[Federal Register Volume 81, Number 3 (Wednesday, January 6, 2016)]
[Proposed Rules]
[Pages 415-435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-33174]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[EPA-HQ-OW-2015-0671; FRL-9939-88-OW]
RIN 2040-AF57


National Pollutant Discharge Elimination System (NPDES) Municipal 
Separate Storm Sewer System General Permit Remand

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing changes 
to the regulations governing small municipal separate storm sewer 
system (MS4) permits to respond to a remand from the United States 
Court of Appeals for the Ninth Circuit in Environmental Defense Center, 
et al. v. EPA, 344 F.3d 832 (9th Cir. 2003). In that decision, the 
court determined that the regulations for providing coverage under 
small MS4 general permits did not provide for adequate public notice 
and opportunity to request a hearing. Additionally, the court found 
that EPA failed to require permitting authority review of the best 
management practices (BMPs) to be used at a particular MS4 to ensure 
that the small MS4 permittee reduces pollutants in the discharge from 
their systems to the ``maximum extent practicable'' (MEP), the standard 
established by the Clean Water Act for such permits. EPA's proposal 
would revise the small MS4 regulations to ensure that the permitting 
authority determines the adequacy of BMPs and other requirements and 
provides public notice and the opportunity to request a public hearing 
on the requirements for each MS4. The proposal would not establish any 
new substantive requirements for small MS4s.

DATES: Comments must be received on or before March 21, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2015-0671, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or withdrawn. EPA 
may publish any comment received to its public docket. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. EPA will generally not consider comments or comment contents 
located outside of the primary submission (i.e. on the web, cloud, or 
other file sharing system). For additional submission methods, the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Greg Schaner, Office of Wastewater 
Management, Water Permits Division (M4203), Environmental Protection 
Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone 
number: (202) 564-0721; email address: [email protected]

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. What action is the Agency taking?
    C. What is the Agency's authority for taking this action?
II. Background
    A. Statutory and Regulatory Overview
    B. MS4 Permitting Requirements
III. Judicial Review of the Phase II Rule and Partial Remand
    A. Decision in Environmental Defense Center et al. v. EPA
    B. EPA Action Following the Partial Remand of the Phase II Rule
IV. Scope of This Rulemaking
V. EPA's Evaluation and Selection of Rulemaking Options
    A. Current Permitting Authority Practice
    B. Description of Process Used To Evaluate Options
    C. Considerations in Evaluating Options
    1. Permitting Authority Review
    2. Public Participation Requirements
    3. Other Factors Considered
VI. Analysis of Options for Proposal
    A. Option 1--The Traditional General Permit Approach
    1. Current Examples of Clear, Specific, and Measurable Permit 
Requirements
    2. Types of Permit Language Lacking Sufficient Detail To Qualify 
as Clear, Specific, and Measurable
    3. Summary/Description of Proposed Rule Changes
    B. Option 2--Procedural Approach
    C. Option 3--State Choice Approach
VII. Incremental Costs of Proposed Rule Options
VIII. Statutory and Executive Orders Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. Does this action apply to me?

    Entities potentially regulated by this proposed action include:

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                                                               North
                                                             American
                                  Examples of regulated      Industry
            Category                     entities         Classification
                                                               System
                                                           (NAICS) code
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Federal and state government...  EPA or state NPDES               924110
                                  stormwater permitting
                                  authorities.

[[Page 416]]

 
Local governments..............  Operators of small               924110
                                  municipal separate
                                  storm sewer systems.
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    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 or otherwise affected by this action. 
Other types of entities not listed in the table could also be 
regulated. To determine whether your entity is regulated by this 
action, you should carefully examine the applicability criteria found 
in Sec.  122.32 title 40 of the Code of Federal Regulations, and the 
discussion in the preamble. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the FOR FURTHER INFORMATION CONTACT section.

B. What action is the agency taking?

    EPA is proposing a change to its regulations governing the way in 
which small MS4s obtain coverage under National Pollutant Discharge 
Elimination System (NPDES) general permits. The proposal results from a 
decision by the Ninth Circuit U.S. Court of Appeals in Environmental 
Defense Center, et al. v. EPA, in 344 F.3d 832 (9th Cir. 2003) (``EDC 
decision''), which found that EPA regulations for obtaining coverage 
under a small MS4 general permit did not provide for adequate public 
notice, the opportunity to request a hearing, or permit authority 
review to determine whether the BMPs selected by each MS4 in its 
stormwater management program (SWMP) meets the Clean Water Act (CWA) 
requirements including the requirement to ``reduce pollutants to the 
maximum extent practicable.'' The preamble discusses two options for 
addressing the remand, and a third option that is a hybrid of the two 
alternatives. One option (called the ``Traditional General Permit 
Approach'') would align the process for issuing small MS4 general 
permits with the way NPDES general permits are issued for other 
categories of discharges. This would entail requiring the permitting 
authority to establish within the permit all requirements that MS4s 
must meet within the term of the general permit to meet the standard 
applicable to MS4s (to reduce pollutants to the MEP, to protect water 
quality, and to satisfy the appropriate water quality requirements of 
the CWA), which would be subject to public notice and comment and an 
opportunity to request a hearing. A second option (called the 
``Procedural Approach'') would add procedural requirements to the 
existing rule structure that would require the MS4 to inform the 
permitting authority in its Notice of Intent (NOI) to be covered by the 
permit of the BMPs it would undertake through its SWMP. Under the 
Procedural Approach, the public would be given an opportunity to 
comment on the proposed BMPs and request a hearing, and the permitting 
authority would have the opportunity to require changes to the proposed 
BMPs before the permitting authority authorizes a discharge under the 
general permit. A third option (called the ``State Choice Approach'') 
would enable the permitting authority to choose between the Traditional 
General Permit and Procedural Approaches, or to implement a combination 
of these approaches in issuing and authorizing coverage under a general 
permit.

C. What is the agency's authority for taking this action?

    The authority for this rule is the Federal Water Pollution Control 
Act, 33 U.S.C. 1251 et seq., including sections 402 and 501.

II. Background

A. Statutory and Regulatory Overview

    Stormwater discharges are a significant cause of water quality 
impairment because they contain a variety of pollutants such as 
sediment, nutrients, chlorides, pathogens, metals, and trash. 
Furthermore, the increased volume and velocity of stormwater discharges 
that result from the creation of impervious cover can alter streams and 
rivers by causing scouring and erosion. These surface water impacts 
threaten public health and safety due to flooding and pollutants; lead 
to economic losses to property and fishing industries; increase 
drinking water treatment costs; and decrease opportunities for 
recreation, swimming, and wildlife uses.
    Stormwater discharges are subject to regulation under section 
402(p) of the CWA. Under this provision, Congress required only the 
following stormwater discharges to be subject to NPDES permitting 
requirements: Stormwater discharges for which NPDES permits were issued 
prior to February 4, 1987; discharges ``associated with industrial 
activity''; discharges from MS4s serving populations of 100,000 or 
more; and any stormwater discharge determined by EPA or a state to 
``contribute . . . to a violation of a water quality standard or to be 
a significant contributor of pollutants to waters of the United 
States.'' With respect to MS4s, section 402(p)(3)(B) provides that 
NPDES permits may be issued on a system-wide or jurisdiction-wide 
basis, and requires that MS4 NPDES permits ``include a requirement to 
effectively prohibit non-stormwater discharges into the storm sewers'' 
and require ``controls to reduce the discharge of pollutants to the 
maximum extent practicable . . . and such other provisions as the 
Administrator or the State determines appropriate for the control of 
such pollutants.''
    EPA developed the stormwater regulations under section 402(p) in 
two phases, as directed by the statute. In the first phase, under 
section 402(p)(4), EPA promulgated regulations establishing application 
and other requirements for NPDES permits for stormwater discharges from 
medium (serving populations of 100,000 to 250,000) and large (serving 
populations of 250,000 or more) MS4s, and stormwater discharges 
associated with industrial activity. EPA published the final Phase I 
rule on November 16, 1990 (55 FR 47990).
    The Phase I rule, among other things, defined ``municipal separate 
storm sewer'' as 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 at 40 CFR 122.26(b)(8). 
EPA included construction sites disturbing five acres or more in the 
definition of ``stormwater discharges associated with industrial 
activity'' at 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

[[Page 417]]

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 on the basis of the study and in consultation 
with state and local officials. EPA promulgated the Phase II rule on 
December 8, 1999, designating discharges from certain small MS4s and 
from small construction sites (disturbing equal to or greater than one 
acre and less than five acres) and requiring NPDES permits for these 
discharges (64 FR 68722, December 8, 1999). A regulated small MS4 is 
generally defined as any MS4 that is not already covered by the Phase I 
program and that is located within the urbanized area boundary as 
determined by the latest 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, the 
Phase II rule includes authority for EPA (or states authorized to 
administer the NPDES program) to require NPDES permits for currently 
unregulated stormwater discharges by a designation process. 40 CFR 
122.26(a)(9)(i)(C) and (D). Other small MS4s 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) and 123.35(b)(3).

B. MS4 Permitting Requirements

    The Phase I regulations are primarily application requirements that 
identify components that must be addressed in applications for 
individual permits from large and medium MS4s. The regulations at 40 
CFR 122.26(d)(2)(iv) require these MS4s to develop a SWMP, which is 
considered by EPA or the authorized state permitting authority when 
establishing permit conditions to reduce pollutants to the MEP.
    Like the Phase I rule, the Phase II rule requires regulated small 
MS4s to develop and implement SWMPs. 40 CFR 122.34(a) requires that 
SWMPs be designed to reduce pollutants discharged from the MS4 ``to the 
maximum extent practicable (MEP), to protect water quality, and to 
satisfy the appropriate water quality requirements of the Clean Water 
Act,'' and requires 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, pollution prevention and good 
housekeeping. 40 CFR 122.34(b). Under the Phase II rule, a regulated 
small MS4 may seek coverage under an available general permit or may 
apply for an individual permit. To be authorized to discharge under a 
general permit, the rule requires submission of an NOI to be covered by 
the general permit containing a description of the BMPs to be 
implemented and the measurable goals for each of the BMPs, including 
timing and frequency, as appropriate. 40 CFR 122.33(a)(1), 
122.34(d)(1).
    EPA anticipated that under the first two or three permit cycles, 
whether individual permits or general permits, BMP-based SWMPs 
implementing the six minimum control measures would, if properly 
implemented, ``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.'' (64 FR 68753, December 8, 1999). In the final Phase 
II rule preamble, EPA also stated that it ``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. . . . 
Therefore, each permittee will determine appropriate BMPs to satisfy 
each of the six minimum control measures through an evaluative 
process.'' (64 FR 68754, December 8, 1999).
    The Agency described this process in the preamble to the Phase II 
rule as an ``iterative process'' of developing, implementing, and 
improving stormwater control measures contained in SWMPs. As EPA 
further stated in the preamble to the Phase II rule, ``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.'' (64 FR 68754, December 8, 1999).

III. Judicial Review of the Phase II Rule and Partial Remand

A. Decision in Environmental Defense Center et al. v. EPA

    The Phase II rule was challenged in petitions for review filed by 
environmental groups, municipal organizations, and industry groups, 
resulting in a partial remand of the rule. Environmental Defense Center 
v. U.S. Environmental Protection Agency, 344 F.3d. 832 (9th Cir. 2003). 
The court remanded the Phase II rule's provisions for small MS4 NPDES 
general permits because they lacked procedures for permitting authority 
review and public notice and the opportunity to request a hearing on 
NOIs submitted under general MS4 permits.
    In reviewing how the Phase II rule provided for general permit 
coverage for small MS4s, the court found that NOIs under the rule were 
not like NOIs for other NPDES general permits. Other general permits 
contain the specific effluent limitations and conditions applicable to 
the class of dischargers for which the permit is available, and 
authorization to discharge under a general permit is obtained by filing 
an NOI in which the discharger agrees to comply with the terms of the 
general permit. In contrast, the court held that under the Phase II 
rule, because the NOI submitted by the MS4 contains the information as 
to what the MS4 decides it will do to reduce pollutants to the MEP, it 
is the ``functional equivalent'' of a permit application. Environmental 
Defense Center v. U.S. Environmental Protection Agency, 344 F.3d. at 
857. Because the CWA requires public notice and the opportunity to 
request a public hearing for all permit applications, the court held 
that failure to require public notice and the opportunity for a public 
hearing for NOIs under the Phase II rule is contrary to the Act. 344 
F.3d. at 858.
    Similarly, the court found the Phase II rule allows the MS4 to 
identify the BMPs that it will undertake in its SWMP without any 
permitting authority review. The court held that the lack of review 
``to ensure that the measures that any given operator of a small MS4 
has decided to undertake will in fact reduce discharges of pollutants 
to the maximum extent practicable'' also does not comport with CWA 
requirements. The court stated, ``That the Rule allows a permitting 
authority to review an NOI is not enough; every permit must comply with 
the standards articulated by the Clean Water Act, and unless every NOI 
issued under general permit is reviewed, there is no way to ensure that 
such compliance has been achieved.'' 344 F.3d. at 855 n.32.

[[Page 418]]

    The court therefore vacated and remanded ``those portions of the 
Phase II Rule that address these procedural issues . . . so that EPA 
may take appropriate action to comply with Clean Water Act.'' 344 F.3d. 
at 858.

B. EPA Action Following the Partial Remand of the Phase II Rule

    EPA issued interim guidance to address the need for permitting 
authority review of NOIs and to provide for public notice and 
opportunity for public hearing in April 2004. This guidance memorandum, 
Implementing the Partial Remand of the Stormwater Phase II Regulations 
Regarding Notices of Intent and NPDES General Permitting for Phase II 
MS4s, outlined recommendations as to how permitting authorities should 
retroactively provide for public notice and the opportunity to request 
a hearing, provided options for holding a public hearing if granting a 
request, and highlighted ways to conduct appropriate review of NOIs 
already submitted.\1\ The memorandum also provided guidance on ways to 
ensure the requisite public notice and review opportunities and 
permitting authority review of NOIs under new general permits. As a 
result of the EDC decision, EPA Regions that issue NPDES permits have 
taken various approaches to provide opportunity for public review. For 
example, EPA Region 1, the permitting authority for Massachusetts and 
New Hampshire, uses its Web site to post NOIs and notices of 
availability for public comment, as well as the annual reports 
submitted by each permitted MS4.\2\ EPA Region 6, the permitting 
authority in New Mexico and in Indian Country in Oklahoma and New 
Mexico, has established a Web site with information on how to submit 
comments and opportunity to request a public hearing, and posts the NOI 
and each MS4's SWMP on its Web site.\3\ EPA Region 10, the permitting 
authority in Idaho, has only issued individual permits to small MS4s in 
that state.
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    \1\ EPA. April 16, 2004. Memo from James Hanlon, Director, 
Office of Wastewater Management to EPA Water Management Division 
Directors in EPA Regions I-X. http://www.epa.gov/npdes/pubs/hanlonphase2apr14signed.pdf.
    \2\ http://www.epa.gov/region1/npdes/stormwater/2003-permit-archives.html.
    \3\ http://www.epa.gov/region6/water/npdes/sw/sms4/sms4noi.htm.
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    In addition, the EPA Regions and some authorized state permitting 
authorities have included more specific and definitive requirements in 
small MS4 general permits, rather than leaving the identification of 
stormwater controls needed to reduce pollutants to the MEP, protect 
water quality and meet the water quality requirements of the CWA up to 
the permittees. In the time since promulgation of the Phase II rule and 
the partial remand of the rule, permits for small MS4 discharges have 
evolved, both to reflect the advancement and improvement in stormwater 
management approaches and techniques and to reflect the need for the 
specific requirements for compliance with the CWA to be incorporated 
into MS4 permits. Please see Section V.A of this preamble for a 
detailed discussion of current EPA and state permitting practices for 
small MS4 NPDES permits.

IV. Scope of This Rulemaking

    The proposed revisions to the Phase II MS4 NPDES permitting 
requirements are solely for the purpose of responding to the partial 
remand of the Phase II rule in Environmental Defense Center v. U.S. 
Environmental Protection Agency, 344 F.3d. 832 (9th Cir. 2003) with 
respect to small MS4 general permits. To conform to the court's 
decision, the rule needs to ensure that permitting authorities 
determine what requirements are needed to reduce pollutants from each 
permitted small MS4 ``to the maximum extent practicable (MEP), to 
protect water quality, and to satisfy the appropriate water quality 
requirements of the Clean Water Act,'' as currently required for small 
MS4 permits under 40 CFR 122.34(a). The proposed rule must also require 
NPDES permitting authorities to provide the public with the opportunity 
to review, submit comments, and request a public hearing on these 
requirements.
    EPA is not reopening any of the substantive requirements that were 
promulgated in the Phase II rule (nor is EPA reopening or seeking 
comment on any aspect of the Phase I rule, which is described in this 
preamble for informational purposes only). In addition, EPA will 
address the other aspect of the Ninth Circuit's remand regarding 
possible regulation of stormwater discharges from forest roads in a 
separate action.

V. EPA's Evaluation and Selection of Rulemaking Options

A. Current Permitting Authority Practice

    The EPA collected information on how NPDES permitting authorities 
have been administering their small MS4 general permits in the years 
since the EDC decision and the issuance of the EPA's guidance on 
implementing the remand and compiled this information in a state-by-
state spreadsheet (titled Current NPDES Authority Practices in 
Administering Small MS4 General Permits, EPA, 2015), which is available 
in the docket for the proposed rule at http://www.regulations.gov under 
Docket ID No. EPA-HQ-OW-2015-0671. This information provides a basis 
for understanding how and to what degree different rule options would 
affect the current MS4 general permit programs in different states.
    This research indicates that permitting authorities are using an 
array of approaches to provide permit coverage to their small MS4s, 
many of which are unique to the specific state. EPA's guidance 
following the EDC decision suggested ways to implement a general permit 
program that would be consistent with the court's ruling. As mentioned, 
some states chose to develop more definitive general permits that do 
not rely on MS4 identification of BMPs to establish requirements that 
meet the applicable CWA standards. Other states require that each NOI 
undergo individualized permitting authority review and a dedicated 
public comment period prior to authorizing the discharge. Still other 
states require the MS4 to provide for public notice and the opportunity 
to submit comments on the NOI and the SWMP document being submitted. 
Notwithstanding the disparity in approaches between NPDES authorities, 
this information has equipped EPA with a sense of how the different 
options under consideration would be implemented if promulgated, and 
what types of adjustments may be necessary in some programs depending 
on the rule approach that is adopted. EPA used the approaches being 
implemented in certain states to inform the proposed rule options.
    Not surprisingly, general permits are used as the permitting 
vehicle to authorize small MS4 discharges in the vast majority of 
states (i.e., 43 of 50 states, which represents 94 percent of the 6789 
permitted small MS4s). In the remaining states, individual permits are 
issued to their small MS4 permittees. In the 43 states where general 
permits are used, 26 of these permitting authorities make their NOIs 
publicly available through a Web site or some other means, and 27 
indicate that they provide a ``waiting period'' of some length between 
the time the NOI is submitted and discharge authorization. Currently, 
most states are not providing a second public comment period for 
individual NOIs (in addition to the public comment period for the draft 
general permit). However, 12 states have established such a comment 
period. EPA notes that four states require the prospective small MS4 
permittee to provide for its own public comment period for the NOI and, 
in some cases, the SWMP. In 23 states, the permitting

[[Page 419]]

authority requires the SWMP document to be submitted for review along 
with the NOI; in 14 of these states, the permitting authority reviews 
and approves the SMWP document. See Current NPDES Authority Practices 
in Administering Small MS4 General Permits, EPA, 2015.
    EPA also found some states that have moved to develop general 
permits with more clear and specific requirements as a way of cutting 
down on the need for additional review procedures for individual NOIs. 
For instance, rather than requiring NOIs with information on BMPs and 
measurable goals, California and Washington include in their general 
permits the specific tasks, milestones, and schedules that are to be 
met by each permittee. Therefore, once coverage under the general 
permit in these states is authorized, the enforceable components of the 
permit are locked in place for each permittee, and the permitting 
authority is no longer required to review the information submitted by 
individual MS4s prior to authorizing the discharge. What matters is 
whether the permittee is complying with the specific requirements of 
the permit.

B. Description of Process Used To Evaluate Options

    EPA met separately with various categories of stakeholders during 
the development of the proposed rulemaking. The purpose of these 
meetings was to obtain individual feedback from stakeholders on the 
type of regulatory changes that would best address the court remand, 
and which would work best considering how Phase II general permits have 
been administered to date. The following is a summary of what EPA 
learned from these meetings.
    EPA participated in several meetings with the Association of Clean 
Water Administrators and their member state stormwater coordinators, 
and met with the Environmental Council of the States. Many state 
permitting authority staff appeared receptive to the idea of clarifying 
in the regulations that the general permit should define all of the 
applicable requirements necessary to reduce the discharge of pollutants 
from the MS4 to the MEP, to protect water quality, and to satisfy the 
appropriate water quality requirements of the CWA. At the same time, 
some state staff questioned how they would incorporate requirements 
into their general permits in a way that would work for all MS4s within 
their state, given the large number and diversity of the municipal 
entities regulated. Other state staff indicated a concern for retaining 
the correct balance between establishing detailed, prescriptive 
requirements and providing flexibility where appropriate. There are 
also a few state permitting authorities that are implementing an 
approach similar to what is being described as the ``Procedural 
Approach'' (see Section VI.B), and some expressed the interest in 
finding a way in the proposed rule to accommodate this approach. Most 
state permitting staff appeared concerned with the prospect of spending 
additional time and resources to implement a procedural approach 
requiring individualized review and public notice of all NOIs, as 
discussed in the court's decision. Other state permitting staff 
suggested exploring the concept of allowing permitting authorities to 
choose which option to follow, without restricting the rule to one 
approach. Alternatively, a few state permitting staff suggested that 
permitting authorities be allowed to apply a hybrid of the two 
approaches, whereby a state could implement one permit using the 
Traditional General Permit Approach (e.g., for traditional MS4s) and 
another permit using the Procedural Approach (e.g., for non-traditional 
MS4s), or use a blend of the options for issuing a general permit and 
authorizing coverage under the permit.
    EPA met with organizations representing state and local elected 
officials, as well as with small MS4 permittees and organizations that 
include small MS4s as members. MS4s, in particular, are interested in 
retaining the flexibility of the existing Phase II regulations, where 
they are able to make decisions on which BMPs are implemented locally 
based on factors that are unique to their municipality and 
environmental concerns. At the same time, many of these same MS4s 
understand the need for permit requirements that are clear to all 
parties and the public.
    EPA also met with representatives from a number of environmental, 
non-profit organizations. Many of the representatives expressed an 
interest in seeing the quality of small MS4 permits improve, and 
appeared to be supportive of the concept of adopting the Traditional 
General Approach as a way of addressing the remand. Asked at what point 
in the current permitting process their organizations tend to provide 
input, most indicated that they focus their attention on providing 
comments at the proposed permit stage, as compared to submitting 
comments on individual NOIs. That being said, a few representatives 
indicated that they have submitted comments on individual NOIs 
pertaining to the proposed water quality implementation plans of 
several small MS4s.

C. Considerations in Evaluating Options

    Any option for responding to the remand must meet the CWA 
requirements for public participation and transparency in section 
402(b)(3), consistent with the Ninth Circuit's decision. When 
individual permits are issued to small MS4s, the standard process for 
issuing an NPDES permit applies. This process provides for public 
participation and permitting authority determination as to what set of 
permit terms and conditions satisfy the requirement to reduce the 
discharge of pollutants from the MS4 to the MEP, to protect water 
quality, and to meet the applicable water quality requirements of the 
CWA. While the court's opinion focused on the Phase II rule's 
requirement for the NOI to be covered by a general permit, and the 
procedural steps that need to be taken with respect to the NOI in order 
for the rule to comply with the CWA, the court's fundamental concern 
was that the permitting authority must determine which MS4 permit 
requirements are sufficient to reduce the discharge of pollutants to 
the MEP, to protect water quality, and to satisfy the appropriate water 
quality requirements of the CWA, and that the public have the 
opportunity to review and comment on those permit requirements and to 
request a hearing. For example, the court stated that ``every permit 
must comply with the standards articulated by the Clean Water Act, and 
unless every NOI issued under a general permit is reviewed, there is no 
way to ensure that such compliance has been achieved.'' EDC v. EPA. 344 
F.3d at 855, n. 32. Accordingly, EPA has determined that certain 
factors must be met by any option to revise the rule, as discussed in 
subsections 1 (Permitting Authority Review), 2 (Public Participation 
Requirements), and 3 (Other Factors Considered).
1. Permitting Authority Review
    The court viewed the NOI as the document that identifies the 
requirements necessary to meet the MEP standard: ``Because a Phase II 
NOI establishes what the discharger will do to reduce discharges to the 
`maximum extent practicable,' the Phase II NOI crosses the threshold 
from being an item of procedural correspondence to being a substantive 
component of a regulatory scheme.'' 344 F.3d at 853. As a result, the 
role of the permitting authority to determine which requirements are 
necessary to meet the applicable statutory standard is not, according 
to the court, accomplished under this

[[Page 420]]

scheme. In addition, the court observed that because 40 CFR 122.34(a) 
in the 1999 Phase II rule states that compliance with the SWMP written 
by the MS4 constitutes compliance with the MEP standard (without 
providing for further action by the permitting authority), the 
regulation put the MS4 in charge of establishing its own requirements. 
``Therefore, under the Phase II Rule nothing prevents the operator of a 
small MS4 from misunderstanding or misrepresenting its own stormwater 
situation and proposing a set of minimum measures for itself that would 
reduce discharges by far less than the maximum extent practicable.'' 
344 F.3d at 855.
    While EPA has always expected the permitting authority to establish 
the necessary requirements for reducing discharges to the MEP, 
protecting water quality, and satisfying the appropriate water quality 
requirements of the CWA, the existing regulations do not fully address 
the permitting authorities' responsibilities in this regard. To be 
consistent with the court's decision, one criterion that any option 
must meet is that it must ensure the permitting authority provides a 
final determination on whether the requirements to which the MS4 is 
subject, whether articulated fully in the permit itself or defined in 
whole or part by the MS4 operator in the NOI, meet the NPDES 
requirements to reduce discharges to the MEP, to protect water quality, 
and to satisfy the appropriate water quality requirements of the Act.
2. Public Participation Requirements
    The court's other concern was that MS4s would choose what 
requirements apply to them, without being subject to the public 
participation procedures applicable to all NPDES permit applications 
and permits, which is contrary to CWA section 402(b)(3). As discussed, 
the court found the NOI to be the ``functional equivalent'' of a permit 
application. The importance of the NOI as identified by the court was 
that the NOI contained the requirements that would be considered to 
meet the applicable standards and therefore this was the document that 
needed to be subject to public notice. See 344 F.3d at 857. To be 
consistent with the court's decision, any option chosen must provide 
for public notice and the opportunity to request a public hearing on 
what is considered necessary for a permitted MS4 to meet the 
requirement to reduce discharges to the MEP, to protect water quality, 
and to satisfy the appropriate water quality requirements of the CWA, 
regardless of where those requirements are defined.
3. Other Factors Considered
    General permits are premised on the idea that the terms and 
conditions of the permit are the same for all entities covered by the 
general permit and that handling permitting for multiple entities in 
one proceeding is more efficient. In the context of MS4 permits, the 
Phase II rule sought to establish a general permit scheme that allows 
each MS4 to address the specific conditions that prevail in its 
jurisdiction. As stated in the Phase II preamble, ``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.'' (64 FR 
68754, December 8, 1999). While the court clearly rejected EPA 
regulations to the extent that the court found they established a 
system of MS4 self-regulation, it also recognized the value in having 
MS4 input on what it could do to meet the MEP standard. ``Involving 
regulated parties in the development of individualized stormwater 
pollution control programs is a laudable step . . . But EPA is still 
required to ensure that the individual programs adopted are consistent 
with the law.'' 344 F.3d at 856. There is a need for strong MS4 input 
into the implementation of the program, and for that reason EPA made 
flexibility an underlying principle of the Phase II regulations. 
Individual permits provide the greatest ability to define MS4-specific 
requirements and small MS4s always have the option of seeking an 
individual permit if this would best accommodate their specific 
circumstances. However, with over 94 percent of regulated small MS4s 
currently covered by general permits, an important consideration for 
this rulemaking is how to provide flexibility to MS4s while retaining 
the general permit option in a manner that comports with the remand. 
The challenge is to balance the flexibility provided to the MS4 to 
determine how best it can meet the applicable regulatory requirements 
with the permitting authorities' responsibility to ensure that the 
terms and conditions to which MS4s will be held accountable are 
adequate to reduce the discharge to the MEP, protect water quality, and 
satisfy the appropriate water quality requirements of the CWA. In 
selecting any regulatory option to comport with the court remand, EPA 
will consider the need for maintaining this balance in light of the 
nearly 15-year history of implementing the Phase II program, and the 
considerable knowledge and expertise about implementing stormwater 
controls that have emerged during that time.
    Another factor requiring consideration is the impact on existing 
authorized NPDES state permitting programs. Currently 46 states and one 
territory are authorized under section 402(b) to administer the NPDES 
permit program in their jurisdictions. EPA recognizes that states have 
limited resources and face different challenges in meeting the 
permitting demands within their various NPDES programs. Immediately 
after the EDC decision, EPA sought to provide state permitting 
authorities with potential interim strategies that would balance the 
need to move forward with implementing the Phase II program, while 
acknowledging the need for state flexibility in how permitting 
decisions need to be made. See Implementing the Partial Remand of the 
Stormwater Phase II Regulations Regarding Notices of Intent & NPDES 
General Permitting for Phase II MS4s (EPA, 2004).\4\ As discussed more 
fully elsewhere in this preamble, authorized states [and EPA regional 
permitting authorities] have taken a variety of approaches in response 
to the court's decision (and in some cases, decisions by state courts) 
and EPA guidance. A significant consideration in this rulemaking is the 
extent to which states would need to make changes to comply with the 
rule and consideration of the need to minimize disruption to existing 
state programs, particularly for those states that have chosen 
approaches that already comport with the EDC decision. EPA clarifies 
that if, upon promulgation of the final rule, a state is already 
implementing an approach that is consistent with the final rule EPA 
would not expect that the permitting authority would need to make any 
changes to its current approach. Similarly, it is EPA's intention that 
permitting authorities that only issue individual permits to small MS4s 
(e.g., EPA Region 10 in Idaho, Delaware, Michigan, and Oregon) would 
not need to make any changes because the process for issuing individual 
permits already encompasses the necessary permitting attributes found 
missing in the Phase II regulations by the Ninth Circuit (i.e., 
permitting authority determination, public notice, and opportunity to 
request a hearing). However, state permitting authorities that are 
using general permits and are

[[Page 421]]

currently not implementing strategies that address the core problems 
found by the court will need to make some degree of change to their 
general permit process for small MS4s to comply with the modified 
regulations.
---------------------------------------------------------------------------

    \4\ See http://www.epa.gov/npdes/pubs/hanlonphase2apr14signed.pdf.
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VI. Analysis of Options for Proposal

    EPA is proposing three rule options for public comment, each of 
which would address the Ninth Circuit remand. Each of these options 
shares in common the fact that, as a result of the permitting process, 
the permitting authority must determine which requirements a small MS4 
must meet in order to satisfy the Phase II regulatory requirement ``to 
reduce the discharge of pollutants from [the] MS4 to the maximum extent 
practicable, to protect water quality, and to satisfy the appropriate 
water quality requirement of the Clean Water Act.'' The key difference 
between the options, especially between the ``Traditional General 
Permit Approach'' (Option 1) and the ``Procedural Approach'' (Option 
2), is that they make this determination at different points in time 
during the permitting process. For Option 1 (the ``Traditional General 
Permit Approach''), the determination as to what requirements are 
needed to reduce the discharge of pollutants to the MEP, to protect 
water quality, and to satisfy the appropriate water quality 
requirements of the CWA is made as part of the initial issuance of the 
general permit. By contrast, under Option 2 (the ``Procedural 
Approach''), the permitting authority would make this determination 
after reviewing each individual NOI and after public comment and the 
opportunity for a hearing on the NOI. Each of these options is 
described more fully in this section, as is a third option (the ``State 
Choice Approach''), which would give the permitting authority the 
discretion to determine whether it will administer Option1 or Option 2, 
or a hybrid of options chosen for the final rule.

A. Option 1--Traditional General Permit Approach

    The ``Traditional General Permit Approach'' provides a mechanism 
for addressing the procedural deficiencies identified by the court by 
requiring all substantive permit requirements to be in the general 
permit. The rationale behind the Traditional General Permit Approach is 
that by requiring permitting authorities to include any and all 
requirements that establish what is necessary to ``. . . reduce the 
discharge of pollutants from the MS4 to the maximum extent practicable 
(MEP), to protect water quality, and to satisfy the appropriating water 
quality requirements of the Clean Water Act,'' the minimum required 
procedural steps to issue a final general permit, including providing 
public notice and the minimum 30-day comment period on the draft 
permit, and the opportunity to request a public hearing, will fulfill 
the permitting authority review and public participation requirements 
of the CWA that the court found missing from the Phase II regulations.
    Under the proposed Traditional General Permit Approach, the NPDES 
authority must establish in any small MS4 general permit the full set 
of requirements that are deemed adequate ``to reduce the discharge of 
pollutants from the MS4 to the maximum extent practicable (MEP), to 
protect water quality, and to satisfy the appropriate water quality 
requirements of the Clean Water Act,'' and the administrative record 
would explain the rationale for its determination. The permittee would 
have the opportunity, as it always has had, to provide feedback on what 
requirements are established in the general permit during the 
development of the draft permit and to submit comments during the 
public comment period. Furthermore, the permittee could continue to 
have flexibility in determining how it will implement the permit 
requirements based on considerations such as pollutant removal and cost 
effectiveness. However, once the permit is issued, and the terms and 
conditions in the permit are fixed for the term of the permit, neither 
the development of a SWMP document nor the submittal of an NOI for 
coverage would represent new permit requirements. In turn, because the 
permit contains all of the requirements that will be used to assess 
permittee compliance, the permitting authority would no longer need to 
rely on the MS4's NOI as the mechanism for ascertaining what will occur 
during the permit term. Under this approach, the function of the NOI 
would be more similar to that of any other general permit NOI, and more 
specifically other stormwater general permits, where the NOI is used to 
establish certain minimum facts about the discharger, including the 
operator's contact details, the discharge location(s), and confirmation 
that the operator is eligible for permit coverage and has agreed to 
comply with the terms of the permit. By removing the possibility that 
effluent limits could be proposed in the NOI (and for that matter in 
the SWMP) and made part of the permit once permit coverage is provided, 
the NOI would no longer look and function like an individual permit 
application, as the court found with respect to MS4 NOIs under the 
Phase II regulations currently in effect. Therefore, it would not be 
necessary to carry out the type of additional permitting authority 
review and public participation steps contemplated by the court.
    Under the proposed Traditional General Permit Approach, 40 CFR 
122.34(a) would be revised to expressly require the permitting 
authority to articulate in sufficient detail in the permit what is 
required to meet the minimum statutory and regulatory requirements, and 
to ensure that the applicable requirements are enforceable and 
understandable to the permittee and the public. A general permit would 
need to make it clear to all what level of effort is expected of the 
permittee during the permit term for each permit provision. These 
proposed revisions to 40 CFR 122.34(a) respond to the court's finding 
that under the Phase II rule, ``the operator of a small MS4 has 
complied with the requirement of reducing discharges to the `maximum 
extent practicable' when it implements its stormwater management 
program, i.e., when it implements its Minimum Measures. 40 CFR 
122.34(a).'' 344 F.3d at 856. The court continued, ``Nothing in the 
Phase II regulations requires that NPDES permitting authorities review 
these Minimum Measures to ensure that the measures that any given 
operator of a small MS4 had decided to undertake will in fact reduce 
discharges to the maximum extent practicable.'' 344 F.3d at 855. By 
clearly shifting the decision as to what is needed to meet the MEP 
standard and water quality requirements from the permittee to the 
permitting authority, the Traditional General Permit Approach would 
address the court's concern.
    EPA continues to view MEP as iterative, in that each successive 
permit needs to define what is required to meet the MEP standard for 
that permit term. The Traditional General Permit Approach would clarify 
that the requirements for meeting MEP (and to protect water quality and 
satisfy CWA water quality requirements) would be required to be 
established in each successive permit by the permitting authority, 
while the SWMP implemented by the MS4 would be a planning and 
programmatic document that the MS4 would be able to update and revise 
during the permit term as necessary to comply with the terms of the 
permit. In other words, this option would make it clear that the SWMP 
document would not contain enforceable requirements. Likewise, it would 
be unnecessary for the NOI to

[[Page 422]]

identify the BMPs selected in the SWMP for each minimum control measure 
nor for it to undergo public or permitting authority review prior to 
discharge authorization under the general permit.
    Moreover, it was never EPA's intent that the SWMP required by 40 
CFR 122.34(a) itself be considered enforceable under the permit. 
Rather, the SWMP was intended to be the means for the MS4 to engage in 
an adaptive management process during the term of the permit. ``EPA 
envisions application of the MEP standards as an iterative process. MEP 
should continually adapt to current conditions and BMP effectiveness 
and should strive to attain water quality standards.'' (64 FR 68754, 
December 8, 1999).
    The Traditional General Permit Approach would include regulatory 
text to reflect EPA's guidance to permitting authorities regarding the 
types of permit requirements for MS4s that are considered most 
effective. For instance, EPA advises permitting authorities to use 
permit conditions that are ``clear, specific, and measurable.'' See MS4 
Permit Improvement Guide \5\ (p. 5-6), and Revisions to the November 
22, 2002 Memorandum Establishing Total Maximum Daily Load (TMDL) 
Wasteload Allocations (WLAs) for Storm Water Sources and NPDES Permit 
Requirements Based on Those WLAs \6\ (p. 5). The MS4 Permit Improvement 
Guide explains EPA's recommendation as follows:
---------------------------------------------------------------------------

    \5\ EPA. 2010. MS4 Permit Improvement Guide. Office of 
Wastewater Management. Washington, DC. EPA 833-R-10-001. http://water.epa.gov/polwaste/npdes/stormwater/upload/ms4permit_improvement_guide.pdf.
    \6\ EPA. November 26, 2014. Memo from Andrew Sawyers, Director, 
Office of Wastewater Management to EPA Water Management Division 
Directors in EPA Regions I-X. http://water.epa.gov/polwaste/npdes/stormwater/upload/EPA_SW_TMDL_Memo.pdf.

    In order for permit language to be clear, specific, measurable 
and enforceable, each Permit Requirement will ideally specify: What 
needs to happen; Who needs to do it; How much they need to do; When 
they need to get it done; and Where it is to be done.
    For each Permit Requirement: `What' is usually the stormwater 
control measure or activity required. `Who' in most cases is implied 
as the permittee (although in some cases the permitting authority 
may need to specify who exactly will carry out the requirement if 
there are co-permittees or the MS4 will rely on another entity to 
implement one of the minimum control measures). `How much' is the 
performance standard the permittee must meet (e.g., how many 
inspections). `When' is a specific time (or a set frequency) when 
the stormwater control measure or activity must be completed. 
`Where' indicates the specific location or area (if necessary). 
These questions will help determine compliance with the permit 
requirement.

    The proposed rule for the Traditional General Permit Approach would 
obligate the permitting authority to establish requirements that are 
``clear, specific, and measurable.'' See proposed 40 CFR 122.34(a). The 
proposed rule further explains that effluent limitations may be 
expressed as BMPs that include, but are not limited to, ``specific 
tasks, BMP design requirements, performance requirements or benchmarks, 
schedules for implementation and maintenance, and frequency of 
actions.'' Id. Where permits incorporate clear, specific, and 
measurable requirements, EPA expects there to be greater certainty and 
understanding as to what must be accomplished during each permit term.
    A foundational principle of MS4 permits is that from permit term to 
permit term iterative progress will be made towards meeting water 
quality objectives, and that adjustments in the form of modified permit 
requirements will be made where necessary to reflect current water 
quality conditions, BMP effectiveness, and other current relevant 
information. This principle is incorporated into the proposed 
Traditional General Permit Approach in the requirement for NPDES 
authorities to revisit permit requirements during the permit issuance 
process, and to make any necessary changes in order to ensure that the 
subsequent permit continues to meet the NPDES requirements ``to reduce 
the discharge of pollutants from the MS4 to the maximum extent 
practicable (MEP), protect water quality, and to satisfy the water 
quality requirements of the Clean Water Act.'' Thus, in advance of 
issuing any successive small MS4 general permit, the permitting 
authority would need to review, among other things, information on the 
relative progress made by permittees to meet applicable milestones, 
compliance problems that may have arisen, the effectiveness of the 
required activities and selected BMPs under the existing permit, and 
any improvements or degradation in water quality. Sources of this 
information include, but are not limited to:
     Past annual reports;
     Current SWMP documents;
     NPDES MS4 audit reports, construction/industrial/
commercial site inspection reports;
     Monitoring and other information on quality of receiving 
waters;
     Existing MS4 permit requirements; and
     Approved TMDLs that include wasteload allocations 
applicable to small MS4s.
1. Current Examples of Clear, Specific, and Measurable Permit 
Requirements
    As discussed in the previous section, a key component of the 
proposed Traditional General Permit Approach is that permits be written 
with sufficient clarity and specificity to enable permittees, the 
public, and regulatory authorities alike to understand what is required 
to measure progress. EPA acknowledges that meeting the requirement to 
include more detailed terms and conditions in small MS4 permits and to 
ensure, among other things, that the permit terms satisfy the 
regulatory requirement to reduce pollutant discharges from the MS4 to 
the MEP (and meet the requirement to protect water quality and meet the 
appropriate water quality requirements of the CWA) will not be easy for 
some states. States that have not already written permits in this way 
would need to evaluate the quality of the existing SWMPs, the track 
record of each MS4 in implementing their respective SWMPs, the types of 
BMPs that have proven effective, and information that may suggest what 
is necessary to address existing water quality conditions, including 
whether additional requirements are needed to address an applicable 
TMDL. Among other factors that the state would need to consider when 
issuing a new, or the next, general permit are how long the MS4 has 
been permitted, the degree of progress made by the small MS4 permittees 
as a whole and for individual MS4s as well, the reasons for any lack of 
progress, and the capability of these MS4s to achieve more focused 
requirements. EPA finds promise in some of the strategies that EPA and 
state permitting authorities are already implementing, which will serve 
as useful models to those permitting authorities needing advice on how 
to write their permits under the proposed Traditional General Permit 
Approach. For example, permitting authorities may find that 
subcategorizing MS4s by experience, size, or other factors, and 
creating different requirements for each subcategory, may be desirable. 
Permitting authorities may also consider whether watershed-wide general 
permits may be an option, especially where the receiving waters are 
impaired.
    In addition to the model permit language in the MS4 Permit 
Improvement Guide, EPA recently compiled a number of examples where 
small MS4 general permits have already included requirements that are 
clear, specific, and measurable in a document entitled MS4 General 
Permits and the Six Minimum Control Measures: A

[[Page 423]]

National Compendium of Clear, Specific, and Measurable Requirements, 
which can be accessed in the docket for this proposed rule. Additional 
examples of clear, specific, and measurable permit requirements in MS4 
general permits, focusing on post-construction requirements and water 
quality-based effluent limits, are included in EPA's Municipal Separate 
Storm Sewer System Permits: Post-Construction Performance Standards & 
Water Quality-Based Requirements: A Compendium of Permitting 
Approaches.\7\ The fact that many permitting authorities have already 
included provisions that would qualify as clear, specific, and 
measurable under the proposed rule indicates that making this a 
requirement for all permits is reasonable and achievable. EPA requests 
comment on what additional examples should be highlighted as being 
clear, specific, and measurable in current small MS4 general permits.
---------------------------------------------------------------------------

    \7\ EPA. 2014. Municipal Separate Storm Sewer System Permits: 
Post-Construction Performance Standards & Water Quality-Based 
Requirements: A Compendium of Permitting Approaches. Office of 
Water. Washington, DC. EPA 833.R.14.003. http://water.epa.gov/polwaste/npdes/stormwater/upload/sw_ms4_compendium.pdf.
---------------------------------------------------------------------------

2. Types of Permit Language Lacking Sufficient Detail To Qualify as 
Clear, Specific, and Measurable
    Just as there are a number of examples to be highlighted where 
states are already writing their permits consistent with the proposed 
Traditional General Permit Approach, EPA also found permits that lack 
adequate detail and would not qualify as clear, specific, and 
measurable under the proposed rule modifications. Permit requirements 
that do not appear to have the type of detail that would be needed 
under the proposed rule approach may have some of the following 
characteristics:
     Permit provisions that simply copy the language of the 
Phase II regulations verbatim without providing further detail on the 
level of effort required or that do not include the minimum actions 
that must be carried out during the permit term. For instance, where a 
permit includes the language in 40 CFR 122.34(b)(4)(ii)(B) (i.e., 
requiring ``. . . construction site operators to implement appropriate 
erosion and sediment control best management practices'') and does not 
provide further details on the minimum set of accepted practices, the 
requirement would not provide clear, specific, and measurable 
requirements within the intended meaning of the proposed Traditional 
General Permit Approach. The same would also be true if the permit just 
copies the language from the other minimum control measure provisions 
in 40 CFR 122.34(b) without further detailing the particular actions 
and schedules that must be achieved during the permit term.
     Permit requirements that include ``caveat'' language, such 
as ``if feasible,'' ``if practicable,'' ``to the maximum extent 
practicable,'' and ``as necessary'' or ``as appropriate'' unless 
defined. Without defining parameters for such terms (for example, 
``infeasible'' means ``not technologically possible or not economically 
practicable and achievable in light of best industry practices''), this 
type of language creates uncertainty as to what specific actions the 
permittee is expected to take, and is therefore difficult to comply 
with and assess compliance.
     Permit provisions that preface the requirement with non-
mandatory words, such as ``should'' or ``the permittee is encouraged to 
. . . .'' This type of permit language makes it difficult to assess 
compliance since it is ultimately left to the judgment of the permittee 
as to whether it will comply. EPA notes that the Phase II regulations 
include ``guidance'' in places (e.g., 40 CFR 122.34(b)(1)(ii), 
(b)(2)(ii), and (b)(3)(iv)), which suggest practices for adoption by 
MS4s and within permits, but does not mandate that they be adopted. 
This guidance language is intended for permitting authorities to 
consider in establishing their permit requirements. While permitting 
authorities may find it helpful to their permittees to include guidance 
language within their permits in order to provide suggestions to their 
permittees, such language would not qualify as a permit requirement 
under the proposed Traditional General Permit Approach.
     Permit requirements that lack a measurable component. For 
instance, several permits include language implementing the 
construction minimum control measure that requires inspections ``at a 
frequency determined by the permittee'' based on a number of factors. 
This type of provision includes no minimum frequency that can be used 
to measure adequacy and, therefore, would not constitute a measurable 
requirement for the purposes of the proposed rule.
     Permit requires the development of a plan to implement one 
of the minimum control measures, but does not include details on the 
minimum contents or requirements for the plan, or the required 
outcomes, deadlines, and corresponding milestones. For example, some 
permits require the MS4 to develop a plan to implement the public 
education minimum control measure, which informs the public about steps 
they can take to reduce stormwater pollution. The requirement leaves 
all of the decisions on what specific actions will be taken during the 
permit term to comply with this provision to the MS4 permittee, thus 
enabling almost any type of activity, no matter how minor or 
insubstantial, to be considered compliance with the permit. In EPA's 
view, this type of permit provision would not qualify as a clear, 
specific, and measurable requirement under the proposed Traditional 
General Permit Approach.
3. Summary/Description of Proposed Rule Changes
    The following is a section-by-section summary of the proposed 
regulatory changes.
Proposed Changes to 40 CFR 122.33
    The following changes to 40 CFR 122.33 are proposed to complement 
the changes made to implement the Traditional General Permit Approach 
option:
     Throughout the section references to ``you'' or ``your'' 
would be replaced with references to ``the operator.'' This change is 
proposed for consistency with revisions to 40 CFR 122.34 and 40 CFR 
122.35.
     The requirements for obtaining coverage under a general 
permit would now be the same as those for any other general permit in 
40 CFR 122.28(b)(2). The NOI would no longer be required to include 
information on the MS4's BMPs and measurable goals.
     The requirements for applying for an individual permit 
would be consolidated in 40 CFR 122.33(b)(2), whereas these 
requirements now appear in both 40 CFR 122.31 and in 40 CFR 122.34(d).
     The deadline of March 10, 2003 for MS4s wishing to 
implement a program that differed from 40 CFR 122.34 to submit an 
individual permit application would be removed since the date has 
passed and is no longer relevant. Similarly, the deadline of March 10, 
2003 for MS4s designated for regulation by 40 CFR 122.32(a)(1) would be 
deleted since the date has passed and is no longer relevant.
Proposed Changes to 40 CFR 122.34
    Most of the proposed changes to 40 CFR 122.34 are made to clarify 
that it is the permitting authority's responsibility, and not that of 
the small MS4 permittee, to establish permit terms that meet the small 
MS4 regulatory standard (i.e., ``. . . to reduce the discharge of 
pollutants from the MS4 to the maximum extent practicable (MEP), to

[[Page 424]]

protect water quality, and to satisfy the appropriate water quality 
requirements of the Clean Water Act.''), and to delineate the 
requirements for implementing the six minimum control measures, other 
more stringent effluent limitations as necessary, as well as other 
requirements. The proposed modifications do not alter the existing, 
substantive requirements of the six minimum control measures in 40 CFR 
122.34(b), but instead emphasize the way in which the permitting 
authority makes the determination as to what requirements are included 
in small MS4 permits, including general permits. For instance, a 
typical change in the proposed Traditional General Permit Approach is 
made in 40 CFR 122.34(b)(3)(ii), which transfers the obligation to 
address certain categories of non-stormwater discharges from the small 
MS4 operator (referred to as ``you'') to the permitting authority by 
requiring that ``the permit must require the permittee to address the 
following categories of non-storm water discharges.'' Otherwise, unless 
specified, there is no change to the language of the existing rule.
Proposed Changes to 40 CFR 122.34(a)
    The following changes to 40 CFR 122.34(a) are proposed:
     The proposed regulatory text clarifies that the permitting 
authority is required to include in any small MS4 permit conditions 
that ensure pollutant discharges from the MS4 are reduced to the MEP, 
are protective of water quality, and satisfy the water quality 
requirements of the CWA. In order to ensure that these permit 
conditions are of adequate detail and their meaning is clear to all 
parties, the proposed rule emphasizes that permit requirements must be 
written in a ``clear, specific, and measurable'' form. This language is 
consistent with the recommendation in EPA's MS4 Permit Improvement 
Guide (2010), which advised permitting authorities to write MS4 permits 
with permit provisions that are ``clear, specific, measurable, and 
enforceable.'' In addition, the proposed regulatory text for the 
Traditional General Permit Approach emphasizes that the permit 
requirements must be adequate to collectively meet the regulatory 
standard, that is: ``to reduce the discharge of pollutants from the MS4 
to the maximum extent practicable (MEP), to protect water quality, and 
to satisfy the appropriate water quality requirements of the Clean 
Water Act (CWA).'' EPA notes that no changes are proposed to the 
wording of this regulatory standard.
     The proposed regulatory text reiterates that effluent 
limitations may be in the form of BMPs, and provides examples of how 
these BMP requirements may appear in the permit, such as in the form of 
specific tasks, BMP design requirements, performance requirements or 
benchmarks, schedules for implementation and maintenance, and the 
frequency of actions. This list of examples is not intended to be 
exclusive, and EPA anticipates that permitting authorities will, over 
time, develop other ways to establish requirements that are consistent 
with this language. It is EPA's view that this proposed language serves 
the same underlying purpose as the provision it modifies in the current 
regulation (i.e., ``. . . narrative effluent limitations requiring 
implementation of best management practices (BMPs) are generally the 
most appropriate form of effluent limitations when designed satisfy 
technology requirements . . . and to protect water quality.'')
     The following provision from the existing regulations is 
proposed to be removed: ``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.' '' 
The court in EDC found this sentence to be particularly problematic in 
light of the lack of permitting authority review of NOIs. Based in part 
on this language, the court observed that ``the operator of a small MS4 
needs to do nothing more than decide for itself what reduction in 
discharges would be the maximum practical reduction.'' EDC at 855. 
Furthermore, the court found that ``under the Phase II Rule, nothing 
prevents the operator of a small MS4 from misunderstanding or 
misrepresenting its own stormwater situation and proposing a set of 
minimum measures for itself that would reduce discharges by far less 
than the maximum extent practicable.'' Id. EPA addresses these concerns 
by removing this language, and instead clarifying, as it does through 
the other proposed changes to 40 CFR 122.34(a), that it is the 
permitting authority who is responsible for establishing requirements 
that constitute compliance with requirement to reduce the discharge of 
pollutants from the MS4 to the MEP, to protect water quality, and to 
satisfy the water quality requirements of the CWA.
     The language in the existing regulations providing 
permittees with up to five years from the date of permit issuance to 
implement their SWMPs is modified to apply to new permittees, 
recognizing that this 5-year period has passed for existing permittees. 
Another clarification is included to explain that when a permit is 
expiring and a new permit is being developed, the permitting authority 
must ensure that the new permit meets the requirements of 40 CFR 
122.34(a) based on current water quality conditions, the record of BMP 
effectiveness, and other current relevant information. This revision 
would not change the status quo; it merely recognizes that first-time 
small MS4 permittees have up to five years to develop and implement 
their SWMPs, while small MS4s that have already been permitted will 
have developed and implemented their SWMP when they reapply for permit 
coverage or submit an NOI under the next small MS4 general permit.
Proposed Changes to 40 CFR 122.34(b)
    The following changes are proposed to be made to 40 CFR 122.34(b):
     In the proposed regulatory text, the small MS4 operator is 
still required to develop a SWMP; however, the stated purpose of the 
SWMP is clarified to emphasize the fact that it is a tool for 
describing how the permittee will comply with the permit requirements 
implementing the six minimum control measures, and does not contain 
effluent limitations or permit conditions. The effluent limitations and 
other enforceable conditions would be stated in the permit itself. The 
proposed regulatory text for the Traditional General Permit Approach 
would clarify that for general permits, documentation of the measurable 
goals in the SWMP should include schedules that are consistent with any 
deadlines already established in the general permit. The purpose of 
this proposed requirement is to preserve the SWMP as a tool for 
permittees to describe [in more detail] how the MS4 will implement the 
BMPs required by the permit and to document updates to the SWMP as 
needed during the permit term if changes are called for to comply with 
the permit. This language is intended to support the underlying 
clarification in the proposal that it is in the permit where the 
enforceable requirements are established, while the role of the SWMP 
document or other document(s) is to describe in writing how the 
permittee will comply with these requirements. Under this formulation, 
a permittee's failure to develop a SWMP document would constitute a 
violation of the permit, but a permittee's failure to install a 
specific control measure that is

[[Page 425]]

described in the SWMP document would not be a violation of the permit, 
unless the permit required that this specific control measure be 
installed as a required BMP. EPA notes that the proposed regulatory 
text also includes language to clarify that whether or not the SWMP can 
be found in one document or a series of documents, there should be a 
written description in some form that explains how the permittee will 
comply with the permit's minimum control measure requirements. In other 
words, the ``SWMP document'' refers to the documentation, whether 
located in one place or comprised of multiple documents (e.g., 
ordinances, manuals, documented procedures, and other documentation), 
that is the written form of the permittee's SWMP. Reference to a 
``document'' in the proposed rule is not intended to create a new 
documentation requirement.
     Changes in various provisions in 40 CFR 122.34(b)(1) 
through (6) are proposed to emphasize the permitting authority's role 
in including requirements that address the minimum control measures as 
compared to the current regulations, which give this responsibility to 
the MS4. In most instances, the proposed modifications are merely 
changing a few words to switch from the first person (i.e., ``you'') to 
the third person (i.e., ``the MS4''). The proposed modifications do not 
alter the existing, substantive requirements of the six minimum control 
measures in 40 CFR 122.34(b).
Proposed Changes to 40 CFR 122.34(d)
    The following changes are proposed to be made to 40 CFR 122.34(d).
     The proposed regulatory text for the Traditional General 
Permit Approach would remove existing paragraph (d) from 40 CFR 122.34. 
The information required to be included in permit applications for 
individual permits in paragraph (d)(1) would be moved to 40 CFR 
122.33(b)(2)(i). This information would no longer be required to be 
submitted with NOIs. Because EPA and many states have issued menus of 
BMPs, paragraph (d)(2) is no longer relevant, and under the Traditional 
General Permit Approach, paragraph (d)(3) would also no longer be 
needed.
     For general permits, the information required to be 
included in the NOI would track with the requirements for general 
permits in 40 CFR 122.28(b)(2)(ii). See discussion on 40 CFR 122.33. 
There would be no change to the requirement that an MS4 seeking an 
individual permit must submit an application with its proposed BMPs to 
implement the six minimum control measures and measurable goals for BMP 
implementation.
Proposed Changes to 40 CFR 122.34(e) and (f)
    The following changes are proposed to be made to 40 CFR 122.34(e) 
and (f):
     The proposal would consolidate the current requirements in 
40 CFR 122.34(e)(1) and (f) under one section, 40 CFR 122.34(c), 
entitled ``Other applicable requirements.''
     EPA proposes to remove the guidance in the current 
regulations at Sec.  122.34(e)(2). The guidance reflects EPA's 
recommendation for the initial round of permit issuance, which has 
already occurred for all permitting authorities. The phrasing of the 
guidance language no longer represents EPA policy with respect to 
including additional, more stringent requirements. EPA has found that a 
number of permitting authorities are already including specific 
requirements in their small MS4 permits that address not only wasteload 
allocations in TMDLs, but also other more stringent requirements that 
are in addition to the six minimum measures irrespective of the status 
of EPA's 40 CFR 122.37 evaluation. See EPA's Municipal Separate Storm 
Sewer System Permits--Post-Construction Performance Standards & Water 
Quality-Based Requirements: A Compendium of Permitting Approaches 
(2014). Based on the advancements made by specific permitting programs, 
and information that points to stormwater discharges continuing to 
cause waterbody impairments around the country, EPA has advised in 
guidance that permitting authorities write MS4 permits with provisions 
that are ``clear, specific, measurable, and enforceable,'' 
incorporating such requirements as clear performance standards, and 
including measurable goals or quantifiable targets for implementation. 
See EPA's MS4 Permit Improvement Guide (2010). This guidance is a more 
accurate reflection of the Agency's current views on how the Phase II 
regulations should be implemented than the guidance currently in 40 CFR 
122.34(e)(2).
Proposed Renumbering of 40 CFR 122.34(c) and (g)
    The following changes are proposed to be made to 40 CFR 122.34(c) 
and (g):
     The existing ``qualifying local program'' provision 
currently in 40 CFR 122.34(c) would be renumbered as 40 CFR 122.34(e).
     The ``evaluation and assessment'' provision currently in 
40 CFR 122.34(g) would be renumbered as 40 CFR 122.34(d). Conforming 
changes would be made to 40 CFR 122.35 to update the cross-references 
in that section.

B. Option 2--Procedural Approach

    Another option, called the ``Procedural Approach,'' for which EPA 
requests comment would address the remand by incorporating additional 
permitting authority and public review steps into the existing 
regulatory framework for providing coverage to small MS4s under general 
permits. EPA is not proposing specific regulatory text for this option, 
but has included a detailed description of how the Procedural Approach 
would work. In addition to comments on the merits of the option, EPA 
solicits comments recommending specific regulatory text for this 
option.
    Under the existing regulation, 40 CFR 122.34(d)(1), MS4s seeking 
authorization to discharge under a general permit must submit an NOI 
that identifies the BMPs that the MS4 will implement for each of the 
six minimum control measures. The NOI must also state the measurable 
goals for each of the BMPs, including the timing and frequency of their 
implementation. Under the Procedural Approach, once an MS4 operator 
submits its NOI requesting coverage under the general permit, an 
additional step would take place in which the permitting authority 
would review, and the public would be given an opportunity to comment 
and request a hearing on, the merits of the MS4's proposed BMPs and 
measurable goals for complying with the requirement to reduce 
discharges to the MEP, to protect water quality, and to satisfy the 
appropriate water quality requirements of the CWA.
    Under the ``Procedural Approach'' option, the existing regulatory 
requirement for the small MS4 to submit an NOI with the BMPS and 
measurable goals as provided in 40 CFR 122.34(d) and the requirement in 
40 CFR 122.34(a) to develop, implement, and enforce a SWMP to meet the 
six minimum measures and to reduce pollutant discharges to the MEP, to 
protect water quality, and to satisfy the appropriate water quality 
requirements of the CWA would be retained. In this option, the NOI 
would continue to be used in the same way as the court considered the 
NOI in the EDC case. The NOI would continue to serve as the document 
that describes the BMPs and measurable goals that would be considered 
to be the enforceable requirements applicable to the permittee, in 
addition to the terms and conditions of the general permit. While a 
SWMP would still need to be developed, it would not establish 
enforceable requirements beyond those

[[Page 426]]

identified in the NOI that would have undergone public notice and 
comment and permitting authority review.
    The process would occur in the following sequence: Following the 
receipt of an NOI for coverage under the general permit, the permitting 
authority would review the NOI to assess whether the proposed BMPs and 
measurable goals meet the requirements to reduce pollutants to the MEP, 
protect water quality, and satisfy the water quality requirements of 
the CWA. If not, the permitting authority would request supplemental 
information or revisions as necessary to ensure that the submission 
satisfies the regulatory requirements. Once satisfied with the 
submission, the Procedural Approach would require the permitting 
authority to provide public notice of the NOI and an opportunity to 
request a hearing on the NOI, in accordance with 40 CFR 124.10 through 
124.13. After consideration of comments received and a hearing, if 
held, the permitting authority would provide notice of its decision to 
authorize coverage under the general permit and with the specific 
requirements each MS4 must meet, in accordance with 40 CFR 124.15, or 
as provided by state law for providing notice of a final permit 
decision in authorized states. Upon completion of this process, the 
MS4-specific requirements in the NOI, together with the terms and 
conditions set forth in the general permit, would be incorporated as 
requirements of the permit for the particular MS4.
    Where the state is the permitting authority, it would also provide 
EPA an opportunity to review the individual NOIs and submit comments or 
objections to the state regarding the adequacy of the NOI before it is 
made available for public review, consistent with requirements under 40 
CFR part 124 for NPDES permit applications and under 40 CFR 123.44 for 
draft permits. This two-step Procedural Approach is similar to the 
procedure used to establish ``terms of the nutrient management plan'' 
permit requirements proposed by concentrated animal feeding operations 
(CAFOs) seeking coverage under a general permit under 40 CFR 122.23(h). 
While Option 2 still relies on the use of a general permit, it follows 
several of the same process steps as those used for an individual 
permit.
    Some states, including Minnesota and Texas, have used a similar 
procedural approach as a way to address the problems identified in the 
EDC decision. In Minnesota, for example, the state has developed a 
detailed form that must be completed by any small MS4 seeking coverage 
under the Minnesota general permit, which when completed will become in 
effect its SWMP document (referred to as a ``Stormwater Pollution 
Prevention Plan Document'' of ``SWPPP Document''). The state then 
reviews the MS4's submission and determines whether revisions are 
needed to meet the requirements of the permit. After any necessary 
revisions, the state provides public notice of the NOI and SWPPP 
Document, and makes them available for public review and comment, and 
for any requests to hold a public hearing. After considering public 
comments, the state then makes a final determination on whether to 
authorize coverage under the general permit, and, if authorized, the 
contents of the SWPPP Document (as revised when necessary following 
public comment) become enforceable under the general permit. The 
Minnesota approach gives MS4s flexibility by providing a range of 
options from which an MS4 can choose for its particular circumstances. 
It also provides the public with the opportunity to review the MS4's 
proposed choices and the permitting authority's determination of 
adequacy, and to provide comment and request a hearing. The MS4's 
proposed program for implementing the six minimum measures goes into 
effect only after the state has made an affirmative determination that 
the MS4's program has met the burden of showing that pollutant 
discharges will be reduced to the MEP, will be protective of water 
quality, and will satisfy the appropriate water quality goals of the 
CWA, thus providing the necessary permitting authority review.
    Texas also reviews individual MS4 program documents to determine 
whether they meet the minimum permit and regulatory requirements. In 
contrast to the more detailed NOI checklist used by Minnesota, Texas 
uses a relatively short NOI form but requires the MS4 to submit its 
entire SWMP document for review after the general permit is issued. It 
does so with the intent to have the SWMP document identify the MS4-
specific enforceable requirements, rather than to have this information 
contained in the NOI. Texas requires the MS4 to provide the public 
notice of the state's preliminary determination to authorize coverage 
under the general permit in accordance with the SWMP document and an 
opportunity to comment on the SWMP document and request a hearing. 
Comments on the adequacy of the SWMP document and requests for public 
hearings are submitted directly to the state and the state also 
determines whether there is sufficient interest to hold a public 
hearing on the SWMP document.
    Under the Procedural Approach, EPA would preserve one of the core 
attributes of the existing regulations, that is the flexibility 
afforded the MS4 to identify the BMPs that it determines are needed to 
meet the minimum regulatory requirements to reduce pollutant discharges 
to the MEP, to protect water quality, and to satisfy the water quality 
requirements of the CWA in its SWMP. This approach may appeal to states 
that accept the notion that the MS4 should have the initial opportunity 
to propose the BMPs that it believes will meet the regulatory 
requirements, and that each program may differ substantially from MS4 
to MS4.
    However, the need to undergo a second round of public notice and 
comment at the state level, in addition to the one provided for the 
general permit, for approximately 6800 small MS4s, may be seen as a 
drawback due to the additional workload placed on permitting 
authorities that do not already follow this approach. The value added 
by the second comment period is also a consideration. Staff in 
Minnesota's program reported that while they received over 1500 
comments in response to proposing the state-level general permits, only 
a handful of comments were submitted on the individual MS4 NOI and 
SWPPP Document submissions during the second public comment period. 
Staff in Texas' program reported that the state received no comments 
when it provided public notice on the individual MS4 SWMPs.
    Another factor to consider is that under the Procedural Approach 
some changes to the BMPs and measurable goals identified in the NOI 
during the term of the permit could constitute a modification to the 
permit, and would be subject to permit modification procedures 
applicable to all NPDES permits. See 40 CFR 122.62 and 122.63. For 
example, if the MS4 decides to discontinue implementing a particular 
BMP that it included in its NOI (and which became an enforceable permit 
requirement) and to substitute a different BMP, a permit modification 
would be needed. It is not clear whether states are currently using 
permit modification procedures to process changes to a MS4's SWMP. One 
possibility for addressing the need for change would be for the 
permitting authority to establish in the general permit itself a 
process for making changes to the SWMP without triggering the permit 
modification procedures, as long as it identifies what changes could be 
made and under what circumstances.

[[Page 427]]

EPA seeks comment on whether to provide in the regulations the option 
for modifying the general permit under the minor modification 
procedures in 40 CFR 122.63 for ``nonsubstantial revisions'' to BMPs, 
as provided for changes to terms of a CAFO's nutrient management plan 
that are ``not substantial'' under 40 CFR 122.42(e)(6). EPA also seeks 
comment on what criteria should apply for distinguishing between when a 
change to BMPs is ``substantial'' requiring a full public participation 
process or ``not substantial'' that would be subject to public notice 
but not public comment under a permit modification process similar to 
the process in 40 CFR 122.42(e)(6).
    Like several other states, Texas requires the MS4s to provide local 
public notice and the opportunity to provide comments on individual MS4 
NOIs (or the SWMP, as in Texas). What stands out in the Texas approach 
is that, even though the MS4 must provide the necessary notice, public 
comments are submitted to the state agency, and the state clearly 
maintains the decision making over the adequacy of the MS4's SWMP to 
meet permit and regulatory requirements. The state does so by reviewing 
the SWMP document before it is public noticed and evaluating for itself 
any public comments on the SWMP document and whether there is 
sufficient interest to require a public hearing. EPA seeks comment on 
whether a rule establishing a procedural approach should enable 
permitting authorities that rely on the MS4 to public notice its NOI to 
be able to use this approach to satisfy the public notice requirement 
for the individual NOIs. If allowed, should it be limited to when the 
State clearly makes the ultimate decisions about what requirements are 
sufficient to meet the MEP, to protect water quality, and to satisfy 
the appropriate water quality requirements of CWA?
    The Texas approach appears to differ from the current procedures 
that apply to NPDES permits outlined in 40 CFR part 124 in the level of 
detail about the various procedural requirements such as who must be 
notified of the proposed action. In this respect, the Texas program 
resembles EPA's approach to establishing or changing terms of nutrient 
management plans under CAFO general permits by modifying selected 
elements of the public participation requirements that apply to 
individual permits, for example, by shortening the length of public 
comment period or the period for requesting a public hearing (see 40 
CFR 122.23(h)(1) and 122.42(e)(6)), or by allowing web-based public 
notice alternatives in addition to those identified in 40 CFR 124.10 
(c). If EPA chooses to adopt this option, it would largely rely on the 
existing requirements in 40 CFR part 124 to govern what procedures are 
necessary to approve the BMPs in the NOI as enforceable provisions of 
the general permit. However, as discussed, EPA is considering some 
variations in these 40 CFR part 124 procedural requirements similar to 
those applicable to incorporating terms of the nutrient management plan 
into CAFO permits.
    Based on the experiences of states that use a similar procedural 
approach, EPA estimates that conducting individualized reviews of NOIs 
and requiring an additional notice and comment period for the initial 
authorization and subsequent permit modifications in states that do not 
already provide it would require a significant dedication of staff 
time, in an amount estimated at 24 hours per MS4. Based on Minnesota's 
experience, EPA expects the workload to be greatest in the first permit 
cycle but to decrease by some amount in subsequent cycles as the 
permitting authority takes advantage of efficiencies gained from having 
gone through the process before and as the quality of the MS4 
submissions improve over time. For states that already use a two-step 
process, some modest amount of workload increase may be necessary to 
ensure that all of the process steps are carried out, including 
additional time needed to process and approve SWMP modifications that 
change the BMPs in the NOI that have been approved and have become 
enforceable terms of the permit.
    The following regulatory modifications are envisioned if the 
Procedural Approach is selected for the final rule.
     Include additional language indicating that to the extent 
that the permitting authority chooses to rely on the MS4 operator to 
describe in its NOI the BMPs, measurable goals, schedules, and other 
activities in its SWMP that it plans to implement to reduce pollutant 
discharges to the MEP, to protect water quality, and to satisfy the 
appropriate water quality requirements of the CWA, the permitting 
authority will need to incorporate these as enforceable elements of the 
permit in accordance with the procedures for public notice, the 
opportunity to request a hearing, and permitting authority final 
determination in 40 CFR part 124.
     With respect to determining the appropriate 40 CFR part 
124 procedures to follow, one model that EPA could utilize in crafting 
applicable rule language is the regulatory procedures in 40 CFR 
122.23(h) for CAFO general permits. While the CAFO and MS4 programs 
differ fundamentally from one another in many ways, there are some 
aspects of the CAFO general permit procedures that could be modified in 
a manner that would make them suitable to small MS4 general permits. 
Thus, based on some of the key elements of the CAFO general permit 
procedures in 40 CFR 122.23(h), EPA is considering including the 
following provisions in revised 40 CFR 122.33(b)(1) as subparagraphs 
(i)-(iii):

--At a minimum, the operator must include in the NOI the BMPs that it 
proposes to implement to comply with the permit, the measurable goals 
for each BMP, the person or persons responsible for implementing the 
SWMP, and any additional information required in the NOI by the general 
permit.
--The Director must review the NOI to ensure that it includes adequate 
information to determine if the proposed BMPs, timelines, and any other 
actions are adequate to reduce the discharge of pollutants from the MS4 
to the maximum extent practicable, to protect water quality, and to 
satisfy the appropriate water quality requirements of the Clean Water 
Act. When the Director finds that additional information is necessary 
to complete the NOI or clarify, modify, or supplement previously 
submitted material, the Director may request such additional 
information from the MS4 operator.
--If the Director makes a preliminary determination that the NOI 
contains the required information and that the proposed BMPs, 
schedules, and any other actions necessary to reduce the discharge of 
pollutants from the MS4 to the maximum extent practicable, to protect 
water quality, and to satisfy the appropriate water quality 
requirements of the Clean Water Act, the permitting authority must 
notify the public of its proposal to authorize the MS4 to discharge 
under the general permit and, consistent with 40 CFR 124.10, make 
available for public review and comment and opportunity for public 
hearing the NOI, and the specific BMPs, milestones, and schedules from 
the NOI that the Director proposes to be incorporated into the permit 
as enforceable requirements. The process for submitting public comments 
and hearing requests, and the hearing process if a hearing is granted, 
must follow the procedures applicable to draft permits in 40 CFR 124.11

[[Page 428]]

through 124.13. The permitting authority must respond to significant 
comments received during the comment period, as provided in 40 CFR 
124.17, and, if necessary revise the proposed BMPs and/or timelines to 
be included as terms of the permit.
--When the Director authorizes coverage for the MS4 to discharge under 
the general permit, the specific elements identified in the NOI are 
incorporated as terms and conditions of the general permit for that 
MS4. The permitting authority must, consistent with 40 CFR 124.15, 
notify the MS4 operator and inform the public that coverage has been 
authorized and of the elements from the NOI that are incorporated as 
terms and conditions of the general permit applicable to the MS4.

     To accompany these regulatory changes, EPA is also 
considering specifying what specific information the MS4 will need to 
provide as part of the NOI in order to obtain coverage under a general 
permit that will use a procedural approach, such as the approach 
described previously. The MS4 would need to provide the same 
information as is required for an application for an individual permit 
under proposed 40 CFR 122.33(b)(2)(ii). This includes general 
background information as specified in Sec.  122.21(f) as well as the 
information currently required by 40 CFR 122.34(d), and any other 
information requested by the permitting authority.
     If the final rule includes the Procedural Approach or 
allows for a hybrid approach under Option 3 (the ``State Choice 
Approach''), authorized states would need to revise their approved 
programs to include the option(s) chosen by the permitting authority 
and to establish or reference the public notice and comment, hearing 
request, and other procedures necessary to implement the chosen 
option(s).
    For both the Procedural Approach and State Choice Approach (see 
Section VI.C), the Agency chose to describe the regulatory changes that 
would accompany these options if promulgated as opposed to providing 
line-by-line rule text changes as it has for the Traditional General 
Permit Approach. In EPA's view, presenting the rule language in this 
way will aid in the public's review of the three different options as 
compared to presenting three different sets of line-by-line changes.
    EPA requests comment on whether the Agency should adopt as its 
final rule option the procedural approach for permitting small MS4s. 
EPA has concerns with adopting this approach as the sole rule option 
since it would require all but a handful of permitting authorities to 
change their permitting procedures to conform to this new approach. Due 
to these concerns, EPA also separately requests comment (see next 
section) on whether the final rule should give permitting authorities a 
choice of which approach, either the Traditional General Permit 
Approach or the Procedural Approach, to adopt for their permitting 
program, or whether there is support for allowing permitting 
authorities to use a combination of these two approaches.
    Among the concerns EPA has with choosing Option 2 for the final 
rule is the increase in workload for permitting authorities that would 
be associated with reviewing and approving, and providing for notice 
and comment, and providing public hearing opportunities, on each 
individual NOI. For many permitting authorities, the advantage of 
providing flexibility to MS4s to propose what they believe will meet 
the applicable regulatory standards will be outweighed by the resource-
intensive procedures that this approach requires. In EPA's discussions 
with state permitting authorities, the Agency heard a number of 
concerns about their ability to implement new procedures such as these 
from a staff and resource perspective. Permitting authorities are also 
concerned about making individual decisions on what set of MS4 actions 
are sufficient to meet the regulatory requirements without the benefit 
of established standards to assist them in making these determinations. 
Concerns were also raised by many MS4 permittees, who emphasized the 
effects of these procedures on the timeliness of their discharge 
authorization, and the fear that states will turn to MS4s to conduct 
more notice and comment procedures on their behalf. EPA notes that 
there are also those states that are supportive of making the 
procedural approach a part of the final rule in some way or form.
    Beyond the workload concerns raised about this option, EPA observes 
that the need for flexibility among MS4s to develop and implement 
individually tailored SWMPs is different than the type of flexibility 
required for CAFO operators in developing and implementing nutrient 
management plans. AFO permit operators must consider where several key 
and interdependent variables must be considered to account for site-
specific factors such as type of crop grown, soil type, terrain, choice 
of method for calculating application rates, in particular with respect 
to land application requirements. Each MS4 faces unique circumstances, 
but for the most part, the BMPs used to meet minimum control measures 
are not interdependent in the same way as choices needed to develop 
land application rates under CAFO regulations. EPA and states have 
developed menus of different BMPs for the various minimum control 
measures. As discussed previously, some states have developed detailed 
manuals for the selection, design, installation, and maintenance of 
allowable BMPs, which further standardizes the practices to be used for 
pollutant control at MS4s. Also, the need for small MS4 flexibility may 
have been greater when the small MS4 program was first established. 
However, this flexibility may be less critical now that most small MS4s 
have established programs, and they and the corresponding permitting 
authorities have gained experience in implementing various BMPs and 
evaluating the results. Permitting authorities already have the 
flexibility to issue different general permits or include different 
general permit terms and conditions for different categories of MS4, 
such as when there is a new group of MS4s that have not been previously 
regulated (for example, because a new Census is published creating 
additional urbanized areas) and a group of existing MS4s that may be on 
their third or fourth permit. By including specific requirements that 
only apply to some of the MS4s, they undergo permitting authority 
review and public comment as part of the process and can be part of the 
general permit itself. (This would be analogous to EPA's Multi Sector 
General Permit for Stormwater from Industrial Activity, in which 
different requirements apply to different sectors in the Appendices to 
the permit).\8\ For truly unique situations or in instances where the 
MS4 wishes to implement a different program, individual permits are 
always an alternative. These factors point to the benefit of using the 
Traditional General Permit Approach as the preferred way to modify the 
general permitting regulations for small MS4s. Though there would 
certainly be increases in workload associated with the Traditional 
General Permit Approach, EPA's permits and a growing number of state 
general permits are being written in this manner and therefore would 
not require significant alteration. Additionally, as the list of 
examples of clear, specific, and measurable provisions in general 
permits grows, presumably other states should be able to take advantage 
of

[[Page 429]]

these ideas for their own permits, and thereby save on permit 
development time. Requiring the procedural approach on a national level 
would impose pressures on state programs that arguably can be handled 
in the general permit itself, and therefore avoided.
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    \8\ http://water.epa.gov/polwaste/npdes/stormwater/upload/msgp2015_finalpermit.pdf.
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C. Option 3--State Choice Approach

    EPA requests comments on a third option, which would allow 
permitting authorities to choose either the Traditional General Permit 
Approach or the Procedural Approach, or some combination of the two as 
best suits their needs and circumstances. For example, a state could 
choose to use Option 1 for small MS4s that have fully established 
programs and uniform core requirements, and Option 2 for MS4s that it 
finds would benefit from the additional flexibility to address unique 
circumstances, such as some non-traditional MS4s. Alternatively, a 
state could apply a hybrid of the two approaches within one permit by 
defining some elements within the general permit, which are deemed to 
reduce the discharge of pollutants to the MEP, to protect water 
quality, and to satisfy the water quality requirements of the CWA, and 
enabling other elements to be established through a separate process 
that allows for more MS4-specific actions, using the Procedural 
Approach. An example of such a hybrid approach might be where a state 
incorporates into its general permit a requirement to implement certain 
minimum construction BMP requirements, such as implementation of 
provisions set forth in a separate statewide manual, which constitute 
compliance with the regulatory requirements, but leaves it to the MS4 
to propose the BMPs that it will implement to meet the public education 
and outreach requirements of the permit. The former permit requirements 
would implement the Traditional General Permit Approach and would 
require no further permitting authority review and public participation 
procedures during the process of authorizing individual MS4 discharges; 
however, for the management practices that the MS4 proposes for its 
public education and outreach, the permitting authority would need to 
follow the Procedural Approach for incorporating these standards into 
the permit as requirements of the permit. The benefit of the State 
Choice Approach is that the fundamental CWA requirements of permitting 
authority review and public participation would be met irrespective of 
whether this occurs as a result of the permit issuance itself or 
whether these procedures take place in a second step that occurs after 
permit issuance but before the MS4 is authorized to discharge under the 
permit. This approach would provide for more options for permit 
development other than traditional individual or general permits. EPA 
will continue to encourage greater specificity in establishing clear, 
specific, and measurable permit terms and conditions in the general 
permit itself, and expects to provide guidance to assist permitting 
authorities in accomplishing this objective. Nevertheless, the Agency 
recognizes that permitting authorities may prefer some flexibility in 
determining the balance between the efficiencies of a general permit 
and the desirability of providing maximum flexibility to small MS4s in 
how they will meet the MEP standard.
    The particular balance between specificity and flexibility a state 
chooses could evolve over time as the program continues to mature. The 
benefit of this option may be that it is the least disruptive to how 
state programs operate now and would impose the least burden on state 
permitting authorities, unless a state determines that for its 
situation (e.g., number and variability among small MS4s, available 
resources, requirements under state law, etc.) more choices in 
structuring permits would be desirable. If EPA adopts this option as 
part of the final rule, the following rule changes would be necessary:
     Adopt the rule changes proposed in this document 
associated with the Traditional General Permit Approach, as modified 
pursuant to public comment; and
     Adopt the rule changes described in the discussion under 
Option 2.
    EPA requests comment on whether the final rule should adopt Option 
3, as opposed to selecting either Option 1 or Option 2 in the final 
rule. EPA is also interested in comments from permitting authorities as 
to which approach they are likely to choose (i.e., Option 1 or Option 
2, or a hybrid) if Option 3 is finalized.
    EPA also requests comment on whether under Option 3, EPA should 
consider establishing which permit requirements must be developed using 
the Traditional General Permit Approach (Option 1), and which may be 
developed using the Procedural Approach (Option 2). For instance, EPA 
is interested in finding out whether there is support for requiring 
permitting authorities to use Option 1 to develop permit conditions 
implementing the minimum control measures in 40 CFR 122.34(b), while 
providing the permitting authority with the choice of whether to use an 
Option 2 approach to establish any more stringent effluent limitations, 
such as those based on an approved TMDL. Using this approach, the 
general permit would define the specific actions, performance 
requirements, and implementation schedules considered necessary to 
reduce pollutant discharges to the MEP, to protect water quality, and 
to satisfy the water quality requirements of the CWA. However, this 
approach would provide the permitting authority the additional 
flexibility to allow the MS4 to propose in its NOI the specific 
components of a TMDL implementation plan in order to comply with permit 
requirements based on applicable wasteload allocation(s). To ensure 
that the specific actions and timelines of the TMDL plan are properly 
incorporated as elements of the permit, the permitting authority would 
then be required to review and approve the small MS4's proposed plan 
using the process required by the Procedural Approach (Option 2). 
Additionally, with respect to this concept of specifying which aspects 
of the small MS4 regulations must be incorporated into permits using 
the Option 1 approach, while allowing some permit conditions to be 
developed using the Option 2 approach, EPA requests comment on which 
permit requirements should be required to be established using Option 1 
and which should be given the flexibility to be established using 
Option 2.

VII. Incremental Costs of Proposed Rule Options

    The economic analysis estimates the incremental costs of modifying 
the Phase II MS4 regulations to address the court's remand. EPA assumed 
that all other costs accrued as a result of the existing small MS4 
program, which were accounted for in the economic analysis accompanying 
the 1999 final Phase II MS4 regulations, remain the same and are not 
germane to the economic analysis, unless the proposed rule change would 
affect the baseline program costs. In this respect, EPA focused only on 
new costs that may be imposed as a result of implementing any of the 
three options being proposed for comment. It is, therefore, unnecessary 
to reevaluate the total program costs of the Phase II rule, since those 
costs were part of the original economic analysis conducted for the 
1999 Phase II rule (see 64 FR 68722, December 8, 1999). For further 
information, refer to the Economic Analysis that is included in the 
proposed rule docket.
    The following table summarizes the estimated costs for each of the 
proposed rule options under consideration.

[[Page 430]]



------------------------------------------------------------------------
                                            Net present     Annualized
          Proposed rule option                 value           cost
------------------------------------------------------------------------
1--Traditional General Permit Approach..      $9,579,921        $802,477
2--Procedural Approach..................       8,279,962         693,584
3--State Choice Approach................       9,189,933         769,809
------------------------------------------------------------------------

    These estimates are all below the threshold level established by 
statute and various executive orders for determining that a rule has a 
significant or substantial impact on affected entities. See further 
discussion in Section VIII of this document.
    The Economic Analysis assumes that all costs will be borne by NPDES 
permitting authorities in the form of increased administrative costs to 
write more detailed permits for Option 1, or to review and approve and 
process comments on NOIs submitted for general permit coverage for 
Option 2. Likewise, Option 3 costs reflect the estimated increase in 
NPDES permitting authority workload (for both EPA and state permitting 
authorities), which is a function of an assumed amount of NPDES 
permitting authorities who will choose to implement Option 1 versus 
Option 2. EPA does not attribute new costs to regulated small MS4s 
beyond what they are already subject to under the Phase II regulations. 
This is because the focus of the proposed rule is on the administrative 
manner in which general permits are issued and/or coverage under those 
permits is granted. EPA is changing through this rulemaking any of the 
underlying requirements in the Phase II regulations to which small MS4s 
are subject.
    EPA chose conservative assumptions about impacts on state 
workloads, meaning that the estimated economic costs of the policy 
change are most likely lower than what is actually presented. For 
instance, EPA did not reduce the number of hours necessary for 
permitting authorities to draft specific permits pursuant to the Option 
1 requirements in the second and third permit term despite the fact 
that the Agency expects that most permitting authorities, after 
drafting a specific permit to address Option 1 for the first time would 
spend less time in subsequent rounds reissuing the same permit. 
Similarly, in its modeling of Option 2, EPA did not reduce the average 
number of hours to review each NOI in the second and third permit term, 
even though EPA expects that most NOIs would address any deficiencies 
after the first review, therefore resulting in less review time needed 
in subsequent rounds.
    EPA considers the cost assumptions in Option 1 to be conservative 
because as more permitting authorities write general permits to 
establish requirements consistent with the proposed Option 1, other 
permitting authorities could use and build on those examples, reducing 
the amount of time it takes to draft the permit requirements. EPA has 
issued guidance to permitting authorities on how to write better MS4 
permits (EPA 2010 and EPA 2014), and has included additional examples 
of permit language from existing permits in the docket for this rule. 
See General Permits and the Six Minimum Control Measures: A National 
Compendium of Clear, Specific, and Measurable Requirements. EPA also 
anticipates providing further guidance once the rule is promulgated to 
assist states in implementing the new rule requirements, which should 
make permit writing more efficient.

VIII. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. Any changes 
made in response to OMB recommendations have been documented in the 
docket for this action. In addition, EPA prepared an analysis of the 
potential costs associated with this action. This analysis, ``Economic 
Analysis for the Proposed Municipal Separate Storm Sewer System (MS4) 
General Permit Remand Rule,'' is summarized in Section V.II and is 
available in the docket.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA. OMB has previously approved the information collection 
activities contained in the existing regulations and has assigned OMB 
control number 2040-0004.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. 
Although small MS4s are regulated under the Phase II regulations, this 
rule does not propose changes to the underlying requirements to which 
these entities are subject. Instead, the focus of this rule is on 
ensuring that the process by which NPDES permitting authorities 
authorize discharges from small MS4s using general permits. This action 
will have an impact on state government agencies that administer the 
Phase II MS4 permitting program. The impact to states that are NPDES 
permitting authorities may range from $6,792,106 to $11,356,092 
annually. Details of this analysis are presented in ``Economic Analysis 
for the Proposed Municipal Separate Storm Sewer System (MS4) General 
Permit Remand Rule.''

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538. This action does not 
significantly or uniquely affect small governments because this 
rulemaking only affects the way in which state permitting authorities 
administer general permit coverage to small MS4s. Nonetheless, EPA 
consulted with small governments concerning the regulatory requirements 
that might indirectly affect them, as described in section V.B.

E. Executive Order 13132: Federalism

    This rule will not have substantial direct effects on the states, 
the relationship between the national government and the states, or on 
the distribution of power and responsibilities among the various levels 
of government. The rule proposes changes to the way in which NPDES 
permitting authorities, including authorized state government agencies, 
provide general permit coverage to small MS4s. The impact to states 
which are NPDES permitting authorities may range from $6,792,106 to 
$11,356,092 annually, depending upon the rule option that is finalized. 
Details of this analysis are presented in ``Economic Analysis for the 
Proposed Municipal Separate Storm Sewer System (MS4) General Permit 
Remand Rule,'' which is available in the docket for the proposed rule 
at http://www.regulations.gov

[[Page 431]]

under Docket ID No. EPA-HQ-OW-2015-0671.
    Keeping with the spirit of E.O. 13132 and consistent with EPA's 
policy to promote communications between EPA and state and local 
governments, EPA met with state and local officials throughout the 
process of developing the proposed rule and received feedback on how 
proposed options would affect them. EPA engaged in extensive outreach 
via conference calls to authorized states and regulated MS4s to gather 
input on how EPA's current regulations are affecting them, and to 
enable officials of affected state and local governments to have 
meaningful and timely input into the development of the options 
presented in this proposed rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175 since it does not have a direct substantial 
impact on one or more federally recognized tribes. The proposed rule 
affects the way in which small MS4s are covered under a general permit 
for stormwater discharges and primarily affects the NPDES permitting 
authorities. No tribal governments are authorized NPDES permitting 
authorities. The rule could have an indirect impact on an Indian tribe 
that is a regulated MS4 in that the NOI required for coverage under a 
general permit may be changed as a result of the rule (if finalized) or 
may be subject to closer scrutiny by the permitting authority and more 
of the requirements could be established as enforceable permit 
conditions. However, the substance of what an MS4 must do in its SWMP 
will not change significantly as a result of this rule. Thus, Executive 
Order 13175 does not apply to this action.
    Consistent with the EPA Policy on Consultation and Coordination 
with Indian Tribes, EPA conducted outreach to tribal officials during 
the development of this action. EPA spoke with tribal members during a 
conference call with the National Tribal Water Council to gather input 
on how tribal governments are currently affected by MS4 regulations and 
may be affected by the options in this proposed rule. Based on this 
outreach and additional, internal analysis, EPA confirmed that this 
proposed action would have little tribal impact and would be of little 
interest to tribes.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because it does not concern an environmental health risk or 
safety risk.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it 
does not significantly affect energy supply, distribution or use.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA determined that the human health or environmental risk 
addressed by this action will not have potential disproportionately 
high and adverse human health or environmental effects on minority, 
low-income or indigenous populations. This action affects the 
procedures by which NPDES permitting authorities provide general permit 
coverage for small MS4s, to help ensure that small MS4s ``reduce the 
discharge of pollutants to the maximum extent practicable (MEP), to 
protect water quality and to satisfy the water quality requirements of 
the Clean Water Act.'' It does not change any current human health or 
environmental risk standards.

List of Subjects in 40 CFR Part 122

    Environmental protection, Storm water, Water pollution.

    Dated: December 17, 2015.
Gina McCarthy,
Administrator.

    For the reasons set forth in the preamble, EPA proposes to amend 40 
CFR part 122 as follows:

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

0
1. The authority citation for part 122 continues to read as follows:

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

0
2. Revise Sec.  122.33 to read as follows:


Sec.  122.33  Requirements for obtaining permit coverage for regulated 
small MS4s.

    (a) The operator of any regulated small MS4 under Sec.  122.32 must 
seek coverage under an NPDES permit issued by the applicable NPDES 
permitting authority. If the small MS4 is located in an NPDES 
authorized State, Tribe, or Territory, then that State, Tribe, or 
Territory is the NPDES permitting authority. Otherwise, the NPDES 
permitting authority is the EPA Regional Office.
    (b) The operator of any regulated small MS4 must seek authorization 
to discharge under a general or individual NPDES permit, as follows:
    (1) If seeking coverage under a general permit issued by the 
Director, the operator must submit a Notice of Intent (NOI) consistent 
with Sec.  122.28(b)(2). The operator may file its own NOI, or the 
operator and other municipalities or governmental entities may jointly 
submit an NOI. If the operator wants to share responsibilities for 
meeting the minimum measures with other municipalities or governmental 
entities, the operator must submit an NOI that describes which minimum 
measures it will implement and identify the entities that will 
implement the other minimum measures within the area served by the MS4.
    (2)(i) If seeking authorization to discharge under an individual 
permit and wishing to implement a program under Sec.  122.34, the 
operator must submit an application to the appropriate NPDES permitting 
authority that includes the information required under Sec.  122.21(f) 
and the following:
    (A) The best management practices (BMPs) that the operator or 
another entity proposes to implement for each of the storm water 
minimum control measures described in Sec.  122.34(b)(1) through (6);
    (B) The measurable goals for each of the BMPs including, as 
appropriate, the months and years in which the operator will undertake 
required actions, including interim milestones and the frequency of the 
action;
    (C) The person or persons responsible for implementing or 
coordinating the storm water management program;

[[Page 432]]

    (D) An estimate of square mileage served by the small MS4; and
    (E) Any additional information that the NPDES permitting authority 
requests.
    (ii) If seeking authorization to discharge under an individual 
permit and wishing to implement a program that is different from the 
program under Sec.  122.34, the operator will need to comply with the 
permit application requirements in Sec.  122.26. The operator will need 
to submit both parts of the application requirements in Sec.  122.26 
(d)(1) and (2) at least 180 days before the operator proposes to be 
covered by an individual permit. The operator does not need to submit 
the information required by Sec.  122.26(d)(1)(ii) and (d)(2) regarding 
its legal authority, unless the operator intends for the permit writer 
to take such information into account when developing other permit 
conditions.
    (iii) If allowed by the Director, the operator of the regulated 
small MS4 and another regulated entity may jointly apply under either 
paragraph (b)(2)(i) or (ii) of this section to be co-permittees under 
an individual permit.
    (3) If the regulated 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 the small MS4 participate in its storm water 
program, the parties may jointly seek a modification of the other MS4 
permit to include the small MS4 as a limited co-permittee. As a limited 
co-permittee, the operator of the small MS4 will be responsible for 
compliance with the permit's conditions applicable to its jurisdiction. 
If the operator of the small MS4 chooses this option it will need to 
comply with the permit application requirements of Sec.  122.26, rather 
than the requirements of paragraph (b)(2)(i) of this section. The 
operator of the small MS4 does not need to comply with the specific 
application requirements of Sec.  122.26(d)(1)(iii) and (iv) and 
(d)(2)(iii) (discharge characterization). The operator of the small MS4 
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 for paragraph (b)(3) of this section. In referencing 
an MS4's storm water management program, the regulated small MS4 should 
briefly describe how the existing program will address discharges from 
the small MS4 or would need to be supplemented in order to adequately 
address the discharges. The regulated small MS4 should also explain its 
role in coordinating storm water pollutant control activities in the 
MS4, and detail the resources available to the MS4 to accomplish the 
program.
    (c) If the regulated small MS4 is designated under Sec.  
122.32(a)(2), the operator of the MS4 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.
0
3. Revise Sec.  122.34 to read as follows:


Sec.  122.34  Minimum permit requirements for regulated small MS4 
permits.

    (a) General requirement for regulated small MS4 permits. In each 
permit issued under this section, the Director must include permit 
conditions that establish in specific, clear, and measurable terms what 
is required to reduce the discharge of pollutants from the MS4 to the 
maximum extent practicable (MEP), to protect water quality, and to 
satisfy the appropriate water quality requirements of the Clean Water 
Act. For the purposes of this section, effluent limitations may be 
expressed as requirements to implement best management practices (BMPs) 
with clear, specific, and measurable requirements, including, but not 
limited to, specific tasks, BMP design requirements, performance 
requirements or benchmarks, schedules for implementation and 
maintenance, and frequency of actions. For permits being issued to a 
small MS4 for the first time, the Director may specify a time period of 
up to 5 years from the date of permit issuance for the permittee to 
fully comply with the conditions of the permit and to implement 
necessary BMPs. Each successive permit must meet the requirements of 
this section based on current water quality conditions, record of BMP 
effectiveness, and other relevant information.
    (b) Minimum control measures. The permit must include requirements 
that ensure the permittee implements, or continues to implement, the 
minimum control measures in paragraphs (b)(1) through (6) of this 
section during the permit term. The permit must also require a written 
storm water management program document or documents that, at a 
minimum, describe how the permittee intends to comply with the permit's 
requirements for each minimum control measure.
    (1) Public education and outreach on storm water impacts. (i) The 
permit must require implementation of 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 for permitting authorities and regulated small MS4s. 
The permittee may use storm water educational materials provided by the 
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 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 permit require the permittee to tailor the public 
education program, 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 the permit should require 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. The permit should encourage the permittee to tailor the 
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) The permit must require 
implementation of a public involvement/participation program that 
complies with State, Tribal, and local public notice requirements.
    (ii) Guidance for permitting authorities and regulated small MS4s. 
EPA recommends that the permit

[[Page 433]]

include provisions addressing the need for the public to be included in 
developing, implementing, and reviewing the 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) The permit 
must require the development, implementation, and enforcement of a 
program to detect and eliminate illicit discharges (as defined at Sec.  
122.26(b)(2)) into the small MS4. At a minimum, the permit must require 
the permittee to:
    (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 the 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.
    (ii) The permit must require the permittee to address the following 
categories of non-storm water discharges or flows (i.e., illicit 
discharges) only if they are identified as significant contributors of 
pollutants to the small MS4: Water line flushing, landscape irrigation, 
diverted stream flows, rising ground waters, uncontaminated ground 
water infiltration (as defined at 40 CFR 35.2005(b)(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).
    (ii) Guidance for permit writers and regulated small MS4s. EPA 
recommends that the permit require 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 that the permit require the 
permittee to visually screen outfalls during dry weather and conduct 
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) The permit 
must require the permittee to develop, implement, and enforce a program 
to reduce pollutants in any storm water runoff to the 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 
the 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), the permittee is not required to develop, 
implement, and/or enforce a program to reduce pollutant discharges from 
such sites. The permit must require 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.
    (ii) Guidance for permit writers and regulated small MS4s. Examples 
of sanctions to ensure compliance include non-monetary penalties, 
fines, bonding requirements and/or permit denials for non-compliance. 
EPA recommends that the 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 water quality. EPA also 
recommends that the permit encourage the permittee to provide 
appropriate educational and training measures for construction site 
operators. The permit should also include a requirement for the 
permittee to require a storm water pollution prevention plan for 
construction sites within the MS4's jurisdiction that discharge into 
the 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) The permit must require the development, 
implementation, and enforcement of 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 the small MS4. The permit must ensure that controls are 
in place that would prevent or minimize water quality

[[Page 434]]

impacts. The permit must require the permittee to:
    (A) Develop and implement strategies which include a combination of 
structural and/or non-structural best management practices (BMPs) 
appropriate for the 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.
    (ii) Guidance for permit writers and regulated small MS4s. 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 
permit ensure that 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 the 
permittee 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 the permit require the 
permittee to 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 the 
program, the permit should also require the permittee to assess 
existing ordinances, policies, programs and studies that address 
potential impacts of storm water runoff to water quality. In addition 
to assessing these existing documents and programs, the permit should 
require the permittee to 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 the permit 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 the permit requirements be responsive to these changes, 
developments or improvements in control technologies.
    (6) Pollution prevention/good housekeeping for municipal 
operations. (i) The permit must require the development and 
implementation of 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, the State, Tribe, or other organizations, 
the 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 for permit writers and regulated small MS4s. EPA 
recommends that the permit address the following: 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; 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 the permittee, and waste transfer stations; procedures for 
properly disposing of waste removed from the separate storm sewers and 
areas listed (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) Other applicable requirements. (1) Any more stringent effluent 
limitations, 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 that determines such 
limitations are needed to protect water quality.
    (2) Other applicable NPDES permit requirements, standards and 
conditions established in the individual or general permit, developed 
consistent with the provisions of Sec. Sec.  122.41 through 122.49, as 
appropriate.
    (d) Evaluation and assessment requirements. The permit must require 
the permittee to:
    (1) Evaluation. Evaluate permit compliance, the appropriateness of 
its identified best management practices, and progress towards 
achieving identified measurable goals.
    Note to paragraph (d)(1): The NPDES permitting authority may 
determine monitoring requirements for the permittee in accordance with 
State/Tribal monitoring plans appropriate to the watershed. 
Participation in a group monitoring program is encouraged.
    (2) Recordkeeping. Keep records required by the NPDES permit for at 
least 3 years, and to submit such records to the NPDES permitting 
authority when specifically asked to do so. The permit must require the 
permittee to make records, including a written description of the storm 
water management program, available to the public at reasonable times 
during regular business hours (see Sec.  122.7 for confidentiality 
provision). (The permittee may assess a reasonable charge for copying. 
The permit may allow the permittee to require a member of the public to 
provide advance notice.)

[[Page 435]]

    (3) Reporting. Unless the permittee is relying on another entity to 
satisfy its NPDES permit obligations under Sec.  122.35(a), the permit 
must require the permittee to submit annual reports to the NPDES 
permitting authority for the first permit term. For subsequent permit 
terms, the permit must require that permittee to submit reports in year 
two and four unless the NPDES permitting authority requires more 
frequent reports. The report must include:
    (i) The status of compliance with permit conditions, an assessment 
of the appropriateness of the permittee's identified best management 
practices and progress towards achieving its 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 the permittee plans 
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 the permittee is relying on another governmental 
entity to satisfy some of the permit obligations (if applicable), 
consistent with Sec.  122.35(a).
    (e) Qualifying local program. If an existing qualifying local 
program requires the permittee to implement one or more of the minimum 
control measures of paragraph (b) of this section, the NPDES permitting 
authority may include conditions in the NPDES permit that direct the 
permittee 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 stormwater management 
program that imposes the relevant requirements of paragraph (b) of this 
section.
0
4. Amend Sec.  122.35 by revising the second and third sentences of 
paragraph (a)(3) to read as follows:


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) * * *
    (3) * * * In the reports you must submit under Sec.  122.34(d)(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(d)(3), you must note that fact in your NOI, 
but you are not required to file the periodic reports.* * *
* * * * *
[FR Doc. 2015-33174 Filed 1-5-16; 8:45 am]
 BILLING CODE 6560-50-P