[Federal Register Volume 81, Number 113 (Monday, June 13, 2016)]
[Notices]
[Pages 38175-38177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13913]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9947-63-Region 2]


Notice of Availability of Final NPDES General Permit for Small 
Municipal Separate Storm Sewer Systems and Federal Facilities Within 
the Commonwealth of Puerto Rico

AGENCY: Environmental Protection Agency (EPA).

[[Page 38176]]


ACTION: Notice of Final NPDES General Permit.

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SUMMARY: The Director of the Caribbean Environmental Protection 
Division (CEPD), Environmental Protection Agency--Region 2 (EPA), is 
issuing this Notice of a Final National Pollutant Discharge Elimination 
System (NPDES) general permit, PRR040000/PRR04000F, for discharges from 
small municipal separate storm sewer systems (small MS4) from urbanized 
areas within the Commonwealth of Puerto Rico to waters of the United 
States. This NPDES general permit establishes Notice of Intent (NOI) 
requirements, standards, prohibitions and management practices for 
discharges of storm water from small MS4s urbanized areas. A prior 
Notice of Availability of a general permit was issued by EPA in 
November 2006. EPA has substantially modified and reissuing the general 
permit pursuant to 40 CFR part 124. The EPA is issuing this permit for 
five years.

DATES: The general permit will become effective on July 1, 2016. This 
effective date is necessary to provide dischargers with the immediate 
opportunity to comply with Clean Water Act requirements in light of the 
expiration of the 2006 Small MS4 General Permit on November 5, 2011. In 
accordance with 40 CFR part 23, this permit shall be considered issued 
for the purpose of judicial review on July 1, 2016. Under section 
509(b) of the Clean Water Act, judicial review of this general permit 
can be requested by filing a petition for review in the United States 
Court of Appeals within 120 days after the permit is considered issued. 
Under section 509(b)(2) of the Clean Water Act, the requirements in 
this permit may not be challenged later in civil or criminal 
proceedings to enforce these requirements. In addition, this permit may 
not be challenged in other agency proceedings. Deadlines for submittal 
of notices of intent are provided in Section 1.2 of the 2016 Small MS4 
General Permit. The 2016 Small MS4 General Permit also provides 
additional dates for compliance with the terms of these permits.

FOR FURTHER INFORMATION CONTACT: For further information on the final 
NPDES Small MS4 General Permit, contact the Multimedia Permits and 
Compliance Branch, Caribbean Environmental Protection Division, US EPA 
Region 2, City View Plaza II, Suite 7000, 48 Road 165 Km 1.2, Guaynabo, 
Puerto Rico 00968-8069; telephone: 787-977-5870; or by email: 
[email protected].
    The general permit is based on an administrative record available 
at EPA--Region 2, Caribbean Environmental Protection Division, at the 
above mentioned address. A reasonable fee may be charged for copying 
requests. However, the general permit and fact sheet are available at 
EPA's updated Web site posting of June 11, 2014: www.epa.gov/region02/water/permits.html.

SUPPLEMENTARY INFORMATION: EPA is reissuing the NPDES general permit 
for the discharge of stormwater from small MS4s to waters within the 
Commonwealth of Puerto Rico. The permit describes four distinct small 
MS4s. These are the Conventional cities and towns; Non-Conventional 
State, Federal and other publicly owned systems; Non-Conventional 
transportation systems; and Non-Conventional State flood control pump 
station.
    The conditions in the general permit are established pursuant to 
Clean Water Act (CWA) Part 402(p)(3)(iii) to ensure that pollutant 
discharges from small municipal separate storm sewer systems (small 
MS4s) are reduced to the maximum extent practicable (MEP), protect 
water quality, and satisfy the appropriate water quality requirements 
of the CWA. The term small municipal separate storm sewer system is 
available in 40 CFR part 122.26(b). In addition, this term also 
includes systems similar to separate storm sewer systems and flood 
management conveyances in municipalities such as military bases, large 
hospital, highways, and flood control pump stations, and other 
thoroughfares. The term does not include separate storm sewers in very 
discrete areas, such as individual buildings. For example, an armory 
located in an urbanized area would not be considered a regulated small 
MS4.
    The general permit sets forth the requirements for the small MS4 to 
``reduce the discharge of pollutants to the maximum extent practicable, 
including management practices, control techniques, and system, design 
and engineering methods'' (See Section 402(p)(3)(B)(iii) of the CWA). 
MEP is the statutory standard that establishes the level of pollutant 
reductions that MS4 operators must achieve. EPA believes that 
implementation of best management practices (BMPs) designed to control 
storm water runoff from the MS4 is generally the most appropriate 
approach for reducing pollutants to satisfy the MEP standard. Pursuant 
to 40 CFR 122.44(k), the permit contains BMPs, including development 
and implementation of a comprehensive stormwater management program 
(SWMP) as the mechanism to achieve the required pollutant reductions.
    Section 402(p)(3)(B)(iii) of CWA also authorizes EPA to include in 
an MS4 permit ``such other provisions as [EPA] determine[s] appropriate 
for control of . . . pollutants.'' This provision forms a basis for 
imposing water quality-based effluent limitations (WQBELs), consistent 
with the authority in Section 301(b)(1)(C) of the CWA. See Defenders of 
Wildlife v. Browner, 191 F.3d 1159, 1166-67 (9th Cir. 1999); 64 FR 
68722, 68753, 68788 (Dec. 8, 1999). Accordingly, the permit contains 
the water quality-based effluent limitations, expressed in terms of 
BMPs, which EPA has determined are necessary and appropriate under the 
CWA.
    EPA issued a final general permit to address stormwater discharges 
from small MS4s on November 6, 2006. The 2006 general permit required 
small MS4s to develop and implement a SWMP designed to control 
pollutants to the maximum extent practicable and protect water quality. 
The 2016 general permit builds on the requirements of the previous 
general permit.
    EPA views the MEP standard in the CWA as an iterative process. MEP 
should continually adapt to current conditions and BMP effectiveness. 
Compliance with the requirements of this general permit will meet the 
MEP standard. The iterative process of MEP consists of a conventional 
and/or a non-conventional municipality developing a program consistent 
with specific permit requirements, implementing the program, evaluating 
the effectiveness of the BMPs included as part of the program, then 
revising those parts of the program that are not effective at 
controlling pollutants, then implementing the revisions, and evaluating 
again. The changes contained in the general permit reflect the 
iterative process of MEP. Accordingly, the general permit contains more 
specific tasks and details than the 2006 general permit.
    EPA has explained in the general permit fact sheet a summary of 
permit conditions. The general permit and fact sheet are available at 
EPA's Web site posting of June 11, 2014: www.epa.gov/region02/water/permits.html.

Other Legal Requirements

A. Endangered Species Act (ESA)

    The provisions related to the ESA have been enhanced from those in 
the 2006 permit. EPA consulted with the appropriate Federal services 
(U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries 
Service

[[Page 38177]]

(NMFS)) in connection with the 2014 draft Small MS4 General Permit.
    On July 8, 2014, EPA initiated an informal consultation with the 
USFWS and the National Oceanic and Atmosphere Administration, National 
Marine Fisheries Service (NMFS) pursuant to Section 7 of the ESA, for 
the reissuance of a proposed 2014 NPDES Small MS4 General Permit. Based 
on the information, EPA believes that the issuance of the NPDES Small 
MS4 General Permit (PRR040000), may affect, but is not likely to 
adversely affect any threatened or endangered species.
    On August 22, 2014, the USFWS indicated that the Antillean manatee 
may be affected. This species is found near shore waters around Puerto 
Rico where stormwater may be discharged. In addition, USFWS indicated 
they concur with EPA's determination.
    On August 28, 21014, NMFS had questions regarding EPA's proposed 
2014 NPDES Small MS4 General Permit. EPA ensured to provide a response 
to each of NMFS's questions by October 1, 2014. A follow up conference 
call was held on October 7, 2014 to discuss the responses. On December 
18, 2014, EPA held another conference call where the NMFS requested to 
see examples of EPA inspection reports performed to MS4s and Municipal 
Stormwater Management Program. EPA provided six (6) documents of 
coastal municipalities on December 19, 2014. EPA followed up with a 
letter dated July 24, 2015 seeking NMFS to concur on EPA's 
determination that stormwater discharges from MS4s and discharge 
related activities are not likely to adversely affect any federal 
threatened or endangered listed species or designated habitat.
    EPA's decision to issue this general permit is consistent with 
section 7(d) because it does not foreclose either the formulation by 
the NMFS, or the implementation by EPA, of any alternatives that might 
be determined in the consultation to be needed to comply with section 
7(a)(2). If the completion of consultation results in new information 
warranting modifications or conditions to protect listed species or 
critical habitat, EPA will modify this permit under 40 CFR 122.62(a)(2) 
to incorporate those non-numerical effluent limits or conditions.

B. Executive Order 12866

    EPA has determined that this general permit is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

C. Paperwork Reduction Act

    The information collection requirements of this permit were 
previously approved by the Office of Management and Budget (OMB) under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
and assigned OMB control number 2040-0004.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
requires that EPA prepare a regulatory flexibility analysis for rules 
subject to the requirements of 5 U.S.C. 553(b) that have a significant 
impact on a substantial number of small entities. However, general 
NPDES permits are not ``rules'' subject to the requirements of 5 U.S.C. 
553(b) and are therefore not subject to the RFA.

E. Unfunded Mandates Reform Act

    Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law 
104-4, generally requires Federal agencies to assess the effects of 
their ``regulatory actions'' (defined to be the same as ``rules'' 
subject to the RFA) on Tribal, State, and local governments and the 
private sector. However, general NPDES permits are not ``rules'' 
subject to the requirements of 5 U.S.C. 553(b) and are therefore not 
subject to the RFA or the UMRA.

    Authority:  This action is being taken under the Clean Water 
Act, 33 U.S.C. 1251 et seq.

    Dated: May 18, 2016.
Jos[eacute] C. Font,
Director, Caribbean Environmental Protection Division.
[FR Doc. 2016-13913 Filed 6-10-16; 8:45 am]
 BILLING CODE 6560-50-P