[Federal Register Volume 75, Number 195 (Friday, October 8, 2010)]
[Proposed Rules]
[Pages 62358-62362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25318]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[FRL-9211-2]


Stakeholder Input on Stormwater Rulemaking Related to the 
Chesapeake Bay; Notice of Public Meeting

AGENCY: Environmental Protection Agency (EPA).

ACTION: Announcement of meeting.

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SUMMARY: The purpose of this document is to announce EPA's intent to 
hold several public ``listening sessions'' in October and November 2010 
and to request input from the public on Chesapeake Bay-specific 
provisions of a new stormwater rulemaking. On December 28, 2009, EPA 
issued a Federal Register Notice announcing EPA's initiation of a 
national rulemaking to establish a program to better protect 
waterbodies from the harmful effects of stormwater discharges from new 
development and redevelopment and make other regulatory improvements to 
strengthen its stormwater program. A range of public and private 
stakeholders provided input through both written comments and during a 
series of public listening sessions.
    EPA is now soliciting input specifically on potential provisions of 
this stormwater rulemaking with respect to the Chesapeake Bay 
watershed, with several public ``listening sessions'' to be held in 
October and November 2010, and an interactive Webcast scheduled for 
November 16, 2010. EPA seeks input on whether to consider, among other 
things, the following: Regulating additional stormwater discharges not

[[Page 62359]]

currently regulated that are causing or contributing to water quality 
impairments in the Bay watershed; requiring additional measures 
targeting pollutants including, but not limited to, nitrogen, 
phosphorus, and sediment in the Chesapeake Bay Watershed; requiring 
retrofits of stormwater controls for existing development; and applying 
specific performance standards to discharges from new and redevelopment 
within the watershed. EPA also seeks input on whether to consider 
specific evaluation, tracking, or reporting elements. EPA also welcomes 
any other information that may help EPA develop regulations to better 
control pollutants in stormwater from the built environment to meet 
water quality objectives in the Chesapeake Bay Watershed.
    As part of the listening sessions, EPA will also address 
environmental justice considerations and potential impacts and benefits 
that may arise as a consequence of the rulemaking. EPA invites the 
public to participate in these environmental justice discussions to 
provide feedback and share ideas related to stormwater management.

DATES: Written comments and any supporting data must be submitted on or 
before December 7, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2009-0817, by one of the following methods:
     http://www.regulations.gov: Follow the online instructions 
for submitting comments.
     E-mail: [email protected], Attention Docket ID No. EPA-HQ-
OW-2009-0817.
     Fax: 202-566-9744.
     Mail: Water Docket, U.S. Environmental Protection Agency, 
Mail code: 4203M, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Attention Docket ID No. EPA-HQ-OW-2009-0817.
     Hand Delivery: Water Docket, EPA Docket Center, EPA West 
Building Room 3334, 1301 Constitution Ave., NW., Washington, DC, 
Attention Docket ID No. EPA-HQ-OW-2009-0817. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2009-
0817. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: For further information on this 
document, contact Rachel Herbert, EPA Headquarters, Office of Water, 
Office of Wastewater Management at tel.: 202-564-2649 or e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: 
    Public Listening Sessions and Webcast: EPA will hold several 
informal public listening sessions in October and November 2010 and a 
Webcast on November 3, 2010 to gather input on possible Chesapeake Bay 
provisions of the new stormwater rulemaking. The public listening 
sessions will provide a review of potential considerations to 
strengthen the stormwater program specifically for the Chesapeake Bay 
watershed. Following the review, brief oral comments (three minutes or 
less) will be accepted at the sessions, and written statements will be 
accepted. EPA is also holding a discussion of environmental justice 
considerations related to these potential Chesapeake Bay specific 
provisions. See the discussion below for additional information on 
date, time and location of the listening sessions and webcast. The 
specific location names and addresses will also be posted on the 
Internet at http://www.epa.gov/npdes/stormwater/rulemaking no later 
than October 11, 2010.

Listening Sessions

     October 26, 2010, 2 p.m. to 5 p.m. for the listening 
session and 6:30 p.m. to 8:30 p.m. for the environmental justice 
discussion at Radisson Plaza Lord Baltimore 20 West Baltimore Street 
Baltimore, MD 21201.
     October 28, 2010, 10 a.m. to 1 p.m. for the listening 
session and 2 p.m. to 4 p.m. for the environmental justice discussion 
at Hyatt Regency Chesapeake Bay 100 Heron Blvd. Cambridge, MD 21613.
     November 4, 2010, Washington, DC, 10 a.m. to 12 p.m. for 
environmental justice discussion and 1 p.m. to 4 p.m. for the listening 
session at 1201 Constitution Avenue, NW., Washington, DC 20004.
     November 9, 2010, 2 p.m. to 5 p.m. for the listening 
session and 6:30 p.m. to 8:30 p.m. for the environmental justice 
discussion at Omni Richmond Hotel 100 South 12th Street Richmond, VA 
23219.
     November 17, 2010, 2 p.m. to 5 p.m. for the listening 
session and 6:30 p.m. to 8:30 p.m. for the environmental justice 
discussion at Forum Building 5th & Walnut Harrisburg, PA.

Webcast

     November 16, 2010, 1 p.m. to 4 p.m. EST, Visit http://www.epa.gov/npdes/stormwater/rulemaking to register to participate in 
the Webcast.

I. General Information

A. How can I get copies of this document and other related information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2009-0817. The official public 
docket is the collection of materials that is available for public 
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Although 
all documents in the docket are listed in an index, some information is 
not publicly available, i.e., CBI or other information whose disclosure 
is restricted by statute. Publicly available docket materials are 
available in hard copy at the EPA Docket Center Public Reading Room, 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Water Docket is (202) 
566-2426.
    2. Electronic Access. You may access this Federal Register document

[[Page 62360]]

electronically through the EPA Internet under the Federal Register 
listings at http://www.epa.gov/fedrgstr/. Electronic versions of this 
notice and other stormwater documents are available at EPA's stormwater 
Web site http://www.epa.gov/npdes/stormwater/rulemaking.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket identification number. Certain types 
of information will not be placed in the EPA Dockets. Information 
claimed as CBI and other information whose disclosure is restricted by 
statute, which is not included in the official public docket, will not 
be available for public viewing in EPA's electronic public docket. EPA 
policy is that copyrighted material will not be placed in EPA's 
electronic public docket but will be available only in printed, paper 
form in the official public docket. Although not all docket materials 
may be available electronically, you may still access any of the 
publicly available docket materials through the docket facility 
identified in Section I.A.1.
    3. Submitting CBI. Do not submit this information to EPA through 
regulations.gov or e-mail. Clearly mark all of the information that you 
claim to be CBI. For CBI information on computer discs mailed to EPA, 
mark the surface of the disc as CBI. Also identify electronically the 
specific information contained in the disc or that you claim is CBI. In 
addition to one complete version of the specific information claimed as 
CBI, you must submit a copy that does not contain the information 
claimed as CBI for inclusion in the public document. Information so 
marked will not be disclosed except in accordance with procedures set 
forth in 40 CFR part 2. It is important to note that EPA's policy is 
that public input, whether submitted electronically or in paper, will 
be made available for public viewing in EPA's electronic public docket 
as EPA receives them and without change, unless the input contains 
copyrighted material, CBI, or other information whose disclosure is 
restricted by statute. When EPA identifies any input containing 
copyrighted material, EPA will provide a reference to that material in 
the version of the document that is placed in EPA's electronic public 
docket. The entire printed submittal, including the copyrighted 
material, will be available in the public docket. Documents submitted 
on computer disks that are mailed or delivered to the docket will be 
transferred to EPA's electronic public docket. Input that is mailed or 
delivered to the Docket will be scanned and placed in EPA's electronic 
public docket. Where practical, physical objects will be photographed, 
and the photograph will be placed in EPA's electronic public docket 
along with a brief description written by the docket staff.

B. How and to whom do I submit input?

    You may submit input electronically, by mail, through hand 
delivery/courier, or in person by attending one of the five listening 
sessions. To ensure proper receipt by EPA, identify the appropriate 
docket identification number in the subject line on the first page of 
your input. Please ensure that your input is submitted within the 
specified comment period.
    1. Electronically. If you submit electronic input as prescribed 
below, EPA recommends that you include your name, mailing address, and 
an e-mail address or other contact information in the body of your 
comment. Also include this contact information on the outside of any 
disk or CD-ROM you submit, and in any cover letter accompanying the 
disk or CD-ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your submittal due to technical difficulties or needs 
further information on the substance of your input. EPA's policy is 
that EPA will not edit your input, and any identifying or contact 
information provided in the body of the text will be included as part 
of the input that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
submittal due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your input.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
provide input to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting input. Once 
in the system, select ``search,'' and then key in Docket ID No. EPA-HQ-
OW-2009-0817. The system is an ``anonymous access'' system, which means 
EPA will not know your identity, e-mail address, or other contact 
information unless you provide it.
    ii. E-mail. Input may be sent by electronic mail (e-mail) to 
[email protected], Attention Docket ID No. EPA-HQ-OW-2009-0817. In 
contrast to EPA's electronic public docket, EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail directly to the 
Docket without going through EPA's electronic public docket, EPA's e-
mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the submittal that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    iii. Disk or CD-ROM. You may submit input on a disk or CD-ROM that 
you mail to the mailing address identified in this section. These 
electronic submissions will be accepted in Microsoft Word or ASCII file 
format. Avoid the use of special characters and any form of encryption.
    2. By Mail. Send the original and three copies of your input to: 
Water Docket, Environmental Protection Agency, Mail code: 4101T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. 
EPA-HQ-OW-2009-0817.
    3. By Hand Delivery or Courier. Deliver your input to: Public 
Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue, 
NW., Washington, DC 20004, Attention Docket ID No. EPA-HQ-OW-2009- 
0817. Such deliveries are only accepted during the Docket's normal 
hours of operation (8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays).

II. Background Statutory and Regulatory Overview

    Under section 402(p) of the Clean Water Act, the Environmental 
Protection Agency regulates stormwater discharges from municipal 
separate storm sewer systems (publicly owned conveyances or systems of 
conveyances that discharge to waters of the U.S. and are designed or 
used for collecting or conveying stormwater, are not combined sewers, 
and are not part of a publicly owned treatment works), stormwater 
discharges associated with industrial activity, and stormwater 
discharges from construction sites of one acre or larger. See 40 CFR 
122.26(a). Under EPA's regulations, these stormwater discharges are 
required to be covered by National Pollutant Discharge Elimination 
System (NPDES) permits. EPA developed the stormwater regulations under 
section 402(p) in two

[[Page 62361]]

phases, as directed by the statute. In the first phase, under section 
402(p)(4), EPA promulgated regulations establishing application 
requirements for NPDES permits for stormwater discharges from medium 
and large municipal separate storm sewer systems (MS4s) (serving 
populations of 100,000 or more) and stormwater discharges associated 
with industrial activity.
    EPA published the final Phase I rule on November 16, 1990 (55 FR 
47990). See 40 CFR 122.26. The Phase I rule, among other things, 
defined ``stormwater discharges associated with industrial activity'' 
to include construction sites of five acres or larger. 40 CFR 
122.26(b)(14)(x).
    In the second phase, under section 402(p)(5) and (6), EPA was 
required to conduct a study to identify other stormwater discharges 
that needed further controls to protect water quality, report to 
Congress on the results of the study, and to designate for regulation 
additional categories of stormwater discharges not regulated in Phase 
I. EPA promulgated the Phase II rule on December 8, 1999, designating 
small MS4s in Census Bureau-defined urbanized areas and small 
construction sites (1-5 acres) and requiring NPDES permits for these 
discharges. 64 FR 68722.
    With respect to MS4s, the Phase I regulations are primarily 
application requirements that identify components that must be 
addressed in permit applications from large and medium MS4s. The 
regulations require these MS4s to develop a stormwater management 
program (SWMP), track and oversee industrial facilities regulated under 
the NPDES stormwater program, conduct monitoring, and submit periodic 
reports. Under the Phase II rule, regulated small MS4s are generally 
defined as any MS4 that is not already covered by the Phase I program 
and that are located within the urbanized area boundary as determined 
by the U.S. Decennial Census. Separate storm sewer systems such as 
those serving military bases, universities, large hospital or prison 
complexes, and highways are also included in the definition of ``small 
MS4.'' 40 CFR 122.26(b)(16). In addition, a small MS4 located outside 
of an urbanized area may be designated as a regulated small MS4 if the 
NPDES permitting authority determines that its discharges cause, or 
have the potential to cause, an adverse impact on water quality. See 40 
CFR 122.32(a)(2), 123.35(b)(3).
    Phase II stormwater regulations also require that the MS4, under 
the permit, implement stormwater management programs (SWMPs), and 
require that the SWMPs include six minimum control measures. The 
minimum control measures are: Public education and outreach, public 
participation and involvement, illicit discharge detection and 
elimination, construction site runoff control, post construction runoff 
control, and pollution prevention and good housekeeping. Regulations 
applicable to Phase II MS4 permits are found in 40 CFR 122.30-122.37. 
In general, Phase II MS4 permits are general permits, although small 
MS4s may apply for individual permits under the Phase I rule's 
application provisions in 40 CFR 122.26(d).
    Under section 402(p)(6), EPA is authorized to designate additional 
stormwater discharges to be regulated other than those already 
regulated, and to establish a comprehensive program to regulate them. 
In addition, under EPA's stormwater regulations, EPA (or States 
authorized to administer the NPDES program) may require NPDES permits 
for currently unregulated stormwater discharges by designating 
discharges pursuant to 40 CFR 122.26(a)(9)(i)(C) or (D).

III. Input on Preliminary Considerations for Modifying/Supplementing 
EPA's Stormwater Regulations in the Chesapeake Bay Watershed

    By today's notice, EPA is informing the public of its preliminary 
considerations for modifying or supplementing EPA's stormwater 
regulations to specifically address stormwater discharges in the 
Chesapeake Bay Watershed and soliciting public input on these 
considerations. EPA is accepting information during the listening 
sessions and/or by submission of written comments as described above in 
order to gain early public input on stormwater practices and 
regulations and to inform the stormwater rulemaking. The following are 
options that EPA is considering for strengthening the stormwater 
requirements and for which EPA seeks input. These options are not 
mutually exclusive and may be considered in combination.
    Option 1: Designate Additional Discharges to be Regulated. 
Stormwater discharge from large areas of impervious cover can be a 
significant contributor to water quality impairments in the receiving 
waters. As part of the national rulemaking effort, EPA is considering 
regulating additional discharges that are not currently regulated, but 
are causing and/or contributing to the degradation of water quality in 
the Chesapeake Bay watershed. This option could be achieved in various 
ways: Expanding the area of coverage for currently regulated MS4s, 
regulating currently unregulated MS4s, and designating discharges that 
do not flow through MS4s, including those that discharge to waterbodies 
directly. EPA is considering the need to further expand the scope of 
discharges regulated in the Chesapeake Bay watershed beyond those that 
would be regulated as part of the national rulemaking effort. EPA 
requests input from the public on (1) How to identify the appropriate 
jurisdictional boundaries for permit coverage, including the township, 
county, sewer district, or others; (2) how to identify areas within the 
Chesapeake Bay watershed that should be covered based on development 
pressures and to protect water quality; and (3) whether EPA should 
consider regulating stormwater discharges from particular types or 
sizes of development that are not covered by an MS4 permit.
    Option 2: Require Additional Chesapeake Bay-only MS4 Provisions. 
EPA is considering adding new minimum measures or more specificity to 
the six existing minimum control measures to reduce the discharge of 
pollutants. The additional minimum measures could include requiring 
controls related to turf management, pesticide usage, fertilizer usage, 
and buffer widths. These additional minimum measures could be applied 
to all MS4s, to selected MS4s using a tiered approach based on the size 
of the MS4, or focused in those subwatershed or tributaries where these 
additional controls that are determined to be necessary to protect 
water quality. More specificity of the minimum control measures could 
include considerations for nitrogen, phosphorus and sediment, to 
strengthen the stormwater management programs in the Chesapeake Bay 
watershed and to further the implement of the Chesapeake Bay TMDL.
    Option 3: Require Retrofitting of Stormwater Management Controls 
with Improved Stormwater Control Measures. EPA is considering adding a 
requirement that would make retrofitting structural stormwater controls 
mandatory for existing development that discharges through an MS4 and/
or for large-scale development that does not discharge through an MS4. 
In its national stormwater rulemaking, EPA is considering a retrofit 
component that would apply nationally to MS4s. However, EPA seeks 
public input on whether to consider establishing either more stringent 
requirements for MS4s in the Chesapeake Bay watershed or a specific 
retrofit provision for discharges

[[Page 62362]]

that discharge directly to waterbodies within the Chesapeake Bay 
watershed. Additionally, EPA requests information related specifically 
to stream and floodplain restoration as well as buffer requirements so 
that the rulemaking can address the physical impacts of stormwater to 
streams to improve overall stream functionality.
    Option 4: Establish New and Redevelopment Standards. As part of the 
national stormwater rulemaking, EPA is considering a number of options 
to improve stormwater quality through standards for newly developed and 
redeveloped sites. In the Federal Register Notice published December 
28, 2009, EPA had requested comments on what standard(s) could be 
applied to new development and redevelopment that would promote 
sustainable practices and mimic natural processes through (1) 
Infiltration and recharge, (2) evapotranspiration, and/or (3) 
precipitation harvesting and reuse. With respect to the Chesapeake Bay 
watershed, EPA is considering whether to set distinct parameters to 
these standards for discharges from newly developed and redeveloped 
sites. For example, if EPA promulgates a rule with a national standard, 
one option could be to apply that standard to more sites than would be 
regulated under a national rule, such as sites smaller than the minimum 
size that may be specified in the national rule. Another option could 
be a Chesapeake Bay watershed-specific performance standard that 
differs from the national standard.

IV. Environmental Justice Considerations

    As part of the listening sessions, EPA will also address 
environmental justice considerations and potential impacts that may 
arise as a consequence of the Chesapeake Bay watershed provisions under 
consideration in the new rulemaking. Executive Order (EO) 12898 (59 FR 
7629 (Feb. 16, 1994)) establishes federal executive policy on 
environmental justice. Its main provision directs federal agencies, to 
the greatest extent practicable and permitted by law, to make 
environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States. Environmental justice is the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies. To help achieve EPA's goals for environmental justice, EPA 
places particular emphasis on the public health of and environmental 
conditions affecting minority, low-income, and indigenous populations.
    EPA solicits comment for these preliminary Chesapeake Bay watershed 
specific provisions to assess whether they will have a 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations. The Agency plans to 
discuss ways that local communities can identify areas of concern and 
incorporate ``low impact development'' (LID) or ``green 
infrastructure'' practices into their stormwater management regimes. 
These practices, such as rain gardens, bioswales, green roofs, and 
pervious pavements, use infiltration, evapotranspiration, and 
stormwater capture and reuse to maintain or restore natural 
hydrologies, in order to lessen the environmental impacts of stormwater 
and improve public access to clean waters to improve livability. EPA is 
working with all stakeholders to strengthen its stormwater program and 
support communities in efforts to restore and maintain their urban 
waterbodies. Priorities for this effort include helping communities--
especially underserved communities--access, improve, and benefit from 
their waters and the surrounding land.
    EPA requests that participants in the listening sessions' 
environmental justice component share their ideas on the following 
questions focusing on stormwater issues:
     Stormwater Benefits and Challenges--What do you see as 
effective and ineffective strategies for managing stormwater in 
communities?
     Federal Government Role--How can the federal government be 
a more effective partner in helping to manage stormwater in your 
community?
     Tools--What additional tools and resources would help your 
efforts to successfully address the impact of stormwater in your 
community?

    Dated: October 1, 2010.
Deborah Nagle,
Associate Director Water Permits Division.
[FR Doc. 2010-25318 Filed 10-7-10; 8:45 am]
BILLING CODE 6560-50-P