[Federal Register Volume 72, Number 113 (Wednesday, June 13, 2007)]
[Notices]
[Pages 32654-32657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11316]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8325-9]


Final NPDES General Permits for Small Municipal Separate Storm 
Sewer Systems (sMS4s) in New Mexico, Indian Country Lands in New Mexico 
and Indian Country Lands in Oklahoma; Minor Revisions and Corrections

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final NPDES General Permits and minor revisions and 
corrections.

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SUMMARY: EPA Region 6 is announcing issuance of final National 
Pollutant Discharge Elimination System (NPDES) general permits for 
storm water discharges from small municipal separate storm sewer 
systems (sMS4s) located in the State of New Mexico (NMR040000), Indian 
Country Lands in New Mexico (NMR04000I), and Indian Country Lands in 
Oklahoma (OKR04000I). Hereinafter, the term ``permit'' will be used to 
refer collectively to all three general permits. A document containing 
the Agency's responses to public comments on the proposed permit is 
available. The permit will authorize the discharges from sMS4s in 
accordance with the terms and conditions described therein. This notice 
also revises the effective and expiration dates of the permit, as well 
as the Notice of Intent deadline, and announces minor revisions and 
corrections to the final permit and supporting documents.

DATES: Following 30-day notice and comment periods on the draft permit 
and a supplemental notice containing revisions to the draft permit, 
notice of the final permit was originally published in New Mexico and 
Oklahoma newspapers in October 2006, with a stated effective date of 
January 1, 2007. The newspaper notices stated that NOIs for coverage 
under the final permit were due to EPA by April 1, 2007. Due to 
unforeseen delays in noticing the final permit in the Federal Register, 
EPA is through today's notice revising both the effective date of the 
final permit and the deadline for filing NOIs. The revised effective 
date for the general permit is July 1, 2007, and NOIs to be covered 
will be due October 1, 2007. The revised expiration date of the permit 
is June 30, 2012. In accordance with 40 CFR 23.2, this action is 
considered issued for purposes of judicial review as of 1 p.m. eastern 
daylight time (e.d.t.) on June 27, 2007. Under section 509(b)(1) of the 
Clean Water Act (CWA) and 40 CFR 124.19, judicial review of the 
Agency's actions relating to the issuance of an NPDES general permit is 
available in the United States Court of Appeals within 120 days after 
the decision is final for the purposes of judicial review. Under CWA 
section 509(b)(2), the final permit may not be challenged later in 
civil or criminal proceedings brought by EPA to enforce these 
requirements.

ADDRESSES: The administrative record is available for inspection and 
copying at the EPA Region 6 offices at 1445 Ross Ave., Dallas, Texas 
between 9 a.m. and 4 p.m., Monday-Friday, excluding legal holidays. 
Please contact Ms. Diane

[[Page 32655]]

Smith at (214) 665-2145 to schedule a time to review or copy documents. 
A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Additional information concerning the 
final permit may be obtained from Ms. Diane Smith, EPA Region 6, 1445 
Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-2145. The 
final general permit, Response to Comments document, draft permit fact 
sheet, supplemental proposal on the draft permit, and other supporting 
information and guidance are available online via http://www.epa.gov/region6/6wq/npdes/sw/sms4/index.htm.

SUPPLEMENTARY INFORMATION: The following fact sheet provides background 
information and explanation for today's notice of the final sMS4 
general permit issuance, including a summary Response to Comments 
regarding comments on the draft permit and changes made to the final 
permit. Additional information on the statutory and regulatory basis 
for the permit are found in the fact sheet for the proposed permit, the 
supplemental proposal on the draft permit, the Federal Register notices 
on the draft permit and supplemental proposal, and the response to 
comments documents referenced above. Today's notice also makes certain 
revisions and minor corrections/clarifications to the response to 
comments document and the permit.

I. Background

    In the 1987 amendments to the CWA, Congress established a phased 
and tiered approach for addressing pollutants in point source storm 
water discharges (CWA Sec.  402(p)). Phase I of the NPDES storm water 
program included requirements for large and medium municipal separate 
storm systems (MS4s) (55 FR 47990) and Phase II included requirements 
for small MS4s (64 FR 68722). Today's final sMS4 general permit covers 
storm water discharges from MS4s meeting the definition of a ``small 
municipal separate storm sewer system'' at 40 CFR 122.26(b)(16) and any 
designated under 40 CFR 122.32(a)(1) or 40 CFR 122.32(a)(2). A MS4 
consists of a system of conveyances (including roads with drainage 
systems, municipal streets, catch basins, curbs, gutters, ditches, man-
made channels, or storm drains) that collects storm water; is 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; and discharges to 
waters of the United States. A sMS4 typically serves a population of 
less than 100,000. Only those sMS4s located in a Census-defined 
Urbanized Area or having been designated by the Director are required 
to apply for permits (see 40 CFR 122.32). Maps of Urbanized Areas and 
lists of cities and counties within them are available online at http://cfpub.epa.gov/npdes/stormwater/urbanmaps.cfm.
    Subsequent to EPA Region 6's proposal of the general permit for 
sMS4s on September 9, 2003, the U.S. Court of Appeals for the Ninth 
Circuit denied EPA's petition for rehearing in litigation over EPA's 
storm water Phase II regulations. Environmental Defense Center, et al. 
v. EPA, No. 70014 & consolidated cases (9th Cir., Sept. 15, 2003). 
Plaintiffs in that litigation challenged the Phase II NPDES storm water 
regulations issued by EPA pursuant to Clean Water Act (CWA) Section 
402(p)(6). Among other things, the Phase II regulations require NPDES 
permits for storm water discharges from certain MS4s for which NPDES 
permits were not required under CWA Section 402(p)(2) and the Phase I 
NPDES storm water regulations. The regulations also require the newly 
regulated MS4s to develop, implement, and enforce a storm water 
management program containing, amongst other things, best management 
practices (BMPs) identified by the discharger. The regulations 
authorize the use of general permits and require that these BMPs (as 
well as measurable goals associated with these BMPs) be identified in 
the NOI filed by the MS4 in seeking authorization under a general 
permit. Relying on the ``traditional'' general permit model, the Agency 
did not require NOIs to be reviewed by the Agency, made available to 
the public for review and comment, or to be subject to public hearings. 
The Ninth Circuit held that EPA's failure to address these issues in 
establishing NOI requirements violated various provisions of CWA 
Section 402, and remanded the Phase II regulations on three grounds 
related to the use of NPDES general permits to authorize discharges 
from sMS4s: (1) Public availability of NOIs, (2) opportunity for public 
hearing, and (3) permitting authority review of NOIs.
    On April 16, 2004, EPA's Office of Wastewater Management issued 
guidance to NPDES permitting authorities entitled ``Implementing the 
Partial Remand of the Stormwater Phase II Regulations Regarding NOIs & 
NPDES General Permitting for Phase II MS4s'' (available at http://www.epa.gov/npdes/pubs/hanlonphase2apr14signed.pdf). This document 
provides guidance to permitting authorities on addressing the Court's 
partial remand when issuing general permits for sMS4s. Today's final 
general permit contains conditions responsive to the partial remand of 
the Phase II regulations and issues raised in the Court's decision and 
is consistent with EPA's Office of Wastewater Management Guidance. The 
final general permit also contains conditions responsive to public 
comments on the proposed permit and state and tribal certification of 
the permit under Section 401 of the CWA.

II. Summary of Significant Changes From the Draft Permits

    The following is a list of significant changes from the proposed 
permit. The rationales for these changes, as well as information about 
other less significant changes, are discussed below and in the Response 
to Comments document available as indicated in the ``FOR FURTHER 
INFORMATION CONTACT'' section above. Additional minor clarifications 
and corrections made to the final permit are discussed separately in 
Section III.
    1. Coverage under the general permit for Indian Country in New 
Mexico (NMR04000I) will not be available for discharges on the Pueblo 
of Sandia.
    2. Conditions applicable only to specific state and tribal areas 
have been added to Part 8. These conditions generally consist of 
requirement for MS4s within their jurisdiction to provide documents to 
a State or Tribal agency. Under Part 8.1.2, all dischargers in the 
Albuquerque Urbanized Area are required to submit copies of NOIs, 
annual reports, and certain other information to the Pueblo of Isleta. 
Due to denial of CWA Sec.  401 certification of the permit, areas 
covered by the permit do not include the Pueblo of Sandia.
    3. Part 1.2.3 was added to the permit to provide for enhanced 
public access to and ability to comment on the NOI (and Storm Water 
Management Program attachment).
    4. Part 1.2.4 was added to provide a mechanism for the MS4 operator 
to provide EPA with responses to any comments in order to assist EPA in 
making permit coverage decisions.
    5. The eligibility requirements related to endangered species 
protection at Part 1.5 and Appendix A have been revised.

[[Page 32656]]

Only where no listed species or critical habitat are in proximity to 
the MS4's discharges or discharge-related activities will coverage be 
available without at least an informal consultation with the U.S. Fish 
and Wildlife Service.
    6. Part 2.1.3 has been revised to specify that permit coverage 
occurs only after written notification by the Director.
    7. NOI procedures in Part 3 have been revised. NOIs will be due by 
October 1, 2007. There will be a 30-day opportunity for the public to 
review, comment, and request a public meeting/hearing on individual 
NOIs, and Part 2.1.3 has been changed so coverage will not be effective 
until notification by the Director. EPA has been alerted by several MS4 
operators that satisfying permit eligibility requirements, especially 
with regard to protection of endangered species, could prevent some 
sMS4s from meeting the NOI deadline. A MS4 operator is prohibited by 
the terms of the permit from submitting an NOI until all eligibility 
conditions have been met. Part 3.1.4 of the permit does allow submittal 
of late NOIs, which would provide earlier discharge authorization than 
the individual permit issuance process. To allow more time to work 
through eligibility issues and provide time for local notice and review 
of the NOI 60 days prior to submittal, the NOI due date has been set as 
October 1, 2007. MS4s having difficulty meeting the eligibility 
conditions for submittal of an NOI, should notify EPA (see address in 
Part 3.3) of the circumstances causing the delay and progress made to 
date and then proceed as expeditiously as possible with NOI submittal 
under Part 3.1.4. For clarification, Part 1.2.3.1 requires local notice 
and opportunity for public review of the NOI and attachments at least 
60 days prior to submittal, with the expectation, but not requirement, 
that the local review period would be 30 days with the remaining 30 
days used by the MS4 operator to review and respond to local comments.
    8. Part 5.2.4.3 has been revised to clarify that construction site 
operators are ultimately responsible for performance of BMPs at their 
construction site.
    9. Part 5.6 has been revised to clarify requirements for analytical 
vs. non-analytical monitoring and to include more specific monitoring 
and/or data collection requirements for discharges to impaired waters 
or waters where an applicable total maximum daily load (TMDL) has been 
established. A proposed monitoring/assessment plan must be submitted to 
the Director as part of the first annual report. For discharges to 
waters on the State's CWA 303(d) list of impaired waters or for which a 
TMDL has been developed or approved by EPA, the Monitoring/Assessment 
Plan must include collection of information on the levels of the 
pollutant(s) of concern in the discharge. Collection of analytical data 
will be required for MS4s discharging to waters with TMDLs that have 
specific allocations for the MS4 operator's discharges. Dischargers to 
impaired waters prior to development of a TMDL or waters with TMDLs 
that do not specify an allocation for MS4s will be required to gather 
analytical data, but have the flexibility to participate in cooperative 
sampling programs or take advantage of existing representative data. 
Monitoring or assessment recommendations in a TMDL may be used in the 
proposed monitoring/assessment plan.
    10. Part 5.2.4.3 has been revised to clarify that while the MS4 
will be reviewing site plans, the construction site operator is 
ultimately responsible for the performance of the storm water controls 
selected for the project.
    11. Part 5.8.1 contains revisions and a new Part 5.8.1.7 has been 
added to help ensure the public will have the opportunity to review and 
provide local input on the annual reports and revisions to the storm 
water management program as it evolves. The due dates for the annual 
reports required by Part 5.8.1 have been changed to October 1, 2008, 
and annually on October 1st thereafter. The reporting period for the 
Annual Report has been set as July 1--June 30th. Note that this change 
in the reporting period coincides with the fiscal year used by many 
municipalities in New Mexico and should ease report preparation for 
items tracked locally on a fiscal year basis for budgetary purposes.
    12. Monitoring requirements at Part 5.6 have been revised to 
provide clearer expectations and requirements for analytical vs. non-
analytical monitoring and assessment programs, particularly with regard 
to discharges to impaired waters and waters for which a TMDL has been 
developed or approved. For example, where a specific waste load 
allocation under a TMDL applies to the MS4's discharges, analytical 
monitoring will be required to be included in the MS4's monitoring and 
assessment plan.
    13. Addendum E was added to outline the process for providing 
comments and/or requesting a public meeting/hearing on NOIs during the 
30-day public review period described in Section B of Addendum E. Note 
that a minor correction to Section B is described below.

III. Revisions and Corrections to the Permit and Response to Comments 
Documents

    EPA has also made typographical and other minor corrections/
clarifications to the permit and Response to Comment documents.

Revisions and Corrections to Permit

    1. Simple typographical corrections (e.g., spelling, format, 
grammar, etc.) have been made to the permit.
    2. A footnote has been added to Part 3.1.1 to provide direction to 
MS4 operators who are not able to complete all activities necessary to 
meet permit eligibility in time to meet the due date for NOIs. For 
example, EPA recognizes that completion of Endangered Species Act 
consultations can proceed along time lines outside the control of MS4 
operator, but are a prerequisite for submittal of an NOI.
    3. Consistent with Response to Comment No. 29 and to correct an 
editorial error, sections of Part 5.2 have been corrected so 
requirements under each of the six minimum control measures to identify 
parties responsible for implementing that portion of the Storm Water 
Management Program all consistently allow for identification of either 
the ``* * * person(s) or position(s) responsible * * *.''
    4. Part 5.7.3, described in Response to Comment No. 23, was 
inadvertently omitted from the final permit due to a typographical 
error and has been reinserted. Part 5.7.3 simply highlights the 
requirement, not as clearly stated in Part 5.7.1 and 5.7.2, to maintain 
records related to how the permittee determined permit eligibility with 
regard to Parts 1.4.6, 1.5, and 1.6. No additional record keeping 
burden is imposed, but the likelihood of permit non-compliance due to 
failure to recognize the duty to retain such records has been reduced.
    5. Part 5.8.1. has been revised to include a footnote offering the 
option to base the the Annual Report on the permittee's fiscal year 
rather than the default July-June reporting year, provided the 
permittee notifies EPA by the first October 1st following permit 
authorization that this option will be used and confirms the dates of 
the permittee's fiscal year. Annual Reports based on alternative fiscal 
years must be submitted no later than (90) days following the end of 
the fiscal year. During the November 2006, public meeting on the final 
permits, attendees questioned whether the permit could allow reporting 
on a fiscal year basis to avoid the additional burden of tracking and 
reporting information on a calendar year basis for permit purposes when

[[Page 32657]]

most information was tracked locally on a fiscal year basis for 
budgetary purposes. The revised July 1-June 30 annual report period 
will accommodate most MS4s using the New Mexico fiscal year, but some 
MS4s may have alternative fiscal years, so flexibility to use 
alternative fiscal years has been added. This flexibility in the annual 
report period and due date will still allow the public and regulators 
to assess the permittee's activities in 12 month increments. Requiring 
the Annual Report to be submitted within 90 days following the end of 
the fiscal year will ensure that information in the report will not be 
stale by the time the public and regulatory agencies review it and is 
consistent with the time frame in the permit. Having a reporting period 
coinciding with the local fiscal year may also make local review and 
public input less confusing.
    6. Consistent with Response to Comment No. 22, Part 1.4.6, second 
paragraph, first sentence has been corrected to replace ``* * * should 
consult * * * '' with ``* * * must consult * * *.''
    7. In Addendum A, references to the U.S. Fish and Wildlife Web site 
for information on endangered species has been updated to the current 
link: http://www.fws.gov/southwest/es/EndangeredSpecies/lists/.
    8. Consistent with Response to Comment No. 33, Addendum C the 
correct cross references in Item 4 to Part 1.4.6 and Item 7 to Part 5.2 
have been added.
    9. Addendum E, Section B. has been modified to clarify that the 30-
day deadline for submittal of comments on an NOI begins when the NOI 
information is posted on EPA Region 6's small MS4 NOI web page. The 
word ``filed'' was inadvertently used in the same sentence in two 
separate ways. Comments will be due ``* * * within thirty (30) days of 
the date the NOI is posted on the Web site in Section A.''
    10. Part 2.2.3.6 has been corrected to provide the address for 
submittal of Notices of Termination and remove a reference regarding 
submittal of copies to the State of New Mexico (which is independently 
required under Part 8.1.1).

Revisions and Corrections to the Response to Comments Documents

    1. Response to Comment No. 9 should refer to Response to Comment 
No. 48 instead of No. 37.
    2. Due to an editing error, the last paragraph in Response to 
Comment No. 28 was inadvertently included in the final document. The 
final permit did not include a table of expectations for interim 
progress (which in any event would have been in Part 5 and not Part 4). 
EPA determined that a single set of expectations could not take into 
account what programs were already being implemented and what 
challenges an individual MS4 would face in developing and implementing 
their programs. Due to the subjective nature of ``credible interim 
progress,'' the Director will need to evaluate this requirement on a 
case-by-case basis taking into account the unique situation at a 
particular MS4. EPA expects that programs will consist of a combination 
of existing programs, initial effort programs, and schedules for final 
programs. For example, the initial programs could be based on 
activities currently underway, activities which can be implemented in 
the short term (i.e., with existing resources, without changes in 
ordinances, by relying on available guidance and materials, etc.), and 
pilot programs. The initial program could also include activities 
(e.g., illicit discharge screening of the system, etc.) to help 
prioritize activities and refine options as the final program evolves. 
In general, EPA would expect that activities such as public involvement 
would have to begin early in the permit cycle to allow for public input 
on the final program. The public education, illicit discharge detection 
and elimination, and proper operation and maintenance/good housekeeping 
at municipal operations programs would not be expected to take 2-3 
years to have in place, with initial program implementation possible 
earlier. The full construction and post-construction final programs, 
unless existing programs can be used, would be expected to take 3-5 
years to implement due to the need to develop (or adapt) and adopt 
local standards, rules/ordinances, etc.
    3. Response to Comment No. 32 should refer to Part 5.8.1.5 instead 
of Part 5.6.1.
    4. Revisions discussed in Sections II and III supercede any 
conflicting responses in the September 29, 2006, Response to Comments 
document.

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

    Dated: May 31, 2007.
Miguel I. Flores,
Director, Water Quality Protection Division, EPA Region 6.
[FR Doc. E7-11316 Filed 6-12-07; 8:45 am]
BILLING CODE 6560-50-P