[Federal Register Volume 85, Number 242 (Wednesday, December 16, 2020)]
[Notices]
[Pages 81464-81466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27637]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R01-OW-2020-0216; FRL-10018-55-Region 1]


Availability of Final Modifications to NPDES General Permits for 
Stormwater Discharges From Small Municipal Separate Storm Sewer Systems 
in Massachusetts and New Hampshire

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability of final permit modifications.

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SUMMARY: The Environmental Protection Agency (EPA) is providing a 
notice of

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availability (NOA) of final limited modifications to the National 
Pollutant Discharge Elimination System (NPDES) general permits for 
discharges of stormwater from small Municipal Separate Storm Sewer 
Systems (MS4s) in Massachusetts and New Hampshire under the Clean Water 
Act (CWA). The final modifications represent the results of mediation 
supervised by the U.S. Court of Appeals for the District of Columbia 
Circuit Mediation Program between EPA and petitioners the National 
Association of Homebuilders (NAHB), the Home Builders and Remodelers 
Association of Massachusetts, Inc. (HBRAMA), the New Hampshire Home 
Builders Association (NHHBA), the Center for Regulatory Reasonableness 
(CRR), the Massachusetts Coalition for Water Resources Stewardship 
(MCWRS), the Town of Franklin, Massachusetts, (Franklin), the City of 
Lowell, Massachusetts (Lowell), the Conservation Law Foundation (CLF), 
and the Charles River Watershed Association (CRWA). In April 2020, EPA 
and the petitioners entered into settlement agreements that included 
commitments for EPA to propose certain modifications to the 2016 
Massachusetts Small MS4 General Permit and the 2017 New Hampshire Small 
MS4 General Permit, and then to take final action on each proposal.

DATES: These final permit modifications are effective 30 days after 
signature. In accordance with 40 CFR part 23, this permit shall be 
considered issued for the purpose of judicial review at 1:00 p.m. 
Eastern daylight time on December 30, 2020. Under section 509(b) of the 
Clean Water Act, judicial review of these general permit modifications 
can be requested by filing a petition for review in the United States 
Court of Appeals within 120 days after the permit modifications are 
considered issued. Under section 509(b)(2) of the Clean Water Act, 
these permit modifications may not be challenged later in civil or 
criminal proceedings to enforce these requirements. In addition, these 
permit modifications may not be challenged in other agency proceedings.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R01-OW-2020-0216. All documents in the docket are 
listed on the http://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available electronically 
through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Newton Tedder, Water Division, U.S. 
Environmental Protection Agency, Region 1, 5 Post Office Square, MC 06-
4, Boston, MA 02109; telephone number: 617-918-1038; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Additional Information About the Final Permit Modifications

A. Background on Litigation and Settlement Agreements

    On April 4, 2016, EPA issued a final NPDES general permit for 
discharges of stormwater from small MS4s in Massachusetts (the MA MS4 
Permit) under CWA section 402(p). 33 U.S.C. 1342(p). On July 18, 2016, 
CRR filed a petition for review of the permit in the U.S. Court of 
Appeals for the D.C. Circuit. CLF, CRWA, MCWRS, Franklin, NAHB, HBRAMA, 
and the City of Lowell also filed petitions for review of the permit, 
all of which were consolidated with CRR's petition in the D.C. Circuit. 
Center for Regulatory Reasonableness, et al. v. EPA, No. 16-1246 (D.C. 
Cir.) (2016 Massachusetts Small MS4 General Permit consolidated cases). 
On January 18, 2017, EPA issued a final NPDES general permit for 
discharges of stormwater from small MS4s in New Hampshire (the NH MS4 
Permit). On February 1, 2017, CLF filed a petition for review of the 
permit in the U.S. Court of Appeals for the First Circuit. CRR, NAHB, 
and NHHBA later filed petitions for review in the D.C. Circuit. The 
First Circuit then transferred the CLF petition to the D.C. Circuit, 
where the D.C. Circuit consolidated it with the CRR, NAHB, and NHHBA 
petitions. Center for Regulatory Reasonableness et al. v. EPA, 
Conservation Law Foundation, Intervenor No. 17-1060 (D.C. Cir.) (2017 
New Hampshire Small MS4 General Permit consolidated cases). The parties 
to both cases entered mediation in 2017, and the D.C. Circuit held the 
cases in abeyance. On December 27, 2019, EPA published three proposed 
settlement agreements in the Federal Register for a 30-day public 
comment period. See ``Proposed Settlement Agreements, Clean Water Act 
Claims,'' 84 FR 71407 (Dec. 27, 2019). EPA's planned proposed permit 
modifications to the Massachusetts and New Hampshire permits and 
statements of basis describing those proposed modifications were 
attached as Exhibits A and B to the Massachusetts and New Hampshire 
proposed settlement agreements. EPA and the petitioners executed the 
Massachusetts and New Hampshire settlement agreements on April 15, 
2020. The first two settlement agreements describe the modifications 
that EPA proposed to the MA MS4 Permit and NH MS4 Permit.
    Pursuant to the settlement agreements, the proposed permit 
modifications reflected the substantive agreements that parties reached 
during mediation. In the settlement agreements, the petitioners agreed 
not to submit adverse public comments on the Draft Permit 
Modifications, except that the Petitioners reserved their rights to 
submit any form of comment on EPA's proposed modification to Part 
2.3.6.a of the NH MS4 permit and on the definitions of ``new 
development'' and ``redevelopment'' in NH MS4 permit Appendix A. The 
agreements specified that EPA would take final action on each proposed 
modification within nine months of posting the NOA of the Draft Permit 
Modifications on its website and in the Federal Register (that is, by 
January 23, 2021); that petitioners would then dismiss their current 
petitions for review with prejudice; and that petitioners agreed not to 
challenge EPA's respective final actions if they modify the permits in 
a manner substantially similar to the proposed modifications (with one 
exception, discussed in the New Hampshire settlement agreement). The 
third settlement agreement commits Lowell, Massachusetts, to 
voluntarily dismiss its petition without prejudice and commits EPA to 
process Lowell's individual permit application and then to take final 
action on Lowell's individual permit application. Today's notice 
includes the final MA MS4 and NH MS4 permit modifications. Lowell filed 
a joint stipulation to voluntarily dismiss its petition on July 15, 
2020. EPA will propose an individual permit for Lowell in a separate 
action.

B. Final Permit Modifications

    EPA published the proposed permit modifications on April 23, 2020. 
See 85 FR 22735 (Apr. 23, 2020). The public comment period for these 
proposals closed on June 8, 2020. EPA received 21 public comments. EPA 
reopened, reexamined, and accepted comments on only the parts of the MA 
MS4 and NH MS4 permits that the proposed modifications specified. In 
the MA MS4 permit, the following permit parts were the only parts open 
for modification and comment: Parts 2.0; 2.1; 2.1.1; 2.1.2.a; 2.2.; 
2.2.2; 2.3.3; 2.3.5; 2.3.6; 2.3.7.a; 2.3.7.b; 4.1; 4.4; Appendix F part 
A.I; Appendix F part A.II; Appendix F

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Attachments 2 and 3; and Appendix H. In the NH MS4 permit, the 
following permit parts were the only parts open for modification and 
comment: 2.0; 2.1; 2.1.1; 2.1.2.a; 2.2.; 2.2.2 (paragraphs 2 and 3); 
2.3.3.1; 2.3.5; 2.3.5.3; 2.3.6.a; 2.3.7.2.b.iii; 3.1.3; 4.1.4; 4.4.2.3; 
Appendix A; Appendix F part III and Attachment 3; and Appendix H. The 
modifications provide either enhanced clarity regarding permit terms or 
greater flexibility in permit implementation. EPA prepared Statements 
of Basis that fully explained the proposed modifications. See 
www.regulations.gov Docket document EPA-R01-OW-2020-0216-0002, 
``Statement of Basis for Massachusetts Small MS4 General Permit 2020 
Modifications,'' and document EPA-R01-OW-2020-0216-0005, ``Statement of 
Basis for New Hampshire Small MS4 General Permit 2020 Modifications.'' 
EPA has considered all significant public comments on the permit 
sections that were open for proposed modification. The docket also 
contains a Memorandum to the Record discussing the potential impacts of 
the permit modifications and the Response to Comments documents for the 
Massachusetts and New Hampshire permits. Based on public comments, EPA 
plans to finalize the permits as proposed, except for the following 
changes:
Massachusetts Small MS4 General Permit
     EPA updated the typographical error in Appendix F, Table 
F-6. Grafton and Shrewsbury have the same required percent reduction of 
49% for phosphorus from urban stormwater sources for Flint Pond and 
Lake Quinsigamond.
     EPA updated the permit language to clarify that Part 6.5 
is not applicable to the MA Department of Conservation and Recreation, 
which has its own phosphorus reduction requirements, as indicated in 
Appendix F Part A.I of the permit.
New Hampshire Small MS4 General Permit
     The proposed modifications to Part 2.3.6 (post-
construction stormwater minimum control measures) attempted to rely on 
the Southeast Watershed Alliance (SWA) model ordinances, a successful 
local program as described in the Statement of Basis, but erred in 
requiring some pieces of the SWA Model Ordinance to be adopted by SWA 
communities and others to be adopted by non-SWA communities. In 
response to comments noting confusion as to which requirements applied 
to which communities, EPA has updated the language in Part 2.3.6 to 
remove the different requirements for those communities in and out of 
the SWA. Consistent with the option in the 2017 NH MS4 Permit, the 
final permit modification requires that all New Hampshire permittees--
those in the SWA and those outside the SWA--adopt a regulatory 
mechanism that is at least as stringent as SWA Model Standards Section 
4 Element C and Element D in their entirety.
    EPA has emailed notifications of the Final Permit Modifications to 
regulated parties, parties to this mediation, and other interested 
parties on EPA Region 1's NPDES permit mailing list. The official 
public docket for this action, EPA-R01-OW-2020-0216, contains copies of 
the final permits, response to comments documents, a memorandum 
describing economic impacts of the modifications, and other supporting 
material. An electronic version of the public docket is available 
through www.regulations.gov. These documents are also posted on EPA 
Region 1's website at https://www.epa.gov/npdes-permits/npdes-stormwater-permit-program-new-england#smallms4program. The official 
public docket is available for public viewing at U.S. EPA Region 1, 
John W. McCormack Building, 5 Post Office Square, Boston, MA 02109. 
Please contact the persons listed in FOR FURTHER INFORMATION CONTACT.

Administrative Requirements

Executive Order 12866: Regulatory Planning and 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.

Consideration of Other Federal or State Laws

    EPA's docket provides information on compliance with applicable 
laws and anticipated impacts on small entities in a memorandum to the 
record, in the proposed permits' statements of basis/fact sheets, and 
the final permits' response to comments documents. Massachusetts and 
New Hampshire provided water quality certifications to EPA for this 
action pursuant to Section 401 of the Clean Water Act, 33 U.S.C. 1341. 
In accordance with the Endangered Species Act (ESA), EPA has also 
obtained concurrence from the New England regional offices of the 
National Marine Fisheries Service and U.S. Fish and Wildlife Service 
that this action is not likely to adversely affect any listed 
threatened or endangered species. The Massachusetts and New Hampshire 
Coastal Zone Management offices have also provided EPA with Coastal 
Zone Management Act (CZMA) consistency determinations for this action.

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

    Dated: December 10, 2020.
Dennis Deziel,
Regional Administrator, EPA Region 1.
[FR Doc. 2020-27637 Filed 12-15-20; 8:45 am]
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