lawton city
OK  Le Flore County
OK  Logan County
OK  Midwest City city
OK  Moffett town
OK  Moore city
OK  Mustang city
OK  Nichols Hills city
OK  Nicoma Park city
OK  Norman city
OK  Oklahoma County
OK  Osage County
OK  Pottawatomie County
OK  Rogers County
OK  Sand Springs city
OK  Sequoyah County
OK  Smith Village town
OK  Spencer city
OK  The Village city
OK  Tulsa County
OK  Valley Brook town
OK  Wagoner County
OK  Warr Acres city
OK  Woodlawn Park town
OK  Yukon city
OR  Central Point city
OR  Columbia County
OR  Durham city
OR  Jackson County
OR  Keizer city
OR  King City city
OR  Lane County
OR  Marion County
OR  Maywood Park city
OR  Medford city
OR  Phoenix city
OR  Polk County
OR  Rainier city
OR  Springfield city
OR  Troutdale city
OR  Tualatin city
OR  Wood Village city
PA  Abington township
PA  Adamsburg borough
PA  Alburtis borough
PA  Aldan borough
PA  Aleppo township
PA  Aliquippa city
PA  Allegheny County
PA  Allegheny township
PA  Allen township
PA  Allenport borough
PA  Alsace township
PA  Altoona city
PA  Ambler borough
PA  Ambridge borough
PA  Amwell township
PA  Antis township
PA  Antrim township
PA  Archbald borough
PA  Arnold city
PA  Ashley borough
PA  Aspinwall borough
PA  Aston township
PA  Avalon borough
PA  Avoca borough
PA  Baden borough
PA  Baldwin borough
PA  Baldwin township
PA  Beaver borough
PA  Beaver County
PA  Beaver Falls city
PA  Bell Acres borough
PA  Belle Vernon borough
PA  Bellevue borough
PA  Ben Avon borough
PA  Ben Avon Heights borough
PA  Bensalem township
PA  Berks County
PA  Bern township
PA  Bethel Park borough
PA  Bethel township
PA  Bethlehem city
PA  Bethlehem township
PA  Big Beaver borough
PA  Birdsboro borough
PA  Birmingham township
PA  Blair County
PA  Blair township
PA  Blakely borough
PA  Blawnox borough
PA  Boyertown borough
PA  Brackenridge borough
PA  Braddock borough
PA  Braddock Hills borough
PA  Bradfordwoods borough
PA  Brentwood borough
PA  Bridgeport borough
PA  Bridgeville borough
PA  Bridgewater borough
PA  Brighton township
PA  Bristol borough
PA  Bristol township
PA  Brookhaven borough
PA  Brownstown borough
PA  Brownsville borough
PA  Brownsville township
PA  Bryn Athyn borough
PA  Buckingham township
PA  Bucks County
PA  California borough
PA  Caln township
PA  Cambria County
PA  Camp Hill borough
PA  Canonsburg borough
PA  Canton township
PA  Carbondale city
PA  Carbondale township
PA  Carnegie borough
PA  Carroll township
PA  Castle Shannon borough
PA  Catasauqua borough
PA  Cecil township
PA  Center township
PA  Centre County
PA  Chalfant borough
PA  Chalfont borough
PA  Charleroi borough
PA  Charlestown township
PA  Chartiers township
PA  Cheltenham township
PA  Chester city
PA  Chester County
PA  Chester Heights borough
PA  Chester township
PA  Cheswick borough
PA  Chippewa township
PA  Churchill borough
PA  Clairton city
PA  Clarks Green borough
PA  Clarks Summit borough
PA  Clifton Heights borough
PA  Coal Center borough
PA  Coatesville city
PA  Colebrookdale township
PA  College township
PA  Collegeville borough
PA  Collier township
PA  Collingdale borough
PA  Columbia borough
PA  Colwyn borough
PA  Concord township
PA  Conemaugh township
PA  Conestoga township

[[Page 68829]]

PA  Conewago township
PA  Conshohocken borough
PA  Conway borough
PA  Coplay borough
PA  Coraopolis borough
PA  Courtdale borough
PA  Crafton borough
PA  Crescent township
PA  Cumberland County
PA  Cumru township
PA  Daisytown borough
PA  Dale borough
PA  Dallas borough
PA  Dallas township
PA  Dallastown borough
PA  Darby borough
PA  Darby township
PA  Daugherty township
PA  Dauphin County
PA  Delaware County
PA  Delmont borough
PA  Derry township
PA  Dickson City borough
PA  Donora borough
PA  Dormont borough
PA  Douglass township
PA  Dover borough
PA  Dover township
PA  Downingtown borough
PA  Doylestown borough
PA  Doylestown township
PA  Dravosburg borough
PA  Duboistown borough
PA  Duncansville borough
PA  Dunlevy borough
PA  Dunmore borough
PA  Dupont borough
PA  Duquesne city
PA  Duryea borough
PA  East Allen township
PA  East Bradford township
PA  East Brandywine township
PA  East Caln township
PA  East Conemaugh borough
PA  East Coventry township
PA  East Deer township
PA  East Fallowfield township
PA  East Goshen township
PA  East Hempfield township
PA  East Lampeter township
PA  East Lansdowne borough
PA  East McKeesport borough
PA  East Norriton township
PA  East Pennsboro township
PA  East Petersburg borough
PA  East Pikeland township
PA  East Pittsburgh borough
PA  East Rochester borough
PA  East Taylor township
PA  East Vincent township
PA  East Washington borough
PA  East Whiteland township
PA  Easton city
PA  Easttown township
PA  Eastvale borough
PA  Economy borough
PA  Eddystone borough
PA  Edgewood borough
PA  Edgeworth borough
PA  Edgmont township
PA  Edwardsville borough
PA  Elco borough
PA  Elizabeth borough
PA  Elizabeth township
PA  Ellport borough
PA  Ellwood City borough
PA  Emmaus borough
PA  Emsworth borough
PA  Erie city
PA  Erie County
PA  Etna borough
PA  Exeter borough
PA  Exeter township
PA  Export borough
PA  Fairfield township
PA  Fairview township
PA  Fallowfield township
PA  Falls township
PA  Fallston borough
PA  Farrell city
PA  Fayette City borough
PA  Fayette County
PA  Fell township
PA  Ferguson township
PA  Ferndale borough
PA  Findlay township
PA  Finleyville borough
PA  Folcroft borough
PA  Forest Hills borough
PA  Forks township
PA  Forty Fort borough
PA  Forward township
PA  Fountain Hill borough
PA  Fox Chapel borough
PA  Franconia township
PA  Franklin borough
PA  Franklin County
PA  Franklin Park borough
PA  Franklin township
PA  Frankstown township
PA  Frazer township
PA  Freedom borough
PA  Freemansburg borough
PA  Geistown borough
PA  Glassport borough
PA  Glendon borough
PA  Glenfield borough
PA  Glenolden borough
PA  Green Tree borough
PA  Greensburg city
PA  Hallam borough
PA  Hampden township
PA  Hampton township
PA  Hanover township
PA  Harborcreek township
PA  Harmar township
PA  Harmony township
PA  Harris township
PA  Harrisburg city
PA  Harrison township
PA  Harveys Lake borough
PA  Hatboro borough
PA  Hatfield borough
PA  Hatfield township
PA  Haverford township
PA  Haysville borough
PA  Heidelberg borough
PA  Hellam township
PA  Hellertown borough
PA  Hempfield township
PA  Hepburn township
PA  Hermitage city
PA  Highspire borough
PA  Hilltown township
PA  Hollidaysburg borough
PA  Homestead borough
PA  Homewood borough
PA  Hopewell township
PA  Horsham township
PA  Houston borough
PA  Hughestown borough
PA  Hulmeville borough
PA  Hummelstown borough
PA  Hunker borough
PA  Indiana township
PA  Ingram borough
PA  Irwin borough
PA  Ivyland borough
PA  Jackson township
PA  Jacobus borough
PA  Jeannette city
PA  Jefferson borough
PA  Jenkins township
PA  Jenkintown borough
PA  Jermyn borough
PA  Jessup borough
PA  Johnstown city
PA  Juniata township
PA  Kenhorst borough
PA  Kennedy township
PA  Kilbuck township
PA  Kingston borough
PA  Kingston township
PA  Koppel borough
PA  Lackawanna County
PA  Laflin borough
PA  Lancaster city
PA  Lancaster County
PA  Lancaster township
PA  Langhorne borough
PA  Langhorne Manor borough
PA  Lansdale borough
PA  Lansdowne borough
PA  Larksville borough
PA  Laurel Run borough
PA  Laureldale borough
PA  Lawrence County
PA  Lawrence Park township
PA  Lebanon County
PA  Leesport borough
PA  Leet township
PA  Leetsdale borough
PA  Lehigh County
PA  Lehman township
PA  Lemoyne borough
PA  Liberty borough
PA  Limerick township
PA  Lincoln borough
PA  Lititz borough
PA  Logan township
PA  Loganville borough
PA  London Britain township
PA  Londonderry township
PA  Lorain borough
PA  Lower Allen township
PA  Lower Alsace township
PA  Lower Burrell city
PA  Lower Chichester township
PA  Lower Frederick township
PA  Lower Gwynedd township
PA  Lower Heidelberg township
PA  Lower Macungie township
PA  Lower Makefield township
PA  Lower Merion township
PA  Lower Moreland township
PA  Lower Nazareth township
PA  Lower Paxton township
PA  Lower Pottsgrove township
PA  Lower Providence township
PA  Lower Salford township
PA  Lower Saucon township
PA  Lower Southampton township
PA  Lower Swatara township
PA  Lower Yoder township
PA  Loyalsock township
PA  Luzerne borough
PA  Luzerne County
PA  Luzerne township

[[Page 68830]]

PA  Lycoming County
PA  Lycoming township
PA  Macungie borough
PA  Madison borough
PA  Maidencreek township
PA  Malvern borough
PA  Manchester township
PA  Manheim township
PA  Manor borough
PA  Manor township
PA  Marcus Hook borough
PA  Marple township
PA  Marshall township
PA  Marysville borough
PA  Mayfield borough
PA  McCandless township
PA  McKean township
PA  McKees Rocks borough
PA  McKeesport city
PA  Mechanicsburg borough
PA  Media borough
PA  Mercer County
PA  Middle Taylor township
PA  Middletown borough
PA  Middletown township
PA  Millbourne borough
PA  Millcreek township
PA  Millersville borough
PA  Millvale borough
PA  Modena borough
PA  Mohnton borough
PA  Monaca borough
PA  Monessen city
PA  Monongahela city
PA  Monroe township
PA  Montgomery County
PA  Montgomery township
PA  Montoursville borough
PA  Moon township
PA  Moosic borough
PA  Morrisville borough
PA  Morton borough
PA  Mount Lebanon township
PA  Mount Oliver borough
PA  Mount Penn borough
PA  Mountville borough
PA  Muhlenberg township
PA  Munhall borough
PA  Municipality of Monroeville borough
PA  Municipality of Murrysville borough
PA  Nanticoke city
PA  Narberth borough
PA  Nether Providence township
PA  Neville township
PA  New Brighton borough
PA  New Britain borough
PA  New Britain township
PA  New Cumberland borough
PA  New Eagle borough
PA  New Galilee borough
PA  New Garden township
PA  New Hanover township
PA  New Kensington city
PA  New Sewickley township
PA  New Stanton borough
PA  Newell borough
PA  Newport township
PA  Newton township
PA  Newtown borough
PA  Newtown township
PA  Norristown borough
PA  North Belle Vernon borough
PA  North Braddock borough
PA  North Catasauqua borough
PA  North Charleroi borough
PA  North Coventry township
PA  North Franklin township
PA  North Huntingdon township
PA  North Irwin borough
PA  North Londonderry township
PA  North Sewickley township
PA  North Strabane township
PA  North Versailles township
PA  North Wales borough
PA  North Whitehall township
PA  North York borough
PA  Northampton borough
PA  Northampton County
PA  Northampton township
PA  Norwood borough
PA  Oakmont borough
PA  O'Hara township
PA  Ohio township
PA  Old Forge borough
PA  Old Lycoming township
PA  Olyphant borough
PA  Ontelaunee township
PA  Osborne borough
PA  Paint borough
PA  Paint township
PA  Palmer township
PA  Palmyra borough
PA  Parkside borough
PA  Patterson Heights borough
PA  Patterson township
PA  Patton township
PA  Paxtang borough
PA  Penbrook borough
PA  Penn borough
PA  Penn Hills township
PA  Penn township
PA  Penndel borough
PA  Pennsbury Village borough
PA  Pequea township
PA  Perkiomen township
PA  Perry County
PA  Perry township
PA  Peters township
PA  Phoenixville borough
PA  Pine township
PA  Pitcairn borough
PA  Pittsburgh city
PA  Pittston city
PA  Pittston township
PA  Plains township
PA  Pleasant Hills borough
PA  Plum borough
PA  Plymouth borough
PA  Plymouth township
PA  Port Vue borough
PA  Potter township
PA  Pottstown borough
PA  Pringle borough
PA  Prospect Park borough
PA  Pulaski township
PA  Radnor township
PA  Rankin borough
PA  Ransom township
PA  Reading city
PA  Red Lion borough
PA  Reserve township
PA  Richland township
PA  Ridley Park borough
PA  Ridley township
PA  Robinson township
PA  Rochester borough
PA  Rochester township
PA  Rockledge borough
PA  Roscoe borough
PA  Rose Valley borough
PA  Ross township
PA  Rosslyn Farms borough
PA  Rostraver township
PA  Royalton borough
PA  Royersford borough
PA  Rutledge borough
PA  Salem township
PA  Salisbury township
PA  Scalp Level borough
PA  Schuylkill township
PA  Schwenksville borough
PA  Scott township
PA  Scranton city
PA  Sewickley borough
PA  Sewickley Heights borough
PA  Sewickley Hills borough
PA  Sewickley township
PA  Shaler township
PA  Sharon city
PA  Sharon Hill borough
PA  Sharpsburg borough
PA  Sharpsville borough
PA  Shenango township
PA  Shillington borough
PA  Shiremanstown borough
PA  Silver Spring township
PA  Sinking Spring borough
PA  Skippack township
PA  Somerset County
PA  Souderton borough
PA  South Abington township
PA  South Coatesville borough
PA  South Fayette township
PA  South Greensburg borough
PA  South Hanover township
PA  South Heidelberg township
PA  South Heights borough
PA  South Huntingdon township
PA  South Park township
PA  South Pymatuning township
PA  South Strabane township
PA  South Whitehall township
PA  South Williamsport borough
PA  Southmont borough
PA  Southwest Greensburg borough
PA  Speers borough
PA  Spring City borough
PA  Spring Garden township
PA  Spring township
PA  Springdale borough
PA  Springdale township
PA  Springettsbury township
PA  Springfield township
PA  St. Lawrence borough
PA  State College borough
PA  Steelton borough
PA  Stockdale borough
PA  Stonycreek township
PA  Stowe township
PA  Sugar Notch borough
PA  Summit township
PA  Susquehanna township
PA  Sutersville borough
PA  Swarthmore borough
PA  Swatara township
PA  Swissvale borough
PA  Swoyersville borough
PA  Tarentum borough
PA  Taylor borough
PA  Telford borough
PA  Temple borough
PA  Thornburg borough
PA  Thornbury township
PA  Throop borough
PA  Tinicum township
PA  Towamencin township
PA  Trafford borough
PA  Trainer borough

[[Page 68831]]

PA  Trappe borough
PA  Tredyffrin township
PA  Tullytown borough
PA  Turtle Creek borough
PA  Union township
PA  Upland borough
PA  Upper Allen township
PA  Upper Chichester township
PA  Upper Darby township
PA  Upper Dublin township
PA  Upper Gwynedd township
PA  Upper Leacock township
PA  Upper Macungie township
PA  Upper Makefield township
PA  Upper Merion township
PA  Upper Milford township
PA  Upper Moreland township
PA  Upper Pottsgrove township
PA  Upper Providence township
PA  Upper Saucon township
PA  Upper Southampton township
PA  Upper St. Clair township
PA  Upper Yoder township
PA  Uwchlan township
PA  Valley township
PA  Vanport township
PA  Verona borough
PA  Versailles borough
PA  Wall borough
PA  Warminster township
PA  Warrington township
PA  Warrior Run borough
PA  Warwick township
PA  Washington city
PA  Washington County
PA  Washington township
PA  Wayne township
PA  Wernersville borough
PA  Wesleyville borough
PA  West Bradford township
PA  West Brownsville borough
PA  West Chester borough
PA  West Conshohocken borough
PA  West Deer township
PA  West Earl township
PA  West Easton borough
PA  West Elizabeth borough
PA  West Fairview borough
PA  West Goshen township
PA  West Hanover township
PA  West Hempfield township
PA  West Homestead borough
PA  West Lampeter township
PA  West Lawn borough
PA  West Manchester township
PA  West Mayfield borough
PA  West Middlesex borough
PA  West Mifflin borough
PA  West Newton borough
PA  West Norriton township
PA  West Pikeland township
PA  West Pittston borough
PA  West Pottsgrove township
PA  West Reading borough
PA  West Taylor township
PA  West View borough
PA  West Whiteland township
PA  West Wyoming borough
PA  West York borough
PA  Westmont borough
PA  Westmoreland County
PA  Westtown township
PA  Wheatland borough
PA  Whitaker borough
PA  White Oak borough
PA  White township
PA  Whitehall township
PA  Whitemarsh township
PA  Whitpain township
PA  Wilkes-Barre city
PA  Wilkes-Barre township
PA  Wilkins township
PA  Wilkinsburg borough
PA  Williams township
PA  Williamsport city
PA  Willistown township
PA  Wilmerding borough
PA  Wilson borough
PA  Windber borough
PA  Windsor borough
PA  Windsor township
PA  Worcester township
PA  Wormleysburg borough
PA  Wrightsville borough
PA  Wyoming borough
PA  Wyomissing borough
PA  Wyomissing Hills borough
PA  Yardley borough
PA  Yatesville borough
PA  Yeadon borough
PA  Yoe borough
PA  York city
PA  York County
PA  York township
PA  Youngwood borough
PR  Aibonita
PR  Anasco
PR  Aquada
PR  Aquadilla
PR  Aquas Buenas
PR  Arecibo
PR  Bayamon
PR  Cabo Rojo
PR  Caguas
PR  Camuy
PR  Canovanas
PR  Catano
PR  Cayey
PR  Cidra
PR  Dorado
PR  Guaynabo
PR  Gurabo
PR  Hatillo
PR  Hormigueros
PR  Humacao
PR  Juncos
PR  Las Piedras
PR  Loiza
PR  Manati
PR  Mayaguez
PR  Moca
PR  Naguabo
PR  Naranjito
PR  Penuelas
PR  Ponce
PR  Rio Grande
PR  San German
PR  San Lorenzo
PR  Toa Alta
PR  Toa Baja
PR  Trujillo Alto
PR  Vega Alta
PR  Vega Baja
PR  Yabucao
RI  Barrington town
RI  Bristol town
RI  Burrillville town
RI  Central Falls city
RI  Coventry town
RI  Cranston city
RI  Cumberland town
RI  East Greenwich town
RI  East Providence city
RI  Glocester town
RI  Jamestown town
RI  Johnston town
RI  Lincoln town
RI  Middletown town
RI  Newport city
RI  Newport County
RI  North Kingstown town
RI  North Providence town
RI  North Smithfield town
RI  Pawtucket city
RI  Portsmouth town
RI  Providence city
RI  Providence County
RI  Scituate town
RI  Smithfield town
RI  Tiverton town
RI  Warren town
RI  Warwick city
RI  Washington County
RI  West Greenwich town
RI  West Warwick town
RI  Woonsocket city
SC  Aiken city
SC  Aiken County
SC  Anderson city
SC  Anderson County
SC  Arcadia Lakes town
SC  Berkeley County
SC  Burnettown town
SC  Cayce city
SC  Charleston city
SC  Charleston County
SC  City View town
SC  Columbia city
SC  Cowpens town
SC  Darlington County
SC  Dorchester County
SC  Edgefield County
SC  Florence city
SC  Florence County
SC  Folly Beach city
SC  Forest Acres city
SC  Fort Mill town
SC  Georgetown County
SC  Goose Creek city
SC  Hanahan city
SC  Horry County
SC  Irmo town
SC  Isle of Palms city
SC  Lexington County
SC  Lincolnville town
SC  Mount Pleasant town
SC  Myrtle Beach city
SC  North Augusta city
SC  North Charleston city
SC  Pickens County
SC  Pineridge town
SC  Quinby town
SC  Rock Hill city
SC  South Congaree town
SC  Spartanburg city
SC  Spartanburg County
SC  Springdale town
SC  Sullivan's Island town
SC  Summerville town
SC  Sumter city
SC  Sumter County
SC  Surfside Beach town
SC  West Columbia city
SC  York County
SD  Big Sioux township
SD  Central Pennington unorg.
SD  Lincoln County
SD  Mapleton township

[[Page 68832]]

SD  Minnehaha County
SD  North Sioux City city
SD  Pennington County
SD  Rapid City city
SD  Split Rock township
SD  Union County
SD  Wayne township
TN  Alcoa city
TN  Anderson County
TN  Bartlett town
TN  Belle Meade city
TN  Berry Hill city
TN  Blount County
TN  Brentwood city
TN  Bristol city
TN  Carter County
TN  Church Hill town
TN  Clarksville city
TN  Collegedale city
TN  Davidson County
TN  East Ridge city
TN  Elizabethton city
TN  Farragut town
TN  Forest Hills city
TN  Germantown city
TN  Goodlettsville city
TN  Hamilton County
TN  Hawkins County
TN  Hendersonville city
TN  Jackson city
TN  Johnson City city
TN  Jonesborough town
TN  Kingsport city
TN  Knox County
TN  Lakesite city
TN  Lakewood city
TN  Lookout Mountain town
TN  Loudon County
TN  Madison County
TN  Maryville city
TN  Montgomery County
TN  Mount Carmel town
TN  Mount Juliet city
TN  Oak Hill city
TN  Red Bank city
TN  Ridgeside city
TN  Rockford city
TN  Shelby County
TN  Signal Mountain town
TN  Soddy-Daisy city
TN  Sullivan County
TN  Sumner County
TN  Washington County
TN  Williamson County
TN  Wilson County
TX  Addison city
TX  Alamo city
TX  Alamo Heights city
TX  Allen city
TX  Archer County
TX  Azle city
TX  Balch Springs city
TX  Balcones Heights city
TX  Bayou Vista village
TX  Baytown city
TX  Bedford city
TX  Bell County
TX  Bellaire city
TX  Bellmead city
TX  Belton city
TX  Benbrook city
TX  Beverly Hills city
TX  Bexar County
TX  Blue Mound city
TX  Bowie County
TX  Brazoria County
TX  Brazos County
TX  Brookside Village city
TX  Brownsville city
TX  Bryan city
TX  Buckingham town
TX  Bunker Hill Village city
TX  Cameron County
TX  Carrollton city
TX  Castle Hills city
TX  Cedar Hill city
TX  Cedar Park city
TX  Chambers County
TX  Cibolo city
TX  Clear Lake Shores city
TX  Clint town
TX  Cockrell Hill city
TX  College Station city
TX  Colleyville city
TX  Collin County
TX  Comal County
TX  Combes town
TX  Converse city
TX  Copperas Cove city
TX  Corinth town
TX  Coryell County
TX  Crowley city
TX  Dallas County
TX  Dalworthington Gardens city
TX  Deer Park city
TX  Denison city
TX  Denton city
TX  Denton County
TX  DeSoto city
TX  Dickinson city
TX  Donna city
TX  Double Oak town
TX  Duncanville city
TX  Ector County
TX  Edgecliff village
TX  Edinburg city
TX  El Lago city
TX  El Paso County
TX  Ellis County
TX  Euless city
TX  Everman city
TX  Farmers Branch city
TX  Flower Mound town
TX  Forest Hill city
TX  Fort Bend County
TX  Friendswood city
TX  Galena Park city
TX  Galveston city
TX  Galveston County
TX  Grand Prairie city
TX  Grapevine city
TX  Grayson County
TX  Gregg County
TX  Groves city
TX  Guadalupe County
TX  Haltom City city
TX  Hardin County
TX  Harker Heights city
TX  Harlingen city
TX  Harrison County
TX  Hedwig Village city
TX  Hewitt city
TX  Hickory Creek town
TX  Hidalgo County
TX  Highland Park town
TX  Highland Village city
TX  Hill Country Village city
TX  Hilshire Village city
TX  Hitchcock city
TX  Hollywood Park town
TX  Howe town
TX  Humble city
TX  Hunters Creek Village city
TX  Hurst city
TX  Hutchins city
TX  Impact town
TX  Jacinto City city
TX  Jefferson County
TX  Jersey Village city
TX  Johnson County
TX  Jones County
TX  Katy city
TX  Kaufman County
TX  Keller city
TX  Kemah city
TX  Kennedale city
TX  Killeen city
TX  Kirby city
TX  Kleberg County
TX  La Marque city
TX  La Porte city
TX  Lacy-Lakeview city
TX  Lake Dallas city
TX  Lake Worth city
TX  Lakeside City town
TX  Lakeside town
TX  Lampasas County
TX  Lancaster city
TX  League City city
TX  Leander city
TX  Leon Valley city
TX  Lewisville city
TX  Live Oak city
TX  Longview city
TX  Lubbock County
TX  Lumberton city
TX  Martin County
TX  McAllen city
TX  McLennan County
TX  Meadows city
TX  Midland city
TX  Midland County
TX  Mission city
TX  Missouri City city
TX  Montgomery County
TX  Morgan's Point city
TX  Nash city
TX  Nassau Bay city
TX  Nederland city
TX  Nolanville city
TX  North Richland Hills city
TX  Northcrest town
TX  Nueces County
TX  Odessa city
TX  Olmos Park city
TX  Palm Valley town
TX  Palmview city
TX  Pantego town
TX  Parker County
TX  Pearland city
TX  Pflugerville city
TX  Pharr city
TX  Piney Point Village city
TX  Port Arthur city
TX  Port Neches city
TX  Portland city
TX  Potter County
TX  Primera town
TX  Randall County
TX  Richardson city
TX  Richland Hills city
TX  River Oaks city
TX  Robinson city
TX  Rockwall city
TX  Rockwall County
TX  Rollingwood city
TX  Rose Hill Acres city
TX  Rowlett city

[[Page 68833]]

TX  Sachse city
TX  Saginaw city
TX  San Angelo city
TX  San Benito city
TX  San Juan city
TX  San Patricio County
TX  Sansom Park city
TX  Santa Fe city
TX  Schertz city
TX  Seabrook city
TX  Seagoville city
TX  Selma city
TX  Shavano Park city
TX  Sherman city
TX  Shoreacres city
TX  Smith County
TX  Socorro town
TX  South Houston city
TX  Southside Place city
TX  Spring Valley city
TX  Stafford town
TX  Sugar Land city
TX  Sunset Valley city
TX  Tarrant County
TX  Taylor County
TX  Taylor Lake Village city
TX  Temple city
TX  Terrell Hills city
TX  Texarkana city
TX  Texas City city
TX  Tom Green County
TX  Travis County
TX  Tye town
TX  Tyler city
TX  Universal City city
TX  University Park city
TX  Victoria city
TX  Victoria County
TX  Wake Village city
TX  Waller County
TX  Watauga city
TX  Webb County
TX  Webster city
TX  Weslaco city
TX  West Lake Hills city
TX  West University Place city
TX  Westover Hills town
TX  Westworth village
TX  White Oak city
TX  White Settlement city
TX  Wichita County
TX  Wichita Falls city
TX  Williamson County
TX  Wilmer city
TX  Windcrest city
TX  Woodway city
UT  American Fork city
UT  Bluffdale city
UT  Bountiful city
UT  Cache County
UT  Cedar Hills town
UT  Centerville city
UT  Clearfield city
UT  Clinton city
UT  Davis County
UT  Draper city
UT  Farmington city
UT  Farr West city
UT  Fruit Heights city
UT  Harrisville city
UT  Highland city
UT  Hyde Park city
UT  Kaysville city
UT  Layton city
UT  Lehi city
UT  Lindon city
UT  Logan city
UT  Mapleton city
UT  Midvale city
UT  Millville city
UT  Murray city
UT  North Logan city
UT  North Ogden city
UT  North Salt Lake city
UT  Ogden city
UT  Orem city
UT  Pleasant Grove city
UT  Pleasant View city
UT  Providence city
UT  Provo city
UT  River Heights city
UT  Riverdale city
UT  Riverton city
UT  Roy city
UT  Sandy city
UT  Smithfield city
UT  South Jordan city
UT  South Ogden city
UT  South Salt Lake city
UT  South Weber city
UT  Springville city
UT  Sunset city
UT  Syracuse city
UT  Uintah town
UT  Utah County
UT  Washington Terrace city
UT  Weber County
UT  West Bountiful city
UT  West Jordan city
UT  West Point city
UT  West Valley City city
UT  Woods Cross city
VA  Albemarle County
VA  Alexandria city
VA  Amherst County
VA  Bedford County
VA  Botetourt County
VA  Bristol city
VA  Campbell County
VA  Charlottesville city
VA  Colonial Heights city
VA  Danville city
VA  Dinwiddie County
VA  Fairfax city
VA  Falls Church city
VA  Fredericksburg city
VA  Gate City town
VA  Gloucester County
VA  Hanover County
VA  Herndon town
VA  Hopewell city
VA  James City County
VA  Loudoun County
VA  Lynchburg city
VA  Manassas city
VA  Manassas Park city
VA  Occoquan town
VA  Petersburg city
VA  Pittsylvania County
VA  Poquoson city
VA  Prince George County
VA  Richmond city
VA  Roanoke city
VA  Roanoke County
VA  Salem city
VA  Scott County
VA  Spotsylvania County
VA  Stafford County
VA  Suffolk city
VA  Vienna town
VA  Vinton town
VA  Washington County
VA  Weber City town
VA  Williamsburg city
VA  York County
VT  Burlington city
VT  Chittenden County
VT  Colchester town
VT  Essex Junction village
VT  Essex town
VT  Shelburne town
VT  South Burlington city
VT  Williston town
VT  Winooski city
WA  Algona city
WA  Auburn city
WA  Beaux Arts Village town
WA  Bellevue city
WA  Bellingham city
WA  Benton County
WA  Bonney Lake city
WA  Bothell city
WA  Bremerton city
WA  Brier city
WA  Clyde Hill town
WA  Cowlitz County
WA  Des Moines city
WA  DuPont city
WA  Edmonds city
WA  Everett city
WA  Fife city
WA  Fircrest town
WA  Franklin County
WA  Gig Harbor city
WA  Hunts Point town
WA  Issaquah city
WA  Kelso city
WA  Kennewick city
WA  Kent city
WA  Kirkland city
WA  Kitsap County
WA  Lacey city
WA  Lake Forest Park city
WA  Longview city
WA  Lynnwood city
WA  Marysville city
WA  Medina city
WA  Mercer Island city
WA  Mill Creek city
WA  Millwood town
WA  Milton city
WA  Mountlake Terrace city
WA  Mukilteo city
WA  Normandy Park city
WA  Olympia city
WA  Pacific city
WA  Pasco city
WA  Port Orchard city
WA  Puyallup city
WA  Redmond city
WA  Renton city
WA  Richland city
WA  Ruston town
WA  Selah city
WA  Steilacoom town
WA  Sumner city
WA  Thurston County
WA  Tukwila city
WA  Tumwater city
WA  Union Gap city
WA  Vancouver city
WA  West Richland city
WA  Whatcom County
WA  Woodway city
WA  Yakima city
WA  Yakima County
WA  Yarrow Point town
WI  Algoma town

[[Page 68834]]

WI  Allouez village
WI  Altoona city
WI  Appleton city
WI  Ashwaubenon village
WI  Bayside village
WI  Bellevue town
WI  Beloit city
WI  Beloit town
WI  Big Bend village
WI  Black Wolf town
WI  Blooming Grove town
WI  Brookfield city
WI  Brookfield town
WI  Brown County
WI  Brown Deer village
WI  Brunswick town
WI  Buchanan town
WI  Burke town
WI  Butler village
WI  Caledonia town
WI  Calumet County
WI  Campbell town
WI  Cedarburg city
WI  Cedarburg town
WI  Chippewa County
WI  Chippewa Falls city
WI  Clayton town
WI  Combined Locks village
WI  Cudahy city
WI  Dane County
WI  De Pere city
WI  De Pere town
WI  Delafield town
WI  Douglas County
WI  Dunn town
WI  Eagle Point town
WI  Eau Claire city
WI  Eau Claire County
WI  Elm Grove village
WI  Elmwood Park village
WI  Fitchburg city
WI  Fox Point village
WI  Franklin city
WI  Germantown town
WI  Germantown village
WI  Glendale city
WI  Grafton town
WI  Grafton village
WI  Grand Chute town
WI  Green Bay city
WI  Greendale village
WI  Greenfield city
WI  Greenville town
WI  Hales Corners village
WI  Hallie town
WI  Harmony town
WI  Harrison town
WI  Hobart town
WI  Holmen village
WI  Howard village
WI  Janesville city
WI  Janesville town
WI  Kaukauna city
WI  Kenosha city
WI  Kenosha County
WI  Kimberly village
WI  Kohler village
WI  La Crosse city
WI  La Crosse County
WI  La Prairie town
WI  Lafayette town
WI  Lannon village
WI  Lima town
WI  Lisbon town
WI  Little Chute village
WI  Madison town
WI  Maple Bluff village
WI  Marathon County
WI  McFarland village
WI  Medary town
WI  Menasha city
WI  Menasha town
WI  Menomonee Falls village
WI  Mequon city
WI  Middleton city
WI  Middleton town
WI  Monona city
WI  Mount Pleasant town
WI  Muskego city
WI  Neenah city
WI  Neenah town
WI  Nekimi town
WI  New Berlin city
WI  North Bay village
WI  Norway town
WI  Oak Creek city
WI  Onalaska city
WI  Onalaska town
WI  Oshkosh city
WI  Oshkosh town
WI  Outagamie County
WI  Ozaukee County
WI  Pewaukee town
WI  Pewaukee village
WI  Pleasant Prairie town
WI  Pleasant Prairie village
WI  Racine city
WI  Racine County
WI  Rib Mountain town
WI  River Hills village
WI  Rock County
WI  Rock town
WI  Rothschild village
WI  Salem town
WI  Schofield city
WI  Scott town
WI  Sheboygan city
WI  Sheboygan County
WI  Sheboygan Falls city
WI  Sheboygan Falls town
WI  Sheboygan town
WI  Shelby town
WI  Shorewood Hills village
WI  Shorewood village
WI  Somers town
WI  South Milwaukee city
WI  St. Francis city
WI  Stettin town
WI  Sturtevant village
WI  Superior city
WI  Superior village
WI  Sussex village
WI  Thiensville village
WI  Turtle town
WI  Union town
WI  Vandenbroek town
WI  Vernon town
WI  Washington County
WI  Washington town
WI  Waukesha city
WI  Waukesha County
WI  Waukesha town
WI  Wausau city
WI  Wauwatosa city
WI  West Allis city
WI  West Milwaukee village
WI  Weston town
WI  Westport town
WI  Wheaton town
WI  Whitefish Bay village
WI  Wilson town
WI  Wind Point village
WI  Winnebago County
WV  Bancroft town
WV  Barboursville village
WV  Belle town
WV  Benwood city
WV  Berkeley County
WV  Bethlehem village
WV  Brooke County
WV  Cabell County
WV  Cedar Grove town
WV  Ceredo city
WV  Charleston city
WV  Chesapeake town
WV  Clearview village
WV  Dunbar city
WV  East Bank town
WV  Follansbee city
WV  Glasgow town
WV  Glen Dale city
WV  Hancock County
WV  Huntington city
WV  Hurricane city
WV  Kanawha County
WV  Kenova city
WV  Marmet city
WV  Marshall County
WV  McMechen city
WV  Mineral County
WV  Moundsville city
WV  Nitro city
WV  North Hills town
WV  Ohio County
WV  Parkersburg city
WV  Poca town
WV  Putnam County
WV  Ridgeley town
WV  South Charleston city
WV  St. Albans city
WV  Triadelphia town
WV  Vienna city
WV  Wayne County
WV  Weirton city
WV  Wheeling city
WV  Wood County
WY  Casper city
WY  Cheyenne city
WY  Evansville town
WY  Laramie County
WY  Mills town
WY  Natrona County

[[Page 68835]]

Appendix 7 of Preamble--Governmental Entities (Located Outside of 
an Urbanized Area) That Must Be Examined By the NPDES Permitting 
Authority for Potential Designation Under Sec. 123.35(b)(2)

    (All listed entities have a population of at least 10,000 and a 
population density of at least 1,000. A listed entity would only be 
potentially designated if it operates a small MS4. See 
Sec. 122.26(b)(16) for the definition of a small MS4.)
    (This list does not include all operators of small MS4s that may 
be designated by the NPDES permitting authority. Operators of small 
MS4s in areas with populations below 10,000 and densities below 
1,000 may also be designated but examination of them is not 
required. Also, entities such as military bases, large hospitals, 
prison complexes, universities, sewer districts, and highway 
departments that operate a small MS4 in an area listed here, or in 
an area otherwise designated by the NPDES permitting authority, may 
be designated and become subject to permitting regulations.) 
(Source: 1990 Census of Population and Housing, U.S. Bureau of the 
Census. This list is subject to change with the Decennial Census)

AL  Daphne city
AL  Jacksonville city
AL  Selma city
AR  Arkadelphia city
AR  Benton city
AR  Blytheville city
AR  Conway city
AR  El Dorado city
AR  Hot Springs city
AR  Magnolia city
AR  Rogers city
AR  Searcy city
AR  Stuttgart city
AZ  Douglas city
CA  Arcata city
CA  Arroyo Grande city
CA  Atwater city
CA  Auburn city
CA  Banning city
CA  Brawley city
CA  Calexico city
CA  Clearlake city
CA  Corcoran city
CA  Delano city
CA  Desert Hot Springs city
CA  Dinuba city
CA  Dixon city
CA  El Centro city
CA  El Paso de Robles (Paso Robles) city
CA  Eureka city
CA  Fillmore city
CA  Gilroy city
CA  Grover City city
CA  Hanford city
CA  Hollister city
CA  Lemoore city
CA  Los Banos city
CA  Madera city
CA  Manteca city
CA  Oakdale city
CA  Oroville city
CA  Paradise town
CA  Petaluma city
CA  Porterville city
CA  Red Bluff city
CA  Reedley city
CA  Ridgecrest city
CA  Sanger city
CA  Santa Paula city
CA  Selma city
CA  South Lake Tahoe city
CA  Temecula city
CA  Tracy city
CA  Tulare city
CA  Turlock city
CA  Ukiah city
CA  Wasco city
CA  Woodland city
CO  Canon City city
CO  Durango city
CO  Lafayette city
CO  Louisville city
CO  Loveland city
CO  Sterling city
FL  Bartow city
FL  Belle Glade city
FL  De Land city
FL  Eustis city
FL  Haines City city
FL  Key West city
FL  Leesburg city
FL  Palatka city
FL  Plant City city
FL  St. Augustine city
FL  St. Cloud city
GA  Americus city
GA  Carrollton city
GA  Cordele city
GA  Dalton city
GA  Dublin city
GA  Griffin city
GA  Hinesville city
GA  Moultrie city
GA  Newnan city
GA  Statesboro city
GA  Thomasville city
GA  Tifton city
GA  Valdosta city
GA  Waycross city
IA  Ames city
IA  Ankeny city
IA  Boone city
IA  Burlington city
IA  Fort Dodge city
IA  Fort Madison city
IA  Indianola city
IA  Keokuk city
IA  Marshalltown city
IA  Mason City city
IA  Muscatine city
IA  Newton city
IA  Oskaloosa city
IA  Ottumwa city
IA  Spencer city
ID  Caldwell city
ID  Coeur d'Alene city
ID  Lewiston city
ID  Moscow city
ID  Nampa city
ID  Rexburg city
ID  Twin Falls city
IL  Belvidere city
IL  Canton city
IL  Carbondale city
IL  Centralia city
IL  Charleston city
IL  Danville city
IL  De Kalb city
IL  Dixon city
IL  Effingham city
IL  Freeport city
IL  Galesburg city
IL  Jacksonville city
IL  Macomb city
IL  Mattoon city
IL  Mount Vernon city
IL  Ottawa city
IL  Pontiac city
IL  Quincy city
IL  Rantoul village
IL  Sterling city
IL  Streator city
IL  Taylorville city
IL  Woodstock city
IN  Bedford city
IN  Columbus city
IN  Crawfordsville city
IN  Frankfort city
IN  Franklin city
IN  Greenfield city
IN  Huntington city
IN  Jasper city
IN  La Porte city
IN  Lebanon city
IN  Logansport city
IN  Madison city
IN  Marion city
IN  Martinsville city
IN  Michigan City city
IN  New Castle city
IN  Noblesville city
IN  Peru city
IN  Plainfield town
IN  Richmond city
IN  Seymour city
IN  Shelbyville city
IN  Valparaiso city
IN  Vincennes city
IN  Wabash city
IN  Warsaw city
IN  Washington city
KS  Arkansas City city
KS  Atchison city
KS  Coffeyville city
KS  Derby city
KS  Dodge City city
KS  El Dorado city
KS  Emporia city
KS  Garden City city
KS  Great Bend city
KS  Hays city
KS  Hutchinson city
KS  Junction City city
KS  Leavenworth city
KS  Liberal city
KS  Manhattan city
KS  McPherson city
KS  Newton city
KS  Ottawa city
KS  Parsons city
KS  Pittsburg city
KS  Salina city
KS  Winfield city
KY  Bowling Green city
KY  Danville city
KY  Frankfort city
KY  Georgetown city
KY  Glasgow city
KY  Hopkinsville city
KY  Madisonville city
KY  Middlesborough city
KY  Murray city
KY  Nicholasville city
KY  Paducah city
KY  Radcliff city
KY  Richmond city
KY  Somerset city
KY  Winchester city

[[Page 68836]]

LA  Abbeville city
LA  Bastrop city
LA  Bogalusa city
LA  Crowley city
LA  Eunice city
LA  Hammond city
LA  Jennings city
LA  Minden city
LA  Morgan City city
LA  Natchitoches city
LA  New Iberia city
LA  Opelousas city
LA  Ruston city
LA  Thibodaux city
MA  Amherst town
MA  Clinton town
MA  Milford town
MA  Newburyport city
MD  Aberdeen town
MD  Cambridge city
MD  Salisbury city
MD  Westminster city
ME  Waterville city
MI  Adrian city
MI  Albion city
MI  Alpena city
MI  Big Rapids city
MI  Cadillac city
MI  Escanaba city
MI  Grand Haven city
MI  Marquette city
MI  Midland city
MI  Monroe city
MI  Mount Pleasant city
MI  Owosso city
MI  Sturgis city
MI  Traverse City city
MN  Albert Lea city
MN  Austin city
MN  Bemidji city
MN  Brainerd city
MN  Faribault city
MN  Fergus Falls city
MN  Hastings city
MN  Hutchinson city
MN  Mankato city
MN  Marshall city
MN  New Ulm city
MN  North Mankato city
MN  Northfield city
MN  Owatonna city
MN  Stillwater city
MN  Willmar city
MN  Winona city
MO  Cape Girardeau city
MO  Farmington city
MO  Hannibal city
MO  Jefferson City city
MO  Kennett city
MO  Kirksville city
MO  Marshall city
MO  Maryville city
MO  Poplar Bluff city
MO  Rolla city
MO  Sedalia city
MO  Sikeston city
MO  Warrensburg city
MO  Washington city
MS  Brookhaven city
MS  Canton city
MS  Clarksdale city
MS  Cleveland city
MS  Columbus city
MS  Greenville city
MS  Greenwood city
MS  Grenada city
MS  Indianola city
MS  Laurel city
MS  McComb city
MS  Meridian city
MS  Natchez city
MS  Starkville city
MS  Vicksburg city
MS  Yazoo City city
MT  Bozeman city
MT  Havre city
MT  Helena city
MT  Kalispell city
NC  Albemarle city
NC  Asheboro city
NC  Boone town
NC  Eden city
NC  Elizabeth City city
NC  Havelock city
NC  Henderson city
NC  Kernersville town
NC  Kinston city
NC  Laurinburg city
NC  Lenoir city
NC  Lexington city
NC  Lumberton city
NC  Monroe city
NC  New Bern city
NC  Reidsville city
NC  Roanoke Rapids city
NC  Salisbury city
NC  Sanford city
NC  Shelby city
NC  Statesville city
NC  Tarboro town
NC  Wilson city
ND  Dickinson city
ND  Jamestown city
ND  Minot city
ND  Williston city
NE  Beatrice city
NE  Columbus city
NE  Fremont city
NE  Grand Island city
NE  Hastings city
NE  Kearney city
NE  Norfolk city
NE  North Platte city
NE  Scottsbluff city
NJ  East Windsor township
NJ  Plainsboro township
NJ  Bridgeton city
NJ  Princeton borough
NM  Alamogordo city
NM  Artesia city
NM  Clovis city
NM  Deming city
NM  Farmington city
NM  Gallup city
NM  Hobbs city
NM  Las Vegas city
NM  Portales city
NM  Roswell city
NM  Silver City town
NV  Elko city
NY  Amsterdam city
NY  Auburn city
NY  Batavia city
NY  Canandaigua city
NY  Corning city
NY  Cortland city
NY  Dunkirk city
NY  Fredonia village
NY  Fulton city
NY  Geneva city
NY  Gloversville city
NY  Jamestown city
NY  Kingston city
NY  Lockport city
NY  Massena village
NY  Middletown city
NY  Ogdensburg city
NY  Olean city
NY  Oneonta city
NY  Oswego city
NY  Plattsburgh city
NY  Potsdam village
NY  Watertown city
OH  Alliance city
OH  Ashland city
OH  Ashtabula city
OH  Athens city
OH  Bellefontaine city
OH  Bowling Green city
OH  Bucyrus city
OH  Cambridge city
OH  Chillicothe city
OH  Circleville city
OH  Coshocton city
OH  Defiance city
OH  Delaware city
OH  Dover city
OH  East Liverpool city
OH  Findlay city
OH  Fostoria city
OH  Fremont city
OH  Galion city
OH  Greenville city
OH  Lancaster city
OH  Lebanon city
OH  Marietta city
OH  Marion city
OH  Medina city
OH  Mount Vernon city
OH  New Philadelphia city
OH  Norwalk city
OH  Oxford city
OH  Piqua city
OH  Portsmouth city
OH  Salem city
OH  Sandusky city
OH  Sidney city
OH  Tiffin city
OH  Troy city
OH  Urbana city
OH  Washington city
OH  Wilmington city
OH  Wooster city
OH  Xenia city
OH  Zanesville city
OK  Ada city
OK  Altus city
OK  Bartlesville city
OK  Chickasha city
OK  Claremore city
OK  McAlester city
OK  Miami city
OK  Muskogee city
OK  Okmulgee city
OK  Owasso city
OK  Ponca City city
OK  Stillwater city
OK  Tahlequah city
OK  Weatherford city
OR  Albany city
OR  Ashland city
OR  Astoria city
OR  Bend city
OR  City of the Dalles city
OR  Coos Bay city
OR  Corvallis city
OR  Grants Pass city
OR  Hermiston city

[[Page 68837]]

OR  Klamath Falls city
OR  La Grande city
OR  Lebanon city
OR  McMinnville city
OR  Newberg city
OR  Pendleton city
OR  Roseburg city
OR  Woodburn city
PA  Berwick borough
PA  Bloomsburg town
PA  Butler city
PA  Carlisle borough
PA  Chambersburg borough
PA  Ephrata borough
PA  Hanover borough
PA  Hazleton city
PA  Indiana borough
PA  Lebanon city
PA  Meadville city
PA  New Castle city
PA  Oil City city
PA  Pottsville city
PA  Sunbury city
PA  Uniontown city
PA  Warren city
RI  Narragansett town
SC  Clemson city
SC  Easley city
SC  Gaffney city
SC  Greenwood city
SC  Newberry town
SC  Orangeburg city
SD  Aberdeen city
SD  Brookings city
SD  Huron city
SD  Mitchell city
SD  Vermillion city
SD  Watertown city
SD  Yankton city
TN  Brownsville city
TN  Cleveland city
TN  Collierville town
TN  Cookeville city
TN  Dyersburg city
TN  Greeneville town
TN  Lawrenceburg city
TN  McMinnville city
TN  Millington city
TN  Morristown city
TN  Murfreesboro city
TN  Shelbyville city
TN  Springfield city
TN  Union City city
TX  Alice city
TX  Alvin city
TX  Andrews city
TX  Angleton city
TX  Bay City city
TX  Beeville city
TX  Big Spring city
TX  Borger city
TX  Brenham city
TX  Brownwood city
TX  Burkburnett city
TX  Canyon city
TX  Cleburne city
TX  Conroe city
TX  Coppell city
TX  Corsicana city
TX  Del Rio city
TX  Dumas city
TX  Eagle Pass city
TX  El Campo city
TX  Gainesville city
TX  Gatesville city
TX  Georgetown city
TX  Henderson city
TX  Hereford city
TX  Huntsville city
TX  Jacksonville city
TX  Kerrville city
TX  Kingsville city
TX  Lake Jackson city
TX  Lamesa city
TX  Levelland city
TX  Lufkin city
TX  Mercedes city
TX  Mineral Wells city
TX  Mount Pleasant city
TX  Nacogdoches city
TX  New Braunfels city
TX  Palestine city
TX  Pampa city
TX  Pecos city
TX  Plainview city
TX  Port Lavaca city
TX  Robstown city
TX  Rosenberg city
TX  Round Rock city
TX  San Marcos city
TX  Seguin city
TX  Snyder city
TX  Stephenville city
TX  Sweetwater city
TX  Taylor city
TX  The Colony city
TX  Uvalde city
TX  Vernon city
TX  Vidor city
UT  Brigham City city
UT  Cedar City city
UT  Spanish Fork city
UT  Tooele city
VA  Blacksburg town
VA  Christiansburg town
VA  Front Royal town
VA  Harrisonburg city
VA  Leesburg town
VA  Martinsville city
VA  Radford city
VA  Staunton city
VA  Waynesboro city
VA  Winchester city
VT  Rutland city
WA  Aberdeen city
WA  Anacortes city
WA  Centralia city
WA  Ellensburg city
WA  Moses Lake city
WA  Mount Vernon city
WA  Oak Harbor city
WA  Port Angeles city
WA  Pullman city
WA  Sunnyside city
WA  Walla Walla city
WA  Wenatchee city
WI  Beaver Dam city
WI  Fond du Lac city
WI  Fort Atkinson city
WI  Manitowoc city
WI  Marinette city
WI  Marshfield city
WI  Menomonie city
WI  Monroe city
WI  Oconomowoc city
WI  Stevens Point city
WI  Sun Prairie city
WI  Two Rivers city
WI  Watertown city
WI  West Bend city
WI  Whitewater city
WI  Wisconsin Rapids city
WV  Beckley city
WV  Bluefield city
WV  Clarksburg city
WV  Fairmont city
WV  Martinsburg city
WV  Morgantown city
WY  Evanston city
WY  Gillette city
WY  Green River city
WY  Laramie city
WY  Rock Springs city
WY  Sheridan city

    For the reasons set forth in the preamble, chapter I of title 40 of 
the Code of Federal Regulations is amended as follows:

PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT

    1. The authority citation for part 9 continues to read as follows:

    Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330, 
1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 
9601-9657, 11023, 11048.

    2. In Sec. 9.1 the table is amended by adding entries in numerical 
order under the indicated heading to read as follows:


Sec. 9.1  OMB approvals under the Paperwork Reduction Act.

* * * * *

[[Page 68838]]



 
------------------------------------------------------------------------
                                                            OMB control
                     40 CFR citation                            No.
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------
   EPA Administered Permit Programs: The National Pollutant Discharge
                           Elimination System
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
122.26(g)...............................................       2040-0211
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------
                       State Permit Requirements
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
123.35(b)...............................................       2040-0211
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

    1. The authority citation for part 122 continues to read as 
follows:

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

    2. Revise Sec. 122.21(c)(1) to read as follows:


Sec. 122.21  Application for a permit (applicable to State programs, 
see Sec. 123.25).

* * * * *
    (c) Time to apply. (1) Any person proposing a new discharge, shall 
submit an application at least 180 days before the date on which the 
discharge is to commence, unless permission for a later date has been 
granted by the Director. Facilities proposing a new discharge of storm 
water associated with industrial activity shall submit an application 
180 days before that facility commences industrial activity which may 
result in a discharge of storm water associated with that industrial 
activity. Facilities described under Sec. 122.26(b)(14)(x) or 
(b)(15)(i) shall submit applications at least 90 days before the date 
on which construction is to commence. Different submittal dates may be 
required under the terms of applicable general permits. Persons 
proposing a new discharge are encouraged to submit their applications 
well in advance of the 90 or 180 day requirements to avoid delay. See 
also paragraph (k) of this section and Sec. 122.26(c)(1)(i)(G) and 
(c)(1)(ii).
* * * * *
    3. Amend Sec. 122.26 as follows:
    a. Revise paragraphs (a)(9), (b)(4)(i), (b)(7)(i), (b)(14) 
introductory text, (b)(14)(x), (b)(14)(xi);
    b. Redesignate paragraph (b)(15) as paragraph (b)(20) and add new 
paragraphs (b)(15) through (b)(19);
    c. Revise the heading for paragraph (c), the first sentence of 
paragraph (c)(1) introductory text, the first sentence of paragraph 
(c)(1)(ii) introductory text, paragraphs (e) heading and introductory 
text, (e)(1), (e)(5) introductory text, and (e)(5)(i);
    d. Add paragraphs (e)(8) and (e)(9); and
    e. Revise paragraphs (f)(4), (f)(5), and (g).
    The additions and revisions read as follows:


Sec. 122.26  Storm water discharges (applicable to State NPDES 
programs, see Sec. 123.25).

    (a) * * *
    (9)(i) On and after October 1, 1994, for discharges composed 
entirely of storm water, that are not required by paragraph (a)(1) of 
this section to obtain a permit, operators shall be required to obtain 
a NPDES permit only if:
    (A) The discharge is from a small MS4 required to be regulated 
pursuant to Sec. 122.32;
    (B) The discharge is a storm water discharge associated with small 
construction activity pursuant to paragraph (b)(15) of this section;
    (C) The Director, or in States with approved NPDES programs either 
the Director or the EPA Regional Administrator, determines that storm 
water controls are needed for the discharge based on wasteload 
allocations that are part of ``total maximum daily loads'' (TMDLs) that 
address the pollutant(s) of concern; or
    (D) The Director, or in States with approved NPDES programs either 
the Director or the EPA Regional Administrator, determines that the 
discharge, or category of discharges within a geographic area, 
contributes to a violation of a water quality standard or is a 
significant contributor of pollutants to waters of the United States.
    (ii) Operators of small MS4s designated pursuant to paragraphs 
(a)(9)(i)(A), (a)(9)(i)(C), and (a)(9)(i)(D) of this section shall seek 
coverage under an NPDES permit in accordance with Secs. 122.33 through 
122.35. Operators of non-municipal sources designated pursuant to 
paragraphs (a)(9)(i)(B), (a)(9)(i)(C), and (a)(9)(i)(D) of this section 
shall seek coverage under an NPDES permit in accordance with paragraph 
(c)(1) of this section.
    (iii) Operators of storm water discharges designated pursuant to 
paragraphs (a)(9)(i)(C) and (a)(9)(i)(D) of this section shall apply to 
the Director for a permit within 180 days of receipt of notice, unless 
permission for a later date is granted by the Director (see 
Sec. 124.52(c) of this chapter).
    (b) * * *
    (4) * * *
    (i) Located in an incorporated place with a population of 250,000 
or more as determined by the 1990 Decennial Census by the Bureau of the 
Census (Appendix F of this part); or
* * * * *
    (7) * * *
    (i) Located in an incorporated place with a population of 100,000 
or more but less than 250,000, as determined by the 1990 Decennial 
Census by the Bureau of the Census (Appendix G of this part); or
* * * * *
    (14) Storm water discharge associated with industrial activity 
means the discharge from any conveyance that is used for collecting and 
conveying storm

[[Page 68839]]

water and that is directly related to manufacturing, processing or raw 
materials storage areas at an industrial plant. The term does not 
include discharges from facilities or activities excluded from the 
NPDES program under this part 122. For the categories of industries 
identified in this section, the term includes, but is not limited to, 
storm water discharges from industrial plant yards; immediate access 
roads and rail lines used or traveled by carriers of raw materials, 
manufactured products, waste material, or by-products used or created 
by the facility; material handling sites; refuse sites; sites used for 
the application or disposal of process waste waters (as defined at part 
401 of this chapter); sites used for the storage and maintenance of 
material handling equipment; sites used for residual treatment, 
storage, or disposal; shipping and receiving areas; manufacturing 
buildings; storage areas (including tank farms) for raw materials, and 
intermediate and final products; and areas where industrial activity 
has taken place in the past and significant materials remain and are 
exposed to storm water. For the purposes of this paragraph, material 
handling activities include storage, loading and unloading, 
transportation, or conveyance of any raw material, intermediate 
product, final product, by-product or waste product. The term excludes 
areas located on plant lands separate from the plant's industrial 
activities, such as office buildings and accompanying parking lots as 
long as the drainage from the excluded areas is not mixed with storm 
water drained from the above described areas. Industrial facilities 
(including industrial facilities that are federally, State, or 
municipally owned or operated that meet the description of the 
facilities listed in paragraphs (b)(14)(i) through (xi) of this 
section) include those facilities designated under the provisions of 
paragraph (a)(1)(v) of this section. The following categories of 
facilities are considered to be engaging in ``industrial activity'' for 
purposes of paragraph (b)(14):
* * * * *
    (x) Construction activity including clearing, grading and 
excavation, except operations that result in the disturbance of less 
than five acres of total land area. Construction activity also includes 
the disturbance of less than five acres of total land area that is a 
part of a larger common plan of development or sale if the larger 
common plan will ultimately disturb five acres or more;
    (xi) Facilities under Standard Industrial Classifications 20, 21, 
22, 23, 2434, 25, 265, 267, 27, 283, 285, 30, 31 (except 311), 323, 34 
(except 3441), 35, 36, 37 (except 373), 38, 39, and 4221-25;
    (15) Storm water discharge associated with small construction 
activity means the discharge of storm water from:
    (i) Construction activities including clearing, grading, and 
excavating that result in land disturbance of equal to or greater than 
one acre and less than five acres. Small construction activity also 
includes the disturbance of less than one acre of total land area that 
is part of a larger common plan of development or sale if the larger 
common plan will ultimately disturb equal to or greater than one and 
less than five acres. Small construction activity does not include 
routine maintenance that is performed to maintain the original line and 
grade, hydraulic capacity, or original purpose of the facility. The 
Director may waive the otherwise applicable requirements in a general 
permit for a storm water discharge from construction activities that 
disturb less than five acres where:
    (A) The value of the rainfall erosivity factor (``R'' in the 
Revised Universal Soil Loss Equation) is less than five during the 
period of construction activity. The rainfall erosivity factor is 
determined in accordance with Chapter 2 of Agriculture Handbook Number 
703, Predicting Soil Erosion by Water: A Guide to Conservation Planning 
With the Revised Universal Soil Loss Equation (RUSLE), pages 21-64, 
dated January 1997. The Director of the Federal Register approves this 
incorporation by reference in accordance with 5 U.S.C 552(a) and 1 CFR 
part 51. Copies may be obtained from EPA's Water Resource Center, Mail 
Code RC4100, 401 M St. S.W., Washington, DC 20460. A copy is also 
available for inspection at the U.S. EPA Water Docket , 401 M Street 
S.W., Washington, DC. 20460, or the Office of the Federal Register, 800 
N. Capitol Street N.W. Suite 700, Washington, DC. An operator must 
certify to the Director that the construction activity will take place 
during a period when the value of the rainfall erosivity factor is less 
than five; or
    (B) Storm water controls are not needed based on a ``total maximum 
daily load'' (TMDL) approved or established by EPA that addresses the 
pollutant(s) of concern or, for non-impaired waters that do not require 
TMDLs, an equivalent analysis that determines allocations for small 
construction sites for the pollutant(s) of concern or that determines 
that such allocations are not needed to protect water quality based on 
consideration of existing in-stream concentrations, expected growth in 
pollutant contributions from all sources, and a margin of safety. For 
the purpose of this paragraph, the pollutant(s) of concern include 
sediment or a parameter that addresses sediment (such as total 
suspended solids, turbidity or siltation) and any other pollutant that 
has been identified as a cause of impairment of any water body that 
will receive a discharge from the construction activity. The operator 
must certify to the Director that the construction activity will take 
place, and storm water discharges will occur, within the drainage area 
addressed by the TMDL or equivalent analysis.
    (ii) Any other construction activity designated by the Director, or 
in States with approved NPDES programs either the Director or the EPA 
Regional Administrator, based on the potential for contribution to a 
violation of a water quality standard or for significant contribution 
of pollutants to waters of the United States.

 Exhibit 1 to Sec.  122.26(b)(15).--Summary of Coverage of ``Storm Water
Discharges Associated with Small Construction Activity'' Under the NPDES
                           Storm Water Program
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Automatic Designation:          Construction activities that
 Required Nationwide Coverage.  result in a land disturbance of equal to
                                or greater than one acre and less than
                                five acres.
                                Construction activities
                                disturbing less than one acre if part of
                                a larger common plan of development or
                                sale with a planned disturbance of equal
                                to or greater than one acre and less
                                than five acres. (see Sec.
                                122.26(b)(15)(i).)
Potential Designation:          Construction activities that
 Optional Evaluation and        result in a land disturbance of less
 Designation by the NPDES       than one acre based on the potential for
 Permitting Authority or EPA    contribution to a violation of a water
 Regional Administrator..       quality standard or for significant
                                contribution of pollutants. (see Sec.
                                122.26(b)(15)(ii).)

[[Page 68840]]

 
Potential Waiver: Waiver from  Any automatically designated construction
 Requirements as Determined     activity where the operator certifies:
 by the NPDES Permitting        (1) A rainfall erosivity factor of less
 Authority..                    than five, or (2) That the activity will
                                occur within an area where controls are
                                not needed based on a TMDL or, for non-
                                impaired waters that do not require a
                                TMDL, an equivalent analysis for the
                                pollutant(s) of concern. (see Sec.
                                122.26(b)(15)(i).)
------------------------------------------------------------------------

    (16) Small municipal separate storm sewer system means all separate 
storm sewers that are:
    (i) Owned or operated by the United States, a State, city, town, 
borough, county, parish, district, association, or other public body 
(created by or pursuant to State law) having jurisdiction over disposal 
of sewage, industrial wastes, storm water, or other wastes, including 
special districts under State law such as a sewer district, flood 
control district or drainage district, or similar entity, or an Indian 
tribe or an authorized Indian tribal organization, or a designated and 
approved management agency under section 208 of the CWA that discharges 
to waters of the United States.
    (ii) Not defined as ``large'' or ``medium'' municipal separate 
storm sewer systems pursuant to paragraphs (b)(4) and (b)(7) of this 
section, or designated under paragraph (a)(1)(v) of this section.
    (iii) This term includes systems similar to separate storm sewer 
systems in municipalities, such as systems at military bases, large 
hospital or prison complexes, and highways and other thoroughfares. The 
term does not include separate storm sewers in very discrete areas, 
such as individual buildings.
    (17) Small MS4 means a small municipal separate storm sewer system.
    (18) Municipal separate storm sewer system means all separate storm 
sewers that are defined as ``large'' or ``medium'' or ``small'' 
municipal separate storm sewer systems pursuant to paragraphs (b)(4), 
(b)(7), and (b)(16) of this section, or designated under paragraph 
(a)(1)(v) of this section.
    (19) MS4 means a municipal separate storm sewer system.
* * * * *
    (c) Application requirements for storm water discharges associated 
with industrial activity and storm water discharges associated with 
small construction activity--(1) Individual application. Dischargers of 
storm water associated with industrial activity and with small 
construction activity are required to apply for an individual permit or 
seek coverage under a promulgated storm water general permit. * * *
* * * * *
    (ii) An operator of an existing or new storm water discharge that 
is associated with industrial activity solely under paragraph 
(b)(14)(x) of this section or is associated with small construction 
activity solely under paragraph (b)(15) of this section, is exempt from 
the requirements of Sec. 122.21(g) and paragraph (c)(1)(i) of this 
section. * * *
* * * * *
    (e) Application deadlines. Any operator of a point source required 
to obtain a permit under this section that does not have an effective 
NPDES permit authorizing discharges from its storm water outfalls shall 
submit an application in accordance with the following deadlines:
    (1) Storm water discharges associated with industrial activity. (i) 
Except as provided in paragraph (e)(1)(ii) of this section, for any 
storm water discharge associated with industrial activity identified in 
paragraphs (b)(14)(i) through (xi) of this section, that is not part of 
a group application as described in paragraph (c)(2) of this section or 
that is not authorized by a storm water general permit, a permit 
application made pursuant to paragraph (c) of this section must be 
submitted to the Director by October 1, 1992;
    (ii) For any storm water discharge associated with industrial 
activity from a facility that is owned or operated by a municipality 
with a population of less than 100,000 that is not authorized by a 
general or individual permit, other than an airport, powerplant, or 
uncontrolled sanitary landfill, the permit application must be 
submitted to the Director by March 10, 2003.
* * * * *
    (5) A permit application shall be submitted to the Director within 
180 days of notice, unless permission for a later date is granted by 
the Director (see Sec. 124.52(c) of this chapter), for:
    (i) A storm water discharge that the Director, or in States with 
approved NPDES programs, either the Director or the EPA Regional 
Administrator, determines that the discharge contributes to a violation 
of a water quality standard or is a significant contributor of 
pollutants to waters of the United States (see paragraphs (a)(1)(v) and 
(b)(15)(ii) of this section);
* * * * *
    (8) For any storm water discharge associated with small 
construction activity identified in paragraph (b)(15)(i) of this 
section, see Sec. 122.21(c)(1). Discharges from these sources require 
permit authorization by March 10, 2003, unless designated for coverage 
before then.
    (9) For any discharge from a regulated small MS4, the permit 
application made under Sec. 122.33 must be submitted to the Director 
by:
    (i) March 10, 2003 if designated under Sec. 122.32(a)(1) unless 
your MS4 serves a jurisdiction with a population under 10,000 and the 
NPDES permitting authority has established a phasing schedule under 
Sec. 123.35(d)(3) (see Sec. 122.33(c)(1)); or
    (ii) Within 180 days of notice, unless the NPDES permitting 
authority grants a later date, if designated under Sec. 122.32(a)(2) 
(see Sec. 122.33(c)(2)).
    (f) * * *
    (4) Any person may petition the Director for the designation of a 
large, medium, or small municipal separate storm sewer system as 
defined by paragraph (b)(4)(iv), (b)(7)(iv), or (b)(16) of this 
section.
    (5) The Director shall make a final determination on any petition 
received under this section within 90 days after receiving the petition 
with the exception of petitions to designate a small MS4 in which case 
the Director shall make a final determination on the petition within 
180 days after its receipt.
    (g) Conditional exclusion for ``no exposure'' of industrial 
activities and materials to storm water. Discharges composed entirely 
of storm water are not storm water discharges associated with 
industrial activity if there is ``no exposure'' of industrial materials 
and activities to rain, snow, snowmelt and/or runoff, and the 
discharger satisfies the conditions in paragraphs (g)(1) through (g)(4) 
of this section. ``No exposure'' means that all industrial materials 
and activities are protected by a storm resistant shelter to prevent 
exposure to rain, snow, snowmelt, and/or runoff. Industrial materials 
or activities include, but are not limited to, material handling 
equipment or activities, industrial machinery, raw materials, 
intermediate products, by-products, final products, or waste

[[Page 68841]]

products. Material handling activities include the storage, loading and 
unloading, transportation, or conveyance of any raw material, 
intermediate product, final product or waste product.
    (1) Qualification. To qualify for this exclusion, the operator of 
the discharge must:
    (i) Provide a storm resistant shelter to protect industrial 
materials and activities from exposure to rain, snow, snow melt, and 
runoff;
    (ii) Complete and sign (according to Sec. 122.22) a certification 
that there are no discharges of storm water contaminated by exposure to 
industrial materials and activities from the entire facility, except as 
provided in paragraph (g)(2) of this section;
    (iii) Submit the signed certification to the NPDES permitting 
authority once every five years;
    (iv) Allow the Director to inspect the facility to determine 
compliance with the ``no exposure'' conditions;
    (v) Allow the Director to make any ``no exposure'' inspection 
reports available to the public upon request; and
    (vi) For facilities that discharge through an MS4, upon request, 
submit a copy of the certification of ``no exposure'' to the MS4 
operator, as well as allow inspection and public reporting by the MS4 
operator.
    (2) Industrial materials and activities not requiring storm 
resistant shelter. To qualify for this exclusion, storm resistant 
shelter is not required for:
    (i) Drums, barrels, tanks, and similar containers that are tightly 
sealed, provided those containers are not deteriorated and do not leak 
(``Sealed'' means banded or otherwise secured and without operational 
taps or valves);
    (ii) Adequately maintained vehicles used in material handling; and
    (iii) Final products, other than products that would be mobilized 
in storm water discharge (e.g., rock salt).
    (3) Limitations. (i) Storm water discharges from construction 
activities identified in paragraphs (b)(14)(x) and (b)(15) are not 
eligible for this conditional exclusion.
    (ii) This conditional exclusion from the requirement for an NPDES 
permit is available on a facility-wide basis only, not for individual 
outfalls. If a facility has some discharges of storm water that would 
otherwise be ``no exposure'' discharges, individual permit requirements 
should be adjusted accordingly.
    (iii) If circumstances change and industrial materials or 
activities become exposed to rain, snow, snow melt, and/or runoff, the 
conditions for this exclusion no longer apply. In such cases, the 
discharge becomes subject to enforcement for un-permitted discharge. 
Any conditionally exempt discharger who anticipates changes in 
circumstances should apply for and obtain permit authorization prior to 
the change of circumstances.
    (iv) Notwithstanding the provisions of this paragraph, the NPDES 
permitting authority retains the authority to require permit 
authorization (and deny this exclusion) upon making a determination 
that the discharge causes, has a reasonable potential to cause, or 
contributes to an instream excursion above an applicable water quality 
standard, including designated uses.
    (4) Certification. The no exposure certification must require the 
submission of the following information, at a minimum, to aid the NPDES 
permitting authority in determining if the facility qualifies for the 
no exposure exclusion:
    (i) The legal name, address and phone number of the discharger (see 
Sec. 122.21(b));
    (ii) The facility name and address, the county name and the 
latitude and longitude where the facility is located;
    (iii) The certification must indicate that none of the following 
materials or activities are, or will be in the foreseeable future, 
exposed to precipitation:
    (A) Using, storing or cleaning industrial machinery or equipment, 
and areas where residuals from using, storing or cleaning industrial 
machinery or equipment remain and are exposed to storm water;
    (B) Materials or residuals on the ground or in storm water inlets 
from spills/leaks;
    (C) Materials or products from past industrial activity;
    (D) Material handling equipment (except adequately maintained 
vehicles);
    (E) Materials or products during loading/unloading or transporting 
activities;
    (F) Materials or products stored outdoors (except final products 
intended for outside use, e.g., new cars, where exposure to storm water 
does not result in the discharge of pollutants);
    (G) Materials contained in open, deteriorated or leaking storage 
drums, barrels, tanks, and similar containers;
    (H) Materials or products handled/stored on roads or railways owned 
or maintained by the discharger;
    (I) Waste material (except waste in covered, non-leaking 
containers, e.g., dumpsters);
    (J) Application or disposal of process wastewater (unless otherwise 
permitted); and
    (K) Particulate matter or visible deposits of residuals from roof 
stacks/vents not otherwise regulated, i.e., under an air quality 
control permit, and evident in the storm water outflow;
    (iv) All ``no exposure'' certifications must include the following 
certification statement, and be signed in accordance with the signatory 
requirements of Sec. 122.22: ``I certify under penalty of law that I 
have read and understand the eligibility requirements for claiming a 
condition of ``no exposure'' and obtaining an exclusion from NPDES 
storm water permitting; and that there are no discharges of storm water 
contaminated by exposure to industrial activities or materials from the 
industrial facility identified in this document (except as allowed 
under paragraph (g)(2)) of this section. I understand that I am 
obligated to submit a no exposure certification form once every five 
years to the NPDES permitting authority and, if requested, to the 
operator of the local MS4 into which this facility discharges (where 
applicable). I understand that I must allow the NPDES permitting 
authority, or MS4 operator where the discharge is into the local MS4, 
to perform inspections to confirm the condition of no exposure and to 
make such inspection reports publicly available upon request. I 
understand that I must obtain coverage under an NPDES permit prior to 
any point source discharge of storm water from the facility. I certify 
under penalty of law that this document and all attachments were 
prepared under my direction or supervision in accordance with a system 
designed to assure that qualified personnel properly gathered and 
evaluated the information submitted. Based upon my inquiry of the 
person or persons who manage the system, or those persons directly 
involved in gathering the information, the information submitted is to 
the best of my knowledge and belief true, accurate and complete. I am 
aware there are significant penalties for submitting false information, 
including the possibility of fine and imprisonment for knowing 
violations.''
    4. Revise Sec. 122.28(b)(2)(v) to read as follows:


Sec. 122.28  General permits (applicable to State NPDES programs, see 
Sec. 123.25).

* * * * *
    (b) * * *
    (2) * * *
    (v) Discharges other than discharges from publicly owned treatment 
works, combined sewer overflows, municipal

[[Page 68842]]

separate storm sewer systems, primary industrial facilities, and storm 
water discharges associated with industrial activity, may, at the 
discretion of the Director, be authorized to discharge under a general 
permit without submitting a notice of intent where the Director finds 
that a notice of intent requirement would be inappropriate. In making 
such a finding, the Director shall consider: the type of discharge; the 
expected nature of the discharge; the potential for toxic and 
conventional pollutants in the discharges; the expected volume of the 
discharges; other means of identifying discharges covered by the 
permit; and the estimated number of discharges to be covered by the 
permit. The Director shall provide in the public notice of the general 
permit the reasons for not requiring a notice of intent.
* * * * *
    5. Add Secs. 122.30 through 122.37 to subpart B to read as follows:


Sec. 122.30  What are the objectives of the storm water regulations for 
small MS4s?

    (a) Sections 122.30 through 122.37 are written in a ``readable 
regulation'' format that includes both rule requirements and EPA 
guidance that is not legally binding. EPA has clearly distinguished its 
recommended guidance from the rule requirements by putting the guidance 
in a separate paragraph headed by the word ``guidance''.
    (b) Under the statutory mandate in section 402(p)(6) of the Clean 
Water Act, the purpose of this portion of the storm water program is to 
designate additional sources that need to be regulated to protect water 
quality and to establish a comprehensive storm water program to 
regulate these sources. (Because the storm water program is part of the 
National Pollutant Discharge Elimination System (NPDES) Program, you 
should also refer to Sec. 122.1 which addresses the broader purpose of 
the NPDES program.)
    (c) Storm water runoff continues to harm the nation's waters. 
Runoff from lands modified by human activities can harm surface water 
resources in several ways including by changing natural hydrologic 
patterns and by elevating pollutant concentrations and loadings. Storm 
water runoff may contain or mobilize high levels of contaminants, such 
as sediment, suspended solids, nutrients, heavy metals, pathogens, 
toxins, oxygen-demanding substances, and floatables.
    (d) EPA strongly encourages partnerships and the watershed approach 
as the management framework for efficiently, effectively, and 
consistently protecting and restoring aquatic ecosystems and protecting 
public health.


Sec. 122.31  As a Tribe, what is my role under the NPDES storm water 
program?

    As a Tribe you may:
    (a) Be authorized to operate the NPDES program including the storm 
water program, after EPA determines that you are eligible for treatment 
in the same manner as a State under Secs. 123.31 through 123.34 of this 
chapter. (If you do not have an authorized NPDES program, EPA 
implements the program for discharges on your reservation as well as 
other Indian country, generally.);
    (b) Be classified as an owner of a regulated small MS4, as defined 
in Sec. 122.32. (Designation of your Tribe as an owner of a small MS4 
for purposes of this part is an approach that is consistent with EPA's 
1984 Indian Policy of operating on a government-to-government basis 
with EPA looking to Tribes as the lead governmental authorities to 
address environmental issues on their reservations as appropriate. If 
you operate a separate storm sewer system that meets the definition of 
a regulated small MS4, you are subject to the requirements under 
Secs. 122.33 through 122.35. If you are not designated as a regulated 
small MS4, you may ask EPA to designate you as such for the purposes of 
this part.); or
    (c) Be a discharger of storm water associated with industrial 
activity or small construction activity under Secs. 122.26(b)(14) or 
(b)(15), in which case you must meet the applicable requirements. 
Within Indian country, the NPDES permitting authority is generally EPA, 
unless you are authorized to administer the NPDES program.


Sec. 122.32  As an operator of a small MS4, am I regulated under the 
NPDES storm water program?

    (a) Unless you qualify for a waiver under paragraph (c) of this 
section, you are regulated if you operate a small MS4, including but 
not limited to systems operated by federal, State, Tribal, and local 
governments, including State departments of transportation; and:
    (1) Your small MS4 is located in an urbanized area as determined by 
the latest Decennial Census by the Bureau of the Census. (If your small 
MS4 is not located entirely within an urbanized area, only the portion 
that is within the urbanized area is regulated); or
    (2) You are designated by the NPDES permitting authority, including 
where the designation is pursuant to Secs. 123.35(b)(3) and (b)(4) of 
this chapter, or is based upon a petition under Sec. 122.26(f).
    (b) You may be the subject of a petition to the NPDES permitting 
authority to require an NPDES permit for your discharge of storm water. 
If the NPDES permitting authority determines that you need a permit, 
you are required to comply with Secs. 122.33 through 122.35.
    (c) The NPDES permitting authority may waive the requirements 
otherwise applicable to you if you meet the criteria of paragraph (d) 
or (e) of this section. If you receive a waiver under this section, you 
may subsequently be required to seek coverage under an NPDES permit in 
accordance with Sec. 122.33(a) if circumstances change. (See also 
Sec. 123.35(b) of this chapter.)
    (d) The NPDES permitting authority may waive permit coverage if 
your MS4 serves a population of less than 1,000 within the urbanized 
area and you meet the following criteria:
    (1) Your system is not contributing substantially to the pollutant 
loadings of a physically interconnected MS4 that is regulated by the 
NPDES storm water program (see Sec. 123.35(b)(4) of this chapter); and
    (2) If you discharge any pollutant(s) that have been identified as 
a cause of impairment of any water body to which you discharge, storm 
water controls are not needed based on wasteload allocations that are 
part of an EPA approved or established ``total maximum daily load'' 
(TMDL) that addresses the pollutant(s) of concern.
    (e) The NPDES permitting authority may waive permit coverage if 
your MS4 serves a population under 10,000 and you meet the following 
criteria:
    (1) The permitting authority has evaluated all waters of the U.S., 
including small streams, tributaries, lakes, and ponds, that receive a 
discharge from your MS4;
    (2) For all such waters, the permitting authority has determined 
that storm water controls are not needed based on wasteload allocations 
that are part of an EPA approved or established TMDL that addresses the 
pollutant(s) of concern or, if a TMDL has not been developed or 
approved, an equivalent analysis that determines sources and 
allocations for the pollutant(s) of concern;
    (3) For the purpose of this paragraph (e), the pollutant(s) of 
concern include biochemical oxygen demand (BOD), sediment or a 
parameter that addresses sediment (such as total suspended solids, 
turbidity or siltation), pathogens, oil and grease, and any pollutant 
that has been identified as a cause of impairment of any water body 
that will receive a discharge from your MS4; and

[[Page 68843]]

    (4) The permitting authority has determined that future discharges 
from your MS4 do not have the potential to result in exceedances of 
water quality standards, including impairment of designated uses, or 
other significant water quality impacts, including habitat and 
biological impacts.


Sec. 122.33  If I am an operator of a regulated small MS4, how do I 
apply for an NPDES permit and when do I have to apply?

    (a) If you operate a regulated small MS4 under Sec. 122.32, you 
must seek coverage under a NPDES permit issued by your NPDES permitting 
authority. If you are located in an NPDES authorized State, Tribe, or 
Territory, then that State, Tribe, or Territory is your NPDES 
permitting authority. Otherwise, your NPDES permitting authority is the 
EPA Regional Office.
    (b) You must seek authorization to discharge under a general or 
individual NPDES permit, as follows:
    (1) If your NPDES permitting authority has issued a general permit 
applicable to your discharge and you are seeking coverage under the 
general permit, you must submit a Notice of Intent (NOI) that includes 
the information on your best management practices and measurable goals 
required by Sec. 122.34(d). You may file your own NOI, or you and other 
municipalities or governmental entities may jointly submit an NOI. If 
you want to share responsibilities for meeting the minimum measures 
with other municipalities or governmental entities, you must submit an 
NOI that describes which minimum measures you will implement and 
identify the entities that will implement the other minimum measures 
within the area served by your MS4. The general permit will explain any 
other steps necessary to obtain permit authorization.
    (2)(i) If you are seeking authorization to discharge under an 
individual permit and wish to implement a program under Sec. 122.34, 
you must submit an application to your NPDES permitting authority that 
includes the information required under Secs. 122.21(f) and 122.34(d), 
an estimate of square mileage served by your small MS4, and any 
additional information that your NPDES permitting authority requests. A 
storm sewer map that satisfies the requirement of Sec. 122.34(b)(3)(i) 
will satisfy the map requirement in Sec. 122.21(f)(7).
    (ii) If you are seeking authorization to discharge under an 
individual permit and wish to implement a program that is different 
from the program under Sec. 122.34, you will need to comply with the 
permit application requirements of Sec. 122.26(d). You must submit both 
Parts of the application requirements in Secs. 122.26(d)(1) and (2) by 
March 10, 2003. You do not need to submit the information required by 
Secs. 122.26(d)(1)(ii) and (d)(2) regarding your legal authority, 
unless you intend for the permit writer to take such information into 
account when developing your other permit conditions.
    (iii) If allowed by your NPDES permitting authority, you and 
another regulated entity may jointly apply under either paragraph 
(b)(2)(i) or (b)(2)(ii) of this section to be co-permittees under an 
individual permit.
    (3) If your small MS4 is in the same urbanized area as a medium or 
large MS4 with an NPDES storm water permit and that other MS4 is 
willing to have you participate in its storm water program, you and the 
other MS4 may jointly seek a modification of the other MS4 permit to 
include you as a limited co-permittee. As a limited co-permittee, you 
will be responsible for compliance with the permit's conditions 
applicable to your jurisdiction. If you choose this option you will 
need to comply with the permit application requirements of Sec. 122.26, 
rather than the requirements of Sec. 122.34. You do not need to comply 
with the specific application requirements of Sec. 122.26(d)(1)(iii) 
and (iv) and (d)(2)(iii) (discharge characterization). You may satisfy 
the requirements in Sec. 122.26 (d)(1)(v) and (d)(2)(iv) 
(identification of a management program) by referring to the other 
MS4's storm water management program.
    (4) Guidance: In referencing an MS4's storm water management 
program, you should briefly describe how the existing plan will address 
discharges from your small MS4 or would need to be supplemented in 
order to adequately address your discharges. You should also explain 
your role in coordinating storm water pollutant control activities in 
your MS4, and detail the resources available to you to accomplish the 
plan.
    (c) If you operate a regulated small MS4:
    (1) Designated under Sec. 122.32(a)(1), you must apply for coverage 
under an NPDES permit, or apply for a modification of an existing NPDES 
permit under paragraph (b)(3) of this section by March 10, 2003, unless 
your MS4 serves a jurisdiction with a population under 10,000 and the 
NPDES permitting authority has established a phasing schedule under 
Sec. 123.35(d)(3) of this chapter.
    (2) Designated under Sec. 122.32(a)(2), you must apply for coverage 
under an NPDES permit, or apply for a modification of an existing NPDES 
permit under paragraph (b)(3) of this section, within 180 days of 
notice, unless the NPDES permitting authority grants a later date.


Sec. 122.34  As an operator of a regulated small MS4, what will my 
NPDES MS4 storm water permit require?

    (a) Your NPDES MS4 permit will require at a minimum that you 
develop, implement, and enforce a storm water management program 
designed to reduce the discharge of pollutants from your MS4 to the 
maximum extent practicable (MEP), to protect water quality, and to 
satisfy the appropriate water quality requirements of the Clean Water 
Act. Your storm water management program must include the minimum 
control measures described in paragraph (b) of this section unless you 
apply for a permit under Sec. 122.26(d). For purposes of this section, 
narrative effluent limitations requiring implementation of best 
management practices (BMPs) are generally the most appropriate form of 
effluent limitations when designed to satisfy technology requirements 
(including reductions of pollutants to the maximum extent practicable) 
and to protect water quality. Implementation of best management 
practices consistent with the provisions of the storm water management 
program required pursuant to this section and the provisions of the 
permit required pursuant to Sec. 122.33 constitutes compliance with the 
standard of reducing pollutants to the ``maximum extent practicable.'' 
Your NPDES permitting authority will specify a time period of up to 5 
years from the date of permit issuance for you to develop and implement 
your program.
    (b) Minimum control measures--(1) Public education and outreach on 
storm water impacts. (i) You must implement a public education program 
to distribute educational materials to the community or conduct 
equivalent outreach activities about the impacts of storm water 
discharges on water bodies and the steps that the public can take to 
reduce pollutants in storm water runoff.
    (ii) Guidance: You may use storm water educational materials 
provided by your State, Tribe, EPA, environmental, public interest or 
trade organizations, or other MS4s. The public education program should 
inform individuals and households about the steps they can take to 
reduce storm water pollution, such as ensuring proper septic system 
maintenance, ensuring the proper use and disposal of landscape and 
garden chemicals including fertilizers and pesticides, protecting and 
restoring riparian vegetation, and properly disposing of used motor oil 
or

[[Page 68844]]

household hazardous wastes. EPA recommends that the program inform 
individuals and groups how to become involved in local stream and beach 
restoration activities as well as activities that are coordinated by 
youth service and conservation corps or other citizen groups. EPA 
recommends that the public education program be tailored, using a mix 
of locally appropriate strategies, to target specific audiences and 
communities. Examples of strategies include distributing brochures or 
fact sheets, sponsoring speaking engagements before community groups, 
providing public service announcements, implementing educational 
programs targeted at school age children, and conducting community-
based projects such as storm drain stenciling, and watershed and beach 
cleanups. In addition, EPA recommends that some of the materials or 
outreach programs be directed toward targeted groups of commercial, 
industrial, and institutional entities likely to have significant storm 
water impacts. For example, providing information to restaurants on the 
impact of grease clogging storm drains and to garages on the impact of 
oil discharges. You are encouraged to tailor your outreach program to 
address the viewpoints and concerns of all communities, particularly 
minority and disadvantaged communities, as well as any special concerns 
relating to children.
    (2) Public involvement/participation. (i) You must, at a minimum, 
comply with State, Tribal and local public notice requirements when 
implementing a public involvement/ participation program.
    (ii) Guidance: EPA recommends that the public be included in 
developing, implementing, and reviewing your storm water management 
program and that the public participation process should make efforts 
to reach out and engage all economic and ethnic groups. Opportunities 
for members of the public to participate in program development and 
implementation include serving as citizen representatives on a local 
storm water management panel, attending public hearings, working as 
citizen volunteers to educate other individuals about the program, 
assisting in program coordination with other pre-existing programs, or 
participating in volunteer monitoring efforts. (Citizens should obtain 
approval where necessary for lawful access to monitoring sites.)
    (3) Illicit discharge detection and elimination. (i) You must 
develop, implement and enforce a program to detect and eliminate 
illicit discharges (as defined at Sec. 122.26(b)(2)) into your small 
MS4.
    (ii) You must:
    (A) Develop, if not already completed, a storm sewer system map, 
showing the location of all outfalls and the names and location of all 
waters of the United States that receive discharges from those 
outfalls;
    (B) To the extent allowable under State, Tribal or local law, 
effectively prohibit, through ordinance, or other regulatory mechanism, 
non-storm water discharges into your storm sewer system and implement 
appropriate enforcement procedures and actions;
    (C) Develop and implement a plan to detect and address non-storm 
water discharges, including illegal dumping, to your system; and
    (D) Inform public employees, businesses, and the general public of 
hazards associated with illegal discharges and improper disposal of 
waste.
    (iii) You need address the following categories of non-storm water 
discharges or flows (i.e., illicit discharges) only if you identify 
them as significant contributors of pollutants to your small MS4: water 
line flushing, landscape irrigation, diverted stream flows, rising 
ground waters, uncontaminated ground water infiltration (as defined at 
40 CFR 35.2005(20)), uncontaminated pumped ground water, discharges 
from potable water sources, foundation drains, air conditioning 
condensation, irrigation water, springs, water from crawl space pumps, 
footing drains, lawn watering, individual residential car washing, 
flows from riparian habitats and wetlands, dechlorinated swimming pool 
discharges, and street wash water (discharges or flows from fire 
fighting activities are excluded from the effective prohibition against 
non-storm water and need only be addressed where they are identified as 
significant sources of pollutants to waters of the United States).
    (iv) Guidance: EPA recommends that the plan to detect and address 
illicit discharges include the following four components: procedures 
for locating priority areas likely to have illicit discharges; 
procedures for tracing the source of an illicit discharge; procedures 
for removing the source of the discharge; and procedures for program 
evaluation and assessment. EPA recommends visually screening outfalls 
during dry weather and conducting field tests of selected pollutants as 
part of the procedures for locating priority areas. Illicit discharge 
education actions may include storm drain stenciling, a program to 
promote, publicize, and facilitate public reporting of illicit 
connections or discharges, and distribution of outreach materials.
    (4) Construction site storm water runoff control. (i) You must 
develop, implement, and enforce a program to reduce pollutants in any 
storm water runoff to your small MS4 from construction activities that 
result in a land disturbance of greater than or equal to one acre. 
Reduction of storm water discharges from construction activity 
disturbing less than one acre must be included in your program if that 
construction activity is part of a larger common plan of development or 
sale that would disturb one acre or more. If the NPDES permitting 
authority waives requirements for storm water discharges associated 
with small construction activity in accordance with 
Sec. 122.26(b)(15)(i), you are not required to develop, implement, and/
or enforce a program to reduce pollutant discharges from such sites.
    (ii) Your program must include the development and implementation 
of, at a minimum:
    (A) An ordinance or other regulatory mechanism to require erosion 
and sediment controls, as well as sanctions to ensure compliance, to 
the extent allowable under State, Tribal, or local law;
    (B) Requirements for construction site operators to implement 
appropriate erosion and sediment control best management practices;
    (C) Requirements for construction site operators to control waste 
such as discarded building materials, concrete truck washout, 
chemicals, litter, and sanitary waste at the construction site that may 
cause adverse impacts to water quality;
    (D) Procedures for site plan review which incorporate consideration 
of potential water quality impacts;
    (E) Procedures for receipt and consideration of information 
submitted by the public, and
    (F) Procedures for site inspection and enforcement of control 
measures.
    (iii) Guidance: Examples of sanctions to ensure compliance include 
non-monetary penalties, fines, bonding requirements and/or permit 
denials for non-compliance. EPA recommends that procedures for site 
plan review include the review of individual pre-construction site 
plans to ensure consistency with local sediment and erosion control 
requirements. Procedures for site inspections and enforcement of 
control measures could include steps to identify priority sites for 
inspection and enforcement based on the nature of the construction 
activity, topography, and the characteristics of soils and receiving

[[Page 68845]]

water quality. You are encouraged to provide appropriate educational 
and training measures for construction site operators. You may wish to 
require a storm water pollution prevention plan for construction sites 
within your jurisdiction that discharge into your system. See 
Sec. 122.44(s) (NPDES permitting authorities' option to incorporate 
qualifying State, Tribal and local erosion and sediment control 
programs into NPDES permits for storm water discharges from 
construction sites). Also see Sec. 122.35(b) (The NPDES permitting 
authority may recognize that another government entity, including the 
permitting authority, may be responsible for implementing one or more 
of the minimum measures on your behalf.)
    (5) Post-construction storm water management in new development and 
redevelopment.
    (i) You must develop, implement, and enforce a program to address 
storm water runoff from new development and redevelopment projects that 
disturb greater than or equal to one acre, including projects less than 
one acre that are part of a larger common plan of development or sale, 
that discharge into your small MS4. Your program must ensure that 
controls are in place that would prevent or minimize water quality 
impacts.
    (ii) You must:
    (A) Develop and implement strategies which include a combination of 
structural and/or non-structural best management practices (BMPs) 
appropriate for your community;
    (B) Use an ordinance or other regulatory mechanism to address post-
construction runoff from new development and redevelopment projects to 
the extent allowable under State, Tribal or local law; and
    (C) Ensure adequate long-term operation and maintenance of BMPs.
    (iii) Guidance: If water quality impacts are considered from the 
beginning stages of a project, new development and potentially 
redevelopment provide more opportunities for water quality protection. 
EPA recommends that the BMPs chosen: be appropriate for the local 
community; minimize water quality impacts; and attempt to maintain pre-
development runoff conditions. In choosing appropriate BMPs, EPA 
encourages you to participate in locally-based watershed planning 
efforts which attempt to involve a diverse group of stakeholders 
including interested citizens. When developing a program that is 
consistent with this measure's intent, EPA recommends that you adopt a 
planning process that identifies the municipality's program goals 
(e.g., minimize water quality impacts resulting from post-construction 
runoff from new development and redevelopment), implementation 
strategies (e.g., adopt a combination of structural and/or non-
structural BMPs), operation and maintenance policies and procedures, 
and enforcement procedures. In developing your program, you should 
consider assessing existing ordinances, policies, programs and studies 
that address storm water runoff quality. In addition to assessing these 
existing documents and programs, you should provide opportunities to 
the public to participate in the development of the program. Non-
structural BMPs are preventative actions that involve management and 
source controls such as: policies and ordinances that provide 
requirements and standards to direct growth to identified areas, 
protect sensitive areas such as wetlands and riparian areas, maintain 
and/or increase open space (including a dedicated funding source for 
open space acquisition), provide buffers along sensitive water bodies, 
minimize impervious surfaces, and minimize disturbance of soils and 
vegetation; policies or ordinances that encourage infill development in 
higher density urban areas, and areas with existing infrastructure; 
education programs for developers and the public about project designs 
that minimize water quality impacts; and measures such as minimization 
of percent impervious area after development and minimization of 
directly connected impervious areas. Structural BMPs include: storage 
practices such as wet ponds and extended-detention outlet structures; 
filtration practices such as grassed swales, sand filters and filter 
strips; and infiltration practices such as infiltration basins and 
infiltration trenches. EPA recommends that you ensure the appropriate 
implementation of the structural BMPs by considering some or all of the 
following: pre-construction review of BMP designs; inspections during 
construction to verify BMPs are built as designed; post-construction 
inspection and maintenance of BMPs; and penalty provisions for the 
noncompliance with design, construction or operation and maintenance. 
Storm water technologies are constantly being improved, and EPA 
recommends that your requirements be responsive to these changes, 
developments or improvements in control technologies.
    (6) Pollution prevention/good housekeeping for municipal 
operations. (i) You must develop and implement an operation and 
maintenance program that includes a training component and has the 
ultimate goal of preventing or reducing pollutant runoff from municipal 
operations. Using training materials that are available from EPA, your 
State, Tribe, or other organizations, your program must include 
employee training to prevent and reduce storm water pollution from 
activities such as park and open space maintenance, fleet and building 
maintenance, new construction and land disturbances, and storm water 
system maintenance.
    (ii) Guidance: EPA recommends that, at a minimum, you consider the 
following in developing your program: maintenance activities, 
maintenance schedules, and long-term inspection procedures for 
structural and non-structural storm water controls to reduce floatables 
and other pollutants discharged from your separate storm sewers; 
controls for reducing or eliminating the discharge of pollutants from 
streets, roads, highways, municipal parking lots, maintenance and 
storage yards, fleet or maintenance shops with outdoor storage areas, 
salt/sand storage locations and snow disposal areas operated by you, 
and waste transfer stations; procedures for properly disposing of waste 
removed from the separate storm sewers and areas listed above (such as 
dredge spoil, accumulated sediments, floatables, and other debris); and 
ways to ensure that new flood management projects assess the impacts on 
water quality and examine existing projects for incorporating 
additional water quality protection devices or practices. Operation and 
maintenance should be an integral component of all storm water 
management programs. This measure is intended to improve the efficiency 
of these programs and require new programs where necessary. Properly 
developed and implemented operation and maintenance programs reduce the 
risk of water quality problems.
    (c) If an existing qualifying local program requires you to 
implement one or more of the minimum control measures of paragraph (b) 
of this section, the NPDES permitting authority may include conditions 
in your NPDES permit that direct you to follow that qualifying 
program's requirements rather than the requirements of paragraph (b) of 
this section. A qualifying local program is a local, State or Tribal 
municipal storm water management program that imposes, at a minimum, 
the relevant requirements of paragraph (b) of this section.
    (d)(1) In your permit application (either a notice of intent for 
coverage

[[Page 68846]]

under a general permit or an individual permit application), you must 
identify and submit to your NPDES permitting authority the following 
information:
    (i) The best management practices (BMPs) that you or another entity 
will implement for each of the storm water minimum control measures at 
paragraphs (b)(1) through (b)(6) of this section;
    (ii) The measurable goals for each of the BMPs including, as 
appropriate, the months and years in which you will undertake required 
actions, including interim milestones and the frequency of the action; 
and
    (iii) The person or persons responsible for implementing or 
coordinating your storm water management program.
    (2) If you obtain coverage under a general permit, you are not 
required to meet any measurable goal(s) identified in your notice of 
intent in order to demonstrate compliance with the minimum control 
measures in paragraphs (b)(3) through (b)(6) of this section unless, 
prior to submitting your NOI, EPA or your State or Tribe has provided 
or issued a menu of BMPs that addresses each such minimum measure. Even 
if no regulatory authority issues the menu of BMPs, however, you still 
must comply with other requirements of the general permit, including 
good faith implementation of BMPs designed to comply with the minimum 
measures.
    (3) Guidance: Either EPA or your State or Tribal permitting 
authority will provide a menu of BMPs. You may choose BMPs from the 
menu or select others that satisfy the minimum control measures.
    (e)(1) You must comply with any more stringent effluent limitations 
in your permit, including permit requirements that modify, or are in 
addition to, the minimum control measures based on an approved total 
maximum daily load (TMDL) or equivalent analysis. The permitting 
authority may include such more stringent limitations based on a TMDL 
or equivalent analysis that determines such limitations are needed to 
protect water quality.
    (2) Guidance: EPA strongly recommends that until the evaluation of 
the storm water program in Sec. 122.37, no additional requirements 
beyond the minimum control measures be imposed on regulated small MS4s 
without the agreement of the operator of the affected small MS4, except 
where an approved TMDL or equivalent analysis provides adequate 
information to develop more specific measures to protect water quality.
    (f) You must comply with other applicable NPDES permit 
requirements, standards and conditions established in the individual or 
general permit, developed consistent with the provisions of 
Secs. 122.41 through 122.49, as appropriate.
    (g) Evaluation and assessment--(1) Evaluation. You must evaluate 
program compliance, the appropriateness of your identified best 
management practices, and progress towards achieving your identified 
measurable goals.

    Note to Paragraph (g)(1): The NPDES permitting authority may 
determine monitoring requirements for you in accordance with State/
Tribal monitoring plans appropriate to your watershed. Participation 
in a group monitoring program is encouraged.

    (2) Recordkeeping. You must keep records required by the NPDES 
permit for at least 3 years. You must submit your records to the NPDES 
permitting authority only when specifically asked to do so. You must 
make your records, including a description of your storm water 
management program, available to the public at reasonable times during 
regular business hours (see Sec. 122.7 for confidentiality provision). 
(You may assess a reasonable charge for copying. You may require a 
member of the public to provide advance notice.)
    (3) Reporting. Unless you are relying on another entity to satisfy 
your NPDES permit obligations under Sec. 122.35(a), you must submit 
annual reports to the NPDES permitting authority for your first permit 
term. For subsequent permit terms, you must submit reports in year two 
and four unless the NPDES permitting authority requires more frequent 
reports. Your report must include:
    (i) The status of compliance with permit conditions, an assessment 
of the appropriateness of your identified best management practices and 
progress towards achieving your identified measurable goals for each of 
the minimum control measures;
    (ii) Results of information collected and analyzed, including 
monitoring data, if any, during the reporting period;
    (iii) A summary of the storm water activities you plan to undertake 
during the next reporting cycle;
    (iv) A change in any identified best management practices or 
measurable goals for any of the minimum control measures; and
    (v) Notice that you are relying on another governmental entity to 
satisfy some of your permit obligations (if applicable).


Sec. 122.35  As an operator of a regulated small MS4, may I share the 
responsibility to implement the minimum control measures with other 
entities?

    (a) You may rely on another entity to satisfy your NPDES permit 
obligations to implement a minimum control measure if:
    (1) The other entity, in fact, implements the control measure;
    (2) The particular control measure, or component thereof, is at 
least as stringent as the corresponding NPDES permit requirement; and
    (3) The other entity agrees to implement the control measure on 
your behalf. In the reports you must submit under Sec. 122.34(g)(3), 
you must also specify that you rely on another entity to satisfy some 
of your permit obligations. If you are relying on another governmental 
entity regulated under section 122 to satisfy all of your permit 
obligations, including your obligation to file periodic reports 
required by Sec. 122.34(g)(3), you must note that fact in your NOI, but 
you are not required to file the periodic reports. You remain 
responsible for compliance with your permit obligations if the other 
entity fails to implement the control measure (or component thereof). 
Therefore, EPA encourages you to enter into a legally binding agreement 
with that entity if you want to minimize any uncertainty about 
compliance with your permit.
    (b) In some cases, the NPDES permitting authority may recognize, 
either in your individual NPDES permit or in an NPDES general permit, 
that another governmental entity is responsible under an NPDES permit 
for implementing one or more of the minimum control measures for your 
small MS4 or that the permitting authority itself is responsible. Where 
the permitting authority does so, you are not required to include such 
minimum control measure(s) in your storm water management program. (For 
example, if a State or Tribe is subject to an NPDES permit that 
requires it to administer a program to control construction site runoff 
at the State or Tribal level and that program satisfies all of the 
requirements of Sec. 122.34(b)(4), you could avoid responsibility for 
the construction measure, but would be responsible for the remaining 
minimum control measures.) Your permit may be reopened and modified to 
include the requirement to implement a minimum control measure if the 
entity fails to implement it.

[[Page 68847]]

Sec. 122.36  As an operator of a regulated small MS4, what happens if I 
don't comply with the application or permit requirements in 
Secs. 122.33 through 122.35?

    NPDES permits are federally enforceable. Violators may be subject 
to the enforcement actions and penalties described in Clean Water Act 
sections 309 (b), (c), and (g) and 505, or under applicable State, 
Tribal, or local law. Compliance with a permit issued pursuant to 
section 402 of the Clean Water Act is deemed compliance, for purposes 
of sections 309 and 505, with sections 301, 302, 306, 307, and 403, 
except any standard imposed under section 307 for toxic pollutants 
injurious to human health. If you are covered as a co-permittee under 
an individual permit or under a general permit by means of a joint 
Notice of Intent you remain subject to the enforcement actions and 
penalties for the failure to comply with the terms of the permit in 
your jurisdiction except as set forth in Sec. 122.35(b).


Sec. 122.37  Will the small MS4 storm water program regulations at 
Secs. 122.32 through 122.36 and Sec. 123.35 of this chapter change in 
the future?

    EPA will evaluate the small MS4 regulations at Secs. 122.32 through 
122.36 and Sec. 123.35 of this chapter after December 10, 2012 and make 
any necessary revisions. (EPA intends to conduct an enhanced research 
effort and compile a comprehensive evaluation of the NPDES MS4 storm 
water program. EPA will re-evaluate the regulations based on data from 
the NPDES MS4 storm water program, from research on receiving water 
impacts from storm water, and the effectiveness of best management 
practices (BMPs), as well as other relevant information sources.)
    6. In Sec. 122.44, redesignate paragraphs (k)(2) and (k)(3) as 
paragraphs (k)(3) and (k)(4), remove the comma at the end of newly 
redesignated paragraph (k)(3) and add a semicolon in its place, and add 
new paragraphs (k)(2) and (s) to read as follows:


Sec. 122.44  Establishing limitations, standards, and other permit 
conditions (applicable to State NPDES programs, see Sec. 123.25).

* * * * *
    (k) * * *
    (2) Authorized under section 402(p) of CWA for the control of storm 
water discharges;
* * * * *
    (s) Qualifying State, Tribal, or local programs. (1) For storm 
water discharges associated with small construction activity identified 
in Sec. 122.26(b)(15), the Director may include permit conditions that 
incorporate qualifying State, Tribal, or local erosion and sediment 
control program requirements by reference. Where a qualifying State, 
Tribal, or local program does not include one or more of the elements 
in this paragraph (s)(1), then the Director must include those elements 
as conditions in the permit. A qualifying State, Tribal, or local 
erosion and sediment control program is one that includes:
    (i) Requirements for construction site operators to implement 
appropriate erosion and sediment control best management practices;
    (ii) Requirements for construction site operators to control waste 
such as discarded building materials, concrete truck washout, 
chemicals, litter, and sanitary waste at the construction site that may 
cause adverse impacts to water quality;
    (iii) Requirements for construction site operators to develop and 
implement a storm water pollution prevention plan. (A storm water 
pollution prevention plan includes site descriptions, descriptions of 
appropriate control measures, copies of approved State, Tribal or local 
requirements, maintenance procedures, inspection procedures, and 
identification of non-storm water discharges); and
    (iv) Requirements to submit a site plan for review that 
incorporates consideration of potential water quality impacts.
    (2) For storm water discharges from construction activity 
identified in Sec. 122.26(b)(14)(x), the Director may include permit 
conditions that incorporate qualifying State, Tribal, or local erosion 
and sediment control program requirements by reference. A qualifying 
State, Tribal or local erosion and sediment control program is one that 
includes the elements listed in paragraph (s)(1) of this section and 
any additional requirements necessary to achieve the applicable 
technology-based standards of ``best available technology'' and ``best 
conventional technology'' based on the best professional judgment of 
the permit writer.
    7. Add Sec. 122.62(a)(14) to read as follows:


Sec. 122.62  Modification or revocation and reissuance of permits 
(applicable to State programs, see Sec. 123.25).

* * * * *
    (a) * * *
    (14) For a small MS4, to include an effluent limitation requiring 
implementation of a minimum control measure or measures as specified in 
Sec. 122.34(b) when:
    (i) The permit does not include such measure(s) based upon the 
determination that another entity was responsible for implementation of 
the requirement(s); and
    (ii) The other entity fails to implement measure(s) that satisfy 
the requirement(s).
* * * * *
    8. Revise Appendices F, G, H, and I to Part 122 to read as follows:

  Appendix F to Part 122.--Incorporated Places With Populations Greater
Than 250,000 According to the 1990 Decennial Census by the Bureau of the
                                 Census
------------------------------------------------------------------------
                   State                         Incorporated Place
------------------------------------------------------------------------
Alabama...................................  Birmingham.
Arizona...................................  Phoenix.
                                            Tucson.
California................................  Long Beach.
                                            Los Angeles.
                                            Oakland.
                                            Sacramento.
                                            San Diego.
                                            San Francisco.
                                            San Jose.
Colorado..................................  Denver.
District of Columbia
Florida...................................  Jacksonville.
                                            Miami.
                                            Tampa.
Georgia...................................  Atlanta.
Illinois..................................  Chicago.
Indiana...................................  Indianapolis.
Kansas....................................  Wichita.
Kentucky..................................  Louisville.
Louisiana.................................  New Orleans.
Maryland..................................  Baltimore.
Massachusetts.............................  Boston.
Michigan..................................  Detroit.
Minnesota.................................  Minneapolis.
                                            St. Paul.
Missouri..................................  Kansas City.
                                            St. Louis.
Nebraska..................................  Omaha.
New Jersey................................  Newark.
New Mexico................................  Albuquerque.
New York..................................  Buffalo.
                                            Bronx Borough.
                                            Brooklyn Borough.
                                            Manhattan Borough.
                                            Queens Borough.
                                            Staten Island Borough.
North Carolina............................  Charlotte.
Ohio......................................  Cincinnati.
                                            Cleveland.
                                            Columbus.
                                            Toledo.
Oklahoma..................................  Oklahoma City.
                                            Tulsa.
Oregon....................................  Portland.
Pennsylvania..............................  Philadelphia.
                                            Pittsburgh.
Tennessee.................................  Memphis.
                                            Nashville/Davidson.
Texas.....................................  Austin.
                                            Dallas.
                                            El Paso.
                                            Fort Worth.
                                            Houston.

[[Page 68848]]

 
                                            San Antonio.
Virginia..................................  Norfolk.
                                            Virginia Beach.
Washington................................  Seattle.
Wisconsin.................................  Milwaukee.
------------------------------------------------------------------------


  Appendix G to Part 122.--Incorporated Places With Populations Greater
   Than 100,000 But Less Than 250,000 According to the 1990 Decennial
                   Census by the Bureau of the Census
------------------------------------------------------------------------
                   State                         Incorporated place
------------------------------------------------------------------------
Alabama...................................  Huntsville.
                                            Mobile.
                                            Montgomery.
Alaska....................................  Anchorage.
Arizona...................................  Mesa.
                                            Tempe.
Arkansas..................................  Little Rock.
California................................  Anaheim.
                                            Bakersfield.
                                            Berkeley.
                                            Chula Vista.
                                            Concord.
                                            El Monte.
                                            Escondido.
                                            Fremont.
                                            Fresno.
                                            Fullerton.
                                            Garden Grove.
                                            Glendale.
                                            Hayward.
                                            Huntington Beach.
                                            Inglewood.
                                            Irvine.
                                            Modesto.
                                            Moreno Valley.
                                            Oceanside.
                                            Ontario.
                                            Orange.
Colorado..................................  Aurora.
                                            Colorado Springs.
                                            Lakewood.
                                            Pueblo.
Connecticut...............................  Bridgeport.
                                            Hartford.
                                            New Haven.
                                            Stamford.
                                            Waterbury.
Florida...................................  Fort Lauderdale.
                                            Hialeah.
                                            Hollywood.
                                            Orlando.
                                            St. Petersburg.
                                            Tallahassee.
Georgia...................................  Columbus.
                                            Macon.
                                            Savannah.
Idaho.....................................  Boise City.
Illinois..................................  Peoria.
                                            Rockford.
Indiana...................................  Evansville.
                                            Fort Wayne.
                                            Gary.
                                            South Bend.
Iowa......................................  Cedar Rapids.
                                            Davenport.
                                            Des Moines.
Kansas....................................  Kansas City.
                                            Topeka.
Kentucky..................................  Lexington-Fayette.
Louisiana.................................  Baton Rouge.
                                            Shreveport.
Massachusetts.............................  Springfield.
                                            Worcester.
Michigan..................................  Ann Arbor.
                                            Flint.
                                            Grand Rapids.
                                            Lansing.
                                            Livonia.
                                            Sterling Heights.
                                            Warren.
Mississippi...............................  Jackson.
Missouri..................................  Independence.
                                            Springfield.
Nebraska..................................  Lincoln.
Nevada....................................  Las Vegas.
                                            Reno.
New Jersey................................  Elizabeth.
                                            Jersey City.
                                            Paterson.
New York..................................  Albany.
                                            Rochester.
                                            Syracuse.
                                            Yonkers.
North Carolina............................  Durham.
                                            Greensboro.
                                            Raleigh.
                                            Winston-Salem.
Ohio......................................  Akron.
                                            Dayton.
                                            Youngstown.
Oregon....................................  Eugene.
Pennsylvania..............................  Allentown.
                                            Erie.
Rhode Island..............................  Providence.
South Carolina............................  Columbia.
Tennessee.................................  Chattanooga.
                                            Knoxville.
Texas.....................................  Abilene.
                                            Amarillo.
                                            Arlington.
                                            Beaumont.
                                            Corpus Christi.
                                            Garland.
                                            Irving.
                                            Laredo.
                                            Lubbock.
                                            Mesquite.
                                            Pasadena.
                                            Plano.
                                            Waco.
Utah......................................  Salt Lake City.
Virginia..................................  Alexandria.
                                            Chesapeake.
                                            Hampton.
                                            Newport News.
                                            Portsmouth.
                                            Richmond.
                                            Roanoke.
Washington................................  Spokane.
                                            Tacoma.
Wisconsin.................................  Madison.
------------------------------------------------------------------------


  Appendix H to Part 122.--Counties With Unincorporated Urbanized Areas
  With a Population of 250,000 or More According to the 1990 Decennial
                   Census by the Bureau of the Census
------------------------------------------------------------------------
                                                         Unincorporated
             State                      County             urbanized
                                                           population
------------------------------------------------------------------------
California....................  Los Angeles..........            886,780
                                Sacramento...........            594,889
                                San Diego............            250,414
Delaware......................  New Castle...........            296,996
Florida.......................  Dade.................          1,014,504
Georgia.......................  DeKalb...............            448,686
Hawaii........................  Honolulu \1\.........            114,506
Maryland......................  Anne Arundel.........            344,654
                                Baltimore............            627,593
                                Montgomery...........            599,028

[[Page 68849]]

 
                                Prince George's......            494,369
Texas.........................  Harris...............            729,206
Utah..........................  Salt Lake............            270,989
Virginia......................  Fairfax..............            760,730
Washington....................  King.................           520,468
------------------------------------------------------------------------
\1\ County was previously listed in this appendix; however, population
  dropped to below 250,000 in the 1990 Census.


  Appendix I to Part 122.--Counties With Unincorporated Urbanized Areas
    Greater Than 100,000 But Less Than 250,000 According to the 1990
              Decennial Census by the Bureau of the Census
------------------------------------------------------------------------
                                                         Unincorporated
             State                      County             urbanized
                                                           population
------------------------------------------------------------------------
Alabama.......................  Jefferson............             78,608
Arizona.......................  Pima.................            162,202
California....................  Alameda..............            115,082
                                Contra Costa.........            131,082
                                Kern.................            128,503
                                Orange...............            223,081
                                Riverside............            166,509
                                San Bernardino.......            162,202
Colorado......................  Arapahoe.............            103,248
Florida.......................  Broward..............            142,329
                                Escambia.............            167,463
                                Hillsborough.........            398,593
                                Lee..................            102,337
                                Manatee..............            123,828
                                Orange...............            378,611
                                Palm Beach...........            360,553
                                Pasco................            148,907
                                Pinellas.............            255,772
                                Polk.................            121,528
                                Sarasota.............            172,600
                                Seminole.............            127,873
Georgia.......................  Clayton..............            133,237
                                Cobb.................            322,595
                                Fulton...............            127,776
                                Gwinnett.............            237,305
                                Richmond.............            126,476
Kentucky......................  Jefferson............            239,430
Louisiana.....................  East Baton Rouge.....            102,539
                                Parish...............            331,307
                                Jefferson Parish.....  .................
Maryland......................  Howard...............            157,972
North Carolina................  Cumberland...........            146,827
Nevada........................  Clark................            327,618
Oregon........................  Multnomah \1\........             52,923
                                Washington...........            116,687
South Carolina................  Greenville...........            147,464
                                Richland.............            130,589
Virginia......................  Arlington............            170,936
                                Chesterfield.........            174,488
                                Henrico..............            201,367
                                Prince William.......            157,131
Washington....................  Pierce...............            258,530
                                Snohomish............           157,218
------------------------------------------------------------------------
\1\ County was previously listed in this appendix; however, population
  dropped to below 100,000 in the 1990 Census.

PART 123--STATE PROGRAM REQUIREMENTS

    1. The authority citation for part 123 continues to read as 
follows:

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

    2. Amend Sec. 123.25 by removing the word ``and'' at the end of 
paragraph (a)(37), by removing the period at the end of paragraph 
(a)(38) and adding a semicolon in its place, and by adding paragraphs 
(a)(39) through (a)(45) to read as follows:


Sec. 123.25  Requirements for permitting.

    (a) * * *

[[Page 68850]]

    (39) Sec. 122.30 (What are the objectives of the storm water 
regulations for small MS4s?);
    (40) Sec. 122.31 (For Indian Tribes only) (As a Tribe, what is my 
role under the NPDES storm water program?);
    (41) Sec. 122.32 (As an operator of a small MS4, am I regulated 
under the NPDES storm water program?);
    (42) Sec. 122.33 (If I am an operator of a regulated small MS4, how 
do I apply for an NPDES permit? When do I have to apply?);
    (43) Sec. 122.34 (As an operator of a regulated small MS4, what 
will my NPDES MS4 storm water permit require?);
    (44) Sec. 122.35 (As an operator of a regulated small MS4, may I 
share the responsibility to implement the minimum control measures with 
other entities?); and
    (45) Sec. 122.36 (As an operator of a regulated small MS4, what 
happens if I don't comply with the application or permit requirements 
in Secs. 122.33 through 122.35?).
* * * * *
    3. Add Sec. 123.35 to subpart B to read as follows:


Sec. 123.35  As the NPDES Permitting Authority for regulated small 
MS4s, what is my role?

    (a) You must comply with the requirements for all NPDES permitting 
authorities under Parts 122, 123, 124, and 125 of this chapter. (This 
section is meant only to supplement those requirements and discuss 
specific issues related to the small MS4 storm water program.)
    (b) You must develop a process, as well as criteria, to designate 
small MS4s other than those described in Sec. 122.32(a)(1) of this 
chapter, as regulated small MS4s to be covered under the NPDES storm 
water discharge control program. This process must include the 
authority to designate a small MS4 waived under paragraph (d) of this 
section if circumstances change. EPA may make designations under this 
section if a State or Tribe fails to comply with the requirements 
listed in this paragraph. In making designations of small MS4s, you 
must:
    (1)(i) Develop criteria to evaluate whether a storm water discharge 
results in or has the potential to result in exceedances of water 
quality standards, including impairment of designated uses, or other 
significant water quality impacts, including habitat and biological 
impacts.
    (ii) Guidance: For determining other significant water quality 
impacts, EPA recommends a balanced consideration of the following 
designation criteria on a watershed or other local basis: discharge to 
sensitive waters, high growth or growth potential, high population 
density, contiguity to an urbanized area, significant contributor of 
pollutants to waters of the United States, and ineffective protection 
of water quality by other programs;
    (2) Apply such criteria, at a minimum, to any small MS4 located 
outside of an urbanized area serving a jurisdiction with a population 
density of at least 1,000 people per square mile and a population of at 
least 10,000;
    (3) Designate any small MS4 that meets your criteria by December 9, 
2002. You may wait until December 8, 2004 to apply the designation 
criteria on a watershed basis if you have developed a comprehensive 
watershed plan. You may apply these criteria to make additional 
designations at any time, as appropriate; and
    (4) Designate any small MS4 that contributes substantially to the 
pollutant loadings of a physically interconnected municipal separate 
storm sewer that is regulated by the NPDES storm water program.
    (c) You must make a final determination within 180 days from 
receipt of a petition under Sec. 122.26(f) of this chapter (or 
analogous State or Tribal law). If you do not do so within that time 
period, EPA may make a determination on the petition.
    (d) You must issue permits consistent with Secs. 122.32 through 
122.35 of this chapter to all regulated small MS4s. You may waive or 
phase in the requirements otherwise applicable to regulated small MS4s, 
as defined in Sec. 122.32(a)(1) of this chapter, under the following 
circumstances:
    (1) You may waive permit coverage for each small MS4s in 
jurisdictions with a population under 1,000 within the urbanized area 
where all of the following criteria have been met:
    (i) Its discharges are not contributing substantially to the 
pollutant loadings of a physically interconnected regulated MS4 (see 
paragraph (b)(4) of this section); and
    (ii) If the small MS4 discharges any pollutant(s) that have been 
identified as a cause of impairment of any water body to which it 
discharges, storm water controls are not needed based on wasteload 
allocations that are part of an EPA approved or established ``total 
maximum daily load'' (TMDL) that address the pollutant(s) of concern.
    (2) You may waive permit coverage for each small MS4 in 
jurisdictions with a population under 10,000 where all of the following 
criteria have been met:
    (i) You have evaluated all waters of the U.S., including small 
streams, tributaries, lakes, and ponds, that receive a discharge from 
the MS4 eligible for such a waiver.
    (ii) For all such waters, you have determined that storm water 
controls are not needed based on wasteload allocations that are part of 
an EPA approved or established TMDL that addresses the pollutant(s) of 
concern or, if a TMDL has not been developed or approved, an equivalent 
analysis that determines sources and allocations for the pollutant(s) 
of concern.
    (iii) For the purpose of paragraph (d)(2)(ii) of this section, the 
pollutant(s) of concern include biochemical oxygen demand (BOD), 
sediment or a parameter that addresses sediment (such as total 
suspended solids, turbidity or siltation), pathogens, oil and grease, 
and any pollutant that has been identified as a cause of impairment of 
any water body that will receive a discharge from the MS4.
    (iv) You have determined that current and future discharges from 
the MS4 do not have the potential to result in exceedances of water 
quality standards, including impairment of designated uses, or other 
significant water quality impacts, including habitat and biological 
impacts.
    (v) Guidance: To help determine other significant water quality 
impacts, EPA recommends a balanced consideration of the following 
criteria on a watershed or other local basis: discharge to sensitive 
waters, high growth or growth potential, high population or commercial 
density, significant contributor of pollutants to waters of the United 
States, and ineffective protection of water quality by other programs.
    (3) You may phase in permit coverage for small MS4s serving 
jurisdictions with a population under 10,000 on a schedule consistent 
with a State watershed permitting approach. Under this approach, you 
must develop and implement a schedule to phase in permit coverage for 
approximately 20 percent annually of all small MS4s that qualify for 
such phased-in coverage. Under this option, all regulated small MS4s 
are required to have coverage under an NPDES permit by no later than 
March 8, 2007. Your schedule for phasing in permit coverage for small 
MS4s must be approved by the Regional Administrator no later than 
December 10, 2001.
    (4) If you choose to phase in permit coverage for small MS4s in 
jurisdictions with a population under 10,000, in accordance with 
paragraph (d)(3) of this section, you may also provide waivers in 
accordance with paragraphs (d)(1) and (d)(2) of this section pursuant 
to your approved schedule.

[[Page 68851]]

    (5) If you do not have an approved schedule for phasing in permit 
coverage, you must make a determination whether to issue an NPDES 
permit or allow a waiver in accordance with paragraph (d)(1) or (d)(2) 
of this section, for each eligible MS4 by December 9, 2002.
    (6) You must periodically review any waivers granted in accordance 
with paragraph (d)(2) of this section to determine whether any of the 
information required for granting the waiver has changed. At a minimum, 
you must conduct such a review once every five years. In addition, you 
must consider any petition to review any waiver when the petitioner 
provides evidence that the information required for granting the waiver 
has substantially changed.
    (e) You must specify a time period of up to 5 years from the date 
of permit issuance for operators of regulated small MS4s to fully 
develop and implement their storm water program.
    (f) You must include the requirements in Secs. 122.33 through 
122.35 of this chapter in any permit issued for regulated small MS4s or 
develop permit limits based on a permit application submitted by a 
regulated small MS4. (You may include conditions in a regulated small 
MS4 NPDES permit that direct the MS4 to follow an existing qualifying 
local program's requirements, as a way of complying with some or all of 
the requirements in Sec. 122.34(b) of this chapter. See Sec. 122.34(c) 
of this chapter. Qualifying local, State or Tribal program requirements 
must impose, at a minimum, the relevant requirements of Sec. 122.34(b) 
of this chapter.)
    (g) If you issue a general permit to authorize storm water 
discharges from small MS4s, you must make available a menu of BMPs to 
assist regulated small MS4s in the design and implementation of 
municipal storm water management programs to implement the minimum 
measures specified in Sec. 122.34(b) of this chapter. EPA plans to 
develop a menu of BMPs that will apply in each State or Tribe that has 
not developed its own menu. Regardless of whether a menu of BMPs has 
been developed by EPA, EPA encourages State and Tribal permitting 
authorities to develop a menu of BMPs that is appropriate for local 
conditions. EPA also intends to provide guidance on developing BMPs and 
measurable goals and modify, update, and supplement such guidance based 
on the assessments of the NPDES MS4 storm water program and research to 
be conducted over the next thirteen years.
    (h)(1) You must incorporate any additional measures necessary to 
ensure effective implementation of your State or Tribal storm water 
program for regulated small MS4s.
    (2) Guidance: EPA recommends consideration of the following:
    (i) You are encouraged to use a general permit for regulated small 
MS4s;
    (ii) To the extent that your State or Tribe administers a dedicated 
funding source, you should play an active role in providing financial 
assistance to operators of regulated small MS4s;
    (iii) You should support local programs by providing technical and 
programmatic assistance, conducting research projects, performing 
watershed monitoring, and providing adequate legal authority at the 
local level;
    (iv) You are encouraged to coordinate and utilize the data 
collected under several programs including water quality management 
programs, TMDL programs, and water quality monitoring programs;
    (v) Where appropriate, you may recognize existing responsibilities 
among governmental entities for the control measures in an NPDES small 
MS4 permit (see Sec. 122.35(b) of this chapter); and
    (vi) You are encouraged to provide a brief (e.g., two page) 
reporting format to facilitate compiling and analyzing data from 
submitted reports under Sec. 122.34(g)(3) of this chapter. EPA intends 
to develop a model form for this purpose.

PART 124--PROCEDURES FOR DECISIONMAKING

    1. The authority citation for part 124 continues to read as 
follows:

    Authority: Resource Conservation and Recovery Act, 42 U.S.C. 
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300(f) et seq.; 
Clean Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 
7401 et seq.

    2. Revise Sec. 124.52(c) to read as follows:


Sec. 124.52  Permits required on a case-by-case basis.

* * * * *
    (c) Prior to a case-by-case determination that an individual permit 
is required for a storm water discharge under this section (see 
Sec. 122.26(a)(1)(v), (c)(1)(v), and (a)(9)(iii) of this chapter), the 
Regional Administrator may require the discharger to submit a permit 
application or other information regarding the discharge under section 
308 of the CWA. In requiring such information, the Regional 
Administrator shall notify the discharger in writing and shall send an 
application form with the notice. The discharger must apply for a 
permit within 180 days of notice, unless permission for a later date is 
granted by the Regional Administrator. The question whether the initial 
designation was proper will remain open for consideration during the 
public comment period under Sec. 124.11 or Sec. 124.118 and in any 
subsequent hearing.

[FR Doc. 99-29181 Filed 12-7-99; 8:45 am]
BILLING CODE 6560-50-P