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EnvironmentalProtection Agency40 CFR Parts 9, 122, 123, and 124National Pollutant Discharge EliminationSystem—Regulations for Revision of theWater Pollution Control ProgramAddressing Storm Water Discharges;Final RuleReport to Congress on the Phase IIStorm Water Regulations; Notice

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68722 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Parts 9, 122 , 123, and 124

[FRL—6470–8]

RIN 2040–AC82

National Pollutant DischargeElimination System—Regulations forRevision of the Water Pollution ControlProgram Addressing Storm WaterDischarges

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Final rule.

SUMMARY: Today’s regulations (Phase II)expand the existing National PollutantDischarge Elimination System (NPDES)storm water program (Phase I) toaddress storm water discharges fromsmall municipal separate storm sewersystems (MS4s) (those serving less than100,000 persons) and construction sitesthat disturb one to five acres. Althoughthese sources are automaticallydesignated by today’s rule, the ruleallows for the exclusion of certainsources from the national program basedon a demonstration of the lack of impacton water quality, as well as theinclusion of others based on a higherlikelihood of localized adverse impacton water quality. Today’s regulationsalso exclude from the NPDES programstorm water discharges from industrialfacilities that have ‘‘no exposure’’ ofindustrial activities or materials tostorm water. Finally, today’s ruleextends from August 7, 2001 untilMarch 10, 2003 the deadline by whichcertain industrial facilities owned bysmall MS4s must obtain coverage underan NPDES permit. This rule establishesa cost-effective, flexible approach forreducing environmental harm by stormwater discharges from many pointsources of storm water that are currentlyunregulated.

EPA believes that the implementationof the six minimum measures identifiedfor small MS4s should significantlyreduce pollutants in urban storm watercompared to existing levels in a cost-effective manner. Similarly, EPAbelieves that implementation of BestManagement Practices (BMP) controls atsmall construction sites will also resultin a significant reduction in pollutantdischarges and an improvement insurface water quality. EPA believes thisrule will result in monetized financial,recreational and health benefits, as wellas benefits that EPA has been unable tomonetize. Expected benefits includereduced scouring and erosion ofstreambeds, improved aesthetic quality

of waters, reduced eutrophication ofaquatic systems, benefit to wildlife andendangered and threatened species,tourism benefits, biodiversity benefitsand reduced costs for siting reservoirs.In addition, the costs of industrial stormwater controls will decrease due to theexclusion of storm water dischargesfrom facilities where there is ‘‘noexposure’’ of storm water to industrialactivities and materials.DATES: This regulation is effective onFebruary 7, 2000. The incorporation byreference of the rainfall erosivity factorpublication listed in the rule isapproved by the Director of the FederalRegister as of February 7, 2000. Forjudicial review purposes, this final ruleis promulgated as of 1:00 p.m. EasternStandard Time, on December 22, 1999as provided in 40 CFR 23.2.ADDRESSES: The completeadministrative record for the final ruleand the ICR have been establishedunder docket numbers W–97–12 (rule)and W–97–15 (ICR), and includessupporting documentation as well asprinted, paper versions of electroniccomments. Copies of information in therecord are available upon request. Areasonable fee may be charged forcopying. The record is available forinspection and copying from 9 a.m. to4 p.m., Monday through Friday,excluding legal holidays, at the WaterDocket, EPA, East Tower Basement, 401M Street, SW, Washington, DC. Foraccess to docket materials, please call202/260–3027 to schedule anappointment.FOR FURTHER INFORMATION CONTACT:George Utting, Office of WastewaterManagement, Environmental ProtectionAgency, Mail Code 4203, 401 M Street,SW, Washington, DC 20460; (202) 260–5816; [email protected] INFORMATION: Entitiespotentially regulated by this actioninclude:

Category Examples of regulatedentities

Federal, State,Tribal, andLocal Gov-ernments.

Operators of small separatestorm sewer systems, in-dustrial facilities that dis-charge storm water asso-ciated with industrial activ-ity or construction activitydisturbing 1 to 5 acres.

Industry .......... Operators of industrial facili-ties that discharge stormwater associated with in-dustrial activity.

ConstructionActivity.

Operators of construction ac-tivity disturbing 1 to 5acres.

This table is not intended to beexhaustive, but rather provides a guide

for readers regarding entities likely to beregulated by this action. This table liststhe types of entities that EPA is nowaware could potentially be regulated bythis action. Other types of entities notlisted in the table could also beregulated. To determine whether yourfacility or company is regulated by thisaction, you should carefully examinethe applicability criteria in §§ 122.26(b),122.31, 122.32, and 123.35 of the finalrule. If you have questions regarding theapplicability of this action to aparticular entity, consult the personlisted in the preceding FOR FURTHERINFORMATION CONTACT section.

Table of Contents:

I. BackgroundA. Proposed Rule and Pre-proposal

OutreachB. Water Quality Concerns/Environmental

Impact Studies and Assessments1. Urban Developmenta. Large-Scale Studies and Assessmentsb. Local and Watershed-Based Studiesc. Beach Closings/Advisories2. Non-storm Water Discharges Through

Municipal Storm Sewers3. Construction Site RunoffC. Statutory BackgroundD. EPA’s Reports to CongressE. Industrial Facilities Owned or Operated

by Small MunicipalitiesF. Related Nonpoint Source Programs

II. Description of ProgramA. Overview1. Objectives EPA Seeks to Achieve in

Today’s Rule2. General Requirements for Regulated

Entities Under Today’s Rule3. Integration of Today’s Rule With the

Existing Storm Water Program4. General Permits5. Tool Box6. Deadlines Established in Today’s ActionB. Readable RegulationsC. Program Framework: NPDES ApproachD. Federal Role1. Develop Overall Framework of the

Program2. Encourage Consideration of ‘‘Smart

Growth’’ Approaches3. Provide Financial Assistance4. Implement the Program in Jurisdictions

not Authorized to Administer the NPDESProgram

5. Oversee State and Tribal Programs6. Comply with Applicable Requirements

as a DischargerE. State Role1. Develop the Program2. Comply With Applicable Requirements

as a Discharger3. Communicate with EPAF. Tribal RoleG. NPDES Permitting Authority’s Role for

the NPDES Storm Water Small MS4Program

1. Comply With ImplementationRequirements

2. Designate Sourcesa. Develop Designation Criteriab. Apply Designation Criteria


68723Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

c. Designate Physically InterconnectedSmall MS4s

d. Respond to Public Petitions forDesignation

3. Provide Waivers4. Issue Permits5. Support and Oversee the Local ProgramsH. Municipal Role1. Scope of Today’s Rule2. Municipal Definitionsa. Municipal Separate Storm Sewer

Systems (MS4s)b. Small Municipal Separate Storm Sewer

Systemsi. Combined Sewer Systems (CSS)ii. Owners/Operatorsc. Regulated Small MS4si. Urbanized Area Descriptionii. Rationale for Using Urbanized Areasd. Municipal Designation by the Permitting

Authoritye. Waiving the Requirements for Small

MS4s3. Municipal Permit Requirementsa. Overviewi. Summary of Permitting Optionsii. Water Quality-Based Requirementsiii. Maximum Extent Practicableb. Program Requirements—Minimum

Control Measuresi. Public Education and Outreach on Storm

Water Impactsii. Public Involvement/Participationiii. Illicit Discharge Detection and

Eliminationiv. Construction Site Storm Water Runoff

Controlv. Post-Construction Storm Water

Management in New Development andRedevelopment

vi. Pollution Prevention/GoodHousekeeping for Municipal Operations

c. Application Requirementsi. Best Management Practices and

Measurable Goalsii. Individual Permit Application for a

§ 122.34(b) Programiii. Alternative Permit Option/ Tenth

Amendmentiv. Satisfaction of Minimum Measure

Obligations by Another Entityv. Joint Permit Programsd. Evaluation and Assessmenti. Recordkeepingii. Reportingiii. Permit-As-A-Shielde. Other Applicable NPDES Requirementsf. Enforceabilityg. Deadlinesh. Reevaluation of RuleI. Other Designated Storm Water

Discharges1. Discharges Associated with Small

Construction Activitya. Scopeb. Waiversi. Rainfall-Erosivity Waiverii. Water Quality Waiverc. Permit Process and Administrationd. Cross-Referencing State, Tribal, or Local

Erosion and Sediment Control Programse. Alternative Approaches2. Other Sources3. ISTEA Sources4. Residual Designation Authority

J. Conditional Exclusion for ‘‘No Exposure’’of Industrial Activities and Materials toStorm Water

1. Background2. Today’s Rule3. Definition of ‘‘No Exposure’’K. Public Involvement/Public RoleL. Water Quality Issues1. Water Quality Based Effluent Limits2. Total Maximum Daily Loads and

Analysis to Determine the Need forWater Quality-Based Limitations

3. Anti-Backsliding4. Water Quality-Based Waivers and

DesignationsIII. Cost-Benefit Analysis

A. Costs1. Municipal Costs2. Construction CostsB. Quantitative Benefits1. National Water Quality Model2. National Water Quality Assessmenta. Municipal Measuresi. Fresh Waters Benefitsii. Marine Waters Benefitsb. Construction Benefitsc. Summary of Benefits From the National

Water Quality AssessmentC. Qualitative BenefitsD. National Economic Impact

IV. Regulatory RequirementsA. Paperwork Reduction ActB. Executive Order 12866C. Unfunded Mandates Reform Act1. Summary of UMRA Section 202 Written

Statement2. Selection of the Least Costly, Most Cost-

Effective or Least BurdensomeAlternative That Achieves the Objectivesof the Statute

3. Effects on Small GovernmentsD. Executive Order 13132E. Regulatory Flexibility ActF. National Technology Transfer And

Advancement ActG. Executive Order 13045H. Executive Order 13084I. Congressional Review Act

I. Background

A. Proposed Rule and Pre-ProposalOutreach

On January 9, 1998 (63 FR 1536), EPAproposed to expand the NationalPollutant Discharge Elimination System(NPDES) storm water program toinclude storm water discharges frommunicipal separate storm sewer systems(MS4s) and construction sites that weresmaller than those previously includedin the program. The proposal alsoaddressed industrial sources that have‘‘no exposure’’ of industrial activitiesand materials to storm water. Today,EPA is promulgating a final rule toimplement most of the proposedrevisions with minor changes based onpublic comments received on theproposal. Today’s final rule also extendsthe deadline by which certain industrialfacilities operated by municipalities ofless than 100,000 population must becovered by a NPDES permit; the

deadline is changed from August 7,2001 until March 10, 2003.

In 1972, Congress amended theFederal Water Pollution Control Act(commonly referred to as the CleanWater Act (CWA)) to prohibit thedischarge of any pollutant to waters ofthe United States from a point sourceunless the discharge is authorized by anNPDES permit. The NPDES program isa program designed to track pointsources and require the implementationof the controls necessary to minimizethe discharge of pollutants. Initialefforts to improve water quality underthe NPDES program primarily focusedon reducing pollutants in industrialprocess wastewater and municipalsewage. These discharge sources wereeasily identified as responsible for poor,often drastically degraded, water qualityconditions.

As pollution control measures forindustrial process wastewater andmunicipal sewage were implementedand refined, it became increasinglyevident that more diffuse sources ofwater pollution were also significantcauses of water quality impairment.Specifically, storm water runoffdraining large surface areas, such asagricultural and urban land, was foundto be a major cause of water qualityimpairment, including thenonattainment of designated beneficialuses.

In 1987, Congress amended the CWAto require implementation, in twophases, of a comprehensive nationalprogram for addressing storm waterdischarges. The first phase of theprogram, commonly referred to as‘‘Phase I,’’ was promulgated onNovember 16, 1990 (55 FR 47990).Phase I requires NPDES permits forstorm water discharge from a largenumber of priority sources includingmunicipal separate storm sewer systems(‘‘MS4s’’) generally serving populationsof 100,000 or more and severalcategories of industrial activity,including construction sites that disturbfive or more acres of land.

Today’s rule, which is the secondphase of the storm water program,expands the existing program to includedischarges of storm water from smallermunicipalities in urbanized areas andfrom construction sites that disturbbetween one and five acres of land.Today’s rule allows certain sources to beexcluded from the national programbased on a demonstrable lack of impacton water quality. The rule also allowsother sources not automaticallyregulated on a national basis to bedesignated for inclusion based onincreased likelihood for localizedadverse impact on water quality.



Today’s rule also conditionally excludesstorm water discharges from industrialfacilities that have ‘‘no exposure’’ ofindustrial activities or materials tostorm water. Today’s rule and the effortthat led to its development arecommonly referred to as ‘‘Phase II.’’ OnAugust 7, 1995, EPA promulgated afinal rule that required facilities to beregulated under Phase II to apply for aNPDES permit by August 7, 2001,unless the NPDES permitting authoritydesignates them as requiring a permit byan earlier date. (60 FR 40230). That ruleis referred to as ‘‘the Interim Phase IIRule.’’ Today’s rule replaces the InterimPhase II rule.

EPA performed extensive outreachand worked with a variety ofstakeholders prior to proposing today’srule. On September 9, 1992, EPApublished a notice requestinginformation and public comment onhow to prepare regulations under CWAsection 402(p)(6) (see 57 FR 41344). Thenotice identified three sets of issuesassociated with developing new NPDESstorm water regulations: (1) How shouldEPA identify unregulated sources ofstorm water to protect water quality, (2)what types of control strategies shouldEPA develop for these sources, and (3)what are appropriate deadlines forimplementing new requirements. Thenotice recognized that potential sourcesfor coverage under the section 402(p)(6)regulations would fall into two maincategories: municipal separate stormsewer systems and individual(commercial and residential) sources.EPA received more than 130 commentson the September 9, 1992, notice. Forfurther discussion of the commentsreceived, see Storm Water DischargesPotentially Addressed by Phase II of theNational Pollutant DischargeElimination System: Report to Congress(EPA, 1995a), pp. 1–21 to 1–22, andAppendix J (which provides a detailedsummary of the comments received asthey relate to the specific issues raisedin the notice).

In early 1993, the RensselaervilleInstitute and EPA held public andexpert meetings to assist in developingand analyzing options for identifyingunregulated sources and possiblecontrols. The report on the 1993meetings identified two options thatwere favored by the various groups thatparticipated. One option was a programthat allowed States to select sources tobe controlled in a manner consistentwith criteria developed by EPA. Asecond option was a tiered approachunder which EPA would select highpriority sources for control by NPDESpermits and States would select othersources for control under a State water

quality program other than the NPDESprogram. For additional details see the‘‘Report on the EPA Storm WaterManagement Program (RensselaervilleStudy),’’ Appendix I of Storm WaterDischarges Potentially Addressed byPhase II of the National PollutantDischarge Elimination System: Report toCongress (EPA, 1995a).

EPA also conducted outreach withrepresentatives of small entities inconjunction with the convening of aSmall Business Advocacy Review Panelunder the Small Business RegulatoryEnforcement Fairness Act (SBREFA).This process is discussed in section IV.Eof today’s preamble. For additionalbackground see the discussion in thepreamble to the proposal for today’srule.

To assist EPA by providing adviceand recommendations regarding theurban municipal wet weather waterpollution control program, EPAestablished the Urban Wet WeatherFlows Federal Advisory Committee(hereinafter, ‘‘FACA Committee’’) underthe Federal Advisory Committee Act(FACA). The Office of Management andBudget approved the charter for theFACA Committee on March 10, 1995.The FACA Committee provided a forumfor identifying and addressing issuesassociated with water quality impactsfrom storm water sources.

The FACA Committee established twosubcommittees: the Storm Water PhaseII FACA Subcommittee and the SanitarySewer Overflows (SSOs) FACASubcommittee. Consistent with therequirements of FACA, the membershipof both the FACA Committee and thesubcommittees was balanced amongEPA’s various outside stakeholderinterests, including representatives frommunicipalities, States, Indian Tribes,EPA, industrial and commercial sectors,agriculture, and environmental andpublic interest groups.

The Storm Water Phase II FACASubcommittee (‘‘Subcommittee’’) metfourteen times between September 1995and June 1998. The 32 Subcommitteemembers discussed possible regulatoryframeworks at these meetings as well asduring numerous other meetings andconference calls. Members of the FACACommittee provided views regardingthe development of the ‘‘no exposure’’provision and other provisions in draftsof the Phase II rule. EPA providedSubcommittee members with foursuccessive drafts of the proposed ruleand preamble, outlines of the rule,summaries of the written commentsreceived on each draft, and documentsidentifying the changes made to eachdraft. In the course of providing inputto the Committee, individual

Subcommittee members providedsignificant input and advice that EPAconsidered in the context of publiccomments received. Ultimately, theSubcommittee did not provide a writtenreport back to the FACA Committee,and the FACA Committee did notprovide written advice andrecommendations to EPA. The Agency,therefore, did not rely on grouprecommendations in developing today’srule, but does consider the process tohave resulted in important publicoutreach.

B. Water Quality Concerns/Environmental Impact Studies andAssessments

Storm water runoff from landsmodified by human activities can harmsurface water resources and, in turn,cause or contribute to an exceedance ofwater quality standards by changingnatural hydrologic patterns, acceleratingstream flows, destroying aquatic habitat,and elevating pollutant concentrationsand loadings. Such runoff may containor mobilize high levels of contaminants,such as sediment, suspended solids,nutrients (phosphorous and nitrogen),heavy metals and other toxic pollutants,pathogens, toxins, oxygen-demandingsubstances (organic material), andfloatables (U.S. EPA. 1992.Environmental Impacts of Storm WaterDischarges: A National Profile. EPA841–R–92–001. Office of Water.Washington, DC). After a rain, stormwater runoff carries these pollutantsinto nearby streams, rivers, lakes,estuaries, wetlands, and oceans. Thehighest concentrations of thesecontaminants often are contained in‘‘first flush’’ discharges, which occurduring the first major storm after anextended dry period (Schueler, T.R.1994. ‘‘First Flush of StormwaterPollutants Investigated in Texas.’’ Note28. Watershed Protection Techniques1(2)). Individually and combined, thesepollutants impair water quality,threatening designated beneficial usesand causing habitat alteration ordestruction.

Uncontrolled storm water dischargesfrom areas of urban development andconstruction activity negatively impactreceiving waters by changing thephysical, biological, and chemicalcomposition of the water, resulting in anunhealthy environment for aquaticorganisms, wildlife, and humans. Thefollowing sections discuss the studiesand data that address and support thisfinding.

Although water quality problems alsocan occur from agricultural storm waterdischarges and return flows fromirrigated agriculture, this area of



concern is statutorily exempted fromregulation as a point source under theClean Water Act and is not discussedhere. (See CWA section 502(14)). Otherstorm water sources not specificallyidentified in the regulations may be ofconcern in certain areas and can beaddressed on a case-by-case (orcategory-by-category) basis through theNPDES designation authority preservedby CWA section 402(p)(2)(6), as well astoday’s rule.

1. Urban DevelopmentUrbanization alters the natural

infiltration capability of the land andgenerates a host of pollutants that areassociated with the activities of densepopulations, thus causing an increase instorm water runoff volumes andpollutant loadings in storm waterdischarged to receiving waterbodies(U.S. EPA, 1992). Urban developmentincreases the amount of impervioussurface in a watershed as farmland,forests, and meadowlands with naturalinfiltration characteristics are convertedinto buildings with rooftops, driveways,sidewalks, roads, and parking lots withvirtually no ability to absorb stormwater. Storm water and snow-meltrunoff wash over these imperviousareas, picking up pollutants along theway while gaining speed and volumebecause of their inability to disperse andfilter into the ground. What results arestorm water flows that are higher involume, pollutants, and temperaturethan the flows in less impervious areas,which have more natural vegetation andsoil to filter the runoff (U.S. EPA, 1997.Urbanization and Streams: Studies ofHydrologic Impacts. EPA 841–R–97-009.Office of Water. Washington, DC).

Studies reveal that the level ofimperviousness in an area stronglycorrelates with the quality of the nearbyreceiving waters. For example, a studyin the Puget Sound lowland ecoregionfound that when the level of basindevelopment exceeded 5 percent of thetotal impervious area, the biologicalintegrity and physical habitat conditionsthat are necessary to support naturalbiological diversity and complexitydeclined precipitously (May, C.W., E.B.Welch, R.R. Horner, J.R. Karr, and B.W.May. 1997. Quality Indices forUrbanization Effects in Puget SoundLowland Streams, Technical Report No.154. University of Washington WaterResources Series). Research conductedin numerous geographical areas,concentrating on various variables andemploying widely different methods,has revealed a similar conclusion:stream degradation occurs at relativelylow levels of imperviousness, such as 10to 20 percent (even as low as 5 to 10

percent according to the findings of theWashington study referenced above)(Schueler, T.R. 1994. ‘‘The Importanceof Imperviousness.’’ WatershedProtection Techniques 1(3); May, C.,R.R. Horner, J.R. Karr, B.W. Mar, andE.B. Welch. 1997. ‘‘Effects OfUrbanization On Small Streams In ThePuget Sound Lowland Ecoregion.’’Watershed Protection Techniques 2(4);Yoder, C.O., R.J. Miltner, and D. White.1999. ‘‘Assessing the Status of AquaticLife Designated Uses in Urban andSuburban Watersheds.’’ In Proceedings:National Conference on RetrofitsOpportunities in Urban Environments.EPA 625–R–99–002, Washington, DC;Yoder, C.O and R.J. Miltner. 1999.‘‘Assessing Biological Quality andLimitations to Biological Potential inUrban and Suburban Watersheds inOhio.’’ In Comprehensive Stormwater &Aquatic Ecosystem ManagementConference Papers, Auckland, NewZealand). Furthermore, research hasindicated that few, if any, urban streamscan support diverse benthiccommunities at imperviousness levelsof 25 percent or more. An area ofmedium density single family homescan be anywhere from 25 percent tonearly 60 percent impervious,depending on the design of the streetsand parking (Schueler, 1994).

In addition to impervious areas, urbandevelopment creates new pollutionsources as population density increasesand brings with it proportionatelyhigher levels of car emissions, carmaintenance wastes, pet waste, litter,pesticides, and household hazardouswastes, which may be washed intoreceiving waters by storm water ordumped directly into storm drainsdesigned to discharge to receivingwaters. More people in less spaceresults in a greater concentration ofpollutants that can be mobilized by, ordisposed into, storm water dischargesfrom municipal separate storm sewersystems. A modeling system developedfor the Chesapeake Bay indicated thatcontamination of the Bay and itstributaries from runoff is comparable to,if not greater than, contamination fromindustrial and sewage sources (Cohn-Lee, R. and D. Cameron. 1992. ‘‘UrbanStormwater Runoff Contamination ofthe Chesapeake Bay: Sources andMitigation.’’ The EnvironmentalProfessional, Vol. 14).

a. Large-Scale Studies and AssessmentsIn support of today’s regulatory

designation of MS4s in urbanized areas,the Agency relied on broad-basedassessments of urban storm water runoffand related water quality impacts, aswell as more site-specific studies. The

first national assessment of urban runoffcharacteristics was completed for theNationwide Urban Runoff Program(NURP) study (U.S. EPA. 1983. Resultsof the Nationwide Urban RunoffProgram, Volume 1—Final Report.Office of Water. Washington, D.C.). TheNURP study is the largest nationwideevaluation of storm water discharges,which includes adverse impacts andsources, undertaken to date.

EPA conducted the NURP study tofacilitate understanding of the nature ofurban runoff from residential,commercial, and industrial areas. Oneobjective of the study was tocharacterize the water quality ofdischarges from separate storm sewersystems that drain residential,commercial, and light industrial(industrial parks) sites. Storm watersamples from 81 residential andcommercial properties in 22 urban/suburban areas nationwide werecollected and analyzed during the 5-year period between 1978 and 1983. Themajority of samples collected in thestudy were analyzed for eightconventional pollutants and three heavymetals.

Data collected under the NURP studyindicated that discharges from separatestorm sewer systems draining runofffrom residential, commercial, and lightindustrial areas carried more than 10times the annual loadings of totalsuspended solids (TSS) than dischargesfrom municipal sewage treatment plantsthat provide secondary treatment. TheNURP study also indicated that runofffrom residential and commercial areascarried somewhat higher annualloadings of chemical oxygen demand(COD), total lead, and total copper thaneffluent from secondary treatmentplants. Study findings showed that fecalcoliform counts in urban runofftypically range from tens to hundreds ofthousands per hundred milliliters ofrunoff during warm weather conditions,with the median for all sites beingaround 21,000/100 ml. This is generallyconsistent with studies that found thatfecal coliform mean values range from1,600 coliform fecal units (CFU)/100 mlto 250,000 cfu/100 ml (Makepeace, D.K.,D.W. Smith, and S.J. Stanley. 1995.‘‘Urban Storm Water Quality: Summaryof Contaminant Data.’’ Critical Reviewsin Environmental Science andTechnology 25(2):93-139). Makepeace,et al., summarized ranges ofcontaminants from storm water,including physical contaminants suchas total solids (76—36,200 mg/L) andcopper (up to 1.41 mg/L); organicchemicals; organic compounds, such asoil and grease (up to 110 mg/L); andmicroorganisms.



Monitoring data summarized in theNURP study provided importantinformation about urban runoff fromresidential, commercial, and lightindustrial areas. The study concludedthat the quality of urban runoff can beaffected adversely by several sources ofpollution that were not directlyevaluated in the study, including illicitdischarges, construction site runoff, andillegal dumping. Data from the NURPstudy were analyzed further in the U.S.Geological Survey (USGS) Urban StormWater Data Base for 22 MetropolitanAreas Throughout the United Statesstudy (Driver, N.E., M.H. Mustard, R.B.Rhinesmith, and R.F. Middleburg. 1985.U.S. Geological Survey Urban StormWater Data Base for 22 MetropolitanAreas Throughout the United States.Report No. 85–337 USGS. Lakewood,CO). The USGS report summarizedadditional monitoring data compiledduring the mid-1980s, covering 717storm events at 99 sites in 22metropolitan areas and documentedproblems associated with metals andsediment concentrations in urban stormwater runoff. More recent reports haveconfirmed the pollutant concentrationdata collected in the NURP study(Marsalek, J. 1990. ‘‘Evaluation ofPollutant Loads from Urban NonpointSources.’’ Wat. Sci. Tech. 22(10/11):23–30; Makepeace, et al., 1995).

Commenters argued that the NURPstudy does not support EPA’scontention that urban activitiessignificantly jeopardize attainment ofwater quality standards. One commenterargued that the NURP study and the1985 USGS study are seriously out ofdate. Because they were issued 10 yearsor more before the implementation ofthe current storm water permit program,the data in those reports do not reflectconditions that exist afterimplementation of permits issued byauthorized States and EPA for stormwater from construction sites, largemunicipalities, and industrial activities.

In response, EPA notes that it is notrelying solely on the NURP study todescribe current water qualityimpairment. Rather, EPA is citing NURPas a source of data on typical pollutantconcentrations in urban runoff. Recentstudies have not found significantlydifferent pollutant concentrations inurban runoff when compared to theoriginal NURP data (see Makepeace, etal., 1995; Marsalek, 1990; and Pitt, et al.,1995).

America’s Clean Water—the States’Nonpoint Source Assessment(Association of State and InterstateWater Pollution Control Administrators(ASIWPCA). 1985. America’s CleanWater—The States’ Nonpoint Source

Assessment. Prepared in cooperationwith the U.S. EPA, Office of Water,Washington, DC), a comprehensivestudy of diffuse pollution sourcesconducted under the sponsorship of theAssociation of State and Interstate WaterPollution Control Administrators(ASIWPCA) and EPA revealed that 38States reported urban runoff as a majorcause of designated beneficial useimpairment and 21 States reportedstorm water runoff from constructionsites as a major cause of beneficial useimpairment. In addition, the 1996305(b) Report (U.S. EPA. 1998. TheNational Water Quality Inventory, 1996Report to Congress. EPA 841–R–97–008.Office of Water. Washington, DC),provides a national assessment of waterquality based on biennial reportssubmitted by the States as requiredunder CWA section 305(b) of the CWA.In the CWA 305(b) reports, States,Tribes, and Territories assess theirindividual water quality controlprograms by examining the attainmentor nonattainment of the designated usesassigned to their rivers, lakes, estuaries,wetlands, and ocean shores. Adesignated use is the legally applicableuse specified in a water quality standardfor a watershed, waterbody, or segmentof a waterbody. The designated use isthe desirable use that the water qualityshould support. Examples of designateduses include drinking water supply,primary contact recreation (swimming),and aquatic life support. Each CWA305(b) report indicates the assessedfraction of a State’s waters that are fullysupporting, partially supporting, or notsupporting designated beneficial uses.

In their reports, States, Tribes, andTerritories first identified and thenassigned the sources of water qualityimpairment for each impairedwaterbody using the followingcategories: industrial, municipalsewage, combined sewer overflows,urban runoff/storm sewers, agricultural,silvicultural, construction, resourceextraction, land disposal, hydrologicmodification, and habitat modification.The 1996 Inventory, based on acompilation of 60 individual 305(b)reports submitted by States, Tribes, andTerritories, assessed the followingpercentages of total waters nationwide:19 percent of river and stream miles; 40percent of lake, pond, and reservoiracres; 72 percent of estuary squaremiles; and 6 percent of ocean shorelinewaters. The 1996 Inventory indicatedthat approximately 40 percent of theNation’s assessed rivers, lakes, andestuaries are impaired. Waterbodiesdeemed as ‘‘impaired’’ are either

partially supporting designated uses ornot supporting designated uses.

The 1996 Inventory also found urbanrunoff/discharges from storm sewers tobe a major source of water qualityimpairment nationwide. Urban runoff/storm sewers were found to be a sourceof pollution in 13 percent of impairedrivers; 21 percent of impaired lakes,ponds, and reservoirs; and 45 percent ofimpaired estuaries (second only toindustrial discharges). In addition,urban runoff was found to be theleading cause of ocean impairment forthose ocean miles surveyed.

In addition, a recent USGS study ofurban watersheds across the UnitedStates has revealed a link between urbandevelopment and contamination of localwaterbodies. The study found thehighest levels of organic contaminants,known as polycyclic aromatichydrocarbons (PAHs) (products ofcombustion of wood, grass, and fossilfuels), in the reservoirs of urbanizedwatersheds (U.S. Geological Survey(USGS). 1998. Research Reveals LinkBetween Development andContamination in Urban Watersheds.USGS news release. USGS NationalWater-Quality Assessment Program).

Urban storm water also can contributesignificant amounts of toxicants toreceiving waters. Pitt, et. al. (1993),found heavy metal concentrations in themajority of samples analyzed. Industrialor commercial areas were likely to bethe most significant pollutant sourceareas (Pitt, R., R. Field, M. Lalor, M.Brown 1993. ‘‘Urban stormwater toxicpollutants: assessment, sources, andtreatability’’ Water EnvironmentResearch, 67(3):260–75).

b. Local and Watershed-Based StudiesIn addition to the large-scale

nationwide studies and assessments, anumber of local and watershed-basedstudies from across the country havedocumented the detrimental effects ofurban storm water runoff on waterquality. A study of urban streams inMilwaukee County, Wisconsin, foundlocal streams to be highly degraded dueprimarily to urban runoff, while threestudies in the Atlanta, Georgia, regionwere characterized as being ‘‘the firstdocumentation in the Southeast of thestrong negative relationship betweenurbanization and stream quality that hasbeen observed in other ecoregions’’(Masterson, J. and R. Bannerman. 1994.‘‘Impacts of Storm Water Runoff onUrban Streams in Milwaukee County,Wisconsin.’’ Paper presented at NationalSymposium on Water Quality:American Water Resources Association;Schueler, T.R. 1997. ‘‘Fish Dynamics inUrban Streams Near Atlanta, Georgia.’’



Technical Note 94. WatershedProtection Techniques 2(4)). Severalother studies, including thoseperformed in Arizona (MaricopaCounty), California (San Jose’s CoyoteCreek), Massachusetts (Green River),Virginia (Tuckahoe Creek), andWashington (Puget Sound lowlandecoregion), all had the same finding:runoff from urban areas greatly impairstream ecology and the health of aquaticlife; the more heavily developed thearea, the more detrimental the effects(Lopes, T. and K. Fossum. 1995.‘‘Selected Chemical Characteristics andAcute Toxicity of Urban Stormwater,Streamflow, and Bed Material, MaricopaCounty, Arizona.’’ Water ResourcesInvestigations Report 95–4074. USGS;Pitt, R. 1995. ‘‘Effects of Urban Runoffon Aquatic Biota.’’ In Handbook ofEcotoxicology; Pratt, J. and R. Coler.1979. ‘‘Ecological Effects of UrbanStormwater Runoff on BenthicMacroinvertebrates Inhabiting the GreenRiver, Massachusetts.’’ CompletionReport Project No. A–094. WaterResources Research Center. Universityof Massachusetts at Amherst.; Schueler,T.R. 1997. ‘‘Historical Change in aWarmwater Fish Community in anUrbanizing Watershed.’’ Technical Note93. Watershed Protection Techniques2(4); May, C., R. Horner, J. Karr, B. Mar,and E. Welch. 1997. ‘‘Effects OfUrbanization On Small Streams In ThePuget Sound Lowland Ecoregion.’’Watershed Protection Techniques 2(4)).

Pitt and others also described thereceiving water effects on aquaticorganisms associated with urban runoff(Pitt, R.E. 1995. ‘‘Biological Effects ofUrban Runoff Discharges’’ InStormwater Runoff and ReceivingSystems: Impact, Monitoring, andAssessment, ed. E.E Herricks, LewisPublishers; Crunkilton, R., J. Kleist, D.Bierman, J. Ramcheck, and W. DeVita.1999. ‘‘Importance of Toxicity as aFactor Controlling the Distribution ofAquatic Organisms in an UrbanStream.’’ In Comprehensive Stormwater& Aquatic Ecosystem ManagementConference Papers. Auckland, NewZealand).

In Wisconsin, runoff samples werecollected from streets, parking lots,roofs, driveways, and lawns. Sourceareas were broken up into residential,commercial, and industrial. Geometricmean concentration data for residentialareas included total solids of about 500–800 mg/L from streets and 600 mg/Lfrom lawns. Fecal coliform data fromresidential areas ranged from 34,000 to92,000 cfu/100 mL for streets anddriveways. Contaminant concentrationdata from commercial and industrialsource areas were lower for total solids

and fecal coliform, but higher for totalzinc (Bannerman, R.T., D.W. Owens,R.B. Dods, and N.J. Hornewer. 1993.‘‘Sources of Pollutants in WisconsinStormwater.’’ Wat. Sci. Tech. 28(3–5):241–59).

Bannerman, et al. also found thatstreets contribute higher loads ofpollutants to urban storm water thanany other residential developmentsource. Two small urban residentialwatersheds were evaluated to determinethat lawns and streets are the largestsources of total and dissolvedphosphorus in the basins (Waschbusch,R.J., W.R. Selbig, and R.T. Bannerman.1999. ‘‘Sources of Phosphorus inStormwater and Street Dirt from TwoUrban Residential Basins In Madison,Wisconsin, 1994–95.’’ Water ResourcesInvestigations Report 99–4021. U.S.Geological Survey). A number of otherstudies have indicated that urbanroadways often contain significantquantities of metal elements and solids(Sansalone, J.J. and S.G. Buchberger.1997. ‘‘Partitioning and First Flush ofMetals in Urban Roadway StormWater.’’ ASCE Journal of EnvironmentalEngineering 123(2); Sansalone, J.J., J.M.Koran, J.A. Smithson, and S.G.Buchberger. 1998. ‘‘PhysicalCharacteristics of Urban RoadwaySolids Transported During Rain Events’’ASCE Journal of EnvironmentalEngineering 124(5); Klein, L.A., M.Lang, N. Nash, and S.L. Kirschner. 1974.‘‘Sources of Metals in New York CityWastewater’’ J. Water Pollution ControlFederation 46(12):2653–62; Barrett, M.E,R.D. Zuber, E.R. Collins, J.F. Malina, R.J.Charbeneau, and G.H Ward., 1993. ‘‘AReview and Evaluation of LiteraturePertaining to the Quantity and Controlof Pollution from Highway Runoff andConstruction.’’ Research Report 1943–1.Center for Transportation Research,University of Texas, Austin).

c. Beach Closings/AdvisoriesUrban wet weather flows have been

recognized as the primary sources ofestuarine pollution in coastalcommunities. Urban storm water runoff,sanitary sewer overflows, and combinedsewer overflows have become the largestcauses of beach closings in the UnitedStates in the past three years. Stormwater discharges from urban areas notonly pose a threat to the ecologicalenvironment, they also can substantiallyaffect human health. A survey of coastaland Great Lakes communities reportsthat in 1998, more than 1,500 beachclosings and advisories were associatedwith storm water runoff (NaturalResources Defense Council. 1999. ‘‘AGuide to Water Quality at VacationBeaches’’ New York, NY). Other reports

also document public health, shellfishbed, and habitat impacts from stormwater runoff, including more than 823beach closings/advisories issued in 1995and more than 407 beach closing/advisories issued in 1996 due to urbanrunoff (Natural Resources DefenseCouncil. 1996. Testing the WatersVolume VI: Who Knows What You’reGetting Into. New York, NY; NRDC.1997. Testing the Waters Volume VII:How Does Your Vacation Beach Rate.New York, NY; Morton, T. 1997.Draining to the Ocean: The Effects ofStormwater Pollution on Coastal Waters.American Oceans Campaign, SantaMonica, CA). The EpidemiologicalStudy of Possible Adverse Health Effectsof Swimming in Santa Monica Bay(Haile, R.W., et. al. 1996. ‘‘AnEpidemiological Study of PossibleAdverse Health Effects of Swimming inSanta Monica Bay.’’ Final Reportprepared for the Santa Monica BayRestoration Project) concluded thatthere is a 57 percent higher rate ofillness in swimmers who swim adjacentto storm drains than in swimmers whoswim more than 400 yards away fromstorm drains. This and other studiesdocument a relationship betweengastrointestinal illness in swimmers andwater quality, the latter of which can beheavily compromised by polluted stormwater discharges.

2. Non-Storm Water Discharges ThroughMunicipal Storm Sewers

Studies have shown that dischargesfrom MS4s often include wastes andwastewater from non-storm watersources. Federal regulations(§ 122.26(b)(2)) define an illicitdischarge as ‘‘* * * any discharge to anMS4 that is not composed entirely ofstorm water * * *,’’ with someexceptions. These discharges are‘‘illicit’’ because municipal storm sewersystems are not designed to accept,process, or discharge such wastes.Sources of illicit discharges include, butare not limited to: sanitary wastewater;effluent from septic tanks; car wash,laundry, and other industrialwastewaters; improper disposal of autoand household toxics, such as usedmotor oil and pesticides; and spills fromroadway and other accidents.

Illicit discharges enter the systemthrough either direct connections (e.g.,wastewater piping either mistakenly ordeliberately connected to the stormdrains) or indirect connections (e.g.,infiltration into the MS4 from crackedsanitary systems, spills collected bydrain outlets, and paint or used oildumped directly into a drain). Theresult is untreated discharges thatcontribute high levels of pollutants,



including heavy metals, toxics, oil andgrease, solvents, nutrients, viruses andbacteria into receiving waterbodies. TheNURP study, discussed earlier, foundthat pollutant levels from illicitdischarges were high enough tosignificantly degrade receiving waterquality and threaten aquatic, wildlife,and human health. The study notedparticular problems with illicitdischarges of sanitary wastes, which canbe directly linked to high bacterialcounts in receiving waters and can bedangerous to public health.

Because illicit discharges to MS4s cancreate severe widespread contaminationand water quality problems, severalmunicipalities and urban countiesperformed studies to identify andeliminate such discharges. In Michigan,the Ann Arbor and Ypsilanti waterquality projects inspected 660businesses, homes, and other buildingsand identified 14 percent of thebuildings as having improper stormsewer drain connections. The programassessment revealed that, on average, 60percent of automobile-relatedbusinesses, including service stations,automobile dealerships, car washes,body shops, and light industrialfacilities, had illicit connections tostorm sewer drains. The programassessment also showed that a majorityof the illicit discharges to the stormsewer system resulted from improperplumbing and connections, which hadbeen approved by the municipalitywhen installed (Washtenaw CountyStatutory Drainage Board. 1987. HuronRiver Pollution Abatement Program).

In addition, an inspection of urbanstorm water outfalls draining into InnerGrays, Washington, indicated that 32percent of these outfalls had dryweather flows. Of these flows, 21percent were determined to havepollutant levels higher than thepollutant levels expected in typicalurban storm water runoff characterizedin the NURP study (U.S. EPA. 1993.Investigation of Inappropriate PollutantEntries Into Storm Drainage Systems—A User’s Guide. EPA 600/R–92/238.Office of Research and Development.Washington, DC). That same documentreports a study in Toronto, Canada, thatfound that 59 percent of outfalls fromthe MS4 had dry-weather flows.Chemical tests revealed that 14 percentof these dry-weather flows weredetermined to be grossly polluted.

Inflows from aging sanitary sewercollection systems are one of the mostserious illicit discharge-relatedproblems. Sanitary sewer systemsfrequently develop leaks and cracks,resulting in discharges of pollutants toreceiving waters through separate storm

sewers. These pollutants includesanitary waste and materials from sewermain construction (e.g., asbestoscement, brick, cast iron, vitrified clay).Municipalities have long recognized thereverse problem of storm waterinfiltration into sanitary sewercollection systems; this type ofinfiltration often disrupts the operationof the municipal sewage treatmentplant.

The improper disposal of materials isanother illicit discharge-related problemthat can result in contaminateddischarges from separate storm sewersystems in two ways. First, materialsmay be disposed of directly in a catchbasin or other storm water conveyance.Second, materials disposed of on theground may either drain directly to astorm sewer or be washed into a stormsewer during a storm event. Improperdisposal of materials to street catchbasins and other storm sewer inletsoften occurs when people mistakenlybelieve that disposal to such areas is anenvironmentally sound practice. Part ofthe confusion may occur because someareas are served by combined sewersystems, which are part of the sanitarysewer collection system, and peopleassume that materials discharged to acatch basin will reach a municipalsewage treatment plant. Materials thatare commonly disposed of improperlyinclude used motor oil; household toxicmaterials; radiator fluids; and litter,such as disposable cups, cans, and fast-food packages. EPA believes that therehas been increasing success inaddressing these problems throughinitiatives such as storm drain stencilingand recycling programs, includinghousehold hazardous waste specialcollection days.

Programs that reduce illicit dischargesto separate storm sewers have improvedwater quality in several municipalities.For example, Michigan’s Huron RiverPollution Abatement Program found theelimination of illicit connections causeda measurable improvement in the waterquality of the Washtenaw County stormsewers and the Huron River(Washtenaw County Statutory DrainageBoard, 1987). In addition, an illicitdetection and remediation program inHouston, Texas, has significantlyimproved the water quality of BuffaloBayou. Houston estimated that illicitflows from 132 sources had a flow rateas high as 500 gal/min. Sources of theillicit discharges included broken andplugged sanitary sewer lines, illicitconnections from sanitary lines to stormsewer lines, and floor drain connections(Glanton, T., M.T. Garrett, and B.Goloby. 1992. The Illicit Connection: Is

It the Problem? Wat. Env. Tech. 4(9):63–8).

3. Construction Site RunoffStorm water discharges generated

during construction activities can causean array of physical, chemical, andbiological water quality impacts.Specifically, the biological, chemical,and physical integrity of the waters maybecome severely compromised. Waterquality impairment results, in part,because a number of pollutants arepreferentially absorbed onto mineral ororganic particles found in fine sediment.The interconnected process of erosion(detachment of the soil particles),sediment transport, and delivery is theprimary pathway for introducing keypollutants, such as nutrients(particularly phosphorus), metals, andorganic compounds into aquatic systems(Novotny, V. and G. Chesters. 1989.‘‘Delivery of Sediment and Pollutantsfrom Nonpoint Sources: A WaterQuality Perspective.’’ Journal of Soiland Water Conservation, 44(6):568–76).Estimates indicate that 80 percent of thephosphorus and 73 percent of theKjeldahl nitrogen in streams isassociated with eroded sediment (U.S.Department of Agriculture. 1989. ‘‘TheSecond RCA Appraisal, Soil, Water andRelated Resources on Nonfederal Landin the United States, Analysis ofCondition and Trends.’’ Cited inFennessey, L.A.J., and A.R. Jarrett. 1994.‘‘The Dirt in a Hole: a Review ofSedimentation Basins for Urban Areasand Construction Sites.’’ Journal of Soiland Water Conservation, 49(4):317–23).

In watersheds experiencing intensiveconstruction activity, the localizedimpacts of water quality may be severebecause of high pollutant loads,primarily sediments. Siltation is thelargest cause of impaired water qualityin rivers and the third largest cause ofimpaired water quality in lakes (U.S.EPA, 1998). The 1996 305(b) report alsofound that construction site dischargeswere a source of pollution in: 6 percentof impaired rivers; 11 percent ofimpaired lakes, ponds, and reservoirs;and 11 percent of impaired estuaries.Introduction of coarse sediment (coarsesand or larger) or a large amount of finesediment is also a concern because ofthe potential of filling lakes andreservoirs (along with the associatedremediation costs for dredging), as wellas clogging stream channels (e.g.,Paterson, R.G., M.I. Luger, E.J. Burby,E.J. Kaiser, H.R. Malcolm, and A.C.Beard. 1993. ‘‘Costs and Benefits ofUrban Erosion and Sediment Control:North Carolina Experience.’’Environmental Management 17(2):167–78). Large inputs of coarse sediment into



stream channels initially will reducestream depth and minimize habitatcomplexity by filling in pools (U.S.EPA. 1991. Monitoring Guidelines toEvaluate Effects of Forestry Activities onStreams in the Pacific Northwest andAlaska. EPA 910/9–91–001. Seattle,WA). In addition, studies have shownthat stream reaches affected byconstruction activities often extend welldownstream of the construction site. Forexample, between 4.8 and 5.6kilometers of stream below constructionsites in the Patuxent River watershedwere observed to be impacted bysediment inputs (Fox, H.L. 1974.‘‘Effects of Urbanization on the PatuxentRiver, with Special Emphasis onSediment Transport, Storage, andMigration.’’ Ph.D. dissertation. JohnsHopkins University, Baltimore, MD. AsCited in Klein, R.D. 1979. ‘‘Urbanizationand Stream Quality Impairment.’’ WaterResources Bulletin 15(4): 948–63).

A primary concern at mostconstruction sites is the erosion andtransport process related to finesediment because rain splash, rills (i.e.,a channel small enough to be removedby normal agricultural practices andtypically less than 1-foot deep), andsheetwash encourage the detachmentand transport of this material towaterbodies (Storm Water Quality TaskForce. 1993. California Storm WaterBest Management Practice Handbooks—Construction Activity. Oakland, CA:Blue Print Service). Construction sitesalso can generate other pollutantsassociated with onsite wastes, such assanitary wastes or concrete truckwashout.

Although streams and rivers naturallycarry sediment loads, erosion fromconstruction sites and runoff fromdeveloped areas can elevate these loadsto levels well above those inundisturbed watersheds. It is generallyacknowledged that erosion rates fromconstruction sites are much greater thanfrom almost any other land use(Novotny, V. and H. Olem. 1994. WaterQuality: Prevention, Identification, andManagement of Diffuse Pollution. NewYork: Van Nostrand Reinhold). Resultsfrom both field studies and erosionmodels indicate that erosion rates fromconstruction sites are typically an orderof magnitude larger than row crops andseveral orders of magnitude greater thanrates from well-vegetated areas, such asforests or pastures (USDA. 1970.‘‘Controlling Erosion on ConstructionSites.’’ Agriculture Information Bulletin,Washington, DC; Meyer, L.D., W.H.Wischmeier, and W.H. Daniel. 1971.‘‘Erosion, Runoff and Revegetation ofDenuded Construction Sites.’’Transactions of the ASAE 14(1):138–41;

Owen, O.S. 1975. Natural ResourceConservation. New York: MacMillan. Ascited in Paterson, et al., 1993).

A recent review of the efficiency ofsediment basins indicated that inflowsfrom 12 construction sites had a meanTSS concentration of about 4,500 mg/L(Brown, W.E. 1997. ‘‘The Limits ofSettling.’’ Technical Note No. 83.Watershed Protection Techniques 2(3)).In Virginia, suspended sedimentconcentrations from housingconstruction sites were measured at500–3,000 mg/L, or about 40 timeslarger than the concentrations fromalready-developed urban areas (Kuo,C.Y. 1976. ‘‘Evaluation of SedimentYields Due to Urban Development.’’Bulletin No. 98. Virginia WaterResources Research Center, VirginiaPolytechnic Institute and StateUniversity, Blacksburg, VA).

Similar impacts from storm waterrunoff have been reported in a numberof other studies. For example, Daniel, etal., monitored three residentialconstruction sites in southeasternWisconsin and determined that annualsediment yields were more than 19times the yields from agricultural areas(Daniel, T.C., D. McGuire, D. Stoffel,and B. Miller. 1979. ‘‘Sediment andNutrient Yield from ResidentialConstruction Sites’’ Journal ofEnvironmental Quality 8(3):304–08).Daniel, et al., identified total stormrunoff, followed by peak storm runoff,as the most influential factorscontrolling the sediment loadings fromresidential construction sites. Daniel, etal., also found that suspended sedimentconcentrations were 15,000–20,000 mg/L in moderate events and up to 60,000mg/L in larger events.

Wolman and Schick (Wolman, M.G.and A.P. Schick. 1967. ‘‘Effects ofConstruction on Fluvial Sediment,Urban and Suburban Areas ofMaryland.’’ Water Resources Research3(2): 451–64) studied the impacts ofdevelopment on fluvial systems inMaryland and determined that sedimentyields in areas undergoing constructionwere 1.5 to 75 times greater thandetected in natural or agriculturalcatchments. The authors summarize thepotential impacts of construction onsediment yields by stating that ‘‘theequivalent of many decades of naturalor even agricultural erosion may takeplace during a single year from areascleared for construction’’ (Wolman andSchick, 1967).

A number of studies have examinedthe effects of road construction onerosion rates and sediment yields. Ahighway construction project in WestVirginia disturbed only 4.2 percent of a4.72-square-mile basin, but resulted in a

three-fold increase in suspendedsediment yields (Downs, S.C. and D.H.Appel. 1986. Progress Report on theEffects of Highway Construction onSuspended-Sediment Discharge in theCoal River and Trace Fork, WestVirginia, 1975–81. USGS WaterResources Investigations Report 84–4275. Charlestown, WV). During thelargest storm event, it was estimatedthat 80 percent of the sediment in thestream originated from the constructionsite. As is often the case, the increase insuspended sediment load could not bedetected further downstream, where thedrainage area was more than 50 timeslarger (269 square miles).

Another study evaluated the effect of290 acres of highway construction onwatersheds ranging in size from 5 to 38square miles. Suspended sediment loadsin the smallest watershed increased by250 percent, and the estimated sedimentyield from the construction area was 37tons/acre during a 2-year period(Hainly, R.A. 1980. The Effects ofHighway Construction on SedimentDischarge into Blockhouse Creek andStream Valley Run, Pennsylvania. USGSWater Resources Investigations Report80–68. Harrisburg, PA). A more recentstudy in Hawaii showed that highwayconstruction increased suspendedsediment loads by 56 to 76 percent inthree small (1 to 4 square mile) basins(Hill, B.R. 1996. Streamflow andSuspended-Sediment Loads Before andDuring Highway Construction, NorthHalawa, Haiku, and Kamooalii DrainageBasins, Oahu, Hawaii, 1983–91. USGSWater Resources Investigations Report96–4259. Honolulu, HI). A 1970 studydetermined that sediment yields fromconstruction areas can be as much as500 times the levels detected in ruralareas (National Association of CountiesResearch Foundation. 1970. Urban SoilErosion and Sediment Control. WaterPollution Control Research Series,Program #15030 DTL. Federal WaterQuality Administration, U.S.Department of Interior. Washington, DC)

Yorke and Herb (Yorke, T.H., and W.J.Herb. 1978. Effects of Urbanization onStreamflow and Sediment Transport inthe Rock Creek and Anacostia RiverBasins, Montgomery County, Maryland,1962–74. USGS Professional Paper 1003,Washington, DC) evaluated ninesubbasins in the Maryland portion ofthe Anacostia watershed for more thana decade in an effort to define theimpacts of changing land use/land coveron sediment in runoff. Average annualsuspended sediment yields forconstruction sites ranged from 7 to 100tons/acre. Storm water discharges fromconstruction sites that occur when theland area is disturbed (and prior to



surface stabilization) can significantlyimpact designated uses. Examples ofdesignated uses include public watersupply, recreation, and propagation offish and wildlife. The siltation processdescribed previously can threaten allthree designated uses by (1) depositinghigh concentrations of pollutants inpublic water supplies; (2) decreasing thedepth of a waterbody, which can reducethe volume of a reservoir or result inlimited use of a water body by boaters,swimmers, and other recreationalenthusiasts; and (3) directly impairingthe habitat of fish and other aquaticspecies, which can limit their ability toreproduce.

Excess sediment can cause a numberof other problems for waterbodies. It isassociated with increased turbidity andreduced light penetration in the watercolumn, as well as more long-termeffects associated with habitatdestruction and increased difficulty infiltering drinking water. Numerousstudies have examined the effect thatexcess sediment has on aquaticecosystems. For example, sediment fromroad construction activity in NorthernVirginia reduced aquatic insect and fishcommunities by up to 85 percent and 40percent, respectively (Reed, J.R. 1997.‘‘Stream Community Responses to RoadConstruction Sediments.’’ Bulletin No.97. Virginia Water Resources ResearchCenter, Virginia Polytechnic Institute,Blacksburg, VA. As cited in Klein, R.D.1990. A Survey of Quality of Erosionand Sediment Control and Storm WaterManagement in the Chesapeake BayWatershed. Annapolis, MD: ChesapeakeBay Foundation). Other studies haveshown that fine sediment (fine sand orsmaller) adversely affects aquaticecosystems by reducing lightpenetration, impeding sight-feeding,smothering benthic organisms, abradinggills and other sensitive structures,reducing habitat by clogging interstitialspaces within a streambed, andreducing the intergravel dissolvedoxygen by reducing the permeability ofthe bed material (Everest, F.H., J.C.Beschta, K.V. Scrivener, J.R. Koski, J.R.Sedell, and C.J. Cederholm. 1987. ‘‘FineSediment and Salmonid Production: AParadox.’’ Streamside Management:Forestry and Fishery Interactions,Contract No. 57, Institute of ForestResources, University of Washington,Seattle, WA). For example, 4.8 and 5.6kilometers of stream below constructionsites in the Patuxent River watershed inMaryland were found to have finesediment amounts 15 times greater thannormal (Fox, 1974. As cited in Klein,1979). Benthic organisms in thestreambed can be smothered by

sediment deposits, causing changes inaquatic flora and fauna, such as fishspecies composition (Wolman andSchick, 1967). In addition, the primarycause of coral reef degradation in coastalareas is attributed to land disturbancesand dredging activities due to urbandevelopment (Rogers, C.S. 1990.‘‘Responses of Coral Reefs and ReefOrganizations to Sedimentation.’’Marine Ecology Progress Series, 62:185–202).

EPA believes that the water qualityimpact from small construction sites isas high as or higher than the impactfrom larger sites on a per acre basis. Theconcentration of pollutants in the runofffrom smaller sites is similar to theconcentrations in the runoff from largersites. The proportion of sediment thatmakes it from the construction site tosurface waters is likely the same forlarger and smaller construction sites inurban areas because the runoff fromeither site is usually delivered directlyto the storm drain network where thereis no opportunity for the sediment to befiltered out.

The expected contribution of totalsediment yields from small sitesdepends, in part, on the extent to whicherosion and sedimentation controls arebeing applied. Because current stormwater regulations are more likely torequire erosion and sedimentationcontrols on larger sites in urban areas,smaller construction sites that lack suchprograms are likely to contribute adisproportionate amount of the totalsediment from construction activities(MacDonald, L.H. 1997. TechnicalJustification for Regulating ConstructionSites 1–5 Acres in Size. Unpublishedreport submitted to U.S. EPA,Washington, DC). Smaller constructionsites are less likely to have an effectiveplan to control erosion andsedimentation, are less likely toproperly implement and maintain theirplans, and are less likely to be inspected(Brown, W. and D. Caraco. 1997.Controlling Storm Water RunoffDischarges from Small ConstructionSites: A National Review. Submitted toOffice of Wastewater Management, U.S.EPA, Washington, DC., by the Center forWatershed Protection, Silver Spring,MD). The proportion of sediment thatmakes it from the construction site tosurface waters is likely the same forlarger and smaller construction sites inurban areas because the runoff fromeither site is usually delivered directlyto the storm drain network, where thereis no opportunity for the sediment to befiltered out.

To confirm its belief that sedimentyields from small sites are as high as orhigher than the 20 to 150 tons/acre/year

measured from larger sites, EPA gave agrant to the Dane County, WisconsinLand Conservation Department, incooperation with the USGS, to evaluatesediment runoff from two smallconstruction sites. The first was a 0.34acre residential lot and the second wasa 1.72 acre commercial officedevelopment. Runoff from the sites waschanneled to a single discharge point formonitoring. Each site was monitoredbefore, during, and after construction.

The Dane County study found thattotal solids concentrations from thesesmall sites are similar to total solidsconcentrations from larger constructionsites. Results show that for both of thestudy sites, total solids and suspendedsolids concentrations were significantlyhigher during construction than eitherbefore or after construction. Forexample, preconstruction total solidsconcentrations averaged 642 mg/Lduring the period when ryegrass wasestablished, active construction totalsolids concentrations averaged 2,788mg/L, and post-construction total solidsconcentrations averaged 132 mg/L (on apollutant load basis, this equaled 7.4 lbspreconstruction, 35 lbs duringconstruction, and 0.6 lbs post-construction for total solids). While thissite was not properly stabilized beforeconstruction, after construction wascomplete and the site was stabilized,post-construction concentrations weremore than 20 times less than duringconstruction. The results were evenmore dramatic for the commercial site.The commercial site had onepreconstruction event, which resultedin total solids concentrations of 138 mg/L, while active construction averagedmore than 15,000 mg/L and post-construction averaged only 200 mg/L(on a pollutant load basis, this equaled0.3 lbs preconstruction, 490 lbs duringconstruction, and 13.4 lbs post-construction for total solids). The activeconstruction period resulted in morethan 75 times more sediment than eitherbefore or after construction (Owens,D.W., P. Jopke, D.W. Hall, J. Balousekand A. Roa. 1999. ‘‘Soil Erosion fromSmall Construction Sites.’’ Draft USGSFact Sheet. USGS and Dane CountyLand Conservation Department, WI).The total solids concentrations fromthese small sites in Wisconsin aresimilar to total solids concentrationsfrom larger construction sites. Forexample, a study evaluating the effectsof highway construction in WestVirginia found that a small stormproduced a sediment concentration of7,520 mg/L (Downs and Appel, 1986).

One important aspect of smallconstruction sites is the number of smallsites relative to larger construction sites



and total land area within thewatershed. Brown and Caraco surveyed219 local jurisdictions to assess erosionand sediment control (ESC) programs.Seventy respondents provided data onthe number of ESC permits forconstruction sites smaller than 5 acres.In 27 cases (38 percent of therespondents), more than three-quartersof the permits were for sites smallerthan 5 acres; in another 18 cases (26percent), more than half of the permitswere for sites smaller than 5 acres.

In addition, data on the total acreagedisturbed by smaller construction siteshave been collected recently in twoStates (MacDonald, 1997). The mostrecent and complete data set is thelisting of the disturbed area for each ofthe 3,831 construction sites permitted inNorth Carolina for 1994–1995 and1995–1996. Nearly 61 percent of thesites that were 1 acre or larger werebetween 1.0 and 4.9 acres in size. Thisproportion was consistent betweenyears. Data showed that this range ofsites accounted for 18 percent of thetotal area disturbed by construction. Thevalues showed very little variationbetween the 2 years of data. The totaldisturbed area for all sites over this 2-year period was nearly 33,000 acres, orabout 0.1 percent of the total area ofNorth Carolina.

EPA estimates that construction sitesdisturbing greater than 5 acres disturb2.1-million acres of land (78.1 percent ofthe total) while sites disturbing between1 and 5 acres of land disturb 0.5-millionacres of land (19.4 percent). Theremaining sites on less than 1 acres ofland disturb 0.07-million acres of land(only 2.5 percent of the total). Given thehigh erosion rates associated with mostconstruction sites, small constructionsites can be a significant source of waterquality impairment, particularly insmall watersheds that are undergoingrapid development. Exempting sitesunder 1 acre will exclude only about 2.5percent of acreage from programcoverage, but will exclude a far highernumber of sites, approximately 25percent.

Several studies have determined thatthe most effective construction runoffcontrol programs rely on local planreview and field enforcement (Paterson,R. G. 1994. ‘‘Construction Practices: theGood, the Bad, and the Ugly.’’Watershed Protection Techniques 1(3)).In his review, Paterson suggests that,given the critical importance of fieldimplementation of erosion and sedimentcontrol programs and the apparentshortcomings that exist, much morefocus should be given to planimplementation.

Several commenters disputed the datapresented in the proposed rule for stormwater discharges from smallerconstruction sites. One commenterstated that EPA has not adequatelyexplained the basis for permittingconstruction activity down to 1disturbed acre. Another commenterstated that EPA did not presentsufficient data on water quality impactsfrom construction sites disturbing lessthan 5 acres.

EPA believes that the data presentedabove sufficiently support nationwidedesignation of storm water dischargesfrom construction activity disturbingmore than 1 acre. Based on totaldisturbed land area within a watershed,the cumulative effects of numeroussmall construction sites can haveimpacts similar to those of larger sitesin a particular area. In addition, waiversfor storm water discharges from smallerconstruction activity will exclude sitesnot expected to impair water quality.EPA will continue to collect waterquality data on construction site stormwater runoff.

C. Statutory BackgroundIn 1972, Congress enacted the CWA to

prohibit the discharge of any pollutantto waters of the United States from apoint source unless the discharge isauthorized by an NPDES permit.Congress added CWA section 402(p) in1987 to require implementation of acomprehensive program for addressingstorm water discharges. Section402(p)(1) required EPA or NPDES-authorized States or Tribes to issueNPDES permits for the following fiveclasses of storm water dischargescomposed entirely of storm water(‘‘storm water discharges’’) specificallylisted under section 402(p)(2):

(A) a discharge subject to an NPDESpermit before February 4, 1987

(B) a discharge associated withindustrial activity

(C) a discharge from a municipalseparate storm sewer system serving apopulation of 250,000 or more

(D) a discharge from a municipalseparate storm sewer system serving apopulation of 100,000 or more but lessthan 250,000

(E) a discharge that an NPDESpermitting authority determines to becontributing to a violation of a waterquality standard or a significantcontributor of pollutants to the waters ofthe United States.

Section 402(p)(3)(A) requires stormwater discharges associated withindustrial activity to meet all applicableprovisions of section 402 and section301 of the CWA, including technology-based requirements and any more

stringent requirements necessary tomeet water quality standards. Section402(p)(3)(B) establishes NPDES permitstandards for discharges from municipalseparate storm sewer systems, or MS4s.NPDES permits for discharges fromMS4s (1) may be issued on a system orjurisdiction-wide basis, (2) must includea requirement to effectively prohibitnon-storm water discharges into thestorm sewers, and (3) must requirecontrols to reduce pollutant dischargesto the maximum extent practicable,including best management practices,and other provisions as theAdministrator or the States determine tobe appropriate for the control of suchpollutants. At this time, EPA determinesthat water quality-based controls,implemented through the iterativeprocesses described today areappropriate for the control of suchpollutants and will result in reasonablefurther progress towards attainment ofwater quality standards. See sectionsII.L and II.H.3 of the preamble.

In CWA section 402(p)(4), Congressestablished statutory deadlines for theinitial steps in implementing the NPDESprogram for storm water discharges.This section required development ofNPDES permit application regulations,submission of NPDES permitapplications, issuance of NPDESpermits for sources identified in section402(p)(2), and compliance with NPDESpermit conditions. In addition, thissection required industrial facilities andlarge MS4s to submit NPDES permitapplications for storm water dischargesby February 4, 1990. Medium MS4swere to submit NPDES permitapplications by February 4, 1992. EPAand authorized NPDES States wereprohibited from requiring an NPDESpermit for any other storm waterdischarges until October 1, 1994.

Section 402(p)(5) required EPA toconduct certain studies and submit areport to Congress. This requirement isdiscussed in the following section.

Section 402(p)(6) requires EPA, inconsultation with States and localofficials, to issue regulations for thedesignation of additional storm waterdischarges to be regulated to protectwater quality. It also requires EPA toextend the existing storm water programto regulate newly designated sources. Ata minimum, the extension mustestablish (1) priorities, (2) requirementsfor State storm water managementprograms, and (3) expeditiousdeadlines. Section 402(p)(6) specifiesthat the program may includeperformance standards, guidelines,guidance, and management practicesand treatment requirements, as



appropriate. Today’s rule implementsthis section.

D. EPA’s Reports to CongressUnder CWA section 402(p)(5), EPA, in

consultation with the States, wasrequired to conduct a study. The studywas to identify unregulated sources ofstorm water discharges, determine thenature and extent of pollutants in suchdischarges, and establish proceduresand methods to mitigate the impacts ofsuch discharges on water quality.Section 402(p)(5) also required EPA toreport the results of the first twocomponents of that study to Congress byOctober 1, 1988, and the final report byOctober 1, 1989.

In March 1995, EPA submitted toCongress a report that reviewed andanalyzed the nature of storm waterdischarges from municipal andindustrialacilities that were not alreadyregulated under the initial NPDESregulations for storm water (U.S.Environmental Protection Agency,Office of Water. 1995. Storm WaterDischarges Potentially Addressed byPhase II of the National PollutantDischarge Elimination System StormWater Program: Report to Congress.Washington, D.C. EPA 833–K–94–002)(‘‘Report’’). The Report also analyzedassociated pollutant loadings and waterquality impacts from these unregulatedsources. Based on identification ofunregulated municipal sources andanalysis of information on impacts ofstorm water discharges from municipalsources, the Report recommended thatthe NPDES program for storm waterfocus on the 405 ‘‘urbanized areas’’identified by the Bureau of the Census.The Report further found that a numberof discharges from unregulatedindustrial facilities warranted furtherinvestigation to determine the need forregulation. It classified theseunregulated industrial discharges in twogroups: Group A and Group B. Group Acomprised sources that may beconsidered a high priority for inclusionin the NPDES program for storm waterbecause discharges from these sourcesare similar or identical to alreadyregulated sources. These ‘‘look alike’’storm water discharge sources were notcovered in the initial NPDES regulationsfor storm water due to the language usedto define ‘‘associated with industrialactivity.’’ In the initial regulations forstorm water, ‘‘industrial activity’’ isidentified using Standard IndustrialClassification (SIC) codes. The use ofSIC codes led to incompletecategorization of industrial activitieswith discharges that needed to beregulated to protect water quality.Group B consisted of 18 industrial

sectors, which included sources thatEPA expected to contribute to stormwater contamination due to theactivities conducted and pollutantsanticipated onsite (e.g., vehiclemaintenance, machinery and electricalrepair, and intensive agriculturalactivities).

EPA reported on the latter componentof the section 402(p)(5) study viaPresident Clinton’s Clean WaterInitiative, which was released onFebruary 1, 1994 (U.S. EnvironmentalProtection Agency, Office of Water.1994. President Clinton’s Clean WaterInitiative. Washington, D.C. EPA 800–R–94–001) (‘‘Initiative’’). The Initiativeaddressed a number of issues associatedwith NPDES requirements for stormwater discharges and proposed (1)establishing a phased compliance witha water quality standards approach fordischarges from municipal separatestorm sewer systems with priority oncontrolling discharges from municipalgrowth and development areas, (2)clarifying that the maximum extentpracticable standard should be appliedin a site-specific, flexible manner, takinginto account cost considerations as wellas water quality effects, (3) providing anexemption from the NPDES program forstorm water discharges from industrialfacilities with no activities or significantmaterials exposed to storm water, (4)providing extensions to the statutorydeadlines to complete implementationof the NPDES program for the stormwater program, (5) targeting urbanizedareas for the requirements in the NPDESprogram for storm water, and (6)providing control of discharges frominactive and abandoned mines locatedon Federal lands in a more targeted,flexible manner. Additionally, prior topromulgation of today’s rule, section431 of the Agency’s Appropriation Actfor FY 2000 (Departments of VeteransAffairs and Housing and UrbanDevelopment and Independent AgenciesAppropriations Act of 2000, Public Law106–74, section 432 (1999)) directedEPA to report on certain matters to becovered in today’s rule. That reportsupplements the study required byCWA Section 402(p)(5). EPA ispublishing the availability of that reportelsewhere in this issue of the FederalRegister.

Several commenters asserted that theReport to Congress is an inadequatebasis for the designation and regulationof sources covered under today’s finalrule, specifically the nationwidedesignation of small municipal separatestorm sewer systems within urbanizedareas and construction activitiesdisturbing between one and five acres.

EPA believes that it has developed anadequate record for today’s regulationboth through the Report to Congress andthe Clean Water Initiative and throughmore recent activities, including theFACA Subcommittee process, regulatorynotices and evaluation of comments,and recent research and analysis. EPAdoes not interpret the congressionalreporting requirements of CWA section402(p)(5) to be the sole basis fordetermining sources to be regulatedunder today’s final rule.

EPA’s decision to designate on anational basis small MS4s in urbanizedareas is supported by studies thatclearly show a direct correlationbetween urbanization and adverse waterquality impacts from storm waterdischarges. (Schueler, T. 1987.Controlling Urban Runoff: A PracticalManual for Planning & Designing UrbanBMPs. Metropolitan WashingtonCouncil of Governments). ‘‘Urbanizedareas’’—within which all small MS4swould be covered—represent the mostintensely developed and dense areas ofthe Nation. They constitute only twopercent of the land area but 63 percentof the total population. See section I.B.1,Urban Development, above, for studiesand assessments of the link betweenurban development and storm waterimpacts on water resources.

Commenters argued that the Report toCongress does not address storm waterdischarges from construction sites. Theyfurther argued that the designation ofsmall construction sites per today’s finalrule goes beyond the President’s 1994Initiative because the Initiative onlyrecommends requiring municipalities toimplement a storm water managementprogram to control unregulated stormwater sources, ‘‘including dischargesfrom construction of less than 5 acres,which are part of growth, developmentand significant redevelopmentactivities.’’ They point out that theInitiative provides that unregulatedstorm water discharges not addressedthrough a municipal program would notbe covered by the NPDES program.Commenters assert that EPA has notdeveloped a record independent of itssection 402(p)(5) studies thatdemonstrates the necessity of regulatingunder a separate NPDES permit stormwater discharges from smallerconstruction sites ‘‘to protect waterquality.’’ EPA disagrees.

EPA evaluated the nature and extentof pollutants from construction sitesources in a process that was separateand distinct from the development ofthe Report to Congress. Today’s decisionto regulate certain storm waterdischarges from construction sitesdisturbing less than 5 acres arose in part



out of the 9th Circuit remand in NRDCv. EPA, 966 F.2d 1292 (9th Cir. 1992).In that case, the court remandedportions of the Phase I storm waterregulations related to discharges fromconstruction sites. Those regulationsdefine ‘‘storm water dischargesassociated with industrial activity’’ toinclude only those storm waterdischarges from construction sitesdisturbing 5 acres or more of total landarea (see 40 CFR 122.26(b)(14)(x)). In itsdecision, the court concluded that the 5-acre threshold was improper becausethe Agency had failed to identifyinformation ‘‘to support its perceptionthat construction activities on less than5 acres are non-industrial in nature’’(966 F.2d at 1306). The court remandedthe below 5 acre exemption to EPA forfurther proceedings (966 F.2d at 1310).

In a Federal Register notice issued onDecember 18, 1992, EPA noted that itdid not believe that the Court’s decisionhad the effect of automaticallysubjecting small construction sites tothe existing application requirementsand deadlines. EPA believed thatadditional notice and comment werenecessary to clarify the status of thesesites. The information received duringthe notice and comment process andadditional research, as discussed insection I.B.3 Construction Site Runoff,formed the basis for the designation ofconstruction activity disturbing betweenone and five acres on a nationwidebasis. EPA’s objectives in today’sproposal include an effort to (1) addressthe 9th Circuit remand, (2) addresswater quality concerns associated withconstruction activities that disturb lessthan 5 acres of land, and (3) balanceconflicting recommendations andconcerns of stakeholders.

One commenter noted that EPA’sproposal would fail to regulateindustrial facilities identified as GroupA and Group B in the March 1995Report to Congress. EPA is relying onthe analysis in the Report, whichprovided that the recommendation forcoverage was meant as guidance andwas not intended to be an identificationof specific categories that must beregulated under Section 402(p)(6).Report to Congress, p. 4–1. The Reportrecognized the existence of limited dataon which to base loadings estimates tosupport the nationwide designation ofindividual or categories of sources.Report to Congress, p. 4–44.Furthermore, during FACASubcommittee discussion, EPAcontinued to urge stakeholders toprovide further data relating toindustrial and commercial storm watersources, which EPA did not receive.EPA concluded that, due to insufficient

data, these sources were not appropriatefor nationwide designation at this time.

E. Industrial Facilities Owned orOperated by Small Municipalities

Congress granted extensions to theNPDES permit application process forselected classes of storm waterdischarges associated with industrialactivity. On December 18, 1991,Congress enacted the IntermodalSurface Transportation Efficiency Act(ISTEA), which postponed NPDESpermit application deadlines for moststorm water discharges associated withindustrial activity at facilities that areowned or operated by smallmunicipalities. EPA and Statesauthorized to administer the NPDESprogram could not require anymunicipality with a population of lessthan 100,000 to apply for or obtain anNPDES permit for any storm waterdischarge associated with industrialactivity prior to October 1, 1992, exceptfor storm water discharges from airports,power plants, or uncontrolled sanitarylandfills. See 40 CFR 122.26(e)(1); 57 FR11524, April 2, 1992 (reservation ofNPDES application deadlines for ISTEAfacilities).

The facilities exempted by ISTEAdischarge storm water in the samemanner (and are expected to useidentical processes and materials) as theindustrial facilities regulated under the1990 Phase I regulations. Accordingly,these facilities pose similar waterquality problems. The extendedmoratorium for these facilities wasnecessary to allow municipalitiesadditional time to comply with NPDESrequirements. The proposal for today’srule would have maintained the existingdeadline for seeking coverage under anNPDES permit (August 7, 2001).

Today’s rule changes the permitapplication deadline for suchmunicipally owned or operatedfacilities discharging industrial stormwater to make it consistent with theapplication date for small regulatedMS4s. Because EPA missed its March1999 deadline for promulgating today’srule, and the deadline for MS4s tosubmit permit applications has beenextended to three years and 90 daysfrom the date of this notice, the deadlinefor permitting ISTEA sources has beensimilarly extended. The permitting ofthese sources is discussed below insection ‘‘II.I.3. ISTEA Sources.’’

F. Related Nonpoint Source ProgramsToday’s rule addresses point source

discharges of storm water runoff andnon-storm water discharges into MS4s.Many of these sources have beenaddressed by nonpoint source control

programs, which are described brieflybelow.

In 1987, section 319 was added to theCWA to provide a framework forfunding State and local efforts toaddress pollutants from nonpointsources not addressed by the NPDESprogram. To obtain funding, States arerequired to submit Nonpoint SourceAssessment Reports identifying Statewaters that, without additional controlof nonpoint sources of pollution, couldnot reasonably be expected to attain ormaintain applicable water qualitystandards or other goals andrequirements of the CWA. States arealso required to prepare and submit forEPA approval a statewide NonpointSource Management Program forcontrolling nonpoint source waterpollution to navigable waters within theState and improving the quality of suchwaters. State program submittals mustidentify specific best managementpractices (BMPs) and measures that theState proposes to implement in the firstfour years after program submission toreduce pollutant loadings fromidentified nonpoint sources to levelsrequired to achieve the stated waterquality objectives.

State nonpoint source programsfunded under section 319 can includeboth regulatory and nonregulatory Stateand local approaches. Section319(b)(2)(B) specifies that a combinationof ‘‘nonregulatory or regulatoryprograms for enforcement, technicalassistance, financial assistance,education, training, technology transfer,and demonstration projects’ may beused, as necessary, to achieveimplementation of the BMPs ormeasures identified in the section 319submittals.

Section 6217 of the Coastal Zone ActReauthorization Amendments (CZARA)of 1990 provides that States withapproved coastal zone managementprograms must develop coastalnonpoint pollution control programsand submit them to EPA and theNational Oceanic and AtmosphericAdministration (NOAA) for approval.Failure to submit an approvableprogram will result in a reduction ofFederal grants under both the CoastalZone Management Act and section 319of the CWA.

State coastal nonpoint pollutioncontrol programs under CZARA mustinclude enforceable policies andmechanisms that ensureimplementation of the managementmeasures throughout the coastalmanagement area. EPA issued GuidanceSpecifying Management Measures forSources of Nonpoint Pollution inCoastal Waters under section 6217(g) in



January 1993. The guidance identifiesmanagement measures for five majorcategories of nonpoint source pollution.The management measures reflect thegreatest degree of pollutant reductionthat is economically achievable for eachof the listed sources. These managementmeasures provide reference standardsfor the States to use in developing orrefining their coastal nonpointprograms. A few management measures,however, contain quantitative standardsthat specify pollutant loadingreductions. For example, the NewDevelopment Management Measure,which is applicable to construction inurban areas, requires (1) that by designor performance the average annual totalsuspended solid loadings be reduced by80 percent and (2) to the extentpracticable, that the pre-developmentpeak runoff rate and average volume bemaintained.

EPA and NOAA published CoastalNonpoint Pollution Control Program:Program Development and ApprovalGuidance (1993). The documentclarifies that States generally mustimplement management measures foreach source category identified in theEPA guidance developed under section6217(g). Coastal Nonpoint PollutionControl Programs are not required toaddress sources that are clearlyregulated under the NPDES program aspoint source discharges. Specifically,such programs would not need toaddress small MS4s and constructionsites covered under NPDES storm waterpermits (both general and individual).

II. Description of Program

A. Overview

1. Objectives EPA Seeks To Achieve inToday’s Rule

EPA seeks to achieve severalobjectives in today’s final rule. First,

EPA is implementing the requirementunder CWA section 402(p)(6) to providea comprehensive storm water programthat designates and controls additionalsources of storm water discharges toprotect water quality. Second, EPA isaddressing storm water discharges fromthe activities exempted under the 1990storm water permit applicationregulations that were remanded by theNinth Circuit Court of Appeals in NRDCv. EPA, 966 F.2d 1292 (9th Circuit,1992). These are construction activitiesdisturbing less than 5 acres and so-called ‘‘light’’ industrial activities notexposed to storm water (see discussionof ‘‘no exposure’’ below). Third, EPA isproviding coverage for the so-called‘‘donut holes’’ created by the existingNPDES storm water program. Donutholes are geographic gaps in the NPDESstorm water program’s regulatoryscheme. They are MS4s located withinareas covered by the existing NPDESstorm water program, but not currentlyaddressed by the storm water programbecause it is based on politicaljurisdictions. Finally, EPA also is tryingto promote watershed planning as aframework for implementing waterquality programs where possible.

Although EPA had options fordifferent approaches (see alternativesdiscussed in the January 9, 1998,proposed regulation), EPA believes itcan best achieve its objectives throughflexible innovations within theframework of the NPDES program.Unlike the interim section 402(p)(6)storm water regulations EPApromulgated in 1995, EPA no longerdesignates all of the unregulated stormwater discharges for nationwidecoverage under the NPDES program forstorm water. The framework for today’sfinal rule is one that balances automaticdesignation on a nationwide basis and

locally-based designation and waivers.Nationwide designation applies to thoseclasses or categories of storm waterdischarges that EPA believes present ahigh likelihood of having adverse waterquality impacts, regardless of location.Specifically, today’s rule designatesdischarges from small MS4s located inurbanized areas and storm waterdischarges from construction activitiesthat result in land disturbance equal toor greater than one and less than fiveacres. As noted under Section I.B.,Water Quality Concerns/EnvironmentalImpact Studies and Assessments, thesetwo categories of storm water sources,when unregulated, tend to causesignificant adverse water qualityimpacts. Additional sources are notcovered on a nationwide basis eitherbecause EPA currently lacksinformation indicating a consistentpotential for adverse water qualityimpact or because EPA believes that thelikelihood of adverse impacts on waterquality is low, with some localizedexceptions. Additional individualsources or categories of storm waterdischarges could, however, be coveredunder the program through a localdesignation process. A permittingauthority may designate additionalsmall MS4s after developing designationcriteria and applying those criteria tosmall MS4s located outside of anurbanized area, in particular those witha population of 10,000 or more and apopulation density of at least 1,000.Exhibit 1 illustrates the designationframework for today’s final rule.

BILLING CODE 6560–50–P



BILLING CODE 6560–50–C



The designation framework fortoday’s final rule provides a significantdegree of flexibility. The proposedprovisions for nationwide designation ofstorm water discharges fromconstruction and from small MS4s inurbanized areas allowed for a waiver ofapplicable requirements based onappropriate water quality conditions.Today’s final rule expands andsimplifies those waivers.

The permitting authority may waivethe requirement for a permit for anysmall MS4 serving a jurisdiction with apopulation of less than 1,000 unlessstorm water controls are needed becausethe MS4 is contributing to a waterquality impairment. The permittingauthority may also waive permitcoverage for MS4s serving a jurisdictionwith a population of less than 10,000 ifall waters that receive a discharge fromthe MS4 have been evaluated anddischarges from the MS4 do notsignificantly contribute to a waterquality impairment or have the potentialto cause an impairment. Today’s rulealso allows States with a watershedpermitting approach to phase incoverage for MS4s in jurisdictions withpopulations under 10,000.

Water quality conditions are also thebasis for a waiver of requirements forstorm water discharges fromconstruction activities disturbingbetween one and five acres. For thesesmall construction sources, the ruleprovides significant flexibility forwaiving otherwise applicable regulatoryrequirements where a permittingauthority determines, based on waterquality and watershed considerations,that storm water discharge controls arenot needed.

Coverage can be extended tomunicipal and construction sourcesoutside the nationwide designatedclasses or categories based on watershedand case-by-case assessments. For themunicipal storm water program, today’srule provides broad discretion to NPDESpermitting authorities to develop andimplement criteria for designating stormwater discharges from small MS4soutside of urbanized areas. Other stormwater discharges from unregulatedindustrial, commercial, and residentialsources will not be subject to the NPDESpermit requirements unless a permittingauthority determines on a case-by-casebasis (or on a categorical basis withinidentified geographic areas such as aState or watershed) that regulatorycontrols are needed to protect waterquality. EPA believes that the flexibilityprovided in today’s rule facilitateswatershed planning.

2. General Requirements for RegulatedEntities Under Today’s Rule

As previously noted, today’s final ruledefines additional classes and categoriesof storm water discharges for coverageunder the NPDES program. Thesedesignated dischargers are required toseek coverage under an NPDES permit.Furthermore, all NPDES-authorizedStates and Tribes are required toimplement these provisions and makeany necessary amendments to currentState and Tribal NPDES regulations toensure consistency with today’s finalrule. EPA remains the NPDESpermitting authority for jurisdictionswithout NPDES authorization.

Today’s final rule includes some newrequirements for NPDES permittingauthorities implementing the CWAsection 402(p)(6) program. EPA hasmade a significant effort to buildflexibility into the program whileattempting to maintain an appropriatelevel of national consistency. Permittingauthorities must ensure that NPDESpermits issued to MS4s include theminimum control measures establishedunder the program. Permittingauthorities also have the ability to makenumerous decisions including who isregulated under the program, i.e., case-by-case designations and waivers, andhow responsibilities should be allocatedbetween regulated entities.

Today’s final rule extends the NPDESprogram to include discharges from thefollowing: small MS4s within urbanizedareas (with the exception of systemswaived from the requirements by theNPDES permitting authority); othersmall MS4s meeting designation criteriato be established by the permittingauthority; and any remaining MS4 thatcontributes substantially to the stormwater pollutant loadings of a physicallyinterconnected MS4 already subject toregulation under the NPDES program.Small MS4s include urban storm sewersystems owned by Tribes, States,political subdivisions of States, as wellas the United States, and other systemslocated within an urbanized area thatfall within the definition of an MS4.These include, for example, Statedepartments of transportation (DOTs),public universities, and federal militarybases.

Today’s final rule requires allregulated small MS4s to develop andimplement a storm water managementprogram. Program components include,at a minimum, 6 minimum measures toaddress: public education and outreach;public involvement; illicit dischargedetection and elimination; constructionsite runoff control; post-constructionstorm water management in new

development and redevelopment; andpollution prevention and goodhousekeeping of municipal operations.These program components will beimplemented through NPDES permits.A regulated small MS4 is required tosubmit to the NPDES permittingauthority, either in its notice of intent(NOI) or individual permit application,the BMPs to be implemented and themeasurable goals for each of theminimum control measures listedabove.

The rule addresses all storm waterdischarges from construction siteactivities involving clearing, gradingand excavating land equal to or greaterthan 1 acre and less than 5 acres, unlessrequirements are otherwise waived bythe NPDES permitting authority.Discharges from such sites, as well asconstruction sites disturbing less than 1acre of land that are designated by thepermitting authority, are required toimplement requirements set forth in theNPDES permit, which may reference therequirements of a qualifying localprogram issued to cover suchdischarges.

The rule also addresses certain othersources regulated under the existingNPDES program for storm water. Formunicipally-owned industrial sourcesrequired to be regulated under theexisting NPDES storm water programbut exempted from immediatecompliance by the Intermodal SurfaceTransportation Act of 1991 (ISTEA), therule revises the existing deadline forseeking coverage under an NPDESpermit (August 7, 2001) to make itconsistent with the application date forsmall regulated MS4s. (See section I.3.below.) The rule also provides relieffrom NPDES storm water permittingrequirements for industrial sources withno exposure of industrial materials andactivities to storm water.

3. Integration of Today’s Rule With theExisting Storm Water Program

In developing an approach for today’sfinal rule, numerous early interestedstakeholders encouraged EPA to seekopportunities to integrate, wherepossible, the proposed Phase IIrequirements with existing Phase Irequirements, thus facilitating a unifiedstorm water discharge control program.EPA believes that this objective is metby using the NPDES framework. Thisframework is already applied toregulated storm water discharge sourcesand is extended to those sourcesdesignated under today’s rule. Thisapproach facilitates programconsistency, public access toinformation, and program oversight.



EPA believes that today’s final ruleprovides consistency in terms ofprogram coverage and requirements forexisting and newly designated sources.For example, the rule includes most ofthe municipal donut holes, those MS4slocated in incorporated places,townships or towns with a populationunder 100,000 that are within Phase Icounties. These MS4s are not addressedby the existing NPDES storm waterprogram while MS4s in the surroundingcounty are currently addressed. Inaddition, the minimum controlmeasures required in today’s rule forregulated small MS4s are very similar toa number of the permit requirements formedium and large MS4s under theexisting storm water program. Followingtoday’s rule, permit requirements for allregulated MS4s (both those under theexisting program and those undertoday’s rule) will requireimplementation of BMPs. Furthermore,with regard to the development ofNPDES permits to protect water quality,EPA intends to apply the August 1,1996, Interim Permitting Approach forWater Quality-Based EffluentLimitations in Storm Water Permits(hereinafter, ‘‘Interim PermittingApproach’’) (see Section II.L.1. forfurther description) to all MS4s coveredby the NPDES program.

EPA is applying NPDES permitrequirements to construction sites below5 acres that are similar to the existingrequirements for those above 5 acresand above. In addition, today’s ruleallows compliance with qualifyinglocal, Tribal, or State erosion andsediment controls to meet the erosionand sediment control requirements ofthe general permits for storm waterdischarges associated with construction,both above and below 5 acres.

4. General PermitsEPA recommends using general

permits for all newly regulated stormwater sources under today’s rule. Theuse of general permits, instead ofindividual permits, reduces theadministrative burden on permittingauthorities, while also limiting thepaperwork burden on regulated partiesseeking permit authorization. Permittingauthorities may, of course, requireindividual permits in some cases toaddress specific concerns, includingpermit non-compliance.

EPA recommends that general permitsfor MS4s, in particular, be issued on awatershed basis, but recognizes thateach permitting authority must decidehow to develop its general permit(s).Permit conditions developed to addressconcerns and conditions of a specificwatershed could reflect a watershed

plan; such permit conditions mustprovide for attainment of applicablewater quality standards (includingdesignated uses), allocations ofpollutant loads established by a TMDL,and timing requirements forimplementation of a TMDL. If thepermitting authority issues a State-widegeneral permit, the permitting authoritymay include separate conditionstailored to individual watersheds orurbanized areas. Of course, for a newlyregulated MS4, modification of anexisting individual MS4 permit toinclude the newly regulated MS4 as a‘‘limited co-permittee’’ also remains anoption.

5. Tool BoxDuring the FACA process, many

Storm Water Phase II FACASubcommittee representatives expressedan interest, which was endorsed by thefull Committee, in having EPA developa ‘‘tool box’’ to assist States, Tribes,municipalities, and other partiesinvolved in the Phase II program. EPAmade a commitment to work with StormWater Phase II FACA Subcommitteerepresentatives in developing such atool box, with the expectation that a toolbox would facilitate implementation ofthe storm water program in an effectiveand cost-efficient manner. EPA hasdeveloped a preliminary working toolbox (available on EPA’s web page atwww.epa.gov/owm/sw/toolbox). EPAintends to have the tool box fullydeveloped by the time of the firstgeneral permits. EPA also intends toupdate the tool box as resources anddata become available. The tool box willinclude the following eight maincomponents: fact sheets; guidances; amenu of BMPs for the six MS4minimum measures; an informationclearinghouse; training and outreachefforts; technical research; support fordemonstration projects; and compliancemonitoring/assistance tools. EPAintends to issue the menu of BMPs, bothstructural and non-structural, byOctober 2000. In addition, EPA willissue by October 2000 a ‘‘model’’ permitand will issue by October 2001 guidancematerials on the development ofmeasurable goals for municipalprograms.

In an attempt to avoid duplication,the Agency has undertaken an effort toidentify and coordinate sources ofinformation that relate to the stormwater discharge control program fromboth inside and outside the Agency.Such information includes research anddemonstration projects, grants, stormwater management-related programs,and compendiums of availabledocuments, including guidances, related

directly or indirectly to thecomprehensive NPDES storm waterprogram. Based on this effort, EPA isdeveloping a tool box containing factsheets and guidance documentspertaining to the overall program andrule requirements (e.g., guidance onmunicipal and construction programs,and permitting authority guidance ondesignation and waiver criteria); modelsof current programs aimed at assistingStates, Tribes, municipalities, andothers in establishing programs; acomprehensive list of referencedocuments organized according tosubject area (e.g., illicit discharges,watersheds, water quality standardsattainment, funding sources, and similartypes of references); educationalmaterials; technical research data; anddemonstration project results. Theinformation collected by EPA will notonly provide the background for toolbox materials, but will also be madeavailable through an informationclearinghouse on the world wide web.

With assistance from EPA, theAmerican Public Works Association(APWA) developed a workbook andseries of workshops on the proposedPhase II rule. Ten workshops were heldfrom September 1998 through May1999. Depending on available funding,these workshops may continue afterpublication of today’s final rule. EPAalso intends to provide training toenable regional offices to educate States,Tribes, and municipalities about thestorm water program and theavailability of the tool box materials.

The CWA currently provides fundingmechanisms to support activities relatedto storm water. These mechanisms willbe described in the tool box. Activitiesfunded under grant and loan programs,which could be used to assist in stormwater program development, includeprograms in the nonpoint source area,storm water demonstration projects,source water protection and wastewaterconstruction projects. EPA has alreadyprovided funding for numerous researchefforts in these areas, including adatabase of BMP effectiveness studies(described below), an assessment oftechnologies for storm watermanagement, a study of theeffectiveness of storm water BMPs forcontrolling the impacts of watershedimperviousness, protocols for wetweather monitoring, development of adynamic model for wet weather flows,and numerous outreach projects.

EPA has entered into a cooperativeagreement with the Urban WaterResources Research Council of theAmerican Society of Civil Engineers(ASCE) to develop a scientifically-basedmanagement tool for the information



needed to evaluate the effectiveness ofurban storm water runoff BMPsnationwide. The long-term goal of theNational Stormwater BMP Databaseproject is to promote technical designimprovements for BMPs and to bettermatch their selection and design to thelocal storm water problems beingaddressed. The project team hascollected and evaluated hundreds ofexisting published BMP performancestudies and created a database coveringabout 75 test sites. The databaseincludes detailed information on thedesign of each BMP and its watershedcharacteristics, as well as itsperformance. Eventually the databasewill include the nationwide collectionof information on the characteristics ofstructural and non-structural BMPs,data collection efforts (e.g., samplingand flow gaging equipment),climatological characteristics, watershedcharacteristics, hydrologic data, andconstituent data. The database willcontinue to grow as new BMP databecome available. The initial release of

the database, which includes data entryand retrieval software, is available onCD–ROM and operates on Windows-compatible personal computers. TheASCE project team envisions thatperiodic updates to the database will bedistributed through the Internet. Theteam is currently developing a systemfor Internet retrieval of selected databaserecords, and this system is expected tobe available in early 2000.

EPA and ASCE invite BMP designers,owners and operators to participate inthe continuing database developmenteffort. To make this effort successful, alarge database is essential. Interestedpersons are encouraged to submit theirBMP performance evaluation data andassociated BMP watershedcharacteristics for potential entry intothe database. The software included inthe CD-ROM allows data providers toenter their BMP data locally, retain andedit the data as needed, and submitthem to the ASCE DatabaseClearinghouse when ready.

To obtain a copy of the database,please contact Jane Clary, DatabaseClearinghouse Manager, Wright WaterEngineers, Inc., 2490 W. 26th Ave.,Suite 100A, Denver, CO 80211; Phone303–480–1700; [email protected].

In addition, EPA requests thatresearchers planning to conduct BMPperformance evaluations compile andcollect BMP reporting informationaccording to the standard formatdeveloped by ASCE. The format isprovided with the database software andis also available on the ASCE website atwww.asce.org/peta/tech/nsbd01.html.

6. Deadlines Established in Today’sAction

Exhibit 2 outlines the variousdeadlines established under today’sfinal rule. EPA believes that the datesallow sufficient time for completion ofboth the NPDES permitting authority’sand the permittee’s programresponsibilities.

EXHIBIT 2–STORM WATER PHASE II ACTIONS DEADLINES

Activity Deadline date

NPDES-authorized States modify NPDES program if no statutorychange is required.

1 year from date of publication of today’s rule in the Federal Register.

NPDES-authorized States modify NPDES program if statutory changeis required.

2 years from date of publication of today’s rule in the Federal Reg-ister.

EPA issues a menu of BMPs for regulated small MS4s ......................... October 27, 2000ISTEA sources submit permit application ................................................ 3 years and 90 days from date of publication of today’s rule in the Fed-

eral Register.Permitting authority issues general permit(s) (if this type of permit cov-

erage is selected).3 years from date of publication of today’s rule in the Federal Reg-

ister.Regulated small MS4s submit permit application:

a. If designated under § 122.32(a)(1) unless the permitting author-ity has established a phasing schedule under § 123.35(d)(3).

a. 3 years and 90 days from date of publication of today’s rule in theFederal Register.

b. If designated under § 122.32(a)(2) or §§ 122.26(a)(9)(i) (C) or(D).

b. Within 180 days of notice.

Storm water discharges associated with small construction activity sub-mit permit application:

a. If designated under § 122.26(b)(15)(i) .......................................... a. 3 years and 90 days from date of publication of today’s rule in theFederal Register

b. If designated under § 122.26(b)(15)(ii) .......................................... b. Within 180 days of notice.Permitting authority designates small MS4s under § 123.35(b)(2) .......... 3 years from date of publication of today’s rule in the Federal Register

or 5 years from date of publication of today’s rule in the FederalRegister if a watershed plan is in place

Regulated small MS4s’ program fully developed and implemented ........ Up to 5 years from date of permit issuance.Reevaluation of the municipal storm water rules by EPA ....................... 13 years from date of publication of today’s rule in the Federal Reg-

isterPermitting authority determination on a petition ...................................... Within 180 days of receipt.Non-municipal sources designated under § 122.26(a)(9)(i) (C) or (D)

submit permit application.Within 180 days of notice.

Submission of No Exposure Certification ................................................. Every 5 years.

B. Readable Regulations

Today, EPA is finalizing newregulations in a ‘‘readable regulation’’format. This reader-friendly, plainlanguage approach is a departure fromtraditional regulatory language andshould enhance the rule’s readability.These plain language regulations use

questions and answers, ‘‘you’’ toidentify the person who must comply,and terms like ‘‘must’’ rather than‘‘shall’’ to identify a mandate. This newformat, which minimizes layers ofsubparagraphs, should also allow thereader to easily locate specificprovisions of the regulation.

Some sections of today’s final rule arepresented in the traditional languageand format because these sectionsamend existing regulations. Thereadable regulation format was not usedin these existing provisions in anattempt to avoid confusion or disruption



of the readability of the existingregulations.

Most commenters supported EPA’suse of plain language and agreed withEPA that the question and answerformat makes the rule easier tounderstand. Three commenters thoughtthat EPA should retain the traditionalrule format. The June 1, 1998,Presidential memorandum directs allgovernment agencies to writedocuments in plain language. Based onthe majority of the comments, EPA hasretained the plain language format usedin the January 9, 1998, proposal intoday’s final rule.

The proposal to today’s final ruleincluded guidance as well as legalrequirements. The word ‘‘must’’indicates a requirement. Words like‘‘should,’’ ‘‘could,’’ or ‘‘encourage’’indicate a recommendation or guidance.In addition, the guidance was set off inparentheses to distinguish it fromrequirements.

EPA received numerous commentssupporting the inclusion of guidance inthe text of the Code of FederalRegulations (CFR), as well as commentsopposing inclusion of guidance.Supporters stated that preambles andguidance documents are often notaccessible when rules are implemented.Any language not included in the CFRis therefore not available when it may bemost needed. Commenters that opposedincluding guidance in the CFRexpressed the concern that any languagein the rule might be interpreted as arequirement, in spite of any clarifyinglanguage. They suggested that guidancebe presented in the preamble andadditional guidance documents.

The majority of commenters on thisissue thought that the guidance shouldbe retained but the distinction betweenrequirements and guidance should bebetter clarified. Suggestions includedclarifying text, symbols, and a changefrom use of the word ‘‘should’’ to ‘‘EPArecommends’’ or ‘‘EPA suggests’’. EPAbelieves that it is important to includethe guidance in the rule and agrees thatthe distinction between requirementsand EPA recommendations must be veryclear. In today’s final rule, EPA has putthe guidance in paragraphs entitled‘‘Guidance’’ and replaced the word‘‘should’’ with ‘‘EPA recommends.’’This is intended to clarify that therecommendations contained in theguidance paragraphs are not legallybinding.

C. Program Framework: NPDESApproach

Today’s rule regulates Phase IIsources using the NPDES permitprogram. EPA interprets Clean Water

Act section 402(p)(6) as authorizing theAgency to develop a storm waterprogram for Phase II sources either aspart of the existing NPDES permitprogram or as a stand alone non-NPDESprogram such as a self-implementingrule. Under either approach, EPAinterprets section 402(p)(6) as directingEPA to publish regulations that‘‘regulate’’ the remaining unregulatedsources, specifically to establishrequirements that are federallyenforceable under the CWA. AlthoughEPA believes that it has the discretionto not require sources regulated underCWA section 402(p)(6) to be covered byNPDES permits, the Agency hasdetermined, for the reasons discussedbelow, that it is most appropriate to useNPDES permits in implementing theprogram to address the sourcesdesignated for regulation in today’s rule.

As discussed in Section II.A,Overview, EPA sought to achievecertain goals in today’s final rule. EPAbelieves that the NPDES program bestachieves EPA’s goals for today’s finalrule for the reasons discussed below.

Requiring Phase II sources to becovered by NPDES permits helpsaddress the consistency problemscurrently caused by municipal ‘‘donutholes.’’ Donut holes are gaps in programcoverage where a small unregulatedMS4 is located next to or within aregulated larger MS4 that is subject toan NPDES permit under the Phase INPDES storm water program. Theexistence of such ‘‘donut holes’’ createsan equity problem because similardischarges may remain unregulatedeven though they cause or contribute tothe same adverse water quality impacts.Using NPDES permits to regulate theunregulated discharges in these areas isintended to facilitate the developmentof a seamless regulatory program for themitigation and control of contaminatedstorm water discharges in an urbanizedarea. For example, today’s rule allows anewly regulated MS4 to join as a‘‘limited’’ co-permittee with a regulatedMS4 by referencing a common stormwater management program. Suchcooperation should be furtherencouraged by the fact that theminimum control measures required intoday’s rule for regulated small MS4sare very similar to a number of thepermit requirements for medium andlarge MS4s under the Phase I stormwater program. The minimum controlmeasures applicable to discharges fromsmaller MS4s are described withslightly more generality than under thePhase I permit application regulationsfor larger MS4s, thus enablingmaximum flexibility for operators of

smaller MS4s to optimize efforts toprotect water quality.

Today’s rule also applies NPDESpermit requirements to constructionsites below 5 acres that are similar to theexisting requirements for those 5 acresand above. In addition, the rule wouldallow compliance with qualifying local,Tribal, or State erosion and sedimentcontrols to meet the erosion andsediment control requirements of thegeneral permits for storm waterdischarges associated with construction,both above and below 5 acres.

Incorporating the CWA section402(p)(6) program into the NPDESprogram capitalizes upon the existinggovernmental infrastructure foradministration of the NPDES program.Moreover, much of the regulatedcommunity already understands theNPDES program and the way it works.

Another goal of the NPDES programapproach is to provide flexibility inorder to facilitate and promotewatershed planning and sensitivity tolocal conditions. NPDES permitspromote those goals in several ways.NPDES general permits may be used tocover a category of regulated sources ona watershed basis or within politicalboundaries. The NPDES permittingprocess provides a mechanism for stormwater controls tailored on a case-by-casebasis, where necessary. In addition, theNPDES permit requirements of apermittee may be satisfied by anothercooperating entity. Finally, NPDESpermits may incorporate therequirements of existing State, Tribaland local programs, therebyaccommodating State and Tribesseeking to coordinate the storm waterprogram with other programs, includingthose that focus on watershed-basednonpoint source regulation.

In promoting the watershed approachto program administration, EPA believesNPDES general permits can cover acategory of dischargers within a definedgeographic area. Areas can be definedvery broadly to include politicalboundaries (e.g., county), watershedboundaries, or State or Tribal land.

NPDES permits generally require anapplication or a notice of intent(NOI) totrigger coverage. This informationexchange assures communicationbetween the permitting authority andthe regulated community. Thiscommunication is critical in ensuringthat the regulated community is awareof the requirements and the permittingauthority is aware of the potential foradverse impacts to water quality fromidentifiable locations. The NPDESpermitting process includes the publicas a valuable stakeholder and ensures



that the public is included andinformation is made publicly available.

Another concern for EPA and severalstakeholders was that the programensure citizen participation. The NPDESapproach ensures opportunities forcitizen participation throughout thepermit issuance process, as well as inenforcement actions. NPDES permits arealso federally enforceable under theCWA.

EPA believes that the use of NPDESpermits makes a significant difference inthe degree of compliance withregulations in the storm water program.The NPDES program provides for publicparticipation in the development,enforcement and revision of storm watermanagement programs. Citizen suitenforcement has assisted in focusingattention on adverse water qualityimpacts on a localized, public prioritybasis. Citizens frequently rely on theNPDES permitting process and theavailability of NOIs to track programimplementation and help them enforceregulatory requirements.

NPDES permits are also advantageousto the permittee. The NPDES permitinforms the permittee about the scope ofwhat it is expected do to be incompliance with the Clean Water Act.As explained more fully in EPA’s April1995 guidance, Policy Statement onScope of Discharge Authorization andShield Associated with NPDES Permits,compliance with an NPDES permitconstitutes compliance with the CleanWater Act (see CWA section 402(k)). Inaddition, NPDES permittees areexcluded from duplicative regulatoryregimes under the ResourceConservation and Recovery Act and theComprehensive Emergency Response,Compensation and Liability Act underRCRA’s exclusions to the definition of‘‘solid waste’’ and CERCLA’s exemptionfor ‘‘federally permitted releases.’’

EPA considered suggestions that theAgency authorize today’s rule to beimplemented as a self-implementingrule. This would be a regulationpromulgated at the Federal, State, orTribal level to control some or all of thestorm water dischargers regulated undertoday’s rule. Under this approach, a rulewould spell out the specificrequirements for dischargers andimpose the restrictions and conditionsthat would otherwise be contained in anNPDES permit. It would be effectiveuntil modified by EPA, a State, or aTribe, unlike an NPDES permit whichcannot exceed a duration of five years.Some stakeholders believed that thisapproach would reduce the burden onthe regulated community (e.g., by notrequiring permit applications), andconsiderably reduce the amount of

additional paperwork, staff time andaccounting required to administer theproposed permit requirements.

EPA is sensitive to the interest ofsome stakeholders in having astreamlined program that minimizes theburden associated with permitadministration and maximizesopportunities for field time spent byregulatory authorities. Key provisions intoday’s rule address some of theseconcerns by promoting a streamlinedapproach to permit issuance by, forexample, using general permits andallowing the incorporation of existingprograms. By adopting the NPDESapproach rather than a self-implementing rule, today’s rule alsoallows for consistent regulation betweenlarger MS4s and construction sitesregulated under the existing storm watermanagement rule and smaller sourcesregulated under today’s rule.

EPA believes that it is mostappropriate to use NPDES permits toimplement a program to address thesources regulated by today’s rule. Inaddition to the reasons discussed above,NPDES permits provide a bettermechanism than would a self-implementing rule for tailoring stormwater controls on a case-by-case basis,where necessary. One commenterreasoned this concern could beaddressed by including provisions inthe regulation that allow site-specificBMPs (i.e., case-by-case permits),suggesting storm water discharges thatmight require site-specific BMPs can beidentified during the designationprocess of the regulatory authority. EPAbelieves that, in addition to itscomplexity, the commenter’s approachlacks the other advantages of the NPDESpermitting process.

A self-implementing rule would notensure the degree of public participationthat the NPDES permit process providesfor the development, enforcement andrevision of the storm water managementprogram. A self-implementing rule alsomight not have provided the regulatedcommunity the ‘‘permit shield’’ underCWA section 402(k) that is provided byan NPDES permit. Based on all theseconsiderations, EPA declined to adopt aself-implementing rule approach andadopted the NPDES approach.

Some State representatives soughtalternative approaches for Stateimplementation of the storm waterprogram for Phase II sources. TheseState representatives asserted that anon-NPDES alternative approach bestfacilitated watershed management andavoided duplication and overlappingregulations. These representativesbelieved the NPDES approach wouldundercut State programs that had

developed storm water controls tailoredto local watershed concerns. Finally, anumber of commenters expressed theview that States implement a variety ofprograms not based on the CWA that areeffective in controlling storm water, andthat EPA should provide incentives fortheir implementation and improvementin performance.

Throughout the development of therule, State representatives soughtalternatives to the NPDES approach forState implementation of the storm waterprogram for Phase II sources.Discussions focused on an approachwhereby States could develop analternative program that EPA wouldapprove or disapprove based onidentified criteria, including that thealternative non-NPDES program wouldresult in ‘‘equivalent or better protectionof water quality.’’ The Staterepresentatives, however, were unableto propose or recommend criteria forgauging whether a program wouldprovide equivalent protection. EPA alsodid not receive any suggestions forobjective, workable criteria in responseto the Agency’s explicit request forspecific criteria (by which EPA couldobjectively judge such programs) in thepreamble to the proposed rule.

EPA evaluated several existing Stateinitiatives to address storm water andfound many cases where standardsunder State programs may becoordinated with the Federal stormwater program. Where the NPDESpermit is developed in coordinationwith State standards, there areopportunities to avoid duplication andoverlapping requirements. Undertoday’s rule, an NPDES permittingauthority may include conditions in theNPDES permit that direct an MS4 tofollow the requirements imposed underState standards, rather than therequirements of § 122.34(b). This isallowed as long as the State program ata minimum imposes the relevantrequirements of § 122.34(b). Additionalopportunities follow from otherprovisions in today’s rule.

Seeking to further explore thefeasibility of a non-NPDES approach,the Agency, after the proposal, hadextensive discussions withrepresentatives of a number of States.Discussions related specifically topossible alternatives for regulations ofurban storm water discharges and MS4sspecifically. The Agency also soughtinput on these issues from otherstakeholders.

As a result of these discussions, manyof the commenters provided input onissues such as: whether or not theAgency should require NPDES permits;whether location of MS4s in urbanized



areas should be the basis for designationor whether designation should be basedon other determinations relating towater quality; whether States should beallowed to satisfy the conditions of therule through the use of existing Stateprograms; and issues concerning timingand resources for programimplementation.

In response, today’s rule still followsthe regulatory scheme of the proposedrule, but incorporates additionalflexibility to address some of theconcerns raised by commenters.

In order to facilitate implementationby States that utilize a watershedpermitting approach or similar approach(i.e., based on a State’s unifiedwatershed assessments), today’s ruleallows States to phase in coverage forMS4s in jurisdictions with a populationless than 10,000. Under such anapproach, States could focus theirresources on a rolling basis to assistsmaller MS4s in developing storm waterprograms.

In addition, in response to concernsthat the rule should not require permitcoverage for MS4s that do notsignificantly contribute to water qualityimpairments, today’s rule providesoptions for two waivers for small MS4s.The rule allows permitting authorities toexempt from the requirement for apermit any MS4 serving a jurisdictionwith a population less than 1,000,unless the State determines that theMS4 must implement storm watercontrols because it is significantlycontributing to a water qualityimpairment. A second waiver optionapplies to MS4s serving a jurisdictionwith a population less than 10,000. Forthose MS4s, the State must determinethat discharges from the MS4 do notsignificantly contribute to a waterquality impairment, or have thepotential for such an impairment, inorder to provide the exemption. TheState must review this waiver on aperiodic basis no less frequently thanonce every five years.

Throughout the development oftoday’s rule, commenters questionedwhether the Clean Water Act authorizedthe use of the NPDES permit program,pointing out that the text of CWA402(p)(6) does not use the word‘‘permit.’’ Based on the absence of theword ‘‘permit’’ and the express mentionof State storm water managementprograms, the commenters asserted thatCongress did not intend for Phase IIsources to be regulated using NPDESpermits.

EPA disagrees with the commenters’interpretation of section 402(p)(6).Section 402(p)(6) does not preclude useof permits as part of the

‘‘comprehensive program’’ to regulatedesignated sources. The languageprovides EPA with broad discretion inthe establishment of the‘‘comprehensive program.’’ Absence ofthe word ‘‘permit’’ (a term that thestatute does not otherwise define) doesnot preclude use of a permit, which isa familiar and reasonably wellunderstood regulatory implementationvehicle. First, section 402(p)(6) says thatEPA must establish a comprehensiveprogram that ‘‘shall, at a minimum,establish priorities, establishrequirements for State stormwatermanagement programs, and establishexpeditious deadlines.’’ The ‘‘at aminimum’’ language suggests that theAgency may, and perhaps should,develop a comprehensive program thatdoes more than merely attend to theseminimum criteria. Use of the term ‘‘at aminimum’’ preserves for the Agencybroad discretion to establish acomprehensive program that includesuse of NPDES permits.

Further, in the final sentence of thesection, Congress included additionallanguage to affirm the Agency’sdiscretion. The final sentence clarifiesthat the Phase II program ‘‘may includeperformance standards, guidelines,guidance, and management practicesand treatment requirements, asappropriate.’’ Under existing CWAprograms, performance standards,(effluent limitations) guidelines,management practices, and treatmentrequirements are typically implementedthrough NPDES or dredge and fillpermits.

Although EPA believes that it had thediscretion to not require permits, theAgency has determined that it isreasonable to interpret section 402(p)(6)to authorize permits. Moreover, for thereasons discussed above, the Agencybelieves that it is appropriate to useNPDES permits in implementing today’srule.

D. Federal RoleToday’s final rule describes EPA’s

approach to expand the existing stormwater program under CWA section402(p)(6). As in all other Federalprograms, the Federal government playsan integral role in complying with,developing, implementing, overseeing,and enforcing the program. This sectiondescribes EPA’s role in the revisedstorm water program.

1. Develop Overall Framework of theProgram

The storm water discharge controlprogram under CWA section 402(p)(6)consists of the rule, tool box, andpermits. EPA’s primary role is to ensure

timely development andimplementation of all components.Today’s rule is a refinement of the firststep in developing the program. EPA isfully committed to continuing to workwith involved stakeholders ondeveloping the tool box and issuingpermits. As noted in today’s rule, EPAwill assess the municipal storm waterprogram based on (1) evaluations of datafrom the NPDES municipal storm waterprogram, (2) research concerning waterquality impacts on receiving watersfrom storm water, and (3) research onBMP effectiveness. (Section II.H,Municipal Role, provides a moredetailed discussion of this provision.)

EPA is planning to standardizeminimum requirements for constructionand post-construction BMPs in a newrulemaking under Title III of the CWA.While larger construction sites arealready subject to NPDES permits (andsmaller sites will be subject to permitspursuant to today’s rule), the permitsgenerally do not contain specificrequirements for BMP design orperformance. The permits require thepreparation of storm water pollutionprevention plans, but actual BMPselection and design is at the discretionof permittees, in conformance withapplicable State and local requirements.Where there are existing State and localrequirements specific to BMPs, theyvary widely, and many jurisdictions donot have such requirements.

In developing these regulations, EPAintends to evaluate the inclusion ofdesign and maintenance criteria asminimum requirements for a variety ofBMPs used for erosion and sedimentcontrol at construction sites, as well asfor permanent BMPs used to managepost-construction storm waterdischarges. The Agency plans toconsider the merits and performance ofall appropriate management practices(both structural and non-structural) thatcan be used to reduce adverse waterquality impacts. EPA does not intend torequire the use of particular BMPs atspecific sites, but plans to assistbuilders and developers in BMPselection by publishing data on theperformance to be expected by variousBMP types. EPA would like to buildupon the successes of some of theeffective State and local storm waterprograms currently in place around thecountry, and to establish nation-widecriteria to support builders and localjurisdictions in appropriate BMPselection.

2. Encourage Consideration of SmartGrowth Approaches

In the proposal, EPA invited commenton possible approaches for providing



incentives for local decision making thatwould limit the adverse impacts ofgrowth and development on waterquality. EPA asked for comments on this‘‘smart growth’’ approach.

EPA received comments on all sidesof this issue. A number of commenterssupported the idea of ‘‘smart growth’’incentives but did not present concreteideas. Several commenters suggested‘‘smart growth’’ criteria. States that haveadopted ‘‘smart growth’’ laws wereworried that EPA’s focus on urbanizedareas for municipal requirements couldencourage development outside ofdesignated growth areas. Today’s finalrule clearly allows States to expandcoverage of their municipal storm waterprogram outside of urbanized areas. Inaddition, the flexibility of the sixmunicipal minimum measures shouldavoid encouragement of developmentinto rural rather than urban areas. Forexample, as part of the post-construction minimum measure, EPArecommends that municipalitiesconsider policies and ordinances thatencourage infill development in higherdensity urban areas, and areas withexisting infrastructure, in order to meetthe measure’s intent.

EPA also received several commentsexpressing concern that incorporating‘‘smart growth’’ incentives threatenedthe autonomy of local governments. Onecommenter was worried that‘‘incentives’’ could become moreonerous than the minimum measures.EPA is very aware of municipalconcerns about possible federalinterference with local land useplanning. EPA is also cognizant of thedifficulty surrounding incentives for‘‘smart growth’’ activities due to theseconcerns. However, the Agency believesit has addressed these concerns byproposing a flexible approach and willcontinue to support the concept of‘‘smart growth’’ by encouraging policiesthat limit the adverse impacts of growthand development on water quality.

3. Provide Financial AssistanceAlthough Congress has not

established a fund to fully financeimplementation of the proposedextension of the existing NPDES stormwater program under CWA section402(p)(6), numerous federal financingprograms (administered by EPA andother federal agencies) can providesome financial assistance. The primaryfunding mechanism is the Clean WaterState Revolving Fund (SRF) program,which provides sources of low-costfinancing for a range of water qualityinfrastructure projects, including stormwater. In addition to the SRF, federalfinancial assistance programs include

the Water Quality CooperativeAgreements under CWA section104(b)(3), Water Pollution ControlProgram grants to States under CWAsection 106, and the TransportationEquity Act for the 21st Century (TEA–21) among others. In addition, Section319 funds may be used to fund anyurban storm water activities that are notspecifically required by a draft or finalNPDES permit. EPA will develop a listof potential funding sources as part ofthe tool box implementation effort. EPAanticipates that some of these programswill provide funds to help develop and,in limited circumstances, implement theCWA section 402(p)(6) storm waterdischarge control program.

EPA received numerous commentsthat requested additional funding.Congress provided one substantial newsource of potential funding fortransportation related storm waterprojects—TEA–21. The Department ofTransportation has included a numberof water-related provisions in its TEA–21 planning. These includeTransportation Enhancements,Environmental Restoration andPollution Abatement, andEnvironmental Streamlining. Moreinformation on TEA–21 is available atthe following internet sites:www.fhwa.dot.gov/tea21/outreach.htmand www.tea21.org.

4. Implement the Program inJurisdictions Not Authorized ToAdminister the NPDES Program

Because today’s final rule uses theNPDES framework, EPA will be theNPDES permitting authority in severalStates, Tribal jurisdictions, andTerritories. As such, EPA will have thesame responsibilities as any otherNPDES permitting authority—issuingpermits, designating additional sources,and taking appropriate enforcementactions—and will seek to tailor thestorm water discharge control programto the specific needs in that State, Tribaljurisdiction, or Territory. EPA also plansto provide support and oversight,including outreach, training, andtechnical assistance to the regulatedcommunities. Section II.G. of today’spreamble provides a separate discussionrelated to the NPDES permittingauthority’s responsibilities for today’sfinal rule.

5. Oversee State and Tribal ProgramsUnder the NPDES program, EPA plays

an oversight role for NPDES-approvedStates and Tribes. In this role, EPA andthe State or Tribe work together toimplement, enforce, and improve theNPDES program. Part of this oversightrole includes working with States and

Tribes to modify their programs whereprogrammatic or implementationconcerns impede program effectiveness.This role will be vitally important whenStates and Tribes make adjustments todevelop, implement, and enforcetoday’s extension of the existing NPDESstorm water discharge control program.In addition, States maintain acontinuing planning process (CPP)under CWA section 303(e), which EPAperiodically reviews to assess theprogram’s achievements.

In its oversight role, EPA takes actionto address States and Tribes who haveobtained NPDES authorization but arenot fulfilling their obligations under theNPDES program. If an NPDES-authorized State or Tribe fails toimplement an adequate NPDES stormwater program, for example, EPAtypically enters into extensivediscussions to resolve outstandingissues. EPA has the authority towithdraw the entire NPDES programwhen resolution cannot be reached.Partial program withdrawal is notprovided for under the CWA except forpartial approvals.

EPA is also working with the Statesand Tribes to improve nonpoint sourcemanagement programs and assessmentsto incorporate key program elements.Key nonpoint source program elementsinclude setting short and long termgoals and objectives; establishing publicand private partnerships; using abalanced approach incorporatingStatewide and watershed-wideabatement of existing impairments;preventing future impairments;developing processes to address bothimpaired and threatened waters;reviewing and upgrading all programcomponents, including programrevisions on a 5-year cycle; addressingfederal land management and activitiesinconsistent with State programs; andmanaging State nonpoint sourcemanagement programs effectively.

In particular, EPA works with theStates and Tribes to strengthen theirnonpoint source pollution programs toaddress all significant nonpoint sources,including agricultural sources, throughthe CWA section 319 program. EPA isworking with other governmentagencies, as well as with communitygroups, to effect voluntary changesregarding watershed protection andreduced nonpoint source pollution.

In addition, EPA and NOAA havepublished programmatic and technicalguidance to address coastal nonpointsource pollution. Under Section 6217 ofthe CZARA, States are developing andimplementing coastal nonpointpollution control programs approved byEPA and NOAA.



6. Comply With ApplicableRequirements as a Discharger

Today’s final rule covers federallyoperated facilities in a variety of ways.These facilities are generally areaswhere people reside, such as a federalprison, hospital, or military base. It alsoincludes federal parkways and roadsystems with separate storm sewersystems. Today’s rule requires federalMS4s to comply with the sameapplication deadlines that apply toregulated small MS4s generally. EPAbelieves that all federal MS4s servepopulations of less than 100,000.

EPA received several comments thatasked if individual buildings like postoffices are considered to be small MS4sand thereby regulated in today’s rule ifthey are in an urbanized area. Most ofthese buildings have at most a parkinglot with runoff or a storm sewer thatconnects with a municipality’s MS4.EPA does not intend that individualfederal buildings be considered to besmall MS4s. This is discussed in sectionII.H.2.b. of today’s preamble.

Federal facilities can also be includedunder requirements addressing stormwater discharges associated with smallconstruction activities. In any case,discharges from these facilities willneed to comply with all applicableNPDES requirements and any additionalwater quality-related requirementsimposed by a State, Tribal, or localgovernment. Failure to comply canresult in enforcement actions. Federalfacilities can act as models formunicipal and private sector facilitiesand implement or test state-of-the-artmanagement practices and controlmeasures.

E. State Role

Today’s final rule sets forth an NPDESapproach for implementing theextension of the existing storm waterdischarge control program under CWAsection 402(p)(6). State assumption ofthe NPDES program is voluntary,consistent with the principles offederalism. Because most States areapproved to implement the NPDESprogram, they will tailor their stormwater discharge control programs toaddress their water quality needs andobjectives. While today’s ruleestablishes the basic framework for thesection 402(p)(6) program, States as wellas Tribes (see discussion in section II.F)have an important role in fine-tuningthe program to address the water qualityissues within their jurisdictions. Thebasic framework allows for adjustmentsbased on factors that varygeographically, including climatepatterns and terrain.

Where States do not have NPDESauthority, they are not required toimplement the storm water dischargecontrol program, but they may stillparticipate in water quality protectionthrough participation in the CWAsection 401 certification process (for anypermits) and through development ofwater quality standards and TMDLs.

1. Develop the ProgramIn expanding the existing NPDES

program for storm water discharges,States must evaluate whether revisionsto their NPDES programs are necessary.If so, modifications must be made inaccordance with § 123.62. Under§ 123.62, States must revise their NPDESprograms within 1 year, or within 2years if statutory changes are necessary.

Some States and departments oftransportation (DOTs) commented thatthis timeframe is too short, anticipatingthat the State legislative process and themodification of regulations combinedwould take beyond 2 years. Thedeadline language in § 123.62 is not newlanguage for the storm water dischargecontrol program; it applies to all NPDESprograms. EPA believes the vastmajority of States will meet the deadlineand will work with States in those caseswhere there may be difficulty meetingthis deadline due to the timing oflegislative sessions and the regulatorydevelopment process.

An authorized State NPDES programmust meet the requirements of CWAsection 402(b) and conform to theguidelines issued under CWA section304(i)(2). Today’s final rule under§ 123.25 adds specific cross referencesto the storm water discharge controlprogram components to ensure thatStates adequately address theserequirements.

2. Comply With ApplicableRequirements as a Discharger

Today’s final rule covers Stateoperated separate storm sewer systemsin a variety of ways. These systemsgenerally drain areas where peoplereside, such as a prison, hospital, orother populated facility. These systemsare included under the definition of aregulated small MS4, which specificallyidentifies systems operated by Statedepartments of transportation.Alternatively, storm water dischargesfrom State activities may be regulatedunder the section addressing stormwater discharges associated with smallconstruction activities. In any case,discharges from these facilities mustcomply with all applicable NPDESrequirements. Failure to comply canresult in enforcement actions. Statefacilities can act as models for

municipal and private sector facilitiesand implement or test state-of-the-artmanagement practices and controlmeasures.

3. Communicate With EPA

Under approved NPDES programs,States have an ongoing obligation toshare information with EPA. Thisdialogue is particularly important in theCWA section 402(p)(6) storm waterprogram where these governmentscontinue to develop a great deal of theguidance and outreach related to waterquality.

F. Tribal Role

The proposal to today’s final ruleprovides background information onEPA’s 1984 Indian Policy and thecriteria for treatment of an Indian Tribein the same manner as a State. Today’sfinal rule extends the existing NPDESprogram for storm water discharges totwo types of dischargers located inIndian country. First, the final ruledesignates storm water discharges fromany regulated small MS4, includingTribal systems. Second, the final ruleregulates discharges associated withconstruction activity disturbing betweenone and five acres of land, includingsites located in Indian country.Operators in each of these categories ofregulated activity must apply forcoverage under an NPDES permit by 3years and 90 days from the date ofpublication of today’s final rule. Underexisting regulations, however, EPA or anauthorized NPDES Tribe may require aspecified storm water discharger toapply for NPDES permit coverage beforethis deadline based on a determinationthat the discharge is contributing to aviolation of a water quality standard(including designated uses) or is asignificant contributor of pollutants.

Under today’s rule, a Tribalgovernmental entity may regulate stormwater discharges on its reservation intwo ways—as either an NPDES-authorized Tribe or as a regulated MS4.If a Tribe is authorized to operate theNPDES program, the Tribe mustimplement today’s final rule for theNPDES program for storm water forcovered dischargers located within theEPA recognized boundaries. Otherwise,EPA is generally the permitting/programauthority within Indian country.Discussions about the State Role in thepreceding section also apply to NPDESauthorized Tribes. For additionalinformation on the role andresponsibilities of the permittingauthority in the NPDES storm waterprogram, see § 123.35 (and Section II.G.of today’s preamble) and § 123.25(a).



Under today’s final rule, if the Indianreservation is located entirely orpartially within an ‘‘urbanized area,’’ asdefined in § 122.32(a)(1), the Tribe mustobtain an NPDES permit if it operates asmall MS4 within the urbanized areaportion. Tribal MS4s located outside anurbanized area are not automaticallycovered, but may be designated by EPApursuant to § 122.32(a)(2) of today’s ruleor may request designation as aregulated small MS4 from EPA. A Tribethat is a regulated MS4 for NPDESprogram purposes is required toimplement the six minimum controlmeasures to the extent allowable underFederal law.

The Tribal representative on theStorm Water Phase II FACASubcommittee asked EPA to provide alist of the Tribes located in urbanizedareas that would fall within the NPDESstorm water program under today’s finalrule. In December 1996, EPA developeda list of federally recognized AmericanIndian Areas located wholly or partiallyin Bureau of the Census-designatedurbanized areas (see Appendix 1).Appendix 1 not only provides a listingof reservations and individual Tribes,but also the name of the particularurbanized area in which the reservationis located and an indication of whetherthe urbanized area contains a mediumor large MS4 that is already covered bythe existing Phase I regulations.

Some of the Tribes listed in Appendix1 are only partially located in anurbanized area. If the Tribe’s MS4 servesless than 1,000 people within anurbanized area, the permitting authoritymay waive the Tribe’s MS4 storm waterrequirements if it meets the conditionsof § 122.32(c). EPA does not haveinformation on the Tribal populationswithin the urbanized areas, so it can notidentify the Tribes that are eligible fora waiver. Therefore, a Tribe thatbelieves it qualifies for a waiver shouldcontact its permitting authority.

G. NPDES Permitting Authority’s Rolefor the NPDES Storm Water Small MS4Program

As noted previously, the NPDESpermitting authority can be EPA or anauthorized State or an authorized Tribe.The following discussion describes therole of the NPDES permitting authorityunder today’s final rule.

1. Comply With ImplementationRequirements

NPDES permitting authorities mustperform certain duties to implement theNPDES storm water municipal program.Section 123.35(a) of today’s final ruleemphasizes that permitting authoritieshave existing obligations under the

NPDES program. Section 123.35 focuseson specific issues related to the role ofthe NPDES authority to supportadministration and implementation ofthe municipal storm water programunder CWA section 402(p)(6).

2. Designate Sources

Section 123.35(b) of today’s final ruleaddresses the requirements for theNPDES permitting authority todesignate sources of storm waterdischarges to be regulated under§§ 122.32 through 122.36. NPDESpermitting authorities must develop aprocess, as well as criteria, to designatesmall MS4s. They must also have theauthority to designate a small MS4 ifand when circumstances that support awaiver under § 122.32(c) change. EPAmay make designations if an NPDES-approved State or Tribe fails to do so.

NPDES permitting authorities mustexamine geographic jurisdictions thatthey believe should be included in thestorm water discharge control programbut are not located in an ‘‘urbanizedarea’’. Small MS4s in these areas are notdesignated automatically. Dischargesfrom such areas should be brought intothe program if found to have actual orpotential exceedances of water qualitystandards, including impairment ofdesignated uses, or other adverseimpacts on water quality, as determinedby local conditions or watershed andTMDL assessments. EPA’s aim is toaddress discharges to impaired watersand to protect waters with the potentialfor problems. EPA encourages NPDESpermitting authorities, localgovernments, and the interested publicto work together in the context of awatershed plan to address water qualityissues, including those associated withmunicipal storm water runoff.

EPA received comments stating thatthe process of developing criteria andapplying it to all MS4s outside anurbanized area serving a population of10,000 or greater and with a density of1,000 people per square mile is tootime-consuming and resource-intensive.These commenters believe that thepermitting authority should decidewhich MS4s must be brought into thestorm water discharge control programand that population and density shouldnot be an overriding criteria. Onesuggested way of doing so was to onlydesignate MS4s with demonstratedcontributions to the impairment ofwater quality uses as shown by a TMDL.EPA disagrees with this suggestion. TheTMDL process is time-consuming. MS4soutside of urbanized areas may causewater quality problems long before aTMDL is completed.

EPA believes that permittingauthorities should consider thepotential water quality impacts of stormwater from all jurisdictions with apopulation of 10,000 or greater and adensity of 1,000 people per square mile.EPA is using data summarized in theNURP study and in the CWA section305(b) reports to support this approachfor targeted designation outside ofurbanized areas. EPA is not mandatingwhich criteria are to be used, but hasprovided examples of criteria that maybe useful in evaluating potential waterquality impacts. EPA believes that theflexibility provided in this section oftoday’s final rule allows the permittingauthority to develop criteria and adesignation process that is easy to useand protects water quality. Therefore,the provisions of § 123.35(b) remain asproposed.

a. Develop Designation CriteriaUnder § 123.35(b), the NPDES

permitting authority must establishdesignation criteria to evaluate whethera storm water discharge results in or hasthe potential to result in exceedances ofwater quality standards, includingimpairment of designated uses, or othersignificant water quality impacts,including adverse habitat and biologicalimpacts.

EPA recommends that NPDESpermitting authorities consider, in abalanced manner, certain locally-focused criteria for designating any MS4located outside of an urbanized area onthe basis of significant water qualityimpacts. EPA recommendsconsideration of criteria such asdischarge to sensitive waters, highgrowth or growth potential, highpopulation density, contiguity to anurbanized area, significant contributionof pollutants to waters of the UnitedStates, and ineffective control of waterquality concerns by other programs.These suggested designation criteria areintended to help encourage thepermitting authority to use an objectivemethod for identifying and designating,on a local basis, sources that adverselyimpact water quality. More informationabout these criteria and the reasons whythey are suggested by EPA is includedin the January 9, 1998, proposal (63 FR1561) for today’s final rule.

The suggested criteria are meant to betaken in the aggregate, with a great dealof flexibility as to how each should beweighed in order to best account forwatershed and other local conditionsand to allow for a more tailored case-by-case analysis. The application of criteriais meant to be geographically specific.Furthermore, each criterion does nothave to be met in order for a small MS4



to qualify for designation, nor should anMS4 necessarily be designated on thebasis of one or two criteria alone.

EPA believes that the application ofthe recommended designation criteriaprovides an objective indicator of realand potential water quality impactsfrom urban runoff on both the local andwatershed levels. EPA encourages theapplication of the recommended criteriain a watershed context, thereby allowingfor the evaluation of the water qualityimpacts of the portions of a watershedoutside of an urbanized area. Forexample, situations exist where theurbanized area represents a smallportion of a degraded watershed, andthe adjacent nonurbanized areas of thewatershed have significant cumulativeeffects on the quality of the receivingwaters.

EPA received numerous suggestionsof additional criteria that should beadded and reasons why some of thecriteria in the proposal to today’s finalrule were not appropriate. EPAdeveloped its suggested designationcriteria based on findings of the NURPstudy and other studies that indicatepollutants of concern, including totalsuspended solids, chemical oxygendemand, and temperature. These criteriawere the subject of considerablediscussion by the Storm Water Phase IIFACA Subcommittee. EPA developedthem in response to recommendationsfrom the subcommittee duringdevelopment of the proposed rule. Thelisted criteria are only suggestions.Permitting authorities are required todevelop their own criteria. EPA has notfound any reason to change itssuggested list of criteria and thesuggestions remain as proposed.

b. Apply Designation CriteriaAfter customizing the designation

criteria for local conditions, thepermitting authority must apply suchcriteria, at a minimum, to any MS4located outside of an urbanized areaserving a jurisdiction with a populationof at least 10,000 and a populationdensity of 1,000 people per square mileor greater (see § 123.35(b)(2)). If theNPDES permitting authority determinesthat an MS4 meets the criteria, thepermitting authority must designate it asa regulated small MS4. This designationmust occur within 3 years of publicationof today’s final rule. Alternatively, theNPDES authority can designate within 5years from the date of final regulation ifthe designation criteria are applied on awatershed basis where a comprehensivewatershed plan exists (a comprehensivewatershed plan is one that includes theequivalents of TMDLs) (see§ 123.35(b)(3)). The extended 5 year

deadline is intended to provideincentives for watershed-baseddesignations. If an NPDES-authorizedState or Tribe does not develop andapply designation criteria within thistimeframe, then EPA has theopportunity to do so in lieu of theauthorized State or Tribe.

NPDES permitting authorities candesignate any small MS4, including onebelow 10,000 in population and 1,000 indensity. EPA established the 10,000/1,000 threshold based on the likelihoodof adverse water quality impacts at thesepopulation and density levels. Inaddition, the 1,000 persons per squaremile threshold is consistent with boththe Bureau of the Census definition ofan ‘‘urbanized area’’ (see Section II.H.2.below) and stakeholder discussionsconcerning the definition of a regulatedsmall MS4.

One commenter requested that EPAdevelop interim deadlines fordevelopment of designation criteria.EPA believes that the designationdeadline identified in today’s final ruleat § 123.35(b)(3) provides States andTribes with a flexibility that allowsthem to develop and apply the criterialocally in a timely fashion, while at thesame time establishing an expeditiousdeadline.

c. Designate Physically InterconnectedSmall MS4s

In addition to applying criteria on alocal basis for potential designation, theNPDES permitting authority mustdesignate any MS4 that contributessubstantially to the pollutant loadings ofa physically interconnected municipalseparate storm sewer that is regulated bythe NPDES program for storm waterdischarges (see § 123.35(b)(4)). To be‘‘physically interconnected,’’ the MS4 ofone entity, including roads withdrainage systems and municipal streets,is physically connected directly to themunicipal separate storm sewer ofanother entity. This provision applies toall MS4s located outside of anurbanized area. EPA added this sectionin recognition of the concerns of localgovernment stakeholders that a localgovernment should not have to shouldertotal responsibility for a storm waterprogram when storm water dischargesfrom another MS4 are also contributingpollutants or adversely affecting waterquality. This provision also helps toprovide some consistency among MS4programs and to facilitate watershedplanning in the implementation of theNPDES storm water program. EPArecommended physicalinterconnectedness in the existingNPDES storm water regulations as a

factor for consideration in thedesignation of additional sources.

Today’s final rule does not includeinterim deadlines for identifyingphysically interconnected MS4s.However, consistent with the deadlinesidentified in § 123.35(b)(3) of today’sfinal rule, EPA encourages thepermitting authority to make thesedeterminations within 3 years from thedate of publication of the final rule orwithin 5 years if the permittingauthority is implementing acomprehensive watershed plan.Alternatively, the affected jurisdictioncould use the petition process under 40CFR 122.26(f) in seeking to have thepermitting authority designate thecontributing jurisdiction.

Several commenters expressedconcerns about who could be designatedunder this provision (§ 123.35(b)(4)).One commenter requested that the word‘‘substantially’’ be deleted from the rulebecause they believe any MS4 thatcontributes at all to a physicallyinterconnected municipal separatestorm sewer should be regulated. EPAbelieves that the word ‘‘substantially’’provides necessary flexibility to thepermitting authorities. The permittingauthority can decide if an MS4 iscontributing discharges to anothermunicipal separate storm sewer in amanner that requires regulation. If theoperator of a regulated municipalseparate storm sewer believes that someof its pollutant loadings are comingfrom an unregulated MS4, it canpetition the permitting authority todesignate the unregulated MS4 forregulation.

d. Respond to Public Petitions forDesignation

Today’s final rule reiterates theexisting opportunity for the public topetition the permitting authority fordesignation of a point source to beregulated to protect water quality. Thepetition opportunity also appears inexisting NPDES regulations at 40 CFR122.26(f). Any person may petition thepermitting authority to require anNPDES permit for a discharge composedentirely of storm water that contributesto a violation of a water quality standardor is a significant contributor ofpollutants to the waters of the UnitedStates (see § 123.32(b)). The NPDESpermitting authority must make a finaldetermination on any petition within180 days after receiving the petition (see§ 123.35(c)). EPA believes that a 180 daylimit balances the public’s need for atimely final determination with theNPDES permitting authority’s need toprioritize its workload. If an NPDES-approved State or Tribe fails to act



within the 180-day timeframe, EPA maymake a determination on the petition.EPA believes that public involvement isan important component of the NPDESprogram for storm water and feels thatthis provision encourages publicparticipation. Section II.K, PublicInvolvement/Public Role, furtherdiscusses this topic.

3. Provide WaiversToday’s rule provides two

opportunities for the NPDES permittingauthority to exempt certain small MS4sfrom the need for a permit based onwater quality considerations. See§§ 122.32(d) and (e). The two waiveropportunities have different sizethresholds and take differentapproaches to considering the waterquality impacts of discharges from theMS4.

In the proposal, EPA requestedcomment on the option of waivingcoverage for all MS4s with less than1,000 people unless the permittingauthority determined that the smallMS4 should be regulated based onsignificant adverse water qualityimpacts. A number of commenterssupported this option. They expressedconcern that compliance with the rulerequirements and certification of one ofthe waiver provisions were both costlyfor very small communities. They statedthat the permitting authority shouldidentify a water quality problem beforerequiring compliance. Today’s ruleessentially adopts this alternativeapproach for MS4s serving a populationunder 1,000.

The final rule has expanded thewaiver provision that EPA proposed forsmall MS4s with a population less than1,000. The proposed rule would haverequired a small MS4 operator to certifythat storm water controls are not neededbased on either wasteload allocationsthat are part of TMDLs that address thepollutants of concern, or acomprehensive watershed planimplemented for the waterbody thatincludes the equivalents of TMDLs andaddresses the pollutant(s) of concern.Commenters noted that the proposedwaivers would be unattainable if aTMDL or equivalent analysis wasrequired for every pollutant that couldpossibly be present in any amount indischarges from an MS4 regardless ofwhether the pollutant is causing waterquality impairment. Commenters askedthat EPA identify what constitutes the‘‘pollutant(s) of concern’’ for which aTMDL or its equivalent must bedeveloped. For example, § 122.30(c)indicates that the MS4 program isintended to control ‘‘sediment,suspended solids, nutrients, heavy

metals, pathogens, toxins, oxygen-demanding substances, and floatables.’’Commenters asked whether TMDLs orequivalent analyses have to address allof these.

EPA has revised the proposed waiverin response to these concerns. Undertoday’s rule, NPDES permittingauthorities may waive the requirementsof today’s rule for any small MS4 witha population less than 1,000 that doesnot contribute substantially to thepollutant loadings of a physicallyinterconnected MS4, unless the smallMS4 discharges pollutants that havebeen identified as a cause of impairmentof the waters to which the small MS4discharges. If the small MS4 doesdischarge pollutants that have beenidentified as impairing the water bodyinto which the small MS4 discharges,the NPDES permitting authority maygrant a waiver only if it determines thatstorm water controls are not neededbased on an EPA approved orestablished TMDL that addresses thepollutant(s) of concern.

Unlike the proposed rule, § 122.32(d)does not allow the waiver for MS4sserving a population under 1,000 to bebased on ‘‘the equivalent of a TMDL.’’Because § 122.32(d) requires a pollutantspecific analysis only for a pollutantthat has been identified as a cause ofimpairment, a TMDL is required forsuch pollutant before the waiver may begranted. Once a pollutant has beenidentified as the cause of impairment ofa water body, the State should developa TMDL for that pollutant for that waterbody. Thus, § 122.32(d) takes a differentapproach than that taken for the waiverin § 122.32(e) for MS4s serving apopulation under 10,000, which can bebased upon an analysis that is ‘‘theequivalent of a TMDL.’’ This is because§ 122.32(d) requires an analysis tosupport the waiver for MS4s under1,000 only if a waterbody to which theMS4 discharges has been identified asimpaired. The § 122.32(e) waiver, on theother hand, would be available for largerMS4s but only after the Stateaffirmatively establishes lack ofimpairment based upon acomprehensive analysis of smallerurban waters that might not otherwisebe evaluated for the purposes of CWAsection 303. Since § 122.32(e) requiresthe analysis of waters that have not beenidentified as impaired, an actual TMDLis not required and an analysis that isthe equivalent of a TMDL can suffice tosupport the waiver.

Where a State is the NPDESpermitting authority, the permittingauthority is responsible for thedevelopment of the TMDLs as well asthe assessment of the extent to which a

small MS4’s discharge contributespollutants to a neighboring regulatedsystem. In States where EPA is thepermitting authority, EPA will use aState’s TMDLs to determine whetherstorm water controls are required for thesmall MS4s.

The proposed rule would haverequired the operator of the small MS4serving a population under 1,000 tocertify that its discharge was coveredunder a TMDL that indicated thatdischarges from its particular systemwere not having an adverse impact onwater quality (i.e., it was either notassigned wasteload allocations underTMDLs or its discharge is within anassigned allocation). Many commentersexpressed concerns that MS4 operatorsserving less than 1,000 persons may lackthe technical capacity to certify thattheir discharges are not contributing toadverse water quality impacts. Thesecommenters thought that the permittingauthority should make such acertification. Today’s rule providesflexibility as to how the waiver isadministered. Permitting authorities areultimately responsible for granting thewaiver, but are free to determinewhether or not to require small MS4operators that are seeking waivers tosubmit information or a writtencertification.

Under § 122.32(e) a State may grant awaiver to an MS4 serving a populationbetween 1,000 and 10,000 only if theState has made a comprehensive effortto ensure that the MS4 will not cause orcontribute to water quality impairment.To grant a § 122.32(e) waiver, theNPDES permitting authority mustevaluate all waters of the U.S. thatreceive a discharge from the MS4 anddetermine that storm water controls arenot needed. The permitting authority’sevaluation must be based on wasteloadallocations that are part of an EPAapproved or established TMDL or, if aTMDL has not been developed orapproved, an equivalent analysis thatdetermines sources and allocations forthe pollutant(s) of concern. Thepollutants of concern that the permittingauthority must evaluate includebiochemical oxygen demand (BOD),sediment or a parameter that addressessediment (such as total suspendedsolids, turbidity or siltation), pathogens,oil and grease, and any other pollutantthat has been identified as a cause ofimpairment of any water body that willreceive a discharge from the MS4.Finally, the permitting authority musthave determined that future dischargesfrom the MS4 do not have the potentialto result in exceedances of water qualitystandards, including impairment ofdesignated uses, or other significant



water quality impacts, including habitatand biological impacts.

Although EPA did not propose thisspecific approach, the Agency didrequest comment on whether to increasethe proposed 1,000 populationthreshold for a waiver. The § 122.32(e)waiver was developed in response tocomments, including States’ concernsthat they needed greater flexibility tofocus their efforts on MS4s that werecausing water quality impairment.Several commenters thought that thethreshold should be increased from1,000 to 5,000 or 10,000. Otherssuggested additional ways of qualifyingfor a waiver for MS4s that discharge towaters that are not covered by a TMDLor watershed plan. EPA carefullyconsidered all the options for expandingthe waiver provisions and has decidedto expand the waiver only in the verynarrow circumstances described abovewhere a comprehensive analysis hasbeen undertaken to demonstrate that theMS4 is not causing water qualityimpairment.

The NPDES permitting authority can,at any time, mandate compliance withprogram requirements from a previouslywaived small MS4 if circumstanceschange. For example, a waiver can bewithdrawn in circumstances where thepermitting authority later determinesthat a waived small MS4’s storm waterdischarge to a small stream will causeadverse impacts to water quality orsignificantly interfere with attainment ofwater quality standards. A ‘‘change incircumstances’’ could involve receipt ofnew information. Changedcircumstances can also allow aregulated small MS4 operator to requesta waiver at any time.

Some commenters expressed concernsabout allowing any small MS4 waivers.One commenter stated that storm waterpollution prevention plans arenecessary to control storm waterpollution and should be required fromall regulated small MS4s. For thereasons stated in the Backgroundsection above, EPA agrees that thedischarges from most MS4s inurbanized areas should be addressed bya storm water management programoutlined in today’s rule. For MS4sserving very small areas, however, theTMDL development process provides anopportunity to determine whether anMS4 serving a population less than1,000 is having a negative impact on anyreceiving water that is impaired by apollutant that the MS4 discharges. MS4sserving populations up to 10,000 mayreceive a waiver only if acomprehensive analysis of its impact onreceiving water has been performed.

Other commenters said that waiversshould not be allowed for small MS4sthat discharge into another regulatedMS4. These commenters stated that theword ‘‘substantially’’ should beremoved from § 122.32(d)(i) so that awaiver would not be allowed for anysystem ‘‘contributing to the storm waterpollutant loadings of a physicallyinterconnected regulated MS4.’’ Aspreviously mentioned under thedesignation discussion of sectionII.G.2.c, EPA believes that the word‘‘substantially’’ provides neededflexibility to the permitting authorities.It is important to note that this is onlyone aspect that the permitting authoritymust consider when deciding on theappropriateness of a waiver.

4. Issue Permits

NPDES permitting authorities have anumber of responsibilities regarding thepermit process. Sections 123.35(d)through (g) ensure a certain level ofconsistency for permits, yet providenumerous opportunities for flexibility.NPDES permitting authorities mustissue NPDES permits to cover municipalsources to be regulated under § 122.32,unless waived under § 122.32(c). EPAencourages permitting authorities to usegeneral permits as the vehicle forpermitting and regulating small MS4s.The Agency notes, however, that someoperators may wish to take advantage ofthe option to join as a co-permittee withan MS4 regulated under the existingNPDES storm water program.

Today’s final rule includes aprovision, § 123.35(f), that requiresNPDES permitting authorities to eitherinclude the requirements in § 122.34 forNPDES permits issued for regulatedsmall MS4s or to develop permit limitsbased on a permit application submittedby a small MS4. See Section II.H.3.a,Minimum Control Measures, for moredetails on the actual § 122.34requirements. See Section II.H.3.c foralternative and joint permitting options.

In an attempt to avoid duplication ofeffort, § 122.34(c) allows NPDESpermitting authorities to include permitconditions that direct an MS4 to meetthe requirements of a qualifying local,Tribal, or State municipal storm watermanagement program. For a local,Tribal, or State program to ‘‘qualify,’’ itmust impose, at a minimum, therelevant requirements of § 122.34(b). Aregulated small MS4 must still followthe procedural requirements for anNPDES permit (i.e., submit anapplication, either an individualapplication or an NOI under a generalpermit) but will instead follow thesubstantive pollutant control

requirements of the qualifying local,Tribal, or State program.

Under § 122.35(b), NPDES permittingauthorities may also recognize existingresponsibilities among governmentalentities for the minimum controlmeasures in an NPDES small MS4 stormwater permit. For example, the permitmight acknowledge the existence of aState administered program thataddresses construction site runoff andrequire that the municipalities onlydevelop substantive controls for theremaining minimum control measures.By acknowledging existing programs,this provision is meant to reduce theduplication of efforts and to increase theflexibility of the NPDES storm waterprogram.

Section 123.35(e) of today’s final rulerequires permitting authorities tospecify a time period of up to 5 yearsfrom the issuance date of an NPDESpermit for regulated small MS4operators to fully develop andimplement their storm water programs.As discussed more fully below,permitting authorities should beproviding extensive support to the localgovernments to assist them indeveloping and implementing theirprograms.

In the proposed rule, EPA stated thatthe permitting authority would developthe menu of BMPs and if they failed todo so, EPA would develop the menu.Commenters felt that EPA shoulddevelop a menu of BMPs, rather thanjust providing guidance. In thesettlement agreement for seeking anextension to the deadline for issuingtoday’s rule, EPA committed todeveloping a menu of BMPs by October27, 2000. Permitting authorities canadopt EPA’s menu or develop their own.The menu itself is not intended toreplace more comprehensive BMPguidance materials. As part of the toolbox efforts, EPA will provide separateguidance documents that discuss theresults from EPA-sponsored nationwidestudies on the design, operation andmaintenance of BMPs. Additionally,EPA expects that the new rulemaking onconstruction BMPs may provide morespecific design, operation andmaintenance criteria.

5. Support and Oversee the LocalPrograms

NPDES permitting authorities areresponsible for supporting andoverseeing the local municipalprograms. Section 123.35(h) of today’sfinal rule highlights issues associatedwith these responsibilities.

To the extent possible, NPDESpermitting authorities should providefinancial assistance to MS4s, which



often have limited resources, for thedevelopment and implementation oflocal programs. EPA recognizes thatfunding for programs at the State andTribal levels may also be limited, butstrongly encourages States and Tribes toprovide whatever assistance is possible.In lieu of actual dollars, NPDESpermitting authorities can provide cost-cutting assistance in a number of ways.For example, NPDES permittingauthorities can develop outreachmaterials for MS4s to distribute or theNPDES permitting authority canactually distribute the materials.Another option is to implement anerosion and sediment control programacross an entire State (or Tribal land),thus alleviating the need for the MS4 toimplement its own program. TheNPDES permitting authority mustbalance the need for site-specificcontrols, which are best handled by alocal MS4, with its ability to offerfinancial assistance. EPA, States, Tribes,and MS4s should work as a team inmaking these kinds of decisions.

NPDES permitting authorities areresponsible for overseeing the localprograms. Permitting authorities shouldwork with the regulated community andother stakeholders to assist in localprogram development andimplementation. This might includesharing information, analyzing reports,and taking enforcement actions, asnecessary. NPDES permitting authoritiesplay a vital role in supporting localprograms by providing technical andprogrammatic assistance, conductingresearch projects, and monitoringwatersheds. The NPDES permittingauthority can also assist the MS4permittee in obtaining adequate legalauthority at the local level in order toimplement the local component of theCWA section 402(p)(6) program.

NPDES permitting authorities areencouraged to coordinate and utilize thedata collected under several programs.States and Tribes address point andnonpoint source storm water dischargesthrough a variety of programs. Indeveloping programs to carry out CWAsection 402(p)(6), EPA recommends thatStates and Tribes coordinate all of theirwater pollution evaluation and controlprograms, including the continuingplanning process under CWA section303(e), the existing NPDES program, theCZARA program, and nonpoint sourcepollution control programs.

In addition, NPDES permittingauthorities are encouraged to provide abrief (e.g., two-page) reporting format tofacilitate compilation and analysis ofdata from reports submitted under§ 122.34(g)(3). EPA intends to develop amodel form for this purpose.

H. Municipal Role

1. Scope of Today’s RuleToday’s final rule attempts to

establish an equitable andcomprehensive four-pronged approachfor the designation of municipalsources. First, the approach defines forautomatic coverage the municipalsystems believed to be of highest threatto water quality. Second, the approachdesignates municipal systems that meeta set of objective criteria used tomeasure the potential for water qualityimpacts. Third, the approach designateson a case-by-case basis municipalsystems that ‘‘contribute substantially tothe pollutant loadings of a physically-interconnected [regulated] MS4.’’Finally, the approach designates on acase-by-case basis, upon petition,municipal systems that ‘‘contribute to aviolation of a water quality standard orare a significant contributor ofpollutants.’’

Today’s final rule automaticallydesignates for regulation small MS4slocated in urbanized areas, and requiresthat NPDES permitting authoritiesexamine for potential designation, at aminimum, a particular subset of smallMS4s located outside of urbanizedareas. Today’s rule also includesprovisions that allow for waivers fromthe otherwise applicable requirementsfor the smallest MS4s that are notcausing impairment of a receiving waterbody. Qualifications for the waiversvary depending on whether the MS4serves a population under 1,000 or apopulation under 10,000. See§§ 122.32(d) and (e). These waivers arediscussed further in section II.G.3. Anysmall MS4 automatically designated bythe final rule or designated by thepermitting authority under today’s finalrule is defined as a ‘‘regulated’’ smallMS4 unless it receives a waiver.

In today’s final rule, all regulatedsmall MS4s must establish a stormwater discharge control program thatmeets the requirements of six minimumcontrol measures. These minimumcontrol measures are public educationand outreach on storm water impacts,public involvement participation, illicitdischarge detection and elimination,construction site storm water runoffcontrol, post-construction storm watermanagement in new development andredevelopment, and pollutionprevention/good housekeeping formunicipal operations.

Today’s rule allows for a great deal offlexibility in how an operator of aregulated small MS4 is authorized todischarge under an NPDES permit, byproviding various options for obtainingpermit coverage and satisfying the

required minimum control measures.For example, the NPDES permittingauthority can incorporate by referencequalifying State, Tribal, or localprograms in an NPDES general permitand can recognize existingresponsibilities among differentgovernmental entities for theimplementation of minimum controlmeasures. In addition, a regulated smallMS4 can participate in the storm watermanagement program of an adjoiningregulated MS4 and can arrange to haveanother governmental entity implementa minimum control measure on theirbehalf.

2. Municipal Definitions

a. Municipal Separate Storm SewerSystems (MS4s)

The CWA does not define the term‘‘municipal separate storm sewer.’’ EPAdefined municipal separate storm sewerin the existing storm water permitapplication regulations to mean, in part,a conveyance or system of conveyances(including roads with drainage systemsand municipal streets) that is ‘‘owned oroperated by a State, city, town borough,county, parish, district, association, orother public body * * * designed orused for collecting or conveying stormwater which is not a combined sewerand which is not part of a PubliclyOwned Treatment Works as defined at40 CFR 122.2’’ (see § 122.26(b)(8)(i)).Section 122.26 contains definitions ofmedium and large municipal separatestorm sewer systems but no definition ofa municipal separate storm sewersystem, even though the term MS4 iscommonly used. In today’s rule, EPA isadding a definition of municipalseparate storm sewer system and smallmunicipal separate storm sewer systemalong with the abbreviations MS4 andsmall MS4.

The existing municipal permitapplication regulations define‘‘medium’’ and ‘‘large’’ MS4s as thoselocated in an incorporated place orcounty with a population of at least100,000 (medium) or 250,000 (large) asdetermined by the latest DecennialCensus (see §§ 122.26(b)(4) and122.26(b)(7)). In today’s final rule, theseregulations have been revised to defineall medium and large MS4s as thosemeeting the above populationthresholds according to the 1990Decennial Census.

Today’s rule also corrects the titlesand contents of Appendices F, G, H,& Ito Part 122. EPA is adding thoseincorporated places and counties whose1990 population caused them to bedefined as a ‘‘medium’’ or ‘‘large’’ MS4.All of these MS4s have applied for



permit coverage so the effect of thischange to the appendices is simply tomake them more accurate. They will notneed to be revised again because today’srule ‘‘freezes’’ the definition of‘‘medium’’ and ‘‘large’’ MS4s at thosethat qualify based on the 1990 census.

EPA received several commentssupporting and opposing the proposal to‘‘freeze’’ the definitions based on the1990 census. Commenters whodisagreed with EPA’s position cited theunfairness of municipalities that reachthe medium or large threshold at a laterdate having fewer permittingrequirements compared to those thatwere already at the populationthresholds when the existing stormwater regulations took effect. EPArecognizes this disparity but does notbelieve it is unfair, as explained in theproposed rule. The decision was basedon the fact that the deadlines from theexisting regulations have lapsed, andbecause the permitting authority canalways require more from operators ofMS4s serving ‘‘newly over 100,000’’populations.

b. Small Municipal Separate StormSewer Systems

The proposal to today’s final ruleadded ‘‘the United States’’ as a potentialowner or operator of a municipalseparate storm sewer. This addition wasintended to address an omission fromexisting regulations and to clarify thatfederal facilities are, in fact, covered bythe NPDES program for municipal stormwater discharges when the federalfacility is like other regulated MS4s.EPA received a comment that thischange would cause federal facilitieslocated in Phase 1 areas to beconsidered Phase 1 dischargers due tothe definition of medium and largeMS4s. All MS4s located in Phase 1cities or counties are defined as Phase1 medium or large MS4s. EPA believesthat all federal facilities serve apopulation of under 100,000 and shouldbe regulated as small MS4s. Therefore,in § 122.26(a)(16) of today’s final rule,EPA is adding federal facilities to theNPDES storm water discharge controlprogram by changing the proposeddefinition of small municipal separatestorm sewer system. Paragraph (i) of thissection restates the definition ofmunicipal separate storm sewer withthe addition of ‘‘the United States’’ as aowner or operator of a small municipalseparate storm sewer. Paragraph (ii)repeats the proposed language thatstates that a small MS4 is a municipalseparate storm sewer that is not mediumor large.

Most commenters agreed that federalfacilities should be covered in the same

way as other similar MS4s. However,EPA received several comments askingwhether individual federal buildingssuch as post offices or urban offices ofthe U.S. Park Service must apply forcoverage as regulated small MS4s. Mostof these buildings have, at most, aparking lot with runoff or a storm sewerthat connects with a municipality’sMS4. In § 122.26(a)(16)(iii), EPAclarifies that the definition of small MS4does not include individual buildings.These buildings may have a municipalseparate storm sewer but they do nothave a ‘‘system’’ of conveyances. Theminimum measures for small MS4swere written to apply to storm sewer‘‘systems’’ providing storm waterdrainage service to human populationsand not to individual buildings. This istrue of municipal separate storm sewersfrom State buildings as well as fromfederal buildings.

There will likely be situations wherethe permitting authority must decide ifa federal or State complex should beregulated as a small MS4. A federalcomplex of two or three buildings couldbe treated as a single building and notbe required to apply for coverage. Inthese situations, permitting authoritieswill have to use their best judgment asto the nature of the complex and itsstorm water conveyance system.Permitting authorities should alsoconsider whether the federal or Statecomplex cooperates with itsmunicipality’s efforts to implementtheir storm water management program.

Along with the questions aboutindividual buildings, EPA receivedmany questions about how variousprovisions of the rule should beinterpreted for federal and Statefacilities. EPA acknowledges thatfederal and State facilities are differentfrom municipalities. EPA believes,however, that the minimum measuresare flexible enough that they can beimplemented by these facilities. As anexample, DOD commenters asked abouthow to interpret the term ‘‘public’’ formilitary installations whenimplementing the public educationmeasure. EPA agrees with the suggestedinterpretation of ‘‘public’’ for DODfacilities as ‘‘the resident and employeepopulation within the fence line of thefacility.’’

EPA also received many commentsfrom State departments of transportation(DOTs) that suggested the ways inwhich they are different frommunicipalities and should therefore beregulated differently. Storm waterdischarges from State DOTs in Phase 1areas should already be regulated underPhase I. The preamble to Phase 1 clearlystates that ‘‘all systems within a

geographical area including highwaysand flood control districts will becovered.’’ Many permitting authoritiesregulated State DOTs as co-permitteeswith the Phase 1 municipality in whichthe highway is located. State DOTs thatare already regulated under Phase I arenot required to comply with Phase II.State DOTs that are not alreadyregulated have various options formeeting the requirements of today’srule. These options are discussed inSection II.H.3.c.iv below. Several DOTscommented that some of the minimummeasures are outside the scope of theirmission or that they do not have thelegal authority required forimplementation. EPA believes that theflexibility of the minimum measuresallows them to be implemented by mostMS4s, including DOTs. When a DOTdoes not have the necessary legalauthority, EPA encourages the DOT tocoordinate their storm watermanagement efforts with thesurrounding municipalities and otherState agencies. Under today’s rule,DOTs can use any of the options of§ 122.35 to share their storm watermanagement responsibilities. DOTs mayalso want to work with their permittingauthority to develop a State-wide DOTstorm water permit.

There are many storm waterdischarges from State DOTs and otherState MS4s located in Phase 1 areas thatwere not regulated under Phase 1.Today’s rule adds many more Statefacilities as well as all federal facilitieslocated in urbanized areas. All of theseState and federal facilities that fit thedefinition of a small MS4 must becovered by a storm water managementprogram. The individual permittingauthorities must decide what type ofpermit is most applicable.

The existing NPDES storm waterprogram already regulates storm waterfrom federally or State-operatedindustrial sources. Federal or Statefacilities that are currently regulateddue to their industrial discharges mayalready be implementing some oftoday’s rule requirements.

EPA received comments thatquestioned the apparent inconsistencybetween regulating a federal facilitysuch as a hospital and not regulating asimilar private facility. Normally, thistype of private facility is regulated bythe MS4. EPA believes that federalfacilities are subject to local waterquality regulations, including stormwater requirements, by virtue of thewaiver of sovereign immunity in CWAsection 313. However, there are specialproblems faced by MS4s in their effortsto regulate federal facilities that havenot been encountered in regulating



similar private facilities. To ensurecomprehensive coverage, today’s rulemerely clarifies the need for permitcoverage for these federal facilities.

i. Combined Sewer Systems (CSS).The definition of small MS4s does notinclude combined sewer systems. Acombined sewer system is a wastewatercollection system that conveys sanitarywastewater and storm water through asingle set of pipes to a publicly-ownedtreatment works (POTW) for treatmentbefore discharging to a receivingwaterbody. During wet weather eventswhen the capacity of the combinedsewer system is exceeded, the system isdesigned to discharge prior to thePOTW treatment plant directly into areceiving waterbody. Such an overflowis a combined sewer overflow or CSO.Combined sewer systems are not subjectto existing regulations for municipalstorm water discharges, nor will they besubject to today’s regulations. EPAaddresses combined sewer systems andCSOs in the National Combined SewerOverflow (CSO) Control Policy issuedon April 19, 1994 (59 FR 18688). TheCSO Control Policy contains provisionsfor developing appropriate, site-specificNPDES permit requirements forcombined sewer systems. CSOdischarges are subject to limitationsbased on the best available technologyeconomically achievable for toxicpollutants and based on the bestconventional pollutant controltechnology for conventional pollutants.MS4s are subject to a differenttechnology standard for all pollutants,specifically to reduce pollutants to themaximum extent practicable.

Some municipalities are served byboth separate storm sewer systems andcombined sewer systems. If such amunicipality is located within anurbanized area, only the separate stormsewer systems within that municipalityis included in the NPDES storm waterprogram and subject to today’s finalrule. If the municipality is not locatedin an urbanized area, then the NPDESpermitting authority has discretion as towhether the discharges from theseparate storm sewer system is subjectto today’s final rule. The NPDESpermitting authority will use the sameprocess to designate discharges fromportions of an MS4 for permit coveragewhere the municipality is also served bya combined sewer system.

EPA recognizes that municipalitiesthat have both combined and separatestorm sewer systems may wish to findways to develop a unified program tomeet all wet weather water pollutioncontrol requirements more efficiently. Inthe proposal to today’s final rule, EPAsought comment on ways to achieve

such a unified program. Manymunicipalities that are served by CSSsand MS4s commented that it isinequitable to force them to complywith Phase II at this time becauseimplementation of the CSO ControlPolicy through their NPDES permitsalready imposes a significant financialburden. They requested an extension ofthe implementation time frame. Theydid not provide ideas on how to unifythe two programs. EPA encouragespermitting authorities to work withthese municipalities as they developand begin implementation of their CSOand storm water management programs.If both sets of requirements are carefullycoordinated early, a cost-effective wetweather program can be developed thatwill address both CSO and storm waterrequirements.

ii. Owners/Operators. Severalcommenters mentioned the differencebetween the existing storm waterapplication requirement for municipaloperators and the proposed municipalrequirement for owners or operators toapply. They felt that this inconsistencyis confusing. The preamble to theexisting regulations makes numerousreferences to owner/operator so therewas no intent to make a clear distinctionbetween Phase I and Phase II. Section122.21(b) states that when the ownerand operator are different, the operatormust obtain the permit. MS4s often haveseveral operators. The owner may beresponsible for one part of the systemand a regional authority may beresponsible for other aspects. EPAproposed the ‘‘owner or operator’’language to convey this dualresponsibility. However, when theowner is responsible for some part of astorm water management plan, it is alsoan operator.

EPA has revised the regulationlanguage to clarify that ‘‘an operator’’must apply for a permit. Whenresponsibilities for the MS4 are shared,all operators must apply.

c. Regulated Small MS4sIn today’s final rule, all small MS4s

located in an urbanized area areautomatically designated as ‘‘regulated’’small MS4s provided that they were notpreviously designated into the existingstorm water program. Unlike mediumand large MS4s under the existing stormwater regulations, not all small MS4sare designated under today’s final rule.Therefore, today’s rule distinguishesbetween ‘‘small’’ MS4s and ‘‘regulatedsmall’’ MS4s.

EPA’s definition of ‘‘regulated smallMS4s’’ in the proposal to today’s ruleincluded mention of incorporatedplaces and counties. Along with the

definition, EPA included Appendices 6and 7 to assist in the identification ofareas that would probably requirecoverage as ‘‘automatically designated’’(Appendix 6) or ‘‘potentiallydesignated’’ (Appendix 7). Thedefinition and the appendices raisedmany questions about exactly who wasrequired to comply with the proposedrequirements. Commenters raised issuesabout the definition of ‘‘incorporatedplace’’ and the status of towns,townships, and other places that are notconsidered incorporated by the CensusBureau. They also asked about specialdistricts, regional authorities, MS4salready regulated, and other questionsin order to clarify the rule’s coverage.

EPA has revised § 122.32(a) to clarifythat discharges are regulated undertoday’s rule if they are from a small MS4that is in an urbanized area and has notreceived a waiver or they are designatedby the permitting authority. Today’srule does not regulate the county, city,or town. Today’s rule regulates the MS4.Therefore, even though a county may belisted in Appendix 6, if that county doesnot own or operate the municipal stormsewer systems, the county does not haveto submit an application or develop astorm water management program. Ifanother entity does own or operate anMS4 within the county, for example, aregional utility district, that other entityneeds to submit the application anddevelop the program.

Some commenters suggested that EPAshould change the rule language tospecifically allow regional authorities tobe the permitted entity and to allowsmall MS4s to apply as co-permittees.EPA believes that the best way to clarifythat regional authorities can be theprimary permitted entity is the changeto § 122.32(a) and the explanationabove. Because EPA assumes thattoday’s regulation will be implementedthrough general permits, MS4s will notbe co-permittees under a general permitin the same manner as under individualpermits. EPA has added § 122.33(a)(4)and made a minor change to § 122.35(a)to clarify that small MS4s can worktogether to share the responsibilities ofa storm water management program.This is discussed further in SectionII.H.3.c.iv below.

The proposed rule stated that when acounty or Federal Indian reservation isonly partially included in an urbanizedarea, only MS4s in the urbanizedportion of the county or Federal Indianreservation would be regulated. In therare cases when an incorporated place isonly partially included in the urbanizedarea, the entire incorporated placewould be regulated. EPA receivedcomments asking about towns and



townships, because they were notconsidered to be incorporated areasaccording to the Census Bureau’sdefinition. Would the whole town/township be covered or only the part ofthe town/township in the urbanizedarea? States use many different types ofsystems in their geographical divisions.Some towns are similar to incorporatedcities and others are large areas that aremore similar to counties. Somecommenters thought that the urbanizedarea boundary was arbitrary, and if partof a town or county was covered, it allshould be covered. Other commentersnoted that some townships and countiesencompass very large areas of whichonly a small portion is urbanized. Dueto the great variety of situations, EPAhas decided that for all geographicalentities, only MS4s in the urbanizedarea are automatically designated. Thepopulation densities associated with theCensus Bureau’s designation ofurbanized areas provide the basis fordesignation of these areas to protectwater quality. This focused designationprovides for consistency and allows forflexibility on the part of the MS4 andthe permitting authority. In thosesituations where an incorporated placeor a town is not all in an ‘‘urbanizedarea’’, there is a good possibility that itis served by more than one MS4. Inthose cases where the area is served bythe same MS4, it makes sense todevelop a storm water program for thewhole area. Permitting authorities mayalso decide to designate all MS4s withina county or township, if they believe itis necessary to protect water quality.

Most operators of MS4s will not needto independently determine the status ofcoverage under today’s rule. EPA hasrevised the proposed Appendices 6 and7 to include towns and townships.Therefore, these appendices will alertmost MS4s as to whether they are likelyto be covered under today’s rule.However, each permitting authoritymust make the decision as to whorequires coverage. Most likely, anillustrative list of the regulated areaswill be published with the generalpermit. If not, the operator can contactits permitting authority or the Bureau ofthe Census to find out if their separatestorm sewer systems are within anurbanized area.

i. Urbanized Area Description. Underthe Bureau of the Census definition of‘‘urbanized area,’’ adopted by EPA forthe purposes of today’s final rule, ‘‘anurbanized area (UA) comprises a placeand the adjacent densely settledsurrounding territory that together havea minimum population of 50,000people.’’ The proposal to today’s ruleprovided the full definition and case

studies to help explain the censuscategory of ‘‘urbanized area.’’ Appendix2 is a simplified urbanized areaillustration to help demonstrate theconcept of urbanized areas in relation totoday’s final rule. The ‘‘urbanized area’’is the shaded area that includes withinits boundaries incorporated places, aportion of a Federal Indian reservation,portions of two counties, an entire town,and portions of another town. All smallMS4s located in the shaded area arecovered by the rule, unless and untilwaived by the permitting authority. Anysmall MS4s located outside of theshaded area are subject to potentialdesignation by the permitting authority.

There are 405 urbanized areas in theUnited States that cover 2 percent oftotal U.S. land area and containapproximately 63 percent of the nation’spopulation (see Appendix 3 for a listingof urbanized areas of the United Statesand Puerto Rico). These numbersinclude U.S. Territories, althoughPuerto Rico is the only territory to haveCensus-designated urbanized areas.Urbanized areas constitute the largestand most dense areas of settlement. Thepurpose of determining an ‘‘urbanizedarea’’ is to delineate the boundaries ofdevelopment and map the actual built-up urban area. The Bureau of the Censusgeographers liken it to flying over anurban area and drawing a line aroundthe boundary of the built-up area asseen from the air.

Using data from the latest decennialcensus, the Census Bureau applies theurbanized area definition nationwide(including U.S. Tribes and Territories)and determines which places andcounties are included within eachurbanized area. For each urbanized area,the Bureau provides full listings of whois included, as well as detailed mapsand special CD-ROM files for use withcomputerized mapping systems (such asGIS). Each State’s data center receives acopy of the list, and some maps,automatically. The States also have theCD–ROM files and a variety ofpublications available to them forreference from the Bureau of the Census.In addition, local or regional planningagencies may have urbanized area filesalready. New listings for urbanizedareas based on the 2000 Census will beavailable by July/August 2001, but themore comprehensive computer files willnot be available until late 2001/early2002.

Additional designations based onsubsequent census years will begoverned by the Bureau of the Census’definition of an urbanized area in effectfor that year. Based on historical trends,EPA expects that any area determinedby the Bureau of the Census to be

included within an urbanized area as ofthe 1990 Census will not later beexcluded from the urbanized area as ofthe 2000 Census. However, it isimportant to note that even if thissituation were to occur, for example,due to a possible change in the Bureauof the Census’ urbanized area definition,a small MS4 that is automaticallydesignated into the NPDES program forstorm water under an urbanized areacalculation for any given Census yearwill remain regulated regardless of theresults of subsequent urbanized areacalculations.

ii. Rationale for Using UrbanizedAreas. EPA is using urbanized areas toautomatically designate regulated smallMS4s on a nationwide basis for severalreasons: (1) studies and data show ahigh correlation between degree ofdevelopment/ urbanization and adverseimpacts on receiving waters due tostorm water (U.S. EPA, 1983; Driver etal., 1985; Pitt, R.E. 1991. ‘‘BiologicalEffects of Urban Runoff Discharges.’’Presented at the EngineeringFoundation Conference: Urban Runoffand Receiving Systems; AnInterdisciplinary Analysis of Impact,Monitoring and Management, August1991. Mt. Crested Butte, CO. AmericanSociety of Civil Engineers, New York.1992.; Pitt, R.E. 1995. ‘‘Biological Effectsof Urban Runoff Discharges,’’ in Stormwater Runoff and Receiving Systems:Impact, Monitoring, and Assessment.Lewis Publishers, New York.; Galli, J.1990. Thermal Impacts Associated withUrbanization and Storm waterManagement Best ManagementPractices. Prepared for the Sedimentand Storm water Administration of theMaryland Department of theEnvironment.; Klein, 1979), (2) theblanket coverage within the urbanizedarea encourages the watershed approachand addresses the problem of ‘‘donut-holes,’’ where unregulated areas aresurrounded by areas currently regulated(storm water discharges from donut holeareas present a problem due to theircontributing uncontrolled adverseimpacts on local waters, as well as byfrustrating the attainment of waterquality goals of neighboring regulatedcommunities), (3) this approach targetspresent and future growth areas as apreventative measure to help ensurewater quality protection, and (4) thedetermination of urbanized areas by theBureau of the Census allows operatorsof small MS4s to quickly determinewhether they are included in the NPDESstorm water program as a regulatedsmall MS4.

Urbanized areas have experiencedsignificant growth over the past 50years. According to EPA calculations



based on Census data from 1980 to1990, the national average rate of growthin the United States during that 10-yearperiod was more than 4 percent. For thesame period, the average growth withinurbanized areas was 15.7 percent andthe average for outside of urbanizedareas was just more than 1 percent. Thenew development occurring in thesegrowing areas can provide some of thebest opportunities for implementingcost-effective storm water managementcontrols.

EPA received many comments on theproposal to designate discharges basedon location within urbanized areas. EPAconsidered numerous other approaches,several of which are discussed in theproposal to today’s final rule. Severalcommenters wanted designation to bebased on proven water quality problemsrather than inclusion in an urbanizedarea. One commenter proposed anapproach based on the CWA 303(d)listing of impaired waters and thewasteload allocation conducted underthe TMDL process. (See section II.L. onthe section 303(d) and TMDL process).The commenter’s proposal woulddesignate small MS4s on a case-by-casebasis, covering only those dischargeswhere receiving streams are shown tohave water quality problems,particularly a failure to meet waterquality standards, including designateduses. The commenter further describeda non-NPDES approach where a Statewould require cost-effective measuresbased on a proportionate share under awaste load allocation, equitablyallocated among all pollutantcontributors. These waste loadallocations would be developed withinput from all stakeholders, andremedial measures would beimplemented in a phased manner basedon the probability of results and/oreconomic feasibility. The States wouldthen periodically reassess the receivingstreams to determine whether theremedial measures are working, and ifnot, require additional control measuresusing the same procedure used toestablish the initial measures. What thecommenter describes is almost a TMDL.

EPA considered a remedial approachbased on water quality impairment andrejected it for failure to prevent almostcertain degradation caused by urbanstorm water. EPA’s main concern inopting not to take a case-by-caseapproach to designation was that thisapproach would not provide controls forstorm water discharges in receivingstreams until after a site-specificdemonstration of adverse water qualityimpact. The commenter’s suggestionwould do nothing to prevent pollutionin waters that may be meeting water

quality standards, including supportingdesignated uses. The approach wouldalso rely on identifying storm watermanagement programs followingcomprehensive watershed plans andTMDL development. In most States,water quality assessments havetraditionally been conducted forprincipal mainstream rivers and theirmajor tributaries, not all surface waters.The establishment of TMDLsnationwide will take many years, andmany States will conduct additionalmonitoring to determine water qualityconditions prior to establishing TMDLs.In addition, a case-by-case approachwould not address the problem of‘‘donut holes’’ within urbanized areasand a lack of consistency amongsimilarly situated municipal systemswould remain commonplace. Aftercareful consideration of all comments,EPA still believes that the approach intoday’s rule is the most appropriate toprotect water quality. Protectionincludes prevention as well asremediation.

d. Municipal Designation by thePermitting Authority

Today’s final rule also allows NPDESpermitting authorities to designate MS4sthat should be included in the stormwater program as regulated small MS4sbut are not located within urbanizedareas. The final rule requires, at aminimum, that a set of designationcriteria be applied to all small MS4swithin a jurisdiction that serves apopulation of at least 10,000 and has apopulation density of at least 1,000.Appendix 7 to this preamble providesan illustrative list of places that theAgency anticipates meet this criteria. Inaddition, any small MS4 may be thesubject of a petition to the NPDESpermitting authority for designation. SeeSection II.G, NPDES PermittingAuthority’s Role for more details on thedesignation and petition processes. EPAbelieves that the approach of combiningnationwide and local designation todetermine municipal coverage balancesthe potential for significant adverseimpacts on water quality with localwatershed protection and planningefforts.

e. Waiving the Requirements for SmallMS4s

Today’s final rule includes someflexibility in the nationwide coverage ofall small MS4s located in urbanizedareas by providing the NPDESpermitting authority with the discretionto waive the otherwise applicablerequirements of the smallest MS4s thatare not causing the impairment of areceiving water body. Qualifications for

the waiver vary depending on whetherthe MS4 serves a population under1,000 or a population between 1,000and 10,000. Note that even if a smallMS4 has requirements waived, it cansubsequently be brought back into theprogram if circumstances change. SeeSection II.G, NPDES PermittingAuthority’s Role, for more details onthis process.

3. Municipal Permit Requirements

a. Overview

i. Summary of Permitting Options.Today’s rule outlines six minimumcontrol measures that constitute theframework for a storm water dischargecontrol program for regulated smallMS4s that, when properly implemented,will reduce pollutants to the maximumextent practicable (MEP). These sixminimum control measures arespecified in § 122.34(b) and arediscussed below in section ‘‘II.H.3.b,Program Requirements-MinimumControl Measures.’’ All operators ofregulated small MS4s are required toobtain coverage under an NPDESpermit, unless the requirement iswaived by the permitting authority inaccordance with today’s rule.Implementation of § 122.34(b) may berequired either through an individualpermit or, if the State or EPA makes oneavailable to the facility, through ageneral permit. The process for issuingand obtaining these permits is discussedbelow in section ‘‘II.H.3.c, ApplicationRequirements.’’

As an alternative to implementing aprogram that complies with therequirements of § 122.34, today’s ruleprovides operators of regulated smallMS4s with the option of applying for anindividual permit under § 122.26(d).The permit application requirements in§ 122.26 were originally drafted to applyto medium and large MS4s. AlthoughEPA believes that the requirements of§ 122.34 provide a regulatory option thatis appropriate for most small MS4s, theoperators of some small MS4s mayprefer more individualizedrequirements. This alternativepermitting option for regulated smallMS4s that wish to develop their ownprogram is discussed below in section‘‘II.H.3.c.iii. Alternative Permit Option.’’The second alternative permittingoption for regulated small MS4s is tobecome co-permittees with a medium orlarge MS4 regulated under § 122.26(d),as discussed below in section‘‘II.H.3.c.v. Joint Permit Programs.’’

ii. Water Quality-Based Requirements.Any NPDES permit issued under today’srule must, at a minimum, require theoperator to develop, implement, and



enforce a storm water managementprogram designed to reduce thedischarge of pollutants from a regulatedsystem to the MEP, to protect waterquality, and satisfy the appropriatewater quality requirements of the CleanWater Act (see MEP discussion in thefollowing section). Absent evidence tothe contrary, EPA presumes that a smallMS4 program that implements the sixminimum measures in today’s rule doesnot require more stringent limitations tomeet water quality standards. Properimplementation of the measures willsignificantly improve water quality. Asdiscussed further below, however, smallMS4 permittees should modify theirprograms if and when availableinformation indicates that water qualityconsiderations warrant greater attentionor prescriptiveness in specificcomponents of the municipal program.If the program is inadequate to protectwater quality, including water qualitystandards, then the permit will need tobe modified to include any morestringent limitations necessary toprotect water quality.

Regardless of the basis for thedevelopment of the effluent limitations(whether designed to implement the sixminimum measures or more stringent orprescriptive limitations to protect waterquality), EPA considers narrativeeffluent limitations requiringimplementation of BMPs to be the mostappropriate form of effluent limitationsfor MS4s. CWA section 402(p)(3)(b)(iii)expresses a preference for narrativerather than numeric effluent limits, forexample, by reference to ‘‘managementpractices, control techniques andsystem, design and engineeringmethods, and such other provisions asthe Administrator or the Statedetermines appropriate for the controlof such pollutants.’’ 33 U.S.C.1342(p)(3)(B)(iii). EPA determines thatpollutants from wet weather dischargesare most appropriately controlledthrough management measures ratherthan end-of-pipe numeric effluentlimitations. As explained in the InterimPermitting Policy for Water Quality-Based Effluent Limitations in StormWater Permits, issued on August 1, 1996[61 FR 43761 (November 26, 1996), EPAbelieves that the currently availablemethodology for derivation of numericwater quality-based effluent limitationsis significantly complicated whenapplied to wet weather discharges fromMS4s (compared to continuous orperiodic batch discharges from mostother types of discharge). Wet weatherdischarges from MS4s introduce a highdegree of variability in the inputs to themodels currently available for

derivation of water quality basedeffluent limitations, includingassumptions about instream anddischarge flow rates, as well as effluentcharacterization. In addition, EPAanticipates that determining compliancewith any such numeric limitations maybe confounded by practical limitationsin sample collection.

In the first two to three rounds ofpermit issuance, EPA envisions that aBMP-based storm water managementprogram that implements the sixminimum measures will be the extent ofthe NPDES permit requirements for thelarge majority of regulated small MS4s.Because the six measures represent asignificant level of control if properlyimplemented, EPA anticipates that apermit for a regulated small MS4operator implementing BMPs to satisfythe six minimum control measures willbe sufficiently stringent to protect waterquality, including water qualitystandards, so that additional, morestringent and/or more prescriptive waterquality based effluent limitations will beunnecessary.

If a small MS4 operator implementsthe six minimum control measures in§ 122.34(b) and the discharges aredetermined to cause or contribute tonon-attainment of an applicable waterquality standard, the operator needs toexpand or better tailor its BMPs withinthe scope of the six minimum controlmeasures. EPA envisions that thisprocess will occur during the first twoto three permit terms. After that period,EPA will revisit today’s regulations forthe municipal separate storm sewerprogram.

If the permitting authority (rather thanthe regulated small MS4 operator) needsto impose additional or more specificmeasures to protect water quality, thenthat action will most likely be the resultof an assessment based on a TMDL orequivalent analysis that determinessources and allocations of pollutant(s) ofconcern. EPA believes that the smallMS4’s additional requirements, if any,should be guided by its equitable sharebased on a variety of considerations,such as cost effectiveness, proportionatecontribution of pollutants, and ability toreasonably achieve wasteloadreductions. Narrative effluentlimitations in the form of BMPs maystill be the best means of achievingthose reductions.

See Section II.L, Water Quality Issues,for further discussion of this approachto permitting, consistent with EPA’sinterim permitting guidance. Pursuantto CWA section 510, Statesimplementing their own NPDESprograms may develop more stringent or

more prescriptive requirements thanthose in today’s rule.

EPA’s interpretation of CWA section402(p)(3)(B)(iii) was recently reviewedby the Ninth Circuit in Defenders ofWildlife, et al v. Browner, No. 98–71080(September 15, 1999). The Court upheldthe Agency’s action in issuing five MS4permits that included water quality-based effluent limitations. The Courtdid, however, disagree with EPA’sinterpretation of the relationshipbetween CWA sections 301 and 402(p).The Court reasoned that MS4s are notcompelled by section 301(b)(1)(C) tomeet all State water quality standards,but rather that the Administrator or theState may rely on section402(p)(3)(B)(iii) to require such controls.Accordingly, the Defenders of Wildlifedecision is consistent with the Agency’s1996 ‘‘Interim Permitting Policy forWater Quality-Based EffluentLimitations in Storm Water Permits.’’

As noted, the 1996 Policy describeshow permits would implement aniterative process using BMPs,assessment, and refocused BMPs,leading toward attainment of waterquality standards. The ultimate goal ofthe iteration would be for water bodiesto support their designated uses. EPAbelieves this iterative approach isconsistent with and implements section301(b)(1)(C), notwithstanding the NinthCircuit’s interpretation. As analternative to basing these water quality-based requirements on section301(b)(1)(C), however, EPA also believesthe iterative approach towardattainment of water quality standardsrepresents a reasonable interpretation ofCWA section 402(p)(3)(B)(iii). For thisreason, today’s rule specifies that the‘‘compliance target’’ for the design andimplementation of municipal stormwater control programs is ‘‘to reducepollutants to the maximum extentpracticable (MEP), to protect waterquality, and to satisfy the appropriatewater quality requirements of theCWA.’’ The first component, reductionsto the MEP, would be realized throughimplementation of the six minimummeasures. The second component, toprotect water quality, reflects the overalldesign objective for municipal programsbased on CWA section 402(p)(6). Thethird component, to implement otherapplicable water quality requirements ofthe CWA, recognizes the Agency’sspecific determination under CWAsection 402(p)(3)(B)(iii) of the need toachieve reasonable further progresstoward attainment of water qualitystandards according to the iterative BMPprocess, as well as the determinationthat State or EPA officials who establishTMDLs could allocate waste loads to



MS4s, as they would to other pointsources.

EPA does not presume that waterquality will be protected if a small MS4elects not to implement all of the sixminimum measures and instead appliesfor alternative permit limits under§ 122.26(d). Operators of such smallMS4s that apply for alternative permitlimits under § 122.26(d) must supplyadditional information throughindividual permit applications so thatthe permit writer can determinewhether the proposed program reducespollutants to the MEP and whether anyother provisions are appropriate toprotect water quality and satisfy theappropriate water quality requirementsof the Clean Water Act.

iii. Maximum Extent Practicable.Maximum extent practicable (MEP) isthe statutory standard that establishesthe level of pollutant reductions thatoperators of regulated MS4s mustachieve. The CWA requires that NPDESpermits for discharges from MS4s ‘‘shallrequire controls to reduce the dischargeof pollutants to the maximum extentpracticable, including managementpractices, control techniques andsystem, design and engineeringmethods.’’ CWA Section402(p)(3)(B)(iii). This section also callsfor ‘‘such other provisions as the [EPA]Administrator or the State determinesappropriate for the control of suchpollutants.’’ EPA interprets thisstandard to apply to all MS4s, includingboth existing regulated (large andmedium) MS4s, as well as the smallMS4s regulated under today’s rule.

For regulated small MS4s undertoday’s rule, authorization to dischargemay be under either a general permit orindividual permit, but EPA anticipatesand expects that general permits will bethe most common permit mechanism.The general permit will explain thesteps necessary to obtain permitauthorization. Compliance with theconditions of the general permit and theseries of steps associated withidentification and implementation ofthe minimum control measures willsatisfy the MEP standard.Implementation of the MEP standardunder today’s rule will typically requirethe permittee to develop and implementappropriate BMPs to satisfy each of therequired six minimum controlmeasures.

In issuing the general permit, theNPDES permitting authority willestablish requirements for each of theminimum control measures. Permitstypically will require small MS4permittees to identify in their NOI theBMPs to be performed and to developthe measurable goals by which

implementation of the BMPs can beassessed. Upon receipt of the NOI froma small MS4 operator, the NPDESpermitting authority will have theopportunity to review the NOI to verifythat the identified BMPs andmeasurable goals are consistent with therequirement to reduce pollutants underthe MEP standard, to protect waterquality, and to satisfy the appropriatewater quality requirements of the CleanWater Act. If necessary, the NPDESpermitting authority may ask thepermittee to revise their mix of BMPs,for example, to better reflect the MEPpollution reduction requirement. Wherethe NPDES permit is not written toimplement the minimum controlmeasures specified under § 122.34(b),for example in the case of an individualpermit under § 122.33(b)(2)(ii), the MEPstandard will be applied based on thebest professional judgment of the permitwriter.

Commenters argued that MEP is, asyet, an undefined term and that EPAneeds to further clarify the MEPstandards by providing a regulatorydefinition that includes recognition ofcost considerations and technicalfeasibility. Commenters argued that,without a definition, the regulatorycommunity is not adequately on noticeregarding the standard with which theyneed to comply. EPA disagrees thataffected MS4 permittees will lack noticeof the applicable standard. Theframework for the small MS4 permitsdescribed in this notice provides EPA’sinterpretation of the standard and howit should be applied.

EPA has intentionally not provided aprecise definition of MEP to allowmaximum flexibility in MS4 permitting.MS4s need the flexibility to optimizereductions in storm water pollutants ona location-by-location basis. EPAenvisions that this evaluative processwill consider such factors as conditionsof receiving waters, specific localconcerns, and other aspects included ina comprehensive watershed plan. Otherfactors may include MS4 size, climate,implementation schedules, currentability to finance the program, beneficialuses of receiving water, hydrology,geology, and capacity to performoperation and maintenance.

The pollutant reductions thatrepresent MEP may be different for eachsmall MS4, given the unique localhydrologic and geologic concerns thatmay exist and the differing possiblepollutant control strategies. Therefore,each permittee will determineappropriate BMPs to satisfy each of thesix minimum control measures throughan evaluative process. Permit writersmay evaluate small MS4 operator’s

proposed storm water managementcontrols to determine whether reductionof pollutants to the MEP can beachieved with the identified BMPs.

EPA envisions application of the MEPstandard as an iterative process. MEPshould continually adapt to currentconditions and BMP effectiveness andshould strive to attain water qualitystandards. Successive iterations of themix of BMPs and measurable goals willbe driven by the objective of assuringmaintenance of water quality standards.If, after implementing the six minimumcontrol measures there is still waterquality impairment associated withdischarges from the MS4, aftersuccessive permit terms the permitteewill need to expand or better tailor itsBMPs within the scope of the sixminimum control measures for eachsubsequent permit. EPA envisions thatthis process may take two to threepermit terms.

One commenter observed that MEP isnot static and that if the six minimumcontrol measures are not achieving thenecessary water quality improvements,then an MS4 should be expected torevise and, if necessary, expand itsprogram. This concept, it is argued,must be clearly part of the definition ofMEP and thus incorporated into thebinding and operative aspects of therule. As is explained above, EPAbelieves that it is. The iterative processdescribed above is intended to besensitive to water quality concerns. EPAbelieves that today’s rule containsprovisions to implement an approachthat is consistent with this comment.

b. Program Requirements’MinimumControl Measures

A regulated small MS4 operator mustdevelop and implement a storm watermanagement program designed toreduce the discharge of pollutants fromtheir MS4 to protect water quality. Thestorm water management program mustinclude the following six minimummeasures.

i. Public Education and Outreach onStorm Water Impacts. Under today’sfinal rule, operators of small MS4s mustimplement a public education programto distribute educational materials to thecommunity or conduct equivalentoutreach activities about the impacts ofstorm water discharges on water bodiesand the steps to reduce storm waterpollution. The public educationprogram should inform individuals andhouseholds about the problem and thesteps they can take to reduce or preventstorm water pollution.

EPA believes that as the public gainsa greater understanding of the stormwater program, the MS4 is likely to gain



more support for the program (includingfunding initiatives). In addition,compliance with the program willprobably be greater if the publicunderstands the personalresponsibilities expected of them. Well-informed citizens can act as formal orinformal educators to furtherdisseminate information and gathersupport for the program, thus easing theburden on the municipalities to performall educational activities.

MS4s are encouraged to enter intopartnerships with their States infulfilling the public educationrequirement. It may be more cost-effective to utilize a State educationprogram instead of numerous MS4sdeveloping their own programs. MS4operators are also encouraged to workwith other organizations (e.g.,environmental, nonprofit and industryorganizations) that might be able toassist in fulfilling this requirement.

The public education program shouldbe tailored, using a mix of locallyappropriate strategies, to target specificaudiences and communities(particularly minority anddisadvantaged communities). Examplesof strategies include distributingbrochures or fact sheets, sponsoringspeaking engagements beforecommunity groups, providing publicservice announcements, implementingeducational programs targeted at schoolage children, and conductingcommunity-based projects such as stormdrain stenciling, and watershed andbeach cleanups. Operators of MS4s mayuse storm water educational informationprovided by the State, Tribe, EPA, orenvironmental, public interest, tradeorganizations, or other MS4s. Examplesof successful public education effortsconcerning polluted runoff can be foundin many State nonpoint source pollutioncontrol programs under CWA section319.

The public education program shouldinform individuals and householdsabout steps they can take to reducestorm water pollution, such as ensuringproper septic system maintenance,ensuring the use and disposal oflandscape and garden chemicalsincluding fertilizers and pesticides,protecting and restoring riparianvegetation, and properly disposing ofused motor oil or household hazardouswastes. Additionally, the program couldinform individuals and groups on howto become involved in local stream andbeach restoration activities as well asactivities coordinated by youth serviceand conservation corps and othercitizen groups. Finally, materials oroutreach programs should be directedtoward targeted groups of commercial,

industrial, and institutional entitieslikely to have significant storm waterimpacts. For example, MS4 operatorsshould provide information torestaurants on the impact of greaseclogging storm drains and to autogarages on the impacts of used oildischarges.

EPA received comments fromrepresentatives of State DOTs and U.S.Department of Defense (DOD)installations seeking exemption fromthe public education requirement.While today’s rule does not exemptDOTs and military bases from the usereducation requirement, the Agencybelieves the flexibility inherent in theRule addresses many of the concernsexpressed by these commenters.

Certain DOT representativescommented that if their agencies werenot exempt from the user educationmeasure’s requirements, they should atleast be allowed to count DOT employeeeducation as an adequate substitute.EPA supports the use of existingmaterials and programs, granted suchmaterials and programs meet the rule’srequirement that the MS4 usercommunity (i.e., the public) is alsoeducated concerning the impacts ofstorm water discharges on water bodiesand the steps to reduce storm waterpollution.

Finally, certain DOD representativesrequested that ‘‘public,’’ as applied totheir installations, be defined as theresident and employee populationswithin the fence line of the facility. EPAagrees that the education effort shouldbe directed toward those individualswho frequent the federally owned land(i.e., residents and individuals whocome there to work and use the MS4facilities).

EPA also received a number ofcomments from municipalities statingthat education would be more thoroughand cost effective if accomplished byEPA on the national level. EPA believesthat a collaborative State and localapproach, in conjunction withsignificant EPA technical support, willbest meet the goal of targeting, andreaching, specific local audiences. EPAtechnical support will include a toolbox which will contain fact sheets,guidance documents, an informationclearinghouse, and training andoutreach efforts.

Finally, EPA received commentsexpressing concern that the publiceducation program simply encouragesthe distribution of printed material. EPAis sensitive to this concern. Uponevaluation, the Agency made changes tothe proposal’s language for today’s rule.The language has been changed toreflect EPA’s belief that a successful

program is one that includes a variety ofstrategies locally designed to reachspecific audiences.

ii. Public Involvement/Participation.Public involvement is an integral part ofthe small MS4 storm water program.Accordingly, today’s final rule requiresthat the municipal storm watermanagement program must comply withapplicable State and local public noticerequirements. Section 122.34(b)(2)recommends a public participationprocess with efforts to reach out andengage all economic and ethnic groups.EPA believes there are two importantreasons why the public should beallowed and encouraged to providevaluable input and assistance to theMS4’s program.

First, early and frequent publicinvolvement can shortenimplementation schedules and broadenpublic support for a program.Opportunities for members of the publicto participate in program developmentand implementation could includeserving as citizen representatives on alocal storm water management panel,attending public hearings, working ascitizen volunteers to educate otherindividuals about the program, assistingin program coordination with other pre-existing programs, or participating involunteer monitoring efforts. Moreover,members of the public may be lesslikely to raise legal challenges to aMS4’s storm water program if they havebeen involved in the decision makingprocess and program development and,therefore, internalize personalresponsibility for the programthemselves.

Second, public participation is likelyto ensure a more successful storm waterprogram by providing valuable expertiseand a conduit to other programs andgovernments. This is particularlyimportant if the MS4’s storm waterprogram is to be implemented on awatershed basis. Interested stakeholdersmay offer to volunteer in theimplementation of all aspects of theprogram, thus conserving limitedmunicipal resources.

EPA recognizes that there are anumber of challenges associated withpublic involvement. One challenge is inengaging people in the public meetingand program design process. Anotherchallenge is addressing conflictingviewpoints. Nevertheless, EPA stronglybelieves that these challenges can beaddressed by use of an aggressive andinclusive program. Section II.K.provides further discussion on publicinvolvement.

A number of municipalities soughtclarification from EPA concerning whatthe public participation program must



actually include. In response, the actualrequirements are minimal, but theAgency’s recommendations are morecomprehensive. The publicparticipation program must only complywith applicable State and local publicnotice requirements. The remainder ofthe preamble, as well as the ExplanatoryNote accompanying the regulatory text,provide guidance to the MS4sconcerning what elements a successfuland inclusive program should include.EPA will provide technical support aspart of the tool box (i.e., providingmodel public involvement programs,conducting public workshops, etc.) toassist MS4 operators meet the intent ofthis measure.

Finally, the Agency encourages MS4sto seek public participation prior tosubmitting an NOI. For example, publicparticipation at this stage will allow theMS4 to involve the public in developingthe BMPs and measurable goals for theirNOI.

iii. Illicit Discharge Detection andElimination. Discharges from smallMS4s often include wastes andwastewater from non-storm water‘‘illicit’’ discharges. Illicit discharge isdefined at 40 CFR 122.26(b)(2) as anydischarge to a municipal separate stormsewer that is not composed entirely ofstorm water, except discharges pursuantto an NPDES permit and dischargesresulting from fire fighting activities. Asdetailed below, other sources of non-storm water, that would otherwise beconsidered illicit discharges, do notneed to be addressed unless the operatorof the MS4 identifies one or more ofthem as a significant source ofpollutants into the system. EPA’sNationwide Urban Runoff Program(NURP) indicated that many stormwater outfalls still discharge duringsubstantial dry periods. Pollutant levelsin these dry weather flows were shownto be high enough to significantlydegrade receiving water quality. Resultsfrom a 1987 study conducted inSacramento, California, revealed thatslightly less than one-half of the waterdischarged from a municipal separatestorm sewer system was not directlyattributable to precipitation runoff (U.S.Environmental Protection Agency,Office of Research and Development.1993. Investigation of InappropriatePollutant Entries Into Storm DrainageSystems—A User’s Guide. Washington,DC EPA 600/R–92/238.) A significantportion of these dry weather flowsresults from illicit and/or inappropriatedischarges and connections to themunicipal separate storm sewer system.Illicit discharges enter the systemthrough either direct connections (e.g.,wastewater piping either mistakenly or

deliberately connected to the stormdrains) or indirect connections (e.g.,infiltration into the storm drain systemor spills collected by drain inlets).

Under the existing NPDES programfor storm water, permit applications forlarge and medium MS4s are to includea program description for effectiveprohibition against non-storm waterdischarges into their storm sewers (see40 CFR 122.26 (d)(1)(v)(B) and(d)(1)(iv)(B)). Further, EPA believes thatin implementing municipal storm watermanagement plans under these permits,large and medium MS4 operatorsgenerally found their illicit dischargedetection and elimination programs tobe cost-effective. Properly implementedprograms also significantly improvedwater quality.

In today’s rule, any NPDES permitissued to an operator of a regulatedsmall MS4 must, at a minimum, requirethe operator to develop, implement andenforce an illicit discharge detectionand elimination program. Inclusion ofthis measure for regulated small MS4s isconsistent with the ‘‘effectiveprohibition’’ requirement for large andmedium MS4s. Under today’s rule, theNPDES permit will require the operatorof a regulated small MS4 to: (1) Develop(if not already completed) a storm sewersystem map showing the location of alloutfalls, and names and location of allwaters of the United States that receivedischarges from those outfalls; (2) to theextent allowable under State, Tribal, orlocal law, effectively prohibit throughordinance, or other regulatorymechanism, illicit discharges into theseparate storm sewer system andimplement appropriate enforcementprocedures and actions as needed; (3)develop and implement a plan to detectand address illicit discharges, includingillegal dumping, to the system; and (4)inform public employees, businesses,and the general public of hazardsassociated with illegal discharges andimproper disposal of waste.

The illicit discharge and eliminationprogram need only address thefollowing categories of non-storm waterdischarges if the operator of the smallMS4 identifies them as significantcontributors of pollutants to its smallMS4: water line flushing, landscapeirrigation, diverted stream flows, risingground waters, uncontaminated groundwater infiltration (as defined at 40 CFR35.2005(20)), uncontaminated pumpedground water, discharges from potablewater sources, foundation drains, airconditioning condensation, irrigationwater, springs, water from crawl spacepumps, footing drains, lawn watering,individual residential car washing,flows from riparian habitats and

wetlands, dechlorinated swimming pooldischarges, and street wash water(discharges or flows from fire fightingactivities are excluded from thedefinition of illicit discharge and onlyneed to be addressed where they areidentified as significant sources ofpollutants to waters of the UnitedStates). If the operator of the MS4identifies one or more of thesecategories of sources to be a significantcontributor of pollutants to the system,it could require specific controls for thatcategory of discharge or prohibit thedischarges completely.

Several comments were received onthe mapping requirements of theproposal. Most comments said that moreflexibility should be given to the MS4sto determine their mapping needs, andthat resources could be better spent inaddressing problems once the illicitdischarges are detected. EPA reviewedthe mapping requirements in theproposed rule and agrees that some ofthe information is not necessary in orderto begin an illicit discharge detectionand elimination program. Today’s rulerequires a map or set of maps that showthe locations of all outfalls and namesand locations of receiving waters.Knowing the locations of outfalls andreceiving waters are necessary to be ableto conduct dry weather field screeningfor non-storm water flows and torespond to illicit discharge reports fromthe public. EPA recommends that theoperator collect any existinginformation on outfall locations (e.g.,review city records, drainage maps,storm drain maps), and then conductfield surveys to verify the locations. Itwill probably be necessary to ‘‘walk’’(i.e. wade small receiving waters or usea boat for larger receiving waters) thestreambanks and shorelines, and it maytake more than one trip to locate alloutfalls. A coding system should beused to mark and identify each outfall.MS4 operators have the flexibility todetermine the type (e.g. topographic,GIS, hand or computer drafted) and sizeof maps which best meet their needs.The map scale should be such that theoutfalls can be accurately located. Oncean illicit discharge is detected at anoutfall, it may be necessary to map thatportion of the storm sewer systemleading to the outfall in order to locatethe source of the discharge.

Several comments requestedclarification of the requirement todevelop and implement a plan to detectand eliminate illicit discharges. EPArecommends that plans includeprocedures for the following: locatingpriority areas; tracing the source of anillicit discharge; removing the source ofthe discharge; and program evaluation



and assessment. EPA recommends thatMS4 operators identify priority areas(i.e., problems areas) for more detailedscreening of their system based onhigher likelihood of illicit connections(e.g., areas with older sanitary sewerlines), or by conducting ambientsampling to locate impacted reaches.Once priority areas are identified, EPArecommends visually screening outfallsduring dry weather and conducting fieldtests, where flow is occurring, ofselected chemical parameters asindicators of the discharge source.EPA’s manual for investigation ofinappropriate pollutant entries into thestorm drainage system (EPA, 1993)suggests the following parameter list:specific conductivity, fluoride and/orhardness concentration, ammonia and/or potassium concentration, surfactantand/or fluorescence concentration,chlorine concentration, pH and otherchemicals indicative of industrialsources. The manual explains why eachparameter is a good indicator and howthe information can be used todetermine the type of source flow. TheAgency is not recommending thatfluoride and chlorine, generally used tolocate potable water discharges, beaddressed under this program, thereforea short list of parameters may includeconductivity, ammonia, surfactant andpH. Some MS4s have found it useful tomeasure for fecal coliform or E. coli intheir testing program. Observations ofphysical characteristics of the dischargeare also helpful such as flow rate,temperature, odor, color, turbidity,floatable matter, deposits and stains,and vegetation.

The implementation plan should alsoinclude procedures for tracing thesource of an illicit discharge. Once anillicit discharge is detected and fieldtests provide source characteristics, thenext step is to determine the actuallocation of the source. Techniques fortracing the discharge to its place oforigin may include: following the flowup the storm drainage system viaobservations and/or chemical testing inmanholes or in open channels;televising storm sewers; using infraredand thermal photography; conductingsmoke or dye tests.

The implementation plan should alsoinclude procedures for removing thesource of the illicit discharge. The firststep may be to notify the propertyowner and specify a length of time foreliminating the discharge. Additionalnotifications and escalating legal actionsshould also be described in this part ofthe plan.

Finally, the implementation planshould include procedures for programevaluation and assessment. Procedures

could include documentation of actionstaken to locate and eliminate illicitdischarges such as: number of outfallsscreened, complaints received andcorrected, feet of storm sewers televised,numbers of discharges and quantities offlow eliminated, number of dye orsmoke tests conducted. Appropriaterecords of such actions should be keptand should be submitted as part of theannual reports for the first permit term,as specified by the permitting authority(reports only need to be submitted inyears 2 and 4 in later permits). For moreon reporting requirements, see§ 122.34(g).

EPA received comments regarding anMS4’s legal authority beyond itsjurisdictional boundaries to inspect ortake enforcement against illicitdischarges. EPA recognizes that illicitflows may originate in one jurisdictionand cross into one or more jurisdictionsbefore being discharged at an outfall. Insuch instances, EPA expects the MS4that detects the illicit flow to trace it tothe point where it leaves theirjurisdiction and notify the adjoiningMS4 of the flow, and any other physicalor chemical information. The adjoiningMS4 should then trace it to the sourceor to the location where it enters theirjurisdiction. The process of notifyingthe adjoining MS4 should continueuntil the source is located andeliminated. In addition, because anynon-storm water discharge to waters ofthe U.S. through an MS4 is subject tothe prohibition against unpermitteddischarges pursuant to CWA section 301(a), remedies are available under thefederal enforcement provisions of CWAsections 309 and 505.

EPA requested and receivedcomments regarding the prohibition andenforcement provision for thisminimum measure. Commentersspecifically questioned the proposal thatthe operator only has to implement theappropriate prohibition andenforcement procedures ‘‘to the extentallowable under State or Tribal law.’’They raised concerns that by qualifyingprohibition and enforcement proceduresin this manner, the operator couldaltogether ignore this minimum measurewhere affirmative legal authority did notexist. Comments suggested that EPArequire States to grant authority to thosemunicipalities where it did not exist.Other comments, however, stated thatmunicipalities cannot exercise legalauthority not granted to them underState law, which varies considerablyfrom one State to another. EPA has nointention of directing State legislatureson how to allocate authority andresponsibility under State law. As notedabove, there is at least one remedy (the

federal CWA) to control non-stormwater discharges through MS4s. If Statelaw prevents political subdivisions fromcontrolling discharges through stormsewers, EPA anticipates common sensewill prevail to provide those MS4operators with the ability to meet therequirements applicable for theirdischarges.

One comment reinforced theimportance of public information andeducation to the success of thismeasure. EPA agrees and suggests thatMS4 operators consider a variety ofways to inform and educate the publicwhich could include storm drainstenciling; a program to promote,publicize, and facilitate public reportingof illicit connections or discharges; anddistribution of visual and/or printedoutreach materials. Recycling and otherpublic outreach programs could bedeveloped to address potential sourcesof illicit discharges, including usedmotor oil, antifreeze, pesticides,herbicides, and fertilizers.

EPA received comments that StateDOT’s lack authority to implement thismeasure. EPA believes that most DOTscan implement most parts of thismeasure. If a DOT does not have thenecessary legal authority to implementany part of this measure, EPAencourages them to coordinate theirstorm water management efforts withthe surrounding MS4s and other Stateagencies. Many DOTs that are regulatedunder Phase I of this program are co-permittees with the local regulated MS4.Under today’s rule, DOTs can use anyof the options of § 122.35 to share theirstorm water managementresponsibilities.

EPA received comments requestingclarification of various terms such as‘‘outfall’’ and ‘‘illicit discharge.’’ Onecomment asked EPA to reinforce thepoint that a ‘‘ditch’’ could be consideredan outfall. The term ‘‘outfall’’ is definedat 40 CFR 122.26(b)(9) as ‘‘a pointsource at the point where a municipalseparate storm sewer discharges towaters of the United States * * *’’. Theterm municipal separate storm sewer isdefined at 40 CFR § 122.26(b)(8) as ‘‘aconveyance or system of conveyances(including roads with drainage systems,municipal streets, catch basins, curbs,gutters, ditches, man-made channels, orstorm drains) * * *’’. Following thelogic of these definitions, a ‘‘ditch’’ maybe part of the municipal separate stormsewer, and at the point where the ditchdischarges to waters of the UnitedStates, it would be an outfall. As withany determination about jurisdictionalprovisions of the CWA, however, finaldecisions require case specificevaluations of fact.



One commenter specifically requestedclarification on the relationship betweenthe term ‘‘illicit discharge’’ and non-storm water discharges from firefighting. The comment suggested that itwould be impractical to attempt todetermine whether the flow from aspecific fire (i.e., during a fire) is asignificant source of pollution. EPAintends that MS4s will address allallowable non-storm water flowscategorically rather than individually. Ifan MS4 is concerned that flows fromfire fighting are, as a category,contributing substantial amounts ofpollutants to their system, they coulddevelop a program to address thoseflows prospectively. The program mayinclude an analysis of the flow fromseveral sources, steps to minimize thepollutant contribution, and a plan towork with the sources of the dischargeto minimize any adverse impact onwater quality. During the developmentof such a program, the MS4 maydetermine that only certain types offlows within a particular category are aconcern, for example, fire fighting flowsat industrial sites where large quantitiesof chemicals are present. In thisexample, a review of existingprocedures with the fire departmentand/or hazardous materials team mayreveal weaknesses or strengthspreviously unknown to the MS4operator.

EPA received comments requestingmodifications to the rule to include on-site sewage disposal systems (i.e., septicsystems) in the scope of the illicitdischarge program. On-site sewagedisposal systems that flow into stormdrainage systems are within thedefinition of illicit discharge as definedby the regulations. Where they arefound to be the source of an illicitdischarge, they need to be eliminatedsimilar to any other illicit dischargesource. Today’s rule was not modifiedto include discharges from on-sitesewage disposal systems specificallybecause those sources are alreadywithin the scope of the existingdefinition of illicit discharge.

iv. Construction Site Storm WaterRunoff Control. Over a short period oftime, storm water runoff fromconstruction site activity can contributemore pollutants, including sediment, toa receiving stream than had beendeposited over several decades (seesection I.B.3). Storm water runoff fromconstruction sites can includepollutants other than sediment, such asphosphorus and nitrogen, pesticides,petroleum derivatives, constructionchemicals, and solid wastes that maybecome mobilized when land surfacesare disturbed. Generally, properly

implemented and enforced constructionsite ordinances effectively reduce thesepollutants. In many areas, however, theeffectiveness of ordinances in reducingpollutants is limited due to inadequateenforcement or incomplete compliancewith such local ordinances byconstruction site operators (Paterson,R.G. 1994. ‘‘Construction Practices: TheGood, the Bad, and the Ugly.’’Watershed Protection Techniques 1(2)).

Today’s rule requires operators ofregulated small MS4s to develop,implement, and enforce a pollutantcontrol program to reduce pollutants inany storm water runoff fromconstruction activities that result inland disturbance of 1 or more acres (see§ 122.34(b)(4)). Construction activity onsites disturbing less than one acre mustbe included in the program if theconstruction activity is part of a largercommon plan of development or salethat would disturb one acre or more.

The construction runoff controlprogram of the regulated small MS4must include an ordinance or otherregulatory mechanism to require erosionand sediment controls to the extentpracticable and allowable under State,Tribal or local law. The program alsomust include sanctions to ensurecompliance (for example, non-monetarypenalties, fines, bonding requirements,and/or permit denials for non-compliance). The program must alsoinclude, at a minimum: requirements forconstruction site operators to implementappropriate erosion and sedimentcontrol BMPS, such as silt fences,temporary detention ponds anddiversions; procedures for site planreview by the small MS4 whichincorporate consideration of potentialwater quality impacts; requirements tocontrol other waste such as discardedbuilding materials, concrete truckwashout, chemicals, litter, and sanitarywaste at the construction site that mayadversely impact water quality;procedures for receipt and considerationof information submitted by the publicto the MS4; and procedures for siteinspection and enforcement of controlmeasures by the small MS4.

Today’s rule provides flexibility forregulated small MS4s by allowing themto exclude from their constructionpollutant control program runoff fromthose construction sites for which theNPDES permitting authority has waivedNPDES storm water small constructionpermit requirements. For example, if theNPDES permitting authority waivespermit coverage for storm waterdischarges from construction sites lessthan 5 acres in areas where the rainfallerosivity factor is less than 5, then theregulated small MS4 does not have to

include these sites in its storm watermanagement program. Even ifrequirements for a discharge from agiven construction site are waived bythe NPDES permitting authority,however, the regulated small MS4 maystill chose to control those dischargesunder the MS4’s construction pollutantcontrol program, particularly wheresuch discharges may cause siltationproblems in storm sewers. See SectionII.I.1.b for more information onconstruction waivers by the permittingauthority.

Some commenters suggested that theproposed construction minimummeasure requirements went beyond thepermit application requirementsconcerning construction for mediumand large MS4s. In response, EPA hasmade changes to the proposed measureso that it more closely resembles theMS4 permit application requirements inexisting regulations. For example, asdescribed below, the Agency revised theproposed requirements for ‘‘pre-construction review of site managementplans’’ to require ‘‘procedures for siteplan review.’’

One commenter expressed concernsthat addressing runoff from constructionsites within urbanized areas (throughthe small MS4 program) differently fromconstruction sites outside urbanizedareas (which will not be covered by thesmall MS4 program) will encourageurban sprawl. Today’s rule, togetherwith the existing requirements, requiresall construction greater than or equal to1 acre, unless waived, to be covered byan NPDES permit whether it is locatedinside or outside of an urbanized area(see § 122.26(b)(15)). Today’s rule doesnot require small MS4s to control runofffrom construction sites more stringentlyor prescriptively than is required forconstruction site runoff outsideurbanized areas. Therefore, today’s ruleimposes no substantively differentonsite controls on runoff of storm waterfrom construction sites in urbanizedareas than from construction sitesoutside of urbanized areas.

One commenter recommended thatthe small MS4 construction site stormwater runoff control program address allstorm water runoff from constructionsites, not just the runoff into the MS4.The commenter also believed that MS4sshould provide clear, objectivestandards for all construction sites. EPAagrees. Because today’s rule onlyregulates discharges from the MS4, theconstruction pollutant control measureonly requires small MS4 operators tocontrol runoff into its system. As apractical matter, however, EPAanticipates that MS4 operators will findthat regulation of all construction site



runoff, whether they runoff into theMS4 or not, will prove to be the mostsimple and efficient program. TheAgency may provide more specificcriteria for construction site BMPs in theforthcoming rule being developed underCWA section 402(m). See section II.D.1of today’s rule.

One commenter stated that there is noneed for penalties at the local level bythe small MS4 because the CWA alreadyimposes sufficient penalties to ensurecompliance. EPA disagrees and believesthat enforcement and compliance at thelocal level is both necessary andpreferable. Examples of sanctions, somenot available under the CWA, includenon-monetary penalties, monetary fines,bonding requirements, and denial offuture or other local permits.

One commenter recommended thatEPA should not include the requirementto control pollutants other thansediment from construction sites in thismeasure. EPA disagrees with thiscomment. The requirement is to controlwaste that ‘‘may cause adverse impactson water quality.’’ Such wastes mayinclude discarded building materials,concrete truck washout, chemicals,pesticides, herbicides, litter, andsanitary waste. These wastes, whenexposed to and mobilized by stormwater, can contribute to water qualityimpairment.

The proposed rule required‘‘procedures for pre-construction reviewof site management plans.’’ EPArequested comment on expanding thisprovision to require both review andapproval of construction site stormwater plans. Many commentersexpressed the concern that review andapproval of site plans is not only costlyand time intensive, but mayunnecessarily delay constructionprojects and unduly burden staff whoadminister the local program. Inaddition, some commenters expressedconfusion whether EPA proposed pre-construction review for all sitemanagement plans or only higherpriority sites. To address thesecomments, and be consistent with thepermit application requirements forlarger MS4s, EPA changed ‘‘proceduresfor pre-construction review of sitemanagement plans’’ to ‘‘procedures forsite plan review.’’ Today’s rule requiresthe small MS4 to develop procedures forsite plan review so as to incorporateconsideration of adverse potential waterquality impacts. Procedures shouldinclude review of site erosion andsediment control plans, preferablybefore construction activity begins on asite. The objective is for the small MS4operator and the construction siteoperator to address storm water runoff

from construction activity early in theproject design process so that potentialconsequences to the aquaticenvironment can be assessed andadverse water quality impacts can beminimized or eliminated.

One commenter requested that EPAdelete the requirement for ‘‘proceduresfor receipt and consideration ofinformation submitted by the public’’because it went beyond existing stormwater requirements. Another commenterstated that establishing a separateprocess to respond to public inquirieson a project is a burden to smallcommunities, especially if the projecthas gone through an environmentalreview. One commenter requestedclarification of this provision. EPA hasretained this requirement in today’sfinal rule to require some formality inthe process for addressing publicinquiries regarding storm water runofffrom construction activities. EPA doesnot intend that small MS4s develop aseparate, burdensome process torespond to every public inquiry. A smallMS4 could, for example, simply logpublic complaints on existing stormwater runoff problems fromconstruction sites and pass thatinformation on to local inspectors. Theinspectors could then investigatecomplaints based on the severity of theviolation and/or priority area.

One commenter believed that theproposed requirement of ‘‘regularinspections during construction’’ wouldrequire every construction project to beinspected more than once by the smallMS4 during the term of a constructionproject. EPA has deleted the reference to‘‘regular inspections.’’ Instead, the smallMS4 will be required to ‘‘developprocedures for site inspection andenforcement of control measures.’’Procedures could include steps toidentify priority sites for inspection andenforcement based on the nature andextent of the construction activity,topography, and the characteristics ofsoils and receiving water quality.

In order to avoid duplication of smallMS4 construction requirements withNPDES construction permitrequirements, today’s rule adds§ 122.44(s) to recognize that the NPDESpermitting authority can incorporatequalifying State, Tribal, or local erosionand sediment control requirements inNPDES permits for construction sitedischarges. For example, a constructionsite operator who complies with MS4construction pollutant control programsthat are referenced in the NPDESconstruction permit would satisfy therequirements of the NPDES permit. Seesection II.I.1.d for more information onincorporating qualifying programs by

reference into NPDES constructionpermits. This provision has no impacton, or direct relation to, the small MS4operator’s responsibilities under theconstruction site storm water runoffcontrol minimum measure. Conversely,under § 122.35(b), the permittingauthority may recognize in the MS4’spermit that another governmental entity,or the permitting authority itself, isresponsible for implementing one ormore of the minimum measures(including construction site storm waterrunoff control), and not include thismeasure in the small MS4’s permit. Inthis case, the other governmentalentity’s program must satisfy all of therequirements of the omitted measure.

v. Post-Construction Storm WaterManagement in New Development andRedevelopment. The NURP study andmore recent investigations indicate thatprior planning and designing for theminimization of pollutants in stormwater discharges is the most cost-effective approach to storm waterquality management. Reducingpollutant concentrations in storm waterafter the discharge enters a storm sewersystem is often more expensive and lessefficient than preventing or reducingpollutants at the source. Increasedhuman activity associated withdevelopment often results in increasedpollutant loading from storm waterdischarges. If potential adverse waterquality impacts are considered from thebeginning stages of a project, newdevelopment and redevelopmentprovides more opportunities for waterquality protection. For example,minimization of impervious areas,maintenance or restoration of naturalinfiltration, wetland protection, use ofvegetated drainage ways, and use ofriparian buffers have been shown toreduce pollutant loadings in stormwater runoff from developed areas. EPAencourages operators of regulated smallMS4s to identify specific problem areaswithin their jurisdictions and initiateinnovative solutions and designs tofocus attention on those areas throughlocal planning.

In today’s rule at § 122.34(b)(5),NPDES permits issued to an operator ofa regulated small MS4 will require theoperator to develop, implement, andenforce a program to address stormwater runoff from new development andredevelopment projects that result inland disturbance of greater than or equalto one acre, including projects less thanone acre that are part of a largercommon plan of development or sale,that discharge into the MS4.Specifically, the NPDES permit willrequire the operator of a regulated smallMS4 to: (1) Develop and implement



strategies which include a combinationof structural and/or non-structural bestmanagement practices (BMPs)appropriate for the community; (2) usean ordinance, or other regulatorymechanism to address post-constructionrunoff from new development andredevelopment projects to the extentallowable under State, Tribal or locallaw; (3) ensure adequate long-termoperation and maintenance of BMPs;and (4) ensure that controls are in placethat would minimize water qualityimpacts. EPA intends the term‘‘redevelopment’’ to refer to alterationsof a property that change the ‘‘footprint’’of a site or building in such a way thatresults in the disturbance of equal to orgreater than 1 acre of land. The term isnot intended to include such activitiesas exterior remodeling, which wouldnot be expected to cause adverse stormwater quality impacts and offer no newopportunity for storm water controls.

EPA received comments requestingguidance and clarification of the rulerequirements. The scope of thecomments ranged from general requestsfor more details on how MS4 operatorsshould accomplish the fourrequirements listed above, to specificrequests for information regardingtransfer of ownership for structuralcontrols, as well as ongoingresponsibility for operation andmaintenance. By the term‘‘combination’’ of BMPs, EPA intends acombination of structural and/or non-structural BMPs. For this requirement,the term ‘‘combination’’ is meant toemphasize that multiple BMPs shouldbe considered and adopted for use inthe community. A single BMP generallycannot significantly reduce pollutantloads because pollutants come frommany sources within a community. TheBMPs chosen should: (1) Be appropriatefor the local community; (2) minimizewater quality impacts; and (3) attempt tomaintain pre-development runoffconditions. In choosing appropriateBMPs, EPA encourages small MS4operators to participate in locally-basedwatershed planning efforts whichattempt to involve a diverse group ofstakeholders. Each new developmentand redevelopment project should havea BMP component. If an approach ischosen that primarily focuses onregional or non-structural BMPs,however, then the BMPs may be locatedaway from the actual development site(e.g., a regional water quality pond).

Non-structural BMPs are preventativeactions that involve management andsource controls such as: (1) Policies andordinances that provide requirementsand standards to direct growth toidentified areas, protect sensitive areas

such as wetlands and riparian areas,maintain and/or increase open space(including a dedicated funding sourcefor open space acquisition), providebuffers along sensitive water bodies,minimize impervious surfaces, andminimize disturbance of soils andvegetation; (2) policies or ordinancesthat encourage infill development inhigher density urban areas, and areaswith existing storm sewer infrastructure;(3) education programs for developersand the public about project designsthat minimize water quality impacts;and (4) other measures such asminimization of the percentage ofimpervious area after development, useof measures to minimize directlyconnected impervious areas, and sourcecontrol measures often thought of asgood housekeeping, preventivemaintenance and spill prevention.Detailed examples of non-structuralBMPs follow.

Preserving open space may help toprotect water quality as well as provideother benefits such as recharginggroundwater supplies, detaining stormwater, supporting wildlife andproviding recreational opportunities.Although securing funding for openspace acquisition may be difficult,various funding mechanisms have beenused. New Jersey uses a portion of theirState sales tax (voter approved for a tenyear period) as a stable source offunding to finance the preservation ofhistoric sites, open space and farmland.Colorado uses part of the proceeds fromthe State lottery to acquire and manageopen space. Some local municipalitiesuse a percentage of the local sales taxrevenue to pay for open spaceacquisition (e.g., Jefferson County, COhas had an open space program in placesince 1977 funded by a 0.50 percentsales tax). Open space can be acquiredin the form of: fee simple purchase;easements; development rights;purchase and sellback or leasebackarrangements; purchase options; privateland trusts; impact fees; and landdedication requirements. Generally, feesimple purchases provide the highestlevel of development control andcertainty of preservation, whereas theother forms of acquisition may provideless control, though they would alsogenerally be less costly.

Cluster development, while allowinghousing densities comparable toconventional zoning practice,concentrates housing units in a portionof the total site area which provides forgreater open space, recreation, streamprotection and storm water control. Thistype of development, by reducing lotsizes, can protect sensitive areas andresult in less impervious surface, as well

as reduce the cost for roads and otherinfrastructure.

Minimizing directly connectedimpervious areas (DCIAs) is a drainagestrategy that seeks to reduce paved areasand directs storm water runoff tolandscaped areas or to structuralcontrols such as grass swales or bufferstrips. This strategy can slow the rate ofrunoff, reduce runoff volumes, attenuatepeak flows, and encourage filtering andinfiltration of storm water. It can bemade an integral part of drainageplanning for any development (UrbanDrainage and Flood Control District,Denver, CO. 1992. Urban StormDrainage Criteria Manual, Volume 3—Best Management Practices). The UrbanDrainage and Flood Control Districtmanual describes three levels forminimizing DCIAs. At Level 1 allimpervious surfaces are made to drainover grass-covered areas before reachinga storm water conveyance system. Level2 adds to Level 1 and replaces streetcurb and gutter systems with low-velocity grass-lined swales and perviousstreet shoulders. In addition to Levels 1and 2, Level 3 over-sizes swales andconfigures driveway and street crossingculverts to use grass-lined swales aselongated detention basins.

Structural BMPs include: (1) Storagepractices such as wet ponds andextended-detention outlet structures; (2)filtration practices such as grassedswales, sand filters and filter strips; and(3) infiltration practices such asinfiltration basins and infiltrationtrenches.

EPA recommends that small MS4operators ensure the appropriateimplementation of the structural BMPsby considering some or all of thefollowing: (1) Pre-construction review ofBMP designs; (2) inspections duringconstruction to verify BMPs are built asdesigned; (3) post-constructioninspection and maintenance of BMPs;and (4) sanctions to ensure compliancewith design, construction or operationand maintenance (O&M) requirementsof the program.

EPA cautions that certain infiltrationsystems such as dry wells, bored wellsor tile drainage fields may be subject toUnderground Injection Control (UIC)program requirements (see 40 CFR Part144.12.). To find out more about theserequirements, contact your state UICProgram, or call EPA’s Safe DrinkingWater Hotline at 1–800–426–4791.

In order to meet the third post-construction requirement (ensuringadequate long-term O&M of BMPs), EPArecommends that small MS4 operatorsevaluate various O&M managementagreement options. The most commonoptions are agreements between the



MS4 operator and another party such aspost-development landowners (e.g.,homeowners’ associations, office parkowners, other government departmentsor entities), or regional authorities (e.g.,flood control districts, councils ofgovernment). These agreementstypically require the post-constructionproperty owner to be responsible for theO&M and may include conditionswhich: allow the MS4 operator to bereimbursed for O&M performed by theMS4 operator that is the responsibilityof the property owner but is notperformed; allow the MS4 operator toenter the property for inspectionpurposes; and in some cases specify thatthe property owner submit periodicreports.

In providing the guidance above, EPAintends the requirements in today’s ruleto be consistent with the permitapplication requirements for large MS4sfor post-construction controls for newdevelopment and redevelopment. MS4operators have significant flexibilityboth to develop this measure asappropriate to address local concerns,and to apply new control technologiesas they become available. Storm waterpollution control technologies areconstantly being improved. EPArecommends that MS4s be responsive tothese changes, developments orimprovements in control technologies.EPA will provide more detailedguidance addressing the responsibilityfor long-term O&M of storm watercontrols in guidance materials. Theguidance will also provide informationon appropriate planning considerations,structural controls and non-structuralcontrols. EPA also intends to develop abroad menu of BMPs as guidance toensure flexibility to accommodate localconditions.

EPA received comments suggestingthat requirements for new developmentbe treated separately fromredevelopment in the rule. Thecomment stressed that newdevelopment on raw land presentsfewer obstacles and more opportunitiesto incorporate elements for preventingwater quality impacts, whereasredevelopment projects are constrainedby space limitations and existinginfrastructure. Another commentsuggested allowing waivers from theredevelopment requirements if theredevelopment does not result inadditional adverse water qualityimpacts, and where BMPs are nottechnologically or economicallyfeasible. EPA recognizes thatredevelopment projects may have moresite constraints which narrow the rangeof appropriate BMPs. Today’s ruleprovides small MS4 operators with the

flexibility to develop requirements thatmay be different for redevelopmentprojects, and may also includeallowances for alternate or off-site BMPsat certain redevelopment projects. Non-structural BMPs may be the mostappropriate approach for smallerredevelopment projects.

EPA received comments requestingclarification on what is meant by ‘‘pre-development’’ conditions within thecontext of redevelopment. Pre-development refers to runoff conditionsthat exist onsite immediately before theplanned development activities occur.Pre-development is not intended to beinterpreted as that period before anyhuman-induced land disturbanceactivity has occurred.

EPA received comments on theguidance language in the proposed ruleand preamble which suggest thatimplementation of this measure should‘‘attempt to maintain pre-developmentrunoff conditions’’ and that ‘‘post-development conditions should not bedifferent than pre-developmentconditions in a way that adverselyaffects water quality.’’ Many commentsexpressed concern that maintaining pre-development runoff conditions isimpossible and cost-prohibitive, andobjected to any reference to ‘‘flow’’ orincrease in volume of runoff. Othercomments support the inclusion of thislanguage in the final rule. Similarreferences in today’s rule relating to pre-development runoff conditions areintended as recommendations toattempt to maintain pre-developmentrunoff conditions. With theserecommendations, EPA intends toprevent water quality impacts resultingfrom increased discharges of pollutants,which may result from increasedvolume of runoff. In many cases,consideration of the increased flow rate,velocity and energy of storm waterdischarges following developmentunavoidably must be taken intoconsideration in order to reduce thedischarge of pollutants, to meet waterquality standards and to preventdegradation of receiving streams. EPArecommends that municipalitiesconsider these factors when developingtheir post-construction storm watermanagement program.

Some comments said that the quotedphrases in the paragraph above aredirectives that imply federal land usecontrol, which they argue is beyond theauthority of the CWA. EPA recognizesthat land use planning is within theauthority of local governments.

EPA disagrees, however, with theimplication that today’s rule dictatesany such land use decisions. Therequirement for small MS4 operators to

develop a program to address dischargesresulting from new development andredevelopment is essentially a pollutionprevention measure. The Rule providesthe MS4 operator with flexibility todetermine the appropriate BMPs toaddress local water quality concerns.EPA recognizes that these program goalsmay not be applied to every site, andexpects that MS4s will develop anappropriate combination of BMPs to beapplied on a site-by-site, regional orwatershed basis.

vi. Pollution Prevention/GoodHousekeeping for MunicipalOperations. Under today’s final rule,operators of MS4s must develop andimplement an operation andmaintenance program (‘‘program’’) thatincludes a training component and hasthe ultimate goal of preventing orreducing storm water from municipaloperations (in addition to those thatconstitute storm water dischargesassociated with industrial activity). Thismeasure’s emphasis on proper O&M ofMS4s and employee training, asopposed to requiring the MS4 toundertake major new activities, is meantto ensure that municipal activities areperformed in the most efficient way tominimize contamination of storm waterdischarges.

The program must includegovernment employee training thataddresses prevention measurespertaining to municipal operations suchas: parks, golf courses and open spacemaintenance; fleet maintenance; newconstruction or land disturbance;building oversight; planning; and stormwater system maintenance. The programcan use existing storm water pollutionprevention training materials providedby the State, Tribe, EPA, orenvironmental, public interest, or tradeorganizations.

EPA also encourages operators ofMS4s to consider the following indeveloping a program: (1) Implementmaintenance activities, maintenanceschedules, and long-term inspectionprocedures for structural and non-structural storm water controls toreduce floatables and other pollutantsdischarged from the separate stormsewers; (2) implement controls forreducing or eliminating the discharge ofpollutants from streets, roads, highways,municipal parking lots, maintenanceand storage yards, waste transferstations, fleet or maintenance shopswith outdoor storage areas, and salt/sand storage locations and snowdisposal areas operated by the MS4; (3)adopt procedures for the properdisposal of waste removed from theseparate storm sewer systems and areaslisted above in (2), including dredge



spoil, accumulated sediments,floatables, and other debris; and (4)adopt procedures to ensure that newflood management projects are assessedfor impacts on water quality andexisting projects are assessed forincorporation of additional waterquality protection devices or practices.Ultimately, the effective performance ofthe program measure depends on theproper maintenance of the BMPs, bothstructural and non-structural. Withoutproper maintenance, BMP performancedeclines significantly over time.Additionally, BMP neglect may producehealth and safety threats, such asstructural failure leading to flooding,undesirable animal and insect breeding,and odors. Maintenance of structuralBMPs could include: replacing upperlevels of gravel; dredging of detentionponds; and repairing of retention basinoutlet structure integrity. Maintenanceof non-structural BMPs could includeupdating educational materialsperiodically.

EPA emphasizes that programs shouldidentify and incorporate existing stormwater practices and training, as well asnon-storm water practices or programsthat have storm water pollutionprevention benefits, as a means to avoidduplication of efforts and reduce overallcosts. EPA recommends that MS4sincorporate these new obligations intotheir existing programs to the greatestextent feasible and urges States toevaluate MS4 programs withprogrammatic efficiency in mind. EPAdesigned this minimum control measureas a modified version of the permitapplication requirements for mediumand large MS4s described at 40 CFR122.26(d)(2)(iv), in order to providemore flexibility for these smaller MS4s.Today’s requirements provide for aconsistent approach to controlpollutants from O&M among medium,large, and regulated small MS4s.

By properly implementing a program,operators of MS4s serve as a model forthe rest of the regulated community.Furthermore, the establishment of along-term program could result in costsavings by minimizing possible damageto the system from floatables and otherdebris and, consequently, reducing theneed for repairs.

EPA received comments requestingclarification of what this measurerequires. Certain municipalitiesexpressed concern that the measure hasthe potential to impose significant costsassociated with EPA’s requirement thatoperators of MS4s considerimplementing controls for reducing oreliminating the discharge of pollutantsfrom streets, roads, highways, municipalparking lots, and salt/sand storage

locations and snow disposal areasoperated by the municipality. EPAdisagrees that a requirement to considersuch controls will impose considerablecosts.

One commenter objected to thepreamble language from the proposalsuggesting that EPA does not expect theMS4 to undertake new activity. While itremains the Agency’s expectation thatmajor new activity will not be required,the MEP process should drive MS4s toincorporate the measure’s obligationsinto their existing programs to achievethe pollutant reductions to themaximum extent practicable.

Certain commenters requested adefinition for ‘‘municipal operations.’’EPA has revised the language to moreclearly define municipal operations.Questions may remain concerningwhether discharges from specificmunicipal activities constitutedischarges associated with industrialactivities (requiring NPDES permitauthorization according to therequirements for industrial storm waterthat apply in that State) or frommunicipal operations (subject only tothe controls developed in the MS4control program). Even though theremay be different substantiverequirements that apply depending onthe source of the discharge, EPA hasmodified the deadlines for permitcoverage so that all the regulatedmunicipally owned and operatedsources become subject to permitrequirements on the same date. Thedeadline is the same for permit coveragefor this minimum measure as for permitcoverage for municipally owned/operated industrial sources.

c. Application Requirements

An NPDES permit that authorizes thedischarge from a regulated small MS4may take the form of either anindividual permit issued to one or morefacilities as co-permittees or a generalpermit that applies to a group of MS4s.For reasons of administrative efficiencyand to reduce the paperwork burden onpermittees, EPA expects that mostdischarges from regulated small MS4swill be authorized under generalpermits. These NPDES general permitswill provide specific instructions onhow to obtain coverage, includingapplication requirements. Typically,such application requirements will besatisfied by the submission of a Noticeof Intent (NOI) to be covered by thegeneral permit. In this section, EPAexplains the small MS4 operator’sapplication requirements for obtainingcoverage under a NPDES permit forstorm water.

i. Best Management Practices andMeasurable Goals, Section 122.34(d) oftoday’s rule requires the operator of aregulated small MS4 that wishes toimplement a program under § 122.34 toidentify and submit to the NPDESpermitting authority a list of the bestmanagement practices (‘‘BMPs’’) thatwill be implemented for each minimumcontrol measure in their storm watermanagement program. They also mustsubmit measurable goals for thedevelopment and implementation ofeach BMP. The BMPs and themeasurable goals must be includedeither in an NOI to be covered under ageneral permit or in an individualpermit application.

The operator’s submission mustidentify, as appropriate, the months andyears in which the operator willundertake actions required toimplement each of the minimum controlmeasures, including interim milestonesand the frequency of periodic actions.The Agency revised references to‘‘starting and completing’’ actions fromthe proposed rule because many actionswill be repetitive or ongoing. Thesubmission also must identify theperson or persons responsible forimplementing or coordinating the smallMS4 storm water program. See§ 122.34(d). The submitted BMPs andmeasurable goals become enforceableaccording to the terms of the permit.The first permit can allow the permitteeup to five years to fully implement thestorm water management program.

Several commenters opposed makingthe measurable goals enforceable permitconditions. Some suggested that apermittee should be able to change itsgoals so that BMPs that are notfunctioning as intended can be replaced.EPA agrees that a permittee should befree to switch its BMPs andcorresponding goals to others thataccomplish the minimum measure ormeasures. The permittee is required toimplement BMPs that address theminimum measures in § 122.34(b). If thepermittee determines that its originalcombination of BMPs are not adequateto achieve the objectives of themunicipal program, the MS4 shouldrevise its program to implement BMPsthat are adequate and submit to thepermitting authority a revised list ofBMPs and measurable goals. EPAsuggests that permits describe theprocess for revising BMPs andmeasurable goals, such as whether thepermittee should follow the sameprocedures as were required for thesubmission of the original NOI andwhether the permitting authority’sapproval is necessary prior to thepermittee implementing the revised



BMPs. The permittee should indicate onits periodic report whether any BMPsand measurable goals have been revisedsince the last periodic report.

Some commenters expressed concernthat making the measurable goalsenforceable would encourage thedevelopment of easily attained goalsand, conversely, discourage the settingof ambitious goals. Others noted that itis often difficult to determine thepollutant reduction that can be achievedby BMPs until several years afterimplementation. Much of the oppositionto the enforceability of measurable goalsappears to have been based on amistaken understanding that measurablegoals must consist of pollutantreduction targets to be achieved by thecorresponding BMPs.

Today’s rule requires the operator tosubmit either measurable goals thatserve as BMP design objectives or goalsthat quantify the progress ofimplementation of the actions orperformance of the permittee’s BMPs. Ata minimum, the required measurablegoals should describe specific actionstaken by the permittee to implementeach BMP and the frequency and thedates for such actions. Although theoperator may choose to do so, it is notrequired to submit goals that measurewhether a BMP or combination of BMPsis effective in achieving a specific resultin terms of storm water dischargequality. For example, a measurable goalmight involve a commitment to inspecta given number of drainage areas of thecollection system for illicit connectionsby a certain date. The measurable goalneed not commit to achieving a specificamount of pollutant reduction throughthe elimination of illicit connections.Other measurable goals could includethe date by which public educationmaterials would be developed, a certainpercentage of the communityparticipating in a clean-up campaign,the development of a mechanism toaddress construction site runoff, and areduction in the percentage ofimperviousness associated with newdevelopment projects.

To reduce the risk that permittees willdevelop inadequate BMPs, EPA intendsto develop a menu of BMPs to assist theoperators of regulated small MS4s withthe development of municipalprograms. States may also develop amenu of BMPs. Today’s rule providesthat the measurable goals thatdemonstrate compliance with theminimum control measures in §§ 122.34(b)(3) through (b)(6) do not have to bemet if the State or EPA has not issueda menu of BMPs at the time the MS4submits its NOI. Commenters pointedout that the proposed rule would have

made the measurable goalsunenforceable if the menu of BMPs wasnot available, but the proposal wassilent as to the enforceability of theimplementation of BMPs. Today’s ruleclarifies that the operators are not freeto do nothing prior to the issuance of amenu of BMPs; they still must make agood faith effort to implement the BMPsdesigned to comply with each measure.See § 122.34(d)(2). The operators wouldnot, however, be liable for failure tomeet its measurable goals if a menu ofBMPs was not available at the time theysubmit their NOI.

The proposed rule provision in§ 123.35 stated that the ‘‘[f]ailure toissue the menu of BMPs would notaffect the legal status of the generalpermit.’’ This concept is included in thefinal rule in § 122.34(d)(2)’s clarificationthat the permittee still must complywith other requirements of the generalpermit.

Unlike the proposed rule, today’s ruledoes not require that each BMP in themenu developed by the State or EPA beregionally appropriate, cost-effectiveand field-tested. Various commenterscriticized those criteria as unworkable,and one described them as ‘‘ripe forambiguity and abuse.’’ Othercommenters feared that the operators ofregulated small MS4s would never berequired to achieve their goals untilmenus were developed that were cost-effective, field-tested and appropriatefor every conceivable subregion.

While some municipal commenterssupported the requirement that a menuof BMPs be made available thatincluded BMPs that had beendetermined to be regionally appropriate,field-tested and cost-effective, othersraised concerns that they would berestricted to a limited menu. Somecommenters supported such a detailedmenu because they thought they wouldonly be able to select BMPs that were onthe menu, while others thought that itwas the permitting authority’sresponsibility to develop BMPsnarrowly tailored to their situation. Inresponse, EPA notes that the operatorswill not be restricted to implementingonly, or all of, the BMPs included on themenu. Since the menu does not requirepermittees to implement the BMPsincluded on the menu, it is also notnecessary to apply the public notice andother procedures that some commentersthought should be applied to thedevelopment of the menu of BMPs.

The purpose of the BMP menu is toprovide guidance to assist the operatorsof regulated small MS4s with thedevelopment and refinement of theirlocal program, not to limit their options.Permittees may implement BMPs other

than those on the menu unless a Staterestricts its permittees to specific BMPs.To the extent possible, EPA willdevelop a menu of BMPs that describesthe appropriateness of BMPs to specificregions, whether the BMPs have beenfield-tested, and their approximatecosts. The menu, however, is notintended to relieve permittees of theneed to implement BMPs that areappropriate for their specificcircumstances.

If there are no known relevant BMPsfor a specific circumstance, a permitteehas the option of developing andimplementing pilot BMPs that may bebetter suited to their circumstances.Where BMPs are experimental, thepermittee should consider committingto measurable goals that address itsschedule for implementing its selectedBMPs rather than goals of achievingspecific pollutant reductions. If theBMPs implemented by the permittee donot achieve the desired objective, thepermittee may be required to commit todifferent or revised BMPs.

As stated in § 123.35(g), EPA iscommitted to issuing a menu of BMPsprior to the deadline for the issuance ofpermits. This menu would serve asguidance for all operators of regulatedsmall MS4s nationwide. Afterdeveloping the initial menu of BMPs,EPA intends to periodically modify,update, and supplement the menu ofBMPs based on the assessments of theMS4 storm water program and research.States may rely on EPA’s menu of BMPsor issue their own. If States developtheir own menus, they would constituteadditional guidance (or perhapsrequirements in some States) for theoperators to follow. Several commenterswere confused by the proposed rulelanguage that stated that States mustprovide or issue a menu of BMPs and,if they fail to do so, EPA ‘‘may’’ do so.Some read this language as not requiringeither EPA or the State to develop themenu. EPA had intended that it woulddevelop a menu and that States couldeither provide the EPA developed menuor one developed by the State.

EPA has dropped the proposedlanguage that States ‘‘must’’ develop themenu of BMPs. Some commentersthought that it was inappropriate torequire States to issue guidance. Amenu of BMPs issued by either EPA ora permittee’s State will satisfy thecondition in § 122.34(d) that aregulatory authority provide a menu ofBMPs. A State could require itspermittees to follow its menu of BMPsprovided that they are adequate toimplement § 122.34(b).

Several commenters raised concernsthat operators of small MS4s could be



required to submit their BMPs andmeasurable goals before EPA or theState has issued a menu of BMPs. EPAhas assumed primary responsibility fordeveloping a menu of BMPs tominimize the possibility of thisoccurring. Should a general permit beissued before a menu of BMPs isavailable, the permit writer would havethe option of delaying the date by whichthe identification of the BMPs andmeasurable goals must be submitted tothe permitting authority until some timeafter a menu of BMPs is available.

Several municipal commenters raisedconcerns that they would begin todevelop a program only to be later toldby the permitting authority orchallenged in a citizen suit that theirBMPs were inadequate. They expresseda need for certainty regarding what theirpermit required. Several commenterssuggested that EPA require permittingauthorities to approve or disapprove thesubmitted BMPs and measurable goals.EPA disagrees that formal approval ordisapproval by the permitting authorityis needed.

EPA acknowledges that the lack of aformal approval process does place onthe permittee some responsibility fordesigning and determining the adequacyof its BMPs. Once the permittee hassubmitted its BMPs to the permittingauthority as part of its NOI, it mustimplement them in order to achieve thecorresponding measurable goals. EPAdoes not believe that this results in theuncertainty to the extent expressed bysome commenters or unduly expose thepermittee to the risk of citizen suit. Ifthe permit is very specific regardingwhat the permittee must do, then theuncertainty is eliminated. If the permitis less prescriptive, the permittee hasgreater latitude in determining for itselfwhat constitutes an adequate program.A citizen suit could impose liability onthe permittee only if the program that itdevelops and implements clearly doesnot satisfy the requirements of thegeneral permit. EPA believes today’sapproach strikes a balance between thecompeting goals of providing certaintyas to what constitutes an adequateprogram and providing flexibility to thepermittees.

Commenters were divided on whetherfive years was a reasonable andexpeditious schedule for a MS4 toimplement its program. Some thoughtthat it was an appropriate amount oftime to allow for the development andimplementation of adequate programs.One questioned whether the permitteehad to be implementing all of itsprogram within that time, and suggestedthat there may be cases where apermitting authority would need

flexibility to allow more time. Onecommenter suggested that five years istoo long and would amount to arelaxation of implementation in theirarea. EPA believes it will takeconsiderable time to complete the tasksof initially developing a program,commencing to implement it, andachieving results. EPA notes, however,that full implementation of anappropriate program must occur asexpeditiously as possible, and not laterthan five years.

EPA solicited comment on how anNOI form might best be formatted toallow for measurable goal information(e.g., through the use of check boxes ornarrative descriptions) while taking intoaccount the Agency’s intention tofacilitate computer tracking. Allcommenters supported the developmentof a checklist NOI, but most noted thatthere would need to be room foradditional information to cover unusualsituations. One noted that, while asummary of measurable goals might bereduced to one sheet, attachments thatmore fully described the program andthe planned BMPs would be necessary.EPA agrees that in most cases a‘‘checklist’’ will not be able to capturethe information on what BMPs apermittee intends to implement and itsmeasurable goals for theirimplementation. EPA will continue toconsider whether to develop a modelNOI form and make it available forpermitting authorities that choose to useit. What will be required on an MS4’sNOI, however, is more extensive thanwhat is usually required on an NOI, soa ‘‘form’’ NOI for MS4s may beimpractical.

ii. Individual Permit Application for a§ 122.34(b) program. In some cases, anoperator of a regulated small MS4s mayseek coverage under an individualNPDES permit, either because it choosesto do so or because the NPDESpermitting authority has not made thegeneral permit option available to thatsource. For small MS4s that are toimplement a § 122.34(b) program intoday’s rule, EPA is promulgatingsimplified individual permit applicationrequirements at § 122.33(b)(2)(i). Underthe simplified individual permitapplication requirements, the operatorsubmits an application to the NPDESpermitting authority that includes theinformation required under § 122.21(f)and an estimate of square mileageserved by the small MS4. They are alsorequired to supply the BMP andmeasurable goal information requiredunder § 122.34(d). Consistent with CWAsection 308 and analogous State law, thepermitting authority could request anyadditional information to gain a better

understanding of the system and theareas draining into the system.

Commenters suggested that therequirements of § 122.21(f) are notnecessarily applicable to a small MS4.One suggested that it was notappropriate to require the followinginformation: a description of theactivities conducted by the applicantwhich require it to obtain an NPDESpermit; the name, mailing address, andlocation of the facility; and up to fourStandard Industrial Classification(‘‘SIC’’) codes which best reflect theprincipal products or services providedby the facility. In response, EPA notesthat the requirements in § 122.21(f) aregeneric application requirementsapplicable to NPDES applicants. Withthe exception of the SIC coderequirement, EPA believes that they areapplicable to MS4s. In the SIC codeportion of the standard application, theapplicant may simply put ‘‘notapplicable.’’

One commenter asked that EPAclarify whether § 122.21(f)(5)’srequirement to indicate ‘‘whether thefacility is located on Indian lands,’’referred to tribal lands, Indian country,or Indian reservations. For some localgovernments this is a complex issuewith no easy ‘‘yes’’ or ‘‘no’’ answer. Seethe discussion in the Section II.F in theproposal to today’s rule regarding whattribal lands are subject to the federaltrust responsibility for purposes of theNPDES program.

One commenter suggested that theapplication should not have to list thepermits and approvals required under§ 122.21(f)(6). EPA notes that theapplicant must only list theenvironmental permits that theapplicant has received that cover thesmall MS4. The applicant is notrequired to list permits for otheroperations conducted by the small MS4operator (e.g., for an operation of anairport or landfill). Again, in most casesthe applicant could respond ‘‘notapplicable’’ to this portion of theapplication.

One commenter suggested that thetopographic map requirement of§ 122.21(f)(7) was completely differentfrom, and significantly more onerousthan, the mapping requirement outlinedin the proposed rule at § 122.34(b)(3)(i).EPA agrees and has modified the finalrule to clarify that a map that satisfiesthe requirements of § 122.34(b)(3)(i) alsosatisfies the map requirements for MS4applicants seeking individual permitsunder § 122.33(b)(2)(i).

EPA is adding a new paragraph to§ 122.44(k) to clarify that requirementsto implement BMPs developed pursuantto CWA 402(p) are appropriate permit



conditions. While such conditionscould be included under the existingprovision in § 122.44(k)(3) for ‘‘practicesreasonably necessary to achieve effluentlimitations and standards or to carry outthe purposes and intent of the CWA,’’EPA believes it is clearer to specificallylist in § 122.44(k) BMPs that implementstorm water programs in light of thefrequency with which they are used aseffluent limitations.

iii. Alternative Permit Options/TenthAmendment. As an alternative toimplementing a program that addresseseach of the six minimum measuresaccording to the requirements of§ 122.34(b), today’s rule provides theoperators of regulated small MS4s withthe option of applying for an individualpermit under existing § 122.26(d). See§ 122.33(b)(2)(ii). If a system operatordoes not want to be held accountable forimplementation of each of the minimummeasures, an individual permit optionunder § 122.33(b)(2)(ii) remainsavailable. (As explained in the nextsection of this preamble, § 122.35(b) alsoprovides an opportunity for relief frompermit obligations for some of theminimum measures, but that reliefexists within the framework of theminimum measures.)

EPA originally drafted the individualpermit application requirements in§ 122.26(d) to apply to medium andlarge MS4s. Today’s rule abbreviates theindividual permit applicationrequirements for small MS4s. AlthoughEPA believes that the storm watermanagement program requirements of§ 122.34, including the minimummeasures, provide the most appropriatemeans to control pollutants from mostsmall MS4s, the Agency does recognizethat the operators of some small MS4smay prefer more individualized permitrequirements. Among other possiblereasons, an operator may seek to avoidhaving to ‘‘regulate’’ third partiesdischarging into the separate stormsewer system. Alternatively, an operatormay determine that structural controls,such as constructed wetlands, are moreappropriate or effective to address thedischarges that would otherwise beaddressed under the construction and/or development/redevelopmentmeasures.

Some MS4s commenters alleged thatan absolute requirement to implementthe minimum measures violates theTenth Amendment to the U.S.Constitution. While EPA disagrees thatrequiring MS4s to implement theminimum measures would violate theConstitution, today’s rule does providesmall MS4s with the option ofdeveloping more individualizedmeasures to reduce the pollutants and

pollution associated with urban stormwater that will be regulated undertoday’s rule.

Some commenters specificallyobjected that § 122.34’s minimummeasures for small MS4s violate theTenth Amendment insofar as theyrequire the operators of MS4s to regulatethird parties. The minimum measuresinclude requirements for small MS4operators to prohibit certain non-stormwater discharges, control storm waterdischarges from construction greaterthan one acre, and take other actions tocontrol third party sources of stormwater discharges into their MS4s.Commenters also argued that it wasinappropriate for EPA to require localgovernments to enact ordinances thatwill consume local revenues and putlocal governments in the position ofbearing the political responsibility forimplementing the program. Onecommenter argued that EPA wasprohibited from conditioning theissuance of an NPDES permit upon thesmall MS4 operators waiving theirconstitutional right to be free from suchrequirements to regulate third parties.The Agency replies to each comment inturn.

Because the rule does rely on localgovernments—who operate municipalseparate storm sewer systems—toregulate discharges from third partiesinto storm sewers, EPA acknowledgesthat the rule implicates the TenthAmendment and constitutionalprinciples of federalism. EPA disagrees,however, that today’s rule isinconsistent with federalism principles.[As political subdivisions of States,municipalities enjoy the sameprotections as States under the TenthAmendment.]

The Supreme Court has interpretedthe Tenth Amendment to precludefederal actions that compel States ortheir political subdivisions to enact oradminister a federal regulatory program.See New York v. United States, 505 U.S.144 (1992); Printz v. United States, 117S.Ct. 2365 (1997). The Printz case,however, did acknowledge that therestriction does not apply when federalrequirements of general applicability—requirements that regulate all partiesengaging in a particular activity—do notexcessively interfere with thefunctioning of State governments whenthose requirements are applied to States(or their political subdivisions). SeePrintz, 117 S.Ct. at 2383.

Today’s rule imposes a federalrequirement of general applicability,namely, the requirement to obtain andcomply with an NPDES permit, onmunicipalities that operate a municipalseparate storm sewer system. By virtue

of this rule, the permit will require themunicipality/storm sewer operator todevelop a storm water control program.The rule specifies the components of thecontrol program, which are primarily‘‘management’-type controls, forexample, municipal regulation of thirdparty storm water discharges associatedwith construction, as well asdevelopment and redevelopment, whenthose discharges would enter themunicipal system.

Unlike the circumstances reviewed inthe New York and Printz cases, today’srule merely applies a generallyapplicable requirement (the CWApermit requirement) to municipal pointsources. The CWA establishes agenerally applicable requirement toobtain an NPDES permit to authorizepoint source discharge to waters of theUnited States. Because municipalitiesown and operate separate storm sewers,including storm sewers into which thirdparties may discharge pollutants,NPDES permits may requiremunicipalities to control the dischargeof pollutants into the storm sewers inthe first instance. Because NPDESpermits can impose end-of-pipenumeric effluent limits, narrativeeffluent limits in the form of‘‘management’’ program requirementsare also within the scope of Clean WaterAct authority. As noted above, however,EPA believes that such narrativelimitations are the most appropriateform of effluent limitation for thesetypes of permits. For municipal separatestorm sewer permits, CWA section402(p)(3)(B)(iii) specifically authorizes‘‘controls to reduce pollutants to themaximum extent practicable, includingmanagement practices, controltechniques and system, design andengineering methods, and such otherprovisions as the Administrator or theState determines appropriate for thecontrol of such pollutants.’’

The Agency did not design theminimum measures in § 122.34 to‘‘commandeer’’ state regulatorymechanisms, but rather to reducepollutant discharges from small MS4s.The permit requirement in CWA section402 is a requirement of generalapplicability. The operator of a smallMS4 that does not prohibit and/orcontrol discharges into its systemessentially accepts ‘‘title’’ for thosedischarges. At a minimum, by providingfree and open access to the MS4s thatconvey discharges to the waters of theUnited States, the municipal stormsewer system enables water qualityimpairment by third parties. Section122.34 requires the operator of aregulated small MS4 to control a third



party only to the extent that the MS4collection system receives pollutantsfrom that third party and discharges itto the waters of the United States. Theoperators of regulated small MS4scannot passively receive and dischargepollutants from third parties. TheAgency concedes that administration ofa municipal program will consumelimited local revenues forimplementation; but thoseconsequences stem from the municipaloperator’s identity as a permitted sewersystem operator. The Tenth Amendmentdoes not create a blanket municipalimmunity from generally applicablerequirements. Development of aprogram based on the minimummeasures and implementation of thatprogram should not ‘‘excessivelyinterfere’’ with the functioning ofmunicipal government, especially giventhe ‘‘practicability’’ threshold underCWA section 402(p)(3)(B)(iii).

As noted above, today’s rule alsoallows regulated small MS4s to opt outof the minimum measures approach.The individual permit option providesfor greater flexibility in programimplementation and also responds tothe comment about requiring amunicipal permit applicant’s waiver ofany arguable constitutional rights. Theindividual permit option responds toquestions about the rule’s allegedunconstitutionality by more specificallyfocusing on the pollutants dischargedfrom municipal point sources. Today’srule gives operators of MS4s the optionto seek an individual permit that variesfrom the minimum measures/management approach that is otherwisespecified in today’s rule. Even if theminimum measures approach wasconstitutionally suspect, a requirementthat standing alone would violateconstitutional principles of federalismdoes not raise concerns if the entitysubject to the requirement may opt foran alternative action that does not raisea federalism issue.

For municipal system operators whoseek to avoid third party regulationaccording to all or some of theminimum measures, § 122.26(d)requires the operator to submit anarrative description of its storm watersewer system and any existing stormwater control program, as well as themonitoring data to enable the permitwriter to develop appropriate permitconditions. The permit writer can thendevelop permit conditions andlimitations that vary from the sixminimum measures prescribed intoday’s rule. The information willenable the permit writer to develop anNPDES permit that will result inpollutant reduction to the maximum

extent practicable. See NRDC v. EPA,966 F.2d at 1308, n17. If determinedappropriate under CWA section402(p)(3)(B)(iii), for example BMPs tomeet water quality standards, the permitcould also incorporate any morestringent or prescriptive effluent limitsbased on the individual permitapplication information.

For small MS4 operators seeking anindividual permit, both Part 1 and Part2 of the application requirements in§ 122.26(d)(1) and (2) are required to besubmitted within 3 years and 90 days ofthe date of publication of this FederalRegister notice. Some of the informationrequired in Part 1 will necessarily haveto be developed by the permit applicantprior to the development of Part 2 of theapplication. The permit applicantshould coordinate with its permittingauthority regarding the timing of reviewof the information.

The operators of regulated small MS4sthat apply under § 122.26(d) may applyto implement certain of the § 122.34(b)minimum control measures, and therebyfocus the necessary evaluation foradditional limitations on alternativecontrols to the § 122.34(b) measures thatthe small MS4 will not implement. Thepermit writer may determine‘‘equivalency’’ for some or all of theminimum measures by developing arough estimate of the pollutantreduction that would be achieved if theMS4 implemented the § 122.34minimum measure and to incorporatethat pollutant reduction estimate in thesmall MS4’s individual permit as aneffluent limitation. The Agencyrecognizes that, based on currentinformation, any such estimates willprobably have a wide range.Anticipation of this wide range is one ofthe reasons EPA believes MS4 operatorsneed flexibility in determining the mixof BMPs (under the minimum measures)to achieve water quality objectives.Therefore, for example, if a systemoperator seeks to employ an alternativethat involves structural controls, wideranges will probably be associated withgross pollutant reduction estimates.Permit writers will undoubtedlydevelop other ways to ensure thatpermit limits ensure reduction ofpollutants to the maximum extentpracticable.

Small MS4 operators that pursue thisindividual permit option do not need tosubmit details about their futureprogram requirements (e.g., the MS4’sfuture plans to obtain legal authorityrequired by §§ 122.26(d)(1)(ii) and(d)(2)). A small MS4 operator mightelect to supply such information if itintends for the permit writer to takethose plans into account when

developing the small MS4’s permitconditions.

Several operators of small MS4scommented that they currently lackedthe authority they would need toimplement one or more of the minimummeasures in § 122.34(b). Today’s rulerecognizes that the operators of somesmall MS4s might not have theauthority under State law to implementone or more of the measures using, forexample, an ordinance or otherregulatory mechanism. To address thesesituations, each minimum measure in§ 122.34(b) that would require the smallMS4 operator to develop an ordinanceor other regulatory mechanism statesthat the operator is only required toimplement that requirement to ‘‘theextent allowable under State, Tribal orlocal law.’’ See § 122.34(b)(3)(ii) (illicitdischarge elimination), § 122.34(b)(4)(ii)(construction runoff control) and§ 122.34(b)(5)(ii) (post-constructionstorm water management). Thisregulatory language does not mean thata operator of a small MS4 withordinance making authority can simplyfail to pass an ordinance necessary fora § 122.34(b) program. The reference to‘‘the extent allowable under * * * locallaw’’ refers to the local laws of otherpolitical subdivisions to which the MS4operator is subject. Rather, a small MS4operator that seeks to implement aprogram under section § 122.34(b) mayomit a requirement to develop anordinance or other regulatorymechanism only to the extent itsmunicipal charter, State constitution orother legal authority prevents theoperator from exercising the necessaryauthority. Where the operator cannotobtain the authority to implement anyactivity that is only required to ‘‘theextent allowable under State, Tribal orlocal law,’’ the operator may satisfytoday’s rule by administering theremaining § 122.34(b) requirements.

Finally, although today’s ruleprovides operators of small MS4s withan option of applying for a permit under§ 122.26(d), States authorized toadminister the NPDES program are notrequired to provide this option. NPDES-authorized States could require allregulated small MS4s to be permittedunder the minimum measuresmanagement approach in § 122.34 as amatter of State law. Such an approachwould be deemed to be equally or morestringent than what is required bytoday’s rule. See 40 CFR 123.2(i). Thefederalism concerns discussed above donot apply to requirements imposed by aState on its political subdivisions.

iv. Satisfaction of Minimum MeasureObligations by Another Entity. Anoperator of a regulated small MS4 may



satisfy the requirement to implementone or more of the six minimummeasures in § 122.34(b) by having athird party implement the measure ormeasures. Today’s rule provides avariety of means for small MS4operators to share responsibility fordifferent aspects of their storm watermanagement program. The means bywhich the operators of various MS4sshare responsibility may affect who isultimately responsible for performanceof the minimum measure and who filesthe periodic reports on theimplementation of the minimummeasure. Section 122.35 addresses theseissues. The rule describes two differentvariants on third party implementationwith different consequences if the thirdparty fails to implement the measure.

If the permit covering the dischargefrom a regulated small MS4 identifiesthe operator as the entity responsible fora particular minimum control measure,then the operator-permittee remainsresponsible for the implementation ofthat measure even if another entity hasagreed to implement the controlmeasure. Section 122.35(a). Anotherparty may satisfy the operator-permittee’s responsibility byimplementing the minimum controlmeasure in a manner at least as stringentor prescriptive as the correspondingNPDES permit requirement. If the thirdparty fails to do so, the operator-permittee remains responsible for itsperformance. The operator of the MS4should consider entering into anagreement with the third party thatacknowledges the responsibility toimplement the minimum measure. Theoperator-permittee’s NOI and its annual§ 122.34(f)(3) reports submitted to theNPDES permitting authority mustidentify the third party that is satisfyingone or more of the permit obligations.This requirement ensures that thepermitting authority is aware whichentity is supposed to implement whichminimum measures.

If, on the other hand, the regulatedsmall MS4’s permit recognizes that anNPDES permittee other than theoperator-permittee is responsible for aparticular minimum control measure,then the operator-permittee is relievedfrom the responsibility forimplementing that measure. Theoperator-permittee is also relieved fromthe responsibility for implementing anymeasure that the operator’s permitindicates will be performed by theNPDES permitting authority. Section122.35(b). The MS4 operator-permitteewould be responsible for implementingthe remaining minimum measures.

Today’s final rule differs from theproposed version of § 122.35(b), which

stated that, even if the third party’sresponsibility is recognized in thepermit, the MS4 operator-permitteeremained responsible for performance ifthe third party failed to perform themeasure consistent with § 122.34(b).Under today’s rule, the operator-permittee is relieved from responsibilityfor performance of a measure if the thirdparty is an NPDES permittee whosepermit makes it responsible forperformance of the measure (including,for example, a State agency other thanthe State agency that issues NPDESpermits) or if the third party is theNPDES permitting authority itself.Because the permitting authority isacknowledging the third party’sresponsibility in the permit,commenters thought that the MS4operator-permittee should not beresponsible for ensuring that the otherentity is implementing the controlmeasure properly. EPA agrees that theoperator-permittee should not beconditionally responsible when therequirements are enforceable againstsome other NPDES permittee. If thethird party fails to perform theminimum measure, the requirementswill be enforceable against the thirdparty. In addition, the NPDESpermitting authority could reopen theoperator-permittee’s permit under§ 122.62 and modify the permit to makethe operator responsible forimplementing the measure. A newparagraph has been added to § 122.62 toclarify that the permit may be reopenedin such circumstances.

Today’s rule also provides that theoperator-permittee is not conditionallyresponsible where it is the State NPDESpermitting authority itself that fails toimplement the measure. The permittingauthority does not need to issue apermit to itself (i.e., to the same Stateagency that issues the permit) for thesole purpose of relieving the small MS4from responsibility in the event theState agency does not satisfy itsobligation to implement a measure. EPAdoes not believe that the small MS4should be responsible in the situationwhere the NPDES permit issued to thesmall MS4 operator recognizes that theState agency that issues the permit isresponsible for implementing ameasure. If the State does fail toimplement the measure, the Stateagency could be held accountable for itscommitment in the permit to implementthe measure. Where the State does notfulfill its responsibility to implement ameasure, a citizen also could petitionfor withdrawal of the State’s NPDESprogram or it could petition to have theMS4’s permit reopened to require the

MS4 operator to implement themeasure.

EPA notes that not every Stateprogram that addresses erosion andsediment control from construction siteswill be adequate to satisfy therequirement that each regulated smallMS4 have a program to the extentrequired by § 122.34(b)(4). For example,although all NPDES States are requiredto issue NPDES permits for constructionactivity that disturbs greater than oneacre, the State’s NPDES permit programwill not necessarily be extensive enoughto satisfy a regulated small MS4’sobligation under § 122.34(b)(4). NPDESStates will not necessarily beimplementing all of the requiredelements of that minimum measure,such as procedures for site plan reviewin each jurisdiction required to developa program and procedures for receiptand consideration of informationsubmitted by the public on individualconstruction sites. In order for a Stateerosion and sediment control programto satisfy a small MS4 operator’sobligation to implement § 122.34(b)(4),the State program would have toinclude all of the elements of thatminimum measure.

Where the operator-permittee is itselfperforming one or more of the minimummeasures, the operator-permitteeremains responsible for all of thereporting requirements under§ 122.34(f)(3). The operator-permittee’sreports should identify each entity thatis performing the control measureswithin the geographic jurisdiction of theregulated small MS4. If the other entityalso operates a regulated MS4 and filesreports on the progress ofimplementation of the measures withinthe geographic jurisdiction of the MS4,then the operator-permittee need notinclude that same information in itsown reports.

If the other entity operates a regulatedMS4 and is performing all of theminimum measures for the permittee,the permittee is not required to file thereports required by § 122.34(f)(3). Thisrelief from reporting is specified in§ 122.35(a).

Section 122.35 addresses the concernsof some commenters who sought relieffor governmental facilities that areclassified as small MS4s under today’srule. These facilities frequentlydischarge storm water through anotherregulated MS4 and could be regulatedby that MS4’s program. For example, aState owned office complex thatoperates its storm sewer system in anurbanized area will be regulated as anMS4 under today’s rule even though itssystem may be subject to the stormwater controls of the municipality in



which it is located. Today’s rulespecifically revised the definition ofMS4 to recognize that different levels ofgovernment often operate MS4s and thateach such separate entity (including thefederal government) should beresponsible for its discharges. If bothMS4s agree, the downstream MS4 candevelop a storm water managementprogram that regulates the dischargefrom both MS4s. The upstream smallMS4 operator still must submit an NOIthat identifies the entity on which theupstream small MS4 operator is relyingto satisfy its permit obligations. Noreports are required from the upstreamsmall MS4 operator, but the upstreamoperator must remain in compliancewith the downstream MS4 operator’sstorm water management program. Thisoption allows small MS4s to worktogether to develop one storm watermanagement program that satisfies thepermit obligations of both. If theycannot agree, the upstream small MS4operator must develop its own program.

As mentioned previously, commentsfrom federal facilities and Stateorganizations that operate MS4srequested that their permit requirementsdiffer from those of MS4s that arepolitical subdivisions of States (cities,towns, counties, etc.). EPAacknowledges that there are differences;e.g., many federal and State facilities donot serve a resident population and thusmight require a different approach topublic education. EPA believes,however, that MS4s owned by State andfederal governments can develop stormwater management plans that addressthe minimum measures. Federal andState owned small MS4s may choose towork with adjacent municipally ownedMS4s to develop a unified plan thataddresses all of the required measureswithin the jurisdiction of all of thecontiguous MS4s. The options in§ 122.35 minimize the burden on smallMS4s that are covered by another MS4’sprogram.

One commenter recommended that ifone MS4 discharges into a second MS4,the operator of the upstream MS4should have to provide a copy of its NOIor permit application to the operator ofthe receiving MS4. EPA did not adoptthis recommendation because the NOIand permit application will be publiclyavailable; but EPA does recommend thatNPDES permitting authorities considerit as a possible permit requirement. Thecommenter also suggested thatmonitoring data should be collected bythe upstream MS4 and provided to thedownstream MS4. EPA is not adoptingsuch a uniform monitoring requirementbecause EPA believes it is moreappropriate to let the MS4 operators

work out the need for such data. Ifnecessary, the downstream MS4s mightwant to make such data a condition toallowing the upstream MS4 to connectto its system.

v. Joint Permit Programs. Manycommenters supported allowing theoperators of small MS4s to apply as co-permittees so they each would not haveto develop their own storm watermanagement program. Today’s rulespecifically allows regulated smallMS4s to join with either other smallMS4s regulated under § 122.34(d) orwith medium and large MS4s regulatedunder § 122.26(d).

As is discussed in the previoussection, regulated small MS4s mayindicate in their NOIs that anotherentity is performing one or more of itsrequired minimum control measures.Today’s rule under § 122.33(b)(1) alsospecifically allows the operators ofregulated small MS4s to jointly submitan NOI. The joint NOI must clearlyindicate which entity is required toimplement which control measure ineach geographic jurisdiction within theservice area of the entire small MS4.The operator of each regulated smallMS4 remains responsible for theimplementation of each minimummeasure for its MS4 (unless, as isdiscussed in the previous section above,the permit recognizes that another entityis responsible for completing themeasure.) The joint NOI, therefore, islegally equivalent to each entitysubmitting its own NOI. EPA is,however, revising the rule language tospecifically authorize the jointsubmission of NOIs in response tocomments that suggested that suchexplicit authorization might encourageprograms to be coordinated on awatershed basis.

Section 122.33(b)(2)(iii) authorizesregulated small MS4s to jointly applyfor an individual permit to implementtoday’s rule, where allowed by anNPDES permitting authority. The permitapplication should contain sufficientinformation to allow the permittingauthority to allocate responsibilityamong the parties under one of the twopermitting options in §§ 122.33(b)(2)(i)and (ii).

Section 122.33(b)(3) of today’s rulealso allows an operator of a regulatedsmall MS4 to join as a co-permittee inan existing NPDES permit issued to anadjoining medium or large MS4 orsource designated under the existingstorm water program. This co-permitteeoption applies only with the agreementof all co-permittees. Under this co-permittee arrangement, the operator ofthe regulated small MS4 must complywith the terms and conditions of the

applicable permit rather than the permitcondition requirements of § 122.34 oftoday’s rule. The regulated small MS4that wishes to be a co-permittee mustcomply with the applicablerequirements of § 122.26(d), but wouldnot be required to fulfill all the permitapplication requirements applicable tomedium and large MS4s. Specifically,the regulated small MS4 is not requiredto comply with the applicationrequirements of § 122.26(d)(1)(iii)(Part 1 source identification), § 122.26(d)(1)(iv) (Part 1 dischargecharacterization), and § 122.26(d)(2)(iii)(Part 2 discharge characterization data).Furthermore, the regulated small MS4operator could satisfy the requirementsin § 122.26(d)(1)(v) (Part 1 managementprograms) and § 122.26(d)(2)(iv) (Part 2proposed management program) byreferring to the adjoining MS4 operator’sexisting plan. An operator pursuing thisoption must describe in the permitmodification request how the adjoiningMS4’s storm water program addresses orneeds to be supplemented in order toadequately address discharges from theMS4. The request must also explain therole of the small MS4 operator incoordinating local storm water activitiesand describe the resources available toaccomplish the storm watermanagement plan.

EPA sought comments regarding theappropriateness of the applicationrequirements in these subsections of§ 122.26(d). One commenter stated thatnewly regulated smaller MS4s shouldnot be required to meet the existingregulations’ Part II applicationrequirements under § 122.26(d)regarding the control of storm waterdischarges from industrial activity. EPAdisagrees. The smaller MS4 operatorsdesignated for regulation in today’s rulemay satisfy this requirement byreferencing the legal authority of thealready regulated MS4 program to theextent the newly regulated MS4 willrely on such legal authority to satisfy itspermit requirements. If the smaller MS4operator plans to rely on its own legalauthorities, it must identify it in theapplication. If the smaller MS4 operatordoes not elect to use its own legalauthority, they may file an individualpermit application for an alternateprogram under § 122.33(b)(2)(ii).

The explanatory language in§ 122.33(b)(3) recommends that thesmaller MS4s designated under today’srule identify how an existing plan‘‘would need to be supplemented inorder to adequately address yourdischarges.’’ One commenter suggestedthat this must be regulatory languageand not guidance. EPA disagrees thatthis needs to be mandatory language.



Since many of the smaller MS4sdesignated today are ‘‘donut holes’’within the geographic jurisdiction of analready regulated MS4, the larger MS4’sprogram generally will be adequate toaddress the newly regulated MS4’sdischarges. The small MS4 applicantshould consider the adequacy of theexisting MS4’s program to address thesmaller MS4’s water quality needs, butEPA is not imposing specificrequirements. Where circumstancessuggest that the existing program isinadequate with respect to the newlydesignated MS4 and the applicant doesnot address the issue, the NPDESpermitting authority must require thatthe existing program be supplemented.

Commenters recommended that theapplication deadline for smaller MS4sdesignated today be extended so thatexisting regulated MS4s would not haveto modify their permit in the middle oftheir permit term, provided that permitrenewal would occur within areasonable time (12 to 18 months) of thedeadline. In response, EPA notes thattoday’s rule allows operators of newlydesignated small MS4s up to three yearsand 90 days from the promulgation oftoday’s rule to submit an application tobe covered under the permit issued toan already regulated MS4. Thepermitting authority has a reasonabletime after receipt of the application tomodify the existing permit to includethe newly designated source. If anexisting MS4’s permit is up for renewalin the near future, the operator of anewly designated small MS4 may takethat into account when timing itsapplication and the NPDES permittingauthority may take that into accountwhen processing the application.

Another commenter suggested thatthe rule should include a provision toallow permit application requirementsfor smaller MS4s designated today to bedetermined by the permitting authorityto account for the particular needs/wants of an already regulated MS4operator. EPA does not believe that theregulations should specifically requirethis approach. When negotiatingwhether to include a newly designatedMS4 in its program, the alreadyregulated MS4 operator may require thenewly designated MS4’s operator toprovide any information that isnecessary.

The co-permitting approach allowssmall MS4s to take advantage of existingprograms to ease the burden of creatingtheir own programs. The operators ofregulated small MS4s, however, mayfind it simpler to apply for a programunder today’s rule, and to identify themedium or large MS4 operator that is

implementing portions of its § 122.34(b)minimum measures.

d. Evaluation and AssessmentUnder today’s rule, operators of

regulated small MS4s are required toevaluate the appropriateness of theiridentified BMPs and progress towardachieving their identified measurablegoals. The purpose of this evaluation isto determine whether or not the MS4 ismeeting the requirements of theminimum control measures. The NPDESpermitting authority is responsible fordetermining whether and what types ofmonitoring needs to be conducted andmay require monitoring in accordancewith State/Tribe monitoring plansappropriate to the watershed. EPA doesnot encourage requirements for ‘‘end-of-pipe’’ monitoring for regulated smallMS4s. Rather, EPA encouragespermitting authorities to carefullyexamine existing ambient water qualityand assess data needs. Permittingauthorities should consider acombination of physical, chemical, andbiological monitoring or the use of otherenvironmental indicators such asexceedance frequencies of water qualitystandards, impacted dry weather flows,and increased flooding frequency.(Claytor, R. and W. Brown. 1996.Environmental Indicators to AssessStorm Water Control Programs andPractices. Center for WatershedProtection, Silver Spring, MD.) SectionII.L., Water Quality Issues, discussesmonitoring in greater detail.

As recommended by theIntergovernmental Task Force onMonitoring Water Quality (ITFM), theNPDES permitting authority isencouraged to consider the followingwatershed objectives in determiningmonitoring requirements: (1) Tocharacterize water quality andecosystem health in a watershed overtime, (2) to determine causes of existingand future water quality and ecosystemhealth problems in a watershed anddevelop a watershed managementprogram, (3) to assess progress ofwatershed management program oreffectiveness of pollution preventionand control practices, and (4) to supportdocumentation of compliance withpermit conditions and/or water qualitystandards. With these objectives inmind, the Agency encouragesparticipation in group monitoringprograms that can take advantage ofexisting monitoring programsundertaken by a variety of governmentaland nongovernental entities. ManyStates may already have a monitoringprogram in effect on a watershed basis.The ITFM report is included in thedocket for today’s rule

(Intergovernmental Task Force onMonitoring Water Quality. 1995. TheStrategy for Improving Water-QualityMonitoring in the United States: FinalReport of the Intergovernmental TaskForce on Monitoring Water Quality.Copies can be obtained from: U.S.Geological Survey, Reston, VA.).

EPA expects that many types ofentities will have a role in supportinggroup monitoring activities—includingfederal agencies, State agencies, thepublic, and various classes or categoriesof point source dischargers. Someregulated small MS4s might be requiredto contribute to such monitoring efforts.EPA expects, however, that theirparticipation in monitoring activitieswill be relatively limited. For purposesof today’s rule, EPA recommends that,in general, NPDES permits for smallMS4s should not require the conduct ofany additional monitoring beyondmonitoring that the small MS4 may bealready performing. In the second andsubsequent permit terms, EPA expectsthat some limited ambient monitoringmight be appropriately required forperhaps half of the regulated smallMS4s. EPA expects that suchmonitoring will only be done inidentified locations for relatively fewpollutants of concern. EPA does notanticipate ‘‘end-of-pipe’’ monitoringrequirements for regulated small MS4s.

EPA received a wide range ofcomments on this section of the rule.Some commenters believe that EPAshould require monitoring; others wanta strong statement that the newlyregulated small MS4s should not berequired to monitor. Many commentersraised questions about exactly what EPAexpects MS4s to do to evaluate andassess their BMPs. EPA hasintentionally written today’s rule toprovide flexibility to both MS4s andpermitting authorities regardingappropriate evaluation and assessment.Permitting authorities can specifymonitoring or other means of evaluationwhen writing permits. If additionalrequirements are not specified, MS4scan decide what they believe is the mostappropriate way to evaluate their stormwater management program. Asmentioned above, EPA expects that thenecessity for monitoring and its extentmay change from permit cycle to permitcycle. This is another reason for makingthe evaluation and assessment rulerequirements very flexible.

i. Recordkeeping. The NPDESpermitting authority is required toinclude at least the minimumappropriate recordkeeping conditions ineach permit. Additionally, the NPDESpermitting authority can specify thatpermittees develop, maintain, and/or



submit other records to determinecompliance with permit conditions. TheMS4 operator must keep these recordsfor at least 3 years but is not requiredto submit records to the NPDESpermitting authority unless specificallydirected to do so. The MS4 operatormust make the records, including thestorm water management program,available to the public at reasonabletimes during regular business hours (see40 CFR 122.7 for confidentialityprovision). The MS4 operator is alsoable to assess a reasonable charge forcopying and to establish advance noticerequirements for members of the public.

EPA received a comment thatquestioned EPA’s authority to requireMS4s to make their records available tothe public. EPA disagrees with thecommenter and believes that the CWAdoes give EPA the authority to requirethat MS4 records be available. It is alsomore practical for the public to requestrecords directly from the MS4 than torequest them from EPA who would thenmake the request to the MS4. Based oncomments, EPA revised the proposedrule so as not to limit the time foradvance notice requirements to 2business days.

ii. Reporting. Under today’s rule, theoperator of a regulated small MS4 isrequired to submit annual reports to theNPDES permitting authority for the firstpermit term. For subsequent permitterms, the MS4 operator must submitreports in years 2 and 4 unless theNPDES permitting authority requiresmore frequent reports. EPA receivedseveral comments supporting thistiming for report submittal. Othercommenters suggested that annualreports during the first permit cycle aretoo burdensome and not necessary. EPAbelieves that annual reports are neededduring the first 5-year permit term tohelp permitting authorities track andassess the development of MS4programs, which should be establishedby the end of the initial term.Information contained in these reportscan also be used to respond to publicinquiries.

The report must include (1) the statusof compliance with permit conditions,an assessment of the appropriateness ofidentified BMPs and progress towardachieving measurable goals for each ofthe minimum control measures, (2)results of information collected andanalyzed, including monitoring data, ifany, during the reporting period, (3) asummary of what storm water activitiesthe permittee plans to undertake duringthe next reporting cycle, and (4) achange in any identified measurablegoal(s) that apply to the programelements.

The NPDES permitting authority isencouraged to provide a brief two-pagereporting format to facilitate compilingand analyzing the data from submittedreports. EPA does not believe thatsubmittal of a brief annual report of thisnature is overly burdensome, and hasnot changed the required reporting timeframe from the proposal. The permittingauthority will use the reports inevaluating compliance with permitconditions and, where necessary, willmodify the permit conditions to addresschanged conditions.

iii. Permit-As-A-Shield. Section122.36 describes the scope ofauthorization (i.e. ‘‘permit-as-a-shield’’)under an NPDES permit as provided bysection 402(k) of the CWA. Section402(k) provides that compliance with anNPDES permit is deemed compliance,for purposes of enforcement under CWAsections 309 and 505, with CWAsections 301, 302, 306, 307, and 403,except for any standard imposed undersection 307 for toxic pollutantsinjurious to human health.

EPA’s Policy Statement on Scope ofDischarge Authorization and ShieldAssociated with NPDES Permits,originally issued on July 1, 1994, andrevised on April 11, 1995, providesadditional information on this matter.

e. Other Applicable NPDESRequirements

Any NPDES permit issued to anoperator of a regulated small MS4 mustalso include other applicable NPDESpermit requirements and standardconditions, specifically the applicablerequirements and conditions at 40 CFR122.41 through 122.49. Reportingrequirements for regulated small MS4sare governed by § 122.34 and not theexisting requirements for medium andlarge MS4s at § 122.42(c). In addition,the NPDES permitting authority isencouraged to consult the InterimPermitting Approach, issued on August1, 1996. The discussion on the InterimPermitting Approach in Section II.L.1,Water Quality Based Effluent Limits,provides more information. Theprovisions of §§ 122.41 through 122.49establish permit conditions andlimitations that are broadly applicableto the entire range of NPDES permits.These provisions should be interpretedin a manner that is consistent withprovisions that address specific classesor categories of discharges. For example,§ 122.44(d) is a general requirement thateach NPDES permit shall includeconditions to meet water qualitystandards. This requirement will be metby the specific approach outlined intoday’s rule for the implementation ofBMPs. BMPs are the most appropriate

form of effluent limitations to satisfytechnology requirements and waterquality-based requirements in MS4permits (see the introduction to SectionII.H.3, Municipal Permit Requirements,Section II.H.3.h, Reevaluation of Rule,and the discussion of the InterimPermitting Policy in Section II.L.1.below).

f. EnforceabilityNPDES permits are federally

enforceable. Violators may be subject tothe enforcement actions and penaltiesdescribed in CWA sections 309, 504,and 505 or under similar waterpollution enforcement provisions ofState, tribal or local law. Compliancewith a permit issued pursuant to section402 of the Clean Water Act is deemedcompliance, for purposes of sections309 and 505, with sections 301, 302,306, 307, and 403 (except any standardimposed under section 307 for toxicpollutants injurious to human health).

g. DeadlinesToday’s final rule includes

‘‘expeditious deadlines’’ as directed byCWA section 402(p)(6). In proposed§ 122.26(e), the permit application forthe ‘‘ISTEA’’ facilities was maintainedas August 7, 2001 and the permitapplication deadline for storm waterdischarges associated with otherconstruction activity was established as3 years and 90 days from the final ruledate. In proposed § 122.33(c)(1),operators of regulated small MS4s wererequired to seek permit coverage within3 years and 90 days from the date ofpublication of the final rule. Inproposed § 122.33(c)(2), operators ofregulated small MS4s designated by theNPDES permitting authority on a localbasis under § 122.32(a)(2) must seekcoverage under an NPDES permit within60 days of notice, unless the NPDESpermitting authority specifies a laterdate.

In order to increase the clarity oftoday’s final rule, EPA has changed thelocation of some of the aboverequirements. All application deadlinesfor both Phase I and Phase II are nowlisted or referenced in § 122.26(e).Section 122.26(e)(1) contains thedeadlines for storm water associatedwith industrial activity. Paragraph (i)has been changed to correct atypographical error. Paragraph (ii) hasbeen revised to reflect the changedapplication date for ‘‘ISTEA’’ facilities.(See discussion in section I.3, ISTEASources). The application deadline forstorm water discharges associated withother construction activity is now in anew § 122.26(e)(8). The applicationdeadline for regulated small MS4s



remains in § 122.33(c) because thissection is written in ‘‘readableregulation’’ format, but it is alsodescribed in a new § 122.26(e)(9).

Under today’s rule, permittingauthorities are allowed up to 3 years toissue a general permit and MS4sdesignated under § 122.32(a)(1) areallowed up to 3 years and 90 days tosubmit a permit application. Operatorsof regulated small MS4s that choose tobe a co-permittee with an adjoining MS4with an existing NPDES storm waterpermit must apply for a modification ofthat permit within the same time frame.Several commenters stated that 90 dayswas not adequate time to submit anNOI. This might be true if facilities didnot start developing their storm waterprogram until publication of theirgeneral permit. In fact, municipalitiesshould start developing their stormwater program upon publication oftoday’s final rule, if they have notalready done so. Municipalities that areuncertain if they fall within theurbanized area should ask theirpermitting authority. EPA believes thatmunicipalities should not automaticallytake three years and 90 days to developa program and submit their NOI. Threeyears is the maximum amount of timeto issue a general permit. MS4s that areautomatically designated under today’srule may have less than 3 years and 90days if the permitting authority issues apermit that requires submission of NOIsbefore that time. EPA encourages Statesto modify their NPDES program toinclude storm water and issue theirpermits as soon as possible. It isimportant for permitting authorities tokeep their municipalities informed oftheir progress in developing ormodifying their NPDES storm waterrequirements.

EPA recognizes that MS4s broughtinto the program due to the 2000 Censuscalculations do not have as much timeto develop a program as those alreadydesignated from the 1990 Census.However, the official Bureau of theCensus urbanized area calculation forthe 2000 Census is expected to bepublished in the Federal Register in thespring of 2002, which should give thepotentially affected MS4s adequate timeto prepare for compliance under theapplicable permit. However, if thepublication of this information isdelayed, MS4s in newly designatedurbanized areas will have 180 days fromthe time the new designations arepublished to submit an NOI, consistentwith the time frame for other regulatedMS4s that are designated afterpromulgation of the rule.

The proposed application deadline forMS4s designated under § 122.32(a)(2)

was within 60 days of notice. Manycommenters stated that 60 days does notprovide adequate time for thepreparation of an NOI or permitapplication. EPA agrees that newlydesignated MS4s may not be aware thatthey might be designated since thepermitting authority could take severalyears to develop designation criteria.EPA has decided that the applicationtime frame for these facilities should beconsistent with the 180 days allowed forfacilities designated under§§ 122.26(a)(9)(i)(C) and (D). Section122.33(c)(2) of today’s final rulecontains the modified time frame of 180days to apply for coverage.

h. Reevaluation of RuleThe municipal caucus of the Storm

Water Phase II FACA Subcommitteeasked EPA to demonstrate itscommitment to revisit the municipalrequirements of today’s rule and makechanges where necessary afterevaluating the storm water program andresearching the effectiveness ofmunicipal BMPs. In § 122.37 of today’sfinal rule, EPA commits to revisiting theregulations for the municipal stormwater discharge control program aftercompletion of the first two permit terms.EPA intends to use this time to workclosely with stakeholders on researchefforts. Gathering and analyzing datarelated to the storm water program,including data regarding theeffectiveness of BMPs, is critical toEPA’s storm water program evaluation.EPA does not intend to change today’sNPDES municipal storm water programuntil the end of this period, exceptunder the following circumstances: acourt decision requires changes; atechnical change is necessary forimplementation; or the CWA ismodified, thereby requiring changes.After careful analysis, EPA might alsoconsider changes from consensus-basedstakeholder requests regardingrequirements applicable to newlyregulated MS4s. EPA will apply theAugust 1, 1996, Interim PermittingApproach to today’s program duringthis interim period and encourages allpermitting authorities to use thisapproach in municipal storm waterpermits for newly regulated MS4s andin determining MS4 permitrequirements under a TMDL approach.After careful consideration of the data,EPA will make modifications asnecessary.

EPA received comments thatsupported waiting two permit cyclesbefore re-evaluating the rule and othercomments that requested re-evaluationmuch sooner. EPA anticipates two fullpermit cycles are necessary to obtain

enough data to significantly evaluate therule. The re-evaluation time frame of 13years from today remains as proposed.

I. Other Designated Storm WaterDischarges

1. Discharges Associated with SmallConstruction Activity

Section 122.26(b)(15) of today’s ruledesignates certain constructionactivities for regulation as ‘‘storm waterdischarges associated with smallconstruction activity.’’ Specifically,storm water discharges fromconstruction activity equal to or greaterthan 1 acre and less than 5 acres areautomatically designated except inthose circumstances where the operator(i.e., person responsible for dischargesthat might occur) certifies to thepermitting authority that one of twospecific waiver circumstances(described in section b. below) applies.Sites below one acre may be designatedunder § 122.26(b)(15)(ii) wherenecessary to protect water quality.

Today’s rule regulates theseconstruction-related storm watersources under CWA section 402(p)(6) toprotect water quality rather than underCWA section 402(p)(2). Designationunder 402(p)(6) gives States and EPAthe flexibility to waive the permitrequirement for construction activitythat is not likely to impair water quality,and to designate additional sourcesbelow one acre that are likely to causewater quality impairment. Thus, the oneacre threshold of today’s rule is not anabsolute threshold like the five acrethreshold that applies under the existingstorm water rule.

Today’s rule regulating certain stormwater discharges from constructionactivity disturbing less than 5 acres isconsistent with the 9th Circuit remandin NRDC v. EPA, 966 F.2d 1292 (9th Cir.1992). In that case, the court remandedportions of the existing storm waterregulations related to discharges fromconstruction sites. The existing Phase Iregulations define ‘‘storm waterdischarges associated with industrialactivity’’ to include storm waterdischarges from construction sitesdisturbing 5 acres or more of total landarea (see 40 CFR 122.26(b)(14)(x)). In itsdecision, the court concluded that the 5-acre threshold was improper becausethe Agency had failed to identifyinformation ‘‘to support its perceptionthat construction activities on less than5 acres are non-industrial in nature’’(966 F.2d at 1306). The court remandedthe exemption to EPA for furtherproceedings (966 F.2d at 1310). EPA’sobjectives in today’s action include aneffort to (1) address the 9th Circuit



remand to reconsider regulation ofstorm water discharges fromconstruction activities that disturb lessthan 5 acres of land, (2) address waterquality concerns associated with suchactivities, and (3) balance conflictingrecommendations and concerns ofstakeholders in the regulation ofadditional construction activity.

EPA responded to the Ninth Circuit’sdecision by designating discharges fromconstruction activities that disturbbetween 1 and 5 acres as ‘‘dischargesassociated with small constructionactivity’’ under CWA section 402(p)(6),rather than as ‘‘discharges associatedwith industrial activity’’ under CWAsection 402(p)(2)(B). Although a sizecriterion alone may be an indicator ofwhether runoff from construction sitesbetween 1 and 5 acres is ‘‘associatedwith industrial activity,’’ the Agency isinstead relying on a size threshold intandem with provisions that allow fordesignations and waivers based onpotential for ‘‘predicted water qualityimpairments’’ to regulate constructionsites between 1 and 5 acres under CWAsection 402(p)(6). This approach waschosen by the Agency for the sake ofsimplicity and certainty and, mostimportantly, to protect water qualityconsistent with the mandate of CWAsection 402(p)(6). Today’s rule alsoincludes extended application deadlinesfor this new category of dischargersunder the authority of CWA section402(p)(6) (see § 122.26(e)(8) of today’srule).

In today’s rule, EPA is regulatingstorm water discharges from additionalconstruction sites to better protect theNation’s waters, while remainingsensitive to a concern that the Agencyshould not regulate discharges fromconstruction sites that might not or donot have adverse water quality impacts.EPA believes that today’s rule willsuccessfully accomplish this objectiveby establishing a 1-acre thresholdnationwide that includes the flexibilityto allow the permitting authority to bothwaive requirements for discharges fromsites that are not expected to causeadverse water quality impacts and todesignate discharges from sites below 1-acre based on adverse water qualityimpacts.

In addition to the diminishing waterquality benefits of regulating all sitesbelow one acre, the Agency relied onpractical considerations in establishinga one acre threshold and not setting alower threshold. Regardless of thethreshold established by EPA, a NPDESpermit can only be required if aconstruction site has a point sourcedischarge. A point source dischargemeans that pollutants are added to

waters of the United States through adiscernible, confined, discreteconveyance. ‘‘Sheet flow’’ runoff from asmall construction site would not resultin a point source discharge unless anduntil it channelized. As the amount ofdisturbed land surface decreases,precipitation is less likely to channelizeand create a ‘‘point source’’ discharge(assuming the absence of steep slopes orother factors that lead to increasedchannelization). Categorical designationof very small sites may create confusionabout applicability of the NPDESpermitting program to those sites. EPA’sone acre threshold reflects, in part, theneed to recognize that smaller sites areless likely to result in point sourcedischarges. Of course, the NPDESpermitting authority could designatesmaller sites (below one acre, assumingpoint source discharges occur from thesmaller designated sites) for regulationif a watershed or other local assessmentindicated the need to do so. The PhaseII rule includes this designationauthority at 40 CFR 122.26(a)(9)(i)(D)and (b)(15)(ii).

The one acre threshold also providesan administrative tool for more easilyidentifying those sites that are identifiedfor coverage by the rule (but may receivea waiver) and those that are notautomatically covered (but may bedesignated for inclusion). Although allconstruction sites less than five acrescould have a significant water qualityimpact cumulatively, EPA isautomatically designating for permitcoverage only those storm waterdischarges from construction sites thatdisturb land equal to or greater than oneacre. Categorical regulation ofdischarges from construction below thisone acre threshold would overwhelmthe resources of permitting authoritiesand might not yield correspondingwater quality benefits. Constructionactivities that disturb less than one acremake up, in total, a very smallpercentage of the total land disturbancefrom construction nationwide. The oneacre threshold is reasonable foraccomplishing the water quality goals ofCWA section 402(p)(6) because it resultsin 97.5% of the total acreage disturbedby construction being designated forcoverage by the NPDES storm waterprogram, while excluding fromautomatic coverage the numeroussmaller sites that represent 24.7% of thetotal number of construction sites.

Some commenters believed that EPAhas not adequately identified waterquality problems associated with stormwater discharges from constructionactivity disturbing less than five acres.Other commenters believed that stormwater discharges from small

construction activity is a significantwater quality problem nationwide.Section I.B.3, Construction Site Runoff,provides a detailed discussion ofadverse water quality impacts resultingfrom construction site storm waterdischarges. EPA is regulating stormwater discharges from constructionactivity disturbing between 1 and 5acres because the cumulative impact ofmany sources, and not just a singleidentified source, is typically the causefor water quality impairments,particularly for sediment-related waterquality standards.

Several commenters requested thatEPA regulate discharges from smallconstruction activity as ‘‘dischargesassociated with industrial activity’’under CWA 402(p)(4) and not, asproposed, as ‘‘storm water dischargesassociated with other activity’’ underCWA 402(p)(6). EPA is regulatingdischarges from small construction sitesas ‘‘small construction activity’’ underthe authority of CWA section 402(p)(6),rather than section 402(p)(4), to ensurethat regulation of these sources is waterquality-sensitive. CWA section 402(p)(6)affords the opportunity for designationsand waivers of sources based onpotential for ‘‘predicted water qualityimpairments.’’ Regulation of stormwater ‘‘associated with industrialactivity’’ does not necessarily focusregulation to protect water quality.

a. ScopeThe definition of ‘‘storm water

discharges associated with smallconstruction activity’’ includesdischarges from construction activities,such as clearing, grading, andexcavating activities, that result in thedisturbance of equal to or greater than1 acre and less than 5 acres (see§ 122.26(b)(15)(i)). Such activities couldinclude: road building; construction ofresidential houses, office buildings, orindustrial buildings; or demolitionactivity. The definition of ‘‘storm waterdischarges associated with smallconstruction activity’’ also includes anyother construction activity, regardless ofsize, designated based on the potentialfor contribution to a violation of a waterquality standard or for significantcontribution of pollutants to waters ofthe United States (§ 122.26(b)(15)(ii)).This designation is made by theDirector, or in States with approvedNPDES programs, either the Director orthe EPA Regional Administrator.

For the purposes of today’s rule, thedefinition of ‘‘storm water dischargesassociated with small constructionactivity’’ includes discharges fromactivities disturbing less than 1 acre ifthat construction activity is part of a



‘‘larger common plan of development orsale’’ with a planned disturbance ofequal to or greater than 1 acre of land.A ‘‘larger common plan of developmentor sale’’ means a contiguous area wheremultiple separate and distinctconstruction activities are planned tooccur at different times on differentschedules under one plan, e.g., ahousing development of five 1⁄4 acre lots(§ 122.26(b)(15)(i)).

In addition to the regulatory text forsmaller construction, the Agency is alsorevising the existing text of§ 122.26(b)(14)(x) to clarify EPA’sintention regarding constructionprojects involving a larger common planof development or sale ultimatelydisturbing 5 or more acres. Operators ofsuch sites are required to seek coverageunder an NPDES permit regardless ofthe number of lots in the larger planbecause designation for permit coverageis based on the total amount of land areato be disturbed under the common plan.This designation attempts to address thepotential cumulative effects ofnumerous construction activitiesconcentrated in a given area.

Several commenters asked that EPAallow the permitting authority to set theappropriate size threshold based onwater quality studies. While EPA agreesthat location-specific water qualitystudies provide an ideal informationbase from which to make regulatorydecisions, today’s rule establishes adefault standard for regulation in theabsence of location-specific studies. Therule does allow for deviation from thedefault standard through additionaldesignations and waivers, however,when supported by location-specificwater quality information. The rulecodifies the ability of permittingauthorities to provide waivers for sitesgreater than or equal to one acre (thedefault standard) and designateadditional discharges from small sitesbelow one acre when location-specificinformation suggests that the default 1acre standard is either unnecessary(waivers) or too limited (designations) toprotect water quality.

Some commenters wanted EPA tobase the regulation of storm waterdischarges from construction sites notonly on size, but also on the durationand intensity of activity occurring onthe site. EPA believes that a national 1-acre threshold, in combination withwaivers and additional designations, isthe most effective and simplest way toaddress adverse water quality impactsfrom storm water from smallconstruction sites. Moreover, asdiscussed below, the waiver for rainfallerosivity does account for projects oflimited duration. EPA believes,

however, that the intensity of activityoccurring on-site would be a verydifficult condition to quantify.

Many commenters requested that EPAmaintain the 5 acre threshold from theexisting regulations, which includeopportunities for site-specificdesignation, as the regulatory scope forregulating storm water fromconstruction sites, i.e., that the Agencynot automatically regulate storm waterdischarges from sites less than 5 acres.Several commenters wantedconstruction requirements to be appliedto sites smaller than 1 acre, while somecommenters suggested alternativethresholds of 2 or 3 acres. The rest of thecommenters supported the 1 acrethreshold. None of the commenterspresented any data or rationales tosupport a specific size threshold.

EPA examined alternative sizethresholds, including 0.5 acre, 1 acre, 2acres and 5 acres. EPA had difficultyevaluating the alternative sizethresholds because, while directlyproportional to the size of the disturbedsite, the water quality threat posed bydischarges from construction sites ofdiffering sizes varies nationwide,depending on the local climatological,geological, geographical, andhydrological influences. In order toensure improvements in water qualitynationwide, however, today’s rule doesnot allow various permitting authoritiesto establish different size thresholdsexcept based on the waiver anddesignation provisions of the rule. EPAbelieves that the water quality impactfrom small construction sites is as highas or higher than the impact from largersites on a per acre basis. By selecting the1 acre size threshold and coupling itwith waivers and additionaldesignations, EPA is seeking tostandardize improvement of waterquality on a national basis whileproviding permitting authorities withthe opportunity to designate thoseunregulated activities causing waterquality impairments regardless of sitesize, as well as to waive requirementswhen information demonstrates thatregulation is unnecessary.

EPA recognizes that the size criterionalone may not be the most idealpredictor of the need for regulation, buteffective protection of water qualitydepends as much on simplicity inimplementation as it does on thescientific information underlying theregulatory criteria. The default sizecriterion of 1 acre will ensure protectionagainst adverse water quality impactsfrom storm water from smallconstruction sites while notoverburdening the resources ofpermitting authorities and the

construction industry to implement theprogram to protect water quality in thefirst place.

One commenter stated a need toclarify whether routine roadmaintenance is considered constructionactivity for the purpose of today’s rule.The NPDES general permit fordischarges from construction sites largerthan 5 acres defined ‘‘commencement ofconstruction’’ as the initial disturbanceof soils associated with clearing,grading, or excavating activities or otherconstruction activities (63 FR 7913). Forconstruction sites disturbing less than 5acres, EPA does not considerconstruction activity to include routinemaintenance performed to maintain theoriginal line and grade, hydrauliccapacity, or original purpose of thefacility.

Two commenters believed that theMulti-Sector General Permit for stormwater discharges from industrialactivities (MSGP) (60 FR 50804) alreadyapplies to storm water discharges fromconstruction activities at oil and gasexploration and production sites andasked for a clarification on this issue.Commenters also requested a singlegeneral permit to authorize bothindustrial storm water discharges andconstruction site discharges whichoccur at the same industrial site.

Currently, when construction activitydisturbing more than 5 acres occurs onan industrial site covered by the MSGP,authorization under a separate NPDESconstruction permit is needed becausethe MSGP does not include the‘‘construction’’ industrial sector. Whilethe MSGP does address sediment anderosion control, it is not as specific asthe NPDES general permit for stormwater discharges from constructionactivities disturbing more than 5 acres.Though permitting authorities couldconceivably develop a single generalpermit to authorize storm waterdischarges associated with constructionactivity at these industrial facilities, thecommenter’s request is not addressed bytoday’s rulemaking. When today’s ruleis implemented through general permits(to be issued later), the permittingauthority will have discretion whetheror not to incorporate the permitrequirements for both the industrialstorm water discharges and constructionsite storm water discharges into a singlegeneral permit. This type of requestshould be addressed to the permittingauthority.

One commenter suggested thatdischarges from small construction sitesshould be regulated through a ‘‘self-implementing rule’’ approach. Whiletoday’s rule is not a self-implementingrule, it does add § 122.28(b)(2)(v), which



gives the permitting authority thediscretion to authorize a constructiongeneral permit for sites less than 5 acreswithout submitting a notice of intent.Such non-registration general permitsfunction similarly to self-implementingrules, but are, in fact, permits. Today’srule will be implemented throughNPDES permits rather than self-implementing regulations to capitalizeon the compliance, tracking,enforcement, and public participationassociated with NPDES permits (seediscussion in section II.C).

Other commenters believed that onlythe permitting authority should regulateconstruction site storm water discharges(under a NPDES permit) and that asmall MS4 operator’s regulation ofstorm water discharges associated withconstruction (under the small MS4NPDES storm water program) isredundant. EPA disagrees that controlmeasure implementation by the NPDESauthority and the small MS4 operator isredundant. To the extent the two effortsoverlap, today’s rule provides forconsolidation and coordination ofsubstantive requirements viaincorporation by reference permitting.Small MS4s operators may choose toimpose more prescriptive requirementsthan an NPDES permitting authoritybased on localized water quality needs.In those cases, EPA intends that thesubstantive requirements from the smallMS4 program should apply as theNPDES permit requirements for theconstruction site discharger. In caseswhere a small MS4 program does notprioritize and focus on storm water fromconstruction sites (beyond the smallMS4 minimum control measure intoday’s rule, which does not require thesmall MS4 operator to controlconstruction site discharges in a manneras prescriptive as is expected fordischarges regulated under NPDESpermits), the Agency intends that theNPDES general permit will provide thesubstantive standards applicable to theconstruction site discharge. EPA doesanticipate, however, thatimplementation of MS4 programs toaddress construction site runoff withintheir jurisdiction will enhance overallNPDES compliance by construction sitedischargers. EPA also notes that under§ 122.35(b), the permitting authoritymay recognize its own program tocontrol storm water discharges fromconstruction sites in lieu of requiringsuch a program in an MS4’s NPDESpermit, provided that the permittingauthority’s program satisfies therequirements of § 122.34(b)(4),including, for example, procedures forsite plan reviews and consideration of

information submitted by the public onindividual construction sites in eachjurisdiction required to be covered bythe program.

b. WaiversUnder § 122.26(b)(15)(i) of today’s

rule, NPDES permitting authorities maywaive today’s requirement forconstruction site operators to obtain apermit in two circumstances. The firstwaiver is intended to apply where littleor no rainfall is expected during theperiod of construction. The secondwaiver may be granted when a TMDL orequivalent analysis indicates thatcontrols on construction site dischargesare not needed to protect water quality.

The first waiver is based on ‘‘lowpredicted rainfall erosivity’’ which canbe found using tables of rainfall-runofferosivity (R) values published for eachregion in the U.S. R factors arepublished in the U.S. Department ofAgriculture (USDA) AgriculturalHandbook 703 (Renard, K.G., Foster,G.R., Weesies, G.A., McCool, D.K., andD.C. Yoder. 1997. Predicting SoilErosion by Water: A Guide toConservation Planning with the RevisedUniversal Soil Loss Equation (RUSLE).U.S. Department of AgricultureHandbook 703). The R factor variesbased on the time during the year whenconstruction activity occurs, where inthe country it occurs, and how long theconstruction activity lasts. Thepermitting authority may determine,using Handbook 703, which times ofyear, if any, the waiver opportunity isavailable for construction activity. EPAwill provide assistance either throughcomputer programs or the World WideWeb on how to determine whether thiswaiver applies for a particulargeographic area and time period.Application of this waiver for regulatorypurposes will be determined by theauthorized NPDES authority. Thiswaiver is discussed further in thefollowing section titled Rainfall-Erosivity Waiver.

The second waiver is based on aconsideration of ambient water quality.This waiver is available after a State orEPA develops and implements TMDLsfor the pollutant(s) of concern fromstorm water discharges associated withconstruction activity. This waiver is alsoavailable for sites discharging to non-impaired waters that do not requireTMDLs, when an equivalent analysishas determined allocations for smallconstruction sites for the pollutant(s) ofconcern or determined that suchallocations are not needed to protectwater quality based on consideration ofexisting in-stream concentrations,expected growth in pollutant

contributions from all sources, and amargin of safety. The Agency envisionsan equivalent analysis that woulddemonstrate that water quality is notthreatened by storm water dischargesfrom small construction activity. Thiswaiver is discussed further below in thesections titled TMDL Waiver and WaterQuality Issues.

The proposed rule included a waiverbased on ‘‘low predicted soil loss.’’ Thiswaiver provision would have beenapplicable on a case-by-case basis wherethe annual soil loss rate for the periodof construction for a site, using theRevised Universal Soil Loss Equation(RUSLE), would be less than 2 tons/acre/year. The annual soil loss rate ofless than 2 tons/acre/year would becalculated through the use of the RUSLEequation, assuming the constants of noground cover and no runoff controls inplace.

Several commenters found the lowsoil loss waiver too complex andimpractical, and stated that expertise isnot available at the local level to prepareand evaluate eligibility for the waiver.Another commenter questioned whethertwo tons/acre/year was an appropriatethreshold for predicting adverse waterquality impacts. Two other commenterssaid that RUSLE was never intended topredict off-site impacts and is not anindicator of potential harm to waterquality. EPA agrees with thecommenters on the difficulty associatedwith determining and implementingthis waiver. Most construction siteoperators are not familiar with theRUSLE program, and the potentialburden on the permitting authority,construction industry, USDA’s NaturalResources Conservation Service andconservation districts probably wouldhave been significant. The Agency hasnot included this waiver in the finalrule.

Two commenters asked that EPAallow States the flexibility to developtheir own waiver criteria but did notsuggest how the Agency (or affectedstakeholders) could evaluate theacceptability of alternative State waivercriteria. Therefore, the final rule doesnot provide for any such alternativewaivers. If a State does seek to developalternate waiver criteria, then EPAprocedures afford the opportunity forsubsequent actions, for example, underthe Project XL Program in EPA’s Officeof Reinvention, which seeks cleaner,smarter, and cheaper solutions toenvironmental problems. Manycommenters suggested that EPA extendthese waivers to existing industrialstorm water regulations for constructionactivity greater than 5 acres. Theseconstruction site discharges are



regulated as industrial storm waterdischarges under CWA 402(p)(2) and arenot eligible for such water quality-basedwaivers.

Two commenters were concerned thatwaivers would create a potential forsignificant degradation of small streams.EPA disagrees. If small streams arethreatened, the permitting authoritywould choose not to provide anywaivers. In addition, permittingauthorities may protect small streams bydesignating discharges from smallconstruction activity based on thepotential for contribution to a violationof a water quality standard or forsignificant contribution of pollutants towaters of the U.S.

Two commenters asked that thewaiver options be eliminated. They feltit would create a gross inequity withinthe construction community if someprojects will not be subject to therequirements of today’s rule. While thecomments may be valid, EPA disagreesthat waivers should be disallowed onthis basis. Construction site dischargesthat qualify for a waiver from permittingrequirements are not expected topresent a threat to water quality, whichis the basis for designation andregulation under today’s rule.

A number of commenters suggestedadditional waivers in cases where newdevelopment will result in no additionaladverse impacts to water quality ascompared to the existing development itreplaces. EPA believes these waivers areeither unworkable or unnecessary. Itwould be very difficult for mostconstruction operators to determine, aswell as for other stakeholders to verify,on a site-by-site basis, that there is nopotential for adverse impact to waterquality compared to the replaceddevelopment.

Other commenters proposed waiversin cases where a local erosion andsediment control program covers theproject or a separate waiver for smalllinear utility projects. Instead ofwaivers, today’s rule addresses the firstsuggestion through the qualifyingprogram provision described in thesection titled Cross-Referencing State/Local Erosion and Sediment ControlPrograms below. Today’s rule provideswaivers for small linear projects in sofar as they satisfy conditions for lowrainfall erosivity. (See§ 122.26(b)(15)(i)(A).)

Other commenters suggested waiversbased on distance to water body,existence of vegetated buffer aroundwater body, slope of disturbed land, orif discharging to very large bodies ofwater. As a result of public outreach,EPA believes that these proposedwaivers would be generally unworkable

for construction site dischargers andpermitting authorities because of thedifficulty in applying them to all smallsites.

One commenter mentioned thatwaivers for the R factor (rainfall-erosivity) and soil loss are effluentstandards that have not been developedin accordance with sections 301 and 304of the CWA. EPA disagrees that thesesections are relevant to the designationof sources in today’s rule. The waiverprovisions in this section of the rule arejurisdictional because they affect thescope of the universe of entities subjectto the NPDES program. Therefore, thewaiver provisions are not themselvessubstantive control standardsimplemented through NPDES permits,and thus, not subject to the statutorycriteria in sections 301 and 304.

Another commenter stated thatwaivers would allow exemptions to thetechnology based requirements andwould thus be inconsistent with thetwo-fold approach of the CWA (atechnology based minimum and a waterquality based overlay). EPAacknowledges that the CWA does notgenerally provide for waivers for theAct’s technology-based requirements.The waiver provisions do not createexemptions from technology-basedstandards that apply to NPDESdischargers; they provide exemptionfrom the underlying requirement for anNPDES permit in the first place.Protection of water quality is the reasonthese smaller sites are designated forregulation under NPDES. The Act’s twofold approach imposes more stringentwater quality based effluent limitationswhen technology-based limitationsapplicable to regulated dischargers areinsufficient to meet water qualitystandards. Under today’s rule, waterquality protection is the basis fordetermining which of the unregulatedsources should be regulated at all. Thus,today’s rule is entirely consistent withthe Act’s two fold approach.

i. Rainfall-Erosivity Waiver. Therainfall-erosivity waiver under§ 122.26(b)(15)(i)(A) is intended toexempt the requirements for a permitwhen and where negligible rainfall/runoff-erosivity is expected. In thedevelopment of the Universal Soil LossEquation, analysis of data indicated thatwhen factors other than rainfall are heldconstant, soil loss is directlyproportional to a rainfall factorcomposed of total storm kinetic energytimes the maximum 30 minuteintensity. The average annual sum of thestorm energy and intensity values for anarea comprise the R factor—the rainfallerosivity index. A detailed explanationof the R factor can be found in

Predicting Soil Erosion by Water: AGuide to Conservation Planning Withthe Revised Universal Soil LossEquation (RUSLE) (USDA, 1997).

This waiver is time-sensitive and isdependent on when during the year aconstruction activity takes place, howlong it lasts, and the expected rainfalland intensity during that time. R factorsvary based on location. EPA anticipatesthat this waiver opportunity responds toconcerns about the requirement for apermit when it is not expected to rain,especially in the arid areas of the U.S.Under today’s rule, the permittingauthority could waive the requirementsfor a permit for time periods when therainfall-erosivity factor (‘‘R’’ in RUSLE)is less than five during the period ofconstruction. For the purposes ofcalculating this waiver, the period ofconstruction activity starts at the time ofinitial disturbance and ends with thetime of final stabilization. The operatormust submit a written certification tothe Director in order to apply for sucha waiver. EPA believes that those areasreceiving negligible rainfall duringcertain times of the year are unlikely tohave storm events causing dischargesthat could adversely impact receivingstreams. Consequently, BMPs would notbe necessary on those smaller sites. Thiswaiver is most applicable to projects ofshort duration and to the arid regions ofthe country where the occurrence ofrainfall follows a cyclic pattern—between no rain and extremely heavyrain. EPA review of rainfall records forthese areas indicates that, duringperiods of the year when the number ofevents and quantity of rain are low,storm water discharges from the smallerconstruction sites regulated undertoday’s rule should be minimal.

Some commenters supported the useof the R factor as a waiver, while othersfelt that a waiver based on rainfallstatistics ignores the fact that it may rainon any given day and it is thecumulative effect of wet weatherdischarges which cause water qualityimpairments. A commenter also askedwhat happens in ‘‘El Nino’’ years whensignificantly more rainfall than normaloccurs. Another commenter alsoexpressed concern that this waiver wasnot based on a measured water qualityimpact, but instead on an indicator ofpotential impact. In response to theprevious comments, EPA notes that,under CWA 402(p)(6), sources aredesignated on their potential for adverseimpact. Designation under the section isprospective, not retrospective orremedial only. For that reason, thewaivers under today’s rule also operateprospectively. EPA wanted to waiverequirements for sites with little



potential to impair water quality, andthe R factor is the most straightforwardway to do this. The permittingauthority, if electing to use waivers,could always suspend the use ofwaivers in certain areas or duringcertain times. In addition, thepermitting authority may choose to usea lower R factor threshold than the oneset by EPA. Application of this waiveris at the discretion of the permittingauthority, subject only to the limitationthat R factors cannot exceed 5.

One commenter expressed the needfor EPA to provide a justification for thethreshold value used for the R factor.None of the commenters included anydata to show that EPA’s proposed Rfactor of 2 was either too high or toolow. EPA is using the R factor as anindicator of the potential to impactwater quality. In an effort to determinewhich R threshold should be used, EPAconducted additional analysis of therainfall/runoff erosivity factor for 134sites across the country. For an R factorthreshold of 5, approximately 12% ofsites would be waived if the projectperiod lasted 6 months, 27% for 3months, 47% for 1 month, and 60% ofsites would be waived if the projectlasted for only 15 days. None of the 134sites would be waived if the projectlasted an entire year. For an R factorthreshold of 2, approximately 9% ofsites would be waived if the projectperiod lasted 6 months, 15% for 3months, 31% for 1 month, and 43% for15 days. For an R factor threshold of 10,approximately 22% of sites would bewaived if the project period lasted 6months, 37% for 3 months, 60% for 1month, and 78% for 15 days. EPAbelieves that an R factor of 5 is anadequate threshold to waiverequirements for sites because theywould not reasonably be expected toimpair water quality.

EPA will develop, as part of the toolbox described in section II.A.5,guidance materials and computer orweb-accessible programs to assistpermitting authorities and constructionsite discharges in determining if anyresulting storm water discharges fromspecific projects are eligible for thiswaiver.

ii. Water Quality Waiver. The waterquality waiver under§ 122.26(b)(15)(i)(B) is available wherestorm water controls are not neededbased on a comprehensive, location-specific evaluation of water qualityneeds. The waiver is available based oneither an EPA-approved ‘‘totalmaximum daily load’’ (TMDL) undersection 303(d) of the CWA thataddresses the pollutant(s) of concern or,for sites discharging to non-impaired

waters that do not require TMDLs, anequivalent analysis that has eitherdetermined allocations for smallconstruction sites for the pollutant(s) ofconcern or determined that suchallocations are not needed to protectwater quality based on consideration ofexisting in-stream concentrations,expected growth in pollutantcontributions from all sources, and amargin of safety. The pollutants ofconcern that must be addressed includesediment or a parameter that addressessediment (such as total suspendedsolids (TSS), turbidity or siltation) andany other pollutant that has beenidentified as a cause of impairment ofany water body that will receive adischarge from the construction activity.The operator must certify to the NPDESpermitting authority that theconstruction activity will take place,and storm water discharges will occur,within the applicable drainage areaevaluated in the TMDLs or equivalentanalyses.

Today’s rule modifies the approach inthe proposed rule. EPA proposed toallow a waiver of permit requirementsfor small construction if storm watercontrols were determined to beunnecessary based on ‘‘wasteloadallocations that are part of ‘totalmaximum daily loads’ (TMDLs) thataddress the pollutants of concern,’’ or ‘‘acomprehensive watershed plan,implemented for the water body, thatincludes the equivalents of TMDLs, andaddresses the pollutants of concern.’’

Commenters asked for clarification ofthe terms ‘‘comprehensive watershedplans’’ and ‘‘equivalent of TMDLs.’’ EPAintended that both terms would includea comprehensive analysis thatdetermines that controls on smallconstruction sites are not needed basedon consideration of existing in-streamconcentrations, expected growth inpollutant contributions from all sources,and a margin of safety. Today’s rulemakes this clarification.

One commenter pointed out that thereare no water quality standards forsuspended solids, the major pollutantexpected in discharges fromconstruction activity. The commenterasserted that no waiver would ever beavailable. Another commenter notedthat there are no sediment criteriadeveloped for streams, also making thiswaiver useless. EPA notes that a numberof States and Tribes have water qualitystandards that address TSS, which arenarrative in form, and that may serve asa basis for water quality-based effluentlimits. As efforts to identifyimpairments and improve water qualityprogress, some States may yet developwater quality standards for suspended

solids. Although several TMDLs forsediment and related parameters havebeen established, EPA does recognizethat currently it is extremely difficult todevelop TMDLs for sediment. EPA ispartially addressing this concern byclarifying in today’s rule that thewaivers may be based on a TMDL orequivalent analyses for sediment or oneof the various pollutant parameters thatare a proxy for sediment. These includeTSS, turbidity and siltation.

Other commenters noted that thiswaiver was unattainable if a TMDL orequivalent analysis must be available forevery pollutant that could possibly bepresent in any amount in dischargesfrom small construction sites regardlessof whether the pollutant is causingwater quality impairment. Commentersasked that EPA identify what constitutesthe ‘‘pollutants of concern’’ for which aTMDL or its equivalent must bedeveloped. EPA has revised theproposed rule in response to theseconcerns.

In order for discharges fromconstruction sites under five acres toqualify for the water quality waiver oftoday’s rule, the construction siteoperator must demonstrate that stormwater controls are not necessary forsediment or a parameter that addressessediment (such as TSS, turbidity orsiltation) and any other pollutant thathas been identified as a cause ofimpairment of any water body that willreceive a discharge from theconstruction activity. Even if the waterbody is not currently impaired forsediment, today’s rule requires ananalysis of the potential impacts ofsediment because the storm waterdischarges from the constructionactivity will be a new source of loadingto the water body that could constitutea new impairment. Because the waterbody will not necessarily have beenincluded on a ‘‘303(d) list’’ and a TMDLwill not necessarily be required, the rulecontinues to allow an analysis that isthe equivalent of a TMDL. Thedesignation of storm water dischargesfrom small construction activity forregulation in today’s rule is intended tocontrol pollutants other than sediment.This waiver provision requires a TMDLor equivalent analysis for a pollutantother than gross particulates (i.e.,sediment and other particulate-focusedpollutant parameters) only if thereceiving water is currently impaired forthat pollutant.

One commenter expressed theconcern that construction operators willnot know if they are in a watershedcovered by a TMDL. To the extent thisis an operator’s concern, he or she couldcontact their NPDES permitting



authority before applying for permitcoverage to determine if receiving wateris subject to a TMDL. Alternatively, thepermitting authority could identify theTMDL (or equivalent analysis) areas inthe general permit or another operator-accessible information source.

Another commenter expressed theconcern that a TMDL waiver is likely tobe ineffective because the TMDL list issubmitted only once every 2 years. Bythe time a water is listed, the activitymay have been completed andstabilized. The commenter argued that,if a watershed is impaired due tosediment from construction, then stormwater controls will still be needed,because small construction can only bewaived when it is not identified as asource of impairment. In response, EPAnotes that an analysis that is theequivalent of a TMDL (specifically,equivalent to the component of a TMDLthat comprehensively analyses existingambient conditions against theapplicable water quality standards) mayalso provide a basis for waiver from thedefault 1 acre designation. Also, even ifa water has been identified as impairedfor sediment, it is possible that a site orcategory of sites may receive anallocation that is sufficiently highenough to allow discharges withoutstorm water controls.

c. Permit Process and AdministrationThe operator of the construction site,

as with any operator of a point sourcedischarge, is responsible for obtainingcoverage under a NPDES permit asrequired by § 122.21(b). The ‘‘operator’’of the construction site, as explained inthe current NPDES construction generalpermit, is typically the party or partiesthat either individually or collectivelymeet the following two criteria: (1)Operational control over the sitespecifications, including the ability tomake modifications in thespecifications; and (2) day-to-dayoperational control of those activities atthe site necessary to ensure compliancewith permit conditions (63 FR 7859). Ifmore than one party meets thesecriteria, then each party involved wouldtypically be a co-permittee with anyother operators. The operator could bethe owner, the developer, the generalcontractor, or individual contractor.When responsibility for operationalcontrol is shared, all operators mustapply.

In today’s rule, EPA is not requiringan NOI for NPDES general permits forstorm water discharges fromconstruction activities regulated by§ 122.26(b)(15) if the NPDES permittingauthority finds that the use of NOIswould be inappropriate (see

§ 122.28(b)(2)(v)). Under this approach,the NPDES permitting authority willhave the discretion to decide whether ornot to require NOIs for discharges fromconstruction activity less than 5 acres.Compared to the existing storm waterregulation, the permitting authority thushas increased flexibility in programimplementation. EPA does recommendthe use of NOIs, however because NOIstrack permit coverage and provide auseful information source to prioritizeinspections or enforcement. Requiringan NOI allows for greater accountabilityby, and tracking of, dischargers. Thissimple permit application and reportingmechanism also allows for betteroutreach to the regulated community,uses an existing and familiarmechanism, and is consistent with theexisting requirements for storm waterdischarges from larger constructionactivities. Today’s rule does not amendthe requirement for NOIs in generalpermits for storm water discharges fromconstruction activity disturbing 5 acresfor more. See § 122.28(b)(2)(v).

EPA expects that the vast majority ofdischarges of storm water associatedwith small construction activityidentified in § 122.26(b)(15) will beregulated through general permits. Inthe event that an NPDES permittingauthority decides to issue an individualconstruction permit, however,individual application requirements forthese construction site discharges arefound at § 122.26(c)(1)(ii). For anydischarges of storm water associatedwith small construction activityidentified in § 122.26(b)(15) that are notauthorized by a general permit, a permitapplication made pursuant to§ 122.26(c) must be submitted to theDirector by 3 years and 90 days afterpublication of the final rule.

Some commenters expressed concernthat linear construction projects (e.g.,roads, highways, pipelines) that crossseveral jurisdictions will have tocomply with multiple sets ofrequirements from various jurisdictions,including multiple local governmentsand States. EPA is limited in its optionsto address these concerns because theAgency cannot issue NPDES permits inStates authorized to implement theNPDES program nor preempt other morestringent local and State requirements.EPA believes, however, that the optionfor incorporating by reference the State,Tribal or local requirements (seediscussion in Section II.I.2.d., Cross-Referencing State/Local Erosion andSediment Control Programs) shouldlimit the administrative burden on theoperator responsible for discharges fromlinear construction projects. If theoperator were to implement the most

comprehensive of the variousrequirements for the whole project, itcould avoid confusion due to differingrequirements for different sections ofthe project. In addition, linear utilityprojects, which usually have a shorterproject period, are more likely to beeligible for the rainfall erosivity waiver.

One commenter stated there was noreason to delay the application periodfor regulated storm water dischargesfrom small construction activities. Thecommenter requested that the newlyregulated construction site dischargesshould be required to seek permitcoverage within 90 days, as opposed to3 years, of the effective date of the rule.The Agency does not accept thisrequest. EPA anticipates that NPDESpermitting authorities will need one totwo years to develop adequate legalauthority to implement a program toaddress this new category of discharges,as well as to develop and issue generalpermits. Moreover, to ensure effectiveimplementation to protect water quality,regulatory authorities will needadditional time to inform smallconstruction site operators ofrequirements and provide guidance andtraining on these requirements.

Finally, EPA received a commentrequesting that the three year fileretention requirement be deleted fordischarges from small constructionsites. While EPA recognizes that thethree year record retention schedulemay be unnecessary for certainconstruction projects, the Agency hasdetermined it is necessary to retain filesafter the completion of the project toensure permit compliance, includingapplicable construction site stabilizationenabling permit termination for suchsites.

d. Cross-Referencing State, Tribal orLocal Erosion and Sediment ControlPrograms

In developing the NPDES permitrequirements for construction sites lessthan 5 acres, members of the StormWater Phase II FACA Subcommitteeasked EPA to try to minimizeredundancy in the construction permitrequirements. In response, today’s ruleat § 122.44(s) provides for incorporationof qualifying State, Tribal or localerosion and sediment control programrequirements by reference into theNPDES permit authorizing storm waterdischarges from construction sites(described under §§ 122.26(b)(15) and(b)(14)(x)). The incorporation byreference approach applies not only tothe newly regulated storm waterdischarges (from construction activitydisturbing between 1 and 5 acres,including designated sites, but



excluding waived sites) but also todischarges from construction activitydisturbing 5 or more acres alreadycovered by the existing storm waterregulations. For this latter category ofdischarges from construction activitydisturbing 5 or more acres, theincorporation by reference approachrequires that the pollutant controlrequirements from the incorporatedprogram also satisfy the statutorystandard for limitations representingapplication of the best availabletechnology economically achievable(BAT) and best conventional pollutantcontrol technology (BCT).

For permits issued for discharges fromsmall construction activity definedunder § 122.26(b)(15), a qualifying State,Tribal, or local erosion and sedimentcontrol program is one that includes theprogram elements described under§ 122.44(s)(1). These elements includerequirements for construction siteoperators to implement appropriateerosion and sediment control BMPs,requirements to control waste, arequirement to develop a storm waterpollution prevention plan, andrequirements to submit a site plan forreview. A storm water pollutionprevention plan includes sitedescriptions, descriptions of appropriatecontrol measures, copies of approvedState, Tribal or local requirements,maintenance procedures, inspectionprocedures, and identification of non-storm water discharges. Theconstruction site’s permit would requireit to follow the requirements of thequalifying local program rather thanrequire it to follow two different sets ofrequirements. If a partially-qualifyingprogram does not have all of theelements described under § 122.44(s)(1),then the NPDES permitting authoritymay still incorporate language in thesmall construction site discharge’spermit that requires the constructionsite operator to follow the program, butthe construction site discharge permitalso must incorporate the missingrequired elements in order to satisfyCWA requirements.

The term ‘‘local’’ refers to thegeographic area of applicability, not theform of government that develops andadministers the program. Thus, aqualifying federal erosion and controlprogram, such as certain programsdeveloped and administered by thefederal Bureau of Land Management,could be a qualifying local program.

As a result of this provision, localrequirements will, in effect, provide thesubstantive construction site erosionand sediment control requirements forthe NPDES permit authorization.Therefore, by following one set of

erosion and sediment controlrequirements, construction siteoperators satisfy both local and NPDESpermit requirements withoutduplicative effort. At the same time,noncompliance with the referencedlocal requirements will be considerednoncompliance with the NPDES permitwhich is federally enforceable. TheNPDES permitting authority will, ofcourse, retain the discretion to decidewhether to include the alternativerequirements in the general permit. EPAbelieves that this approach will bestbalance the need for consideration ofspecific local requirements and localimplementation with the need forfederal and citizen oversight, and willextend supplemental NPDESrequirements to control storm waterdischarges from construction sites.

EPA developed the ‘‘incorporation byreference’’ approach based onimplementation efforts designed by theState of Michigan. Michigan relies onlocalities to develop substantivecontrols for storm water dischargesassociated with construction activitieson a localized basis. Localities,however, are not required to do so. Inareas where the local authority does notchoose to participate, the Stateadministers the sedimentation anderosion control requirements. The Stateagency, as the NPDES permittingauthority, receives an NOI (termed‘‘notice of coverage’’ by Michigan)under the general permit and tracks andexercises oversight, as appropriate, overthe activity causing the storm waterdischarge. Michigan’s goal under theseprocedures is to utilize the existingerosion and sediment control programinfrastructure authorized under Statelaw for storm water dischargeregulation. (See U.S. EnvironmentalProtection Agency, Office of Water.January 7, 1994. Memo: From MichaelB. Cook, Director OWEC, to WaterManagement Division Directors,Regarding the ‘‘Approach Taken byMichigan to Regulate Storm WaterDischarges from ConstructionActivities.’’)

Most commenters supported thegeneral concept of incorporating byreference qualifying programs. Twocommenters expressed concern thatdifferent local constructionrequirements will create an impossibleregulatory scheme for builders whowork in different localities. EPAbelieves that allowing States toincorporate qualifying programs byreference will minimize the differencesfor builders who work in different areasof the State. These differences alreadyexist, however, not only for erosion andsediment controls, but also other aspects

of construction. In any event, thecriteria for qualification for localizedprograms should provide a certaindegree of standardization for variouslocalities’ requirements. EPA expectsthat the new rule for construction andpost-construction BMPs beingdeveloped under CWA section 304(m)will also encourage standardization oflocal requirements. (See discussion ofthis new rulemaking in section II.D.1,Federal Role of this preamble).

Two commenters requested that an‘‘incorporation by reference’’ shouldinclude permission, in writing, from thequalifying local program administratorbecause of a perceived extra burden onthe referenced program. Any programrequirements incorporated by referencein NPDES permits should already applyto construction site dischargers in theapplicable area and therefore should notadd any additional burden to thereferenced program. EPA has left to thediscretion of the permitting authoritythe decision on whether to seekpermission from the qualifying programbefore cross-referencing it in an NPDESpermit.

One commenter stated that aqualifying local program should requirea SWPPP. The proposed rule definedthe qualifying local program as aprogram the meets the minimumprogram requirements established in theproposed construction minimumcontrol measure for small MS4s. Toensure consistency in the controls forstorm water discharges between thelarger, already regulated constructionsites and the discharges from smallersites that will be regulated as a result oftoday’s rule, EPA has made a change todefine a qualifying local program as onethat includes the elements described in§ 122.44(s)(1). Section 122.44(s)(1)requires the development andimplementation of a storm waterpollution prevention plan as a criterionfor qualification of local programs forincorporation by reference. As notedabove, if a qualifying program does notinclude all the elements in § 122.44(s)(1)then the permitting authority will needto specify the missing elements in orderto rely on the incorporation by referenceapproach.

One commenter asked what happensin regard to the use of qualifyingprograms when a construction siteoperator is also the qualifying localprogram operator. The provision forincorporation by reference applies inthis situation also. The local programoperator will be required to complywith requirements it has established forothers.



e. Alternative Approaches

EPA received a number of commentson alternative permitting approaches.Several commenters supportedregulating discharges only from thoseconstruction sites within urbanizedareas. Other commenters opposed thisapproach. EPA chose to address stormwater discharges from construction siteslocated both within and outsideurbanized areas because of the potentialfor adverse water quality impact fromstorm water discharges from smallersites in all areas. Regulating only thosesites within urbanized areas would haveexcluded a large number of potentialcontributors to water qualityimpairment and would not address largeareas of new development occurring onthe outer fringes of urbanized areas. Infact, designating only small constructiondischarges within urbanized areas mightcreate a perverse incentive for buildingonly outside urbanized areas. Such anincentive would be inconsistent withthe Agency’s intention behinddesignating to protect water quality. TheAgency intends that designation toprotect water quality in today’s ruleshould be both remedial and preventive.

A number of commenters encouragedEPA to cover municipal constructionactivities under the small MS4 generalpermit, instead of issuing a separateNPDES construction permit to thesemunicipal construction projects.Similarly, a number of commenterssupported EPA giving industrialfacilities the option of having stormwater from construction activities on thesite covered by the industrial stormwater permit. Several other commentersfound that combining multiple permittypes under one general permitintroduced a degree of complexitywhich was confusing to permittees.Permitting authorities have the option ofcombining MS4 and constructionpermits or industrial and constructionpermits, however, specific requirementsfor each would still need to be includedin the permit issued. EPA agrees thatthis would probably result in a morecomplex and confusing permitcompared to the existing componentpermits.

Several commenters supported analternative for regulated small MS4swhere a local qualified program alone,without an NPDES permit, is sufficientto enforce compliance with constructionsite discharge requirements. On theother hand, one commenter stated thatlinking the local construction erosionand sediment control program to theexisting NPDES program for storm waterfrom larger construction has drivenimprovements in many local programs.

Another commenter stated that thepotential fines under the NPDESprogram will encourage compliance andwill be much stronger than any fines alocal program may have. EPA agreesthat the NPDES program is the bestapproach to address water qualityimpacts from construction sites andprovides benefits such as accountabilityand federal enforcement.

A number of commenters supportedissuing one permit for each constructioncompany, instead of a permit for eachindividual construction activity (alsorequested for storm water dischargesfrom the larger, already regulatedconstruction sites). Other commentersfound that a ‘licensing’ program forconstruction site operators would havemany problems, including identifyingwho to permit and tracking informationon active sites. EPA is regulating onlythe storm water discharges associatedwith construction activity from smallsites, not the construction activity itself.Separate NPDES permits (eitherindividual or general permit coverage)for construction site discharges avoidpotential problems in tracking sites andoperator accountability. Section122.28(b)(2)(v) gives permittingauthorities the option to issue a generalpermit without requiring an NOI. If anNOI is not required for each activity,permitting authorities could pursueother options such as a company-wideNOI, license instead of an NOI, oranother mechanism.

2. Other SourcesIn the Storm Water Discharges

Potentially Addressed by Phase II of theNational Pollutant DischargeElimination System Storm WaterProgram, Report to Congress, March1995, (‘‘Report’’) submitted by EPApursuant to CWA section 402(p)(5), EPAexamined the remaining unregulatedpoint sources of storm water for thepotential to adversely affect waterquality. Due to very limited nationaldata on which to estimate pollutantloadings on the basis of dischargecategories, the discussion of the extentof unregulated storm water discharges islimited to an analysis of the number andgeographic distribution of theunregulated storm water discharges.Therefore, EPA is not designating anyadditional unregulated point sources ofstorm water on a nationwide, categoricalbasis. Instead, the remainder of thesources will be regulated based on case-by-case post-promulgation designationsby the NPDES permitting authority.

EPA did, however, evaluate a varietyof categories of discharges for potentialdesignation in the Report. EPA’s effortsto identify sources and categories of

unregulated storm water discharges forpotential designation for regulation intoday’s rule started with an examinationof approximately 7.7 millioncommercial, retail, industrial, andinstitutional facilities identified as‘‘unregulated.’’ In general, thedistribution of these facilities followsthe distribution of population, with alarge percentage of facilitiesconcentrated within urbanized areas(see page 4-35 of the Report). Thisexamination resulted in identification oftwo general classes of facilities with thepotential for discharging pollutants towaters of the United States throughstorm water point sources.

The first group (Group A) includedsources that are very similar, oridentical, to regulated ‘‘storm waterdischarges associated with industrialactivity’’ but that were not included inthe existing storm water regulationsbecause EPA used SIC codes in definingthe universe of regulated industrialactivities. By relying on SIC codes, aclassification system created to identifyindustries rather than environmentalimpacts from these industriesdischarges, some types of storm waterdischarges that might otherwise beconsidered ‘‘industrial’’ were notincluded in the existing NPDES stormwater program. The second general classof facilities (Group B) was identified onthe basis of potential for activities andpollutants that could contribute to stormwater contamination.

EPA estimates that Group A hasapproximately 100,000 facilities.Discharges from facilities in this group,which may be of high priority due totheir similarity to regulated storm waterdischarges from industrial facilities,include, for example, auxiliary facilitiesor secondary activities (e.g.,maintenance of construction equipmentand vehicles, local trucking for anunregulated facility such as a grocerystore) and facilities intentionallyomitted from existing storm waterregulations (e.g., publicly ownedtreatment works with a design flow ofless than 1 million gallons per day,landfills that have not receivedindustrial waste).

Group B consists of nearly onemillion facilities. EPA organized GroupB sources into 18 sectors for thepurposes of the Report. The automobileservice sector (e.g., gas/service stations,general automobile repair, new andused car dealerships, car and truckrental) makes up more than one-third ofthe total number of facilities identifiedin all 18 sectors.

EPA conducted a geographicalanalysis of the industrial andcommercial facilities in Groups A and



B. The geographical analysis shows thatthe majority are located in urbanizedareas (see Section 4.2.2, GeographicExtent of Facilities, in the Report). Ingeneral, about 61 percent of Group Afacilities and 56 percent of Group Bfacilities are located in urbanized areas.The analysis also showed that nearlytwice as many industrial facilities arefound in all urbanized areas as arefound in large and mediummunicipalities alone. Notableexceptions to this generalizationincluded lawn/garden establishments,small unregulated animal feedlots,wholesale livestock, farm and gardenmachinery repair, bulk petroleumwholesale, farm supplies, lumber andbuilding materials, agriculturalchemical dealers, and petroleumpipelines, which can frequently belocated in smaller municipalities orrural areas.

In identifying potential categories ofsources for designation in today’snotice, EPA considered designation ofdischarges from Group A and Group Bfacilities. EPA applied three criteria toeach potential category in both groupsto determine the need for designation:(1) The likelihood for exposure ofpollutant sources included in thatcategory, (2) whether such sources wereadequately addressed by otherenvironmental programs, and (3)whether sufficient data were available atthis time on which to make adetermination of potential adverse waterquality impacts for the category ofsources. As discussed previously, EPAsearched for applicable nationwide dataon the water quality impacts of suchcategories of facilities.

By application of the first criterion,the likelihood for exposure, EPAconsidered the nature of potentialpollutant sources in exposed portions ofsuch sites. As precipitation contactsindustrial materials or activities, theresultant runoff is likely to mobilize andbecome contaminated by pollutants. Asthe size of these exposed areasincreases, EPA expects a proportionalincrease in the pollutant loadingsleaving the site. If EPA concluded thata category of sources has a highpotential for exposure of raw materials,intermediate products, final products,waste materials, byproducts, industrialmachinery, or industrial activity torainfall, the Agency rated that categoryof sources as having ‘‘high’’ potential foradverse water quality impact. EPA’sapplication of the first criterion showedthat a number of Group A and B sourceshave a high likelihood of exposure ofpollutants.

Through application of the secondcriterion, EPA assessed the likelihood

that pollutant sources are regulated in acomprehensive fashion under otherenvironmental protection programs,such as programs under the ResourceConservation and Recovery Act (RCRA)or the Occupational Health and SafetyAct (OSHA). If EPA concluded that thecategory of sources was sufficientlyaddressed under another program, theAgency rated that source category ashaving ‘‘low’’ potential for adversewater quality impact. Application of thesecond criterion showed that somecategories were likely to be adequatelyaddressed by other programs.

After application of the thirdcriterion, availability of nationwide dataon the various storm water dischargecategories, EPA concluded that availabledata would not support any suchnationwide designations. While suchdata could exist on a regional or localbasis, EPA believes that permittingauthorities should have flexibility toregulate only those categories of sourcescontributing to localized water qualityimpairments.

EPA received comments requestingdesignation of additional industrial,commercial and retail sources (e.g.industrial activity ‘‘look-alikes’’, roads,commercial facilities and institutions,and vehicle maintenance facilities) inthe final rule, because the commentersbelieve that the data exist to supportnational designation of some of thesesources. Other comments were receivedopposing designation of any additionalsources. Today’s rule does not designateany additional industrial or commercialcategory of sources either because EPAcurrently lacks information indicating aconsistent potential for adverse waterquality impact or because of EPA’sbelief that the likelihood of adverseimpacts on water quality is low, withsome possible exceptions on a morelocal basis. Since the time the Agencysubmitted the Report, EPA hascontinued to seek additional data andhas requested available data from theFACA members. If sufficient regional ornationwide data become available in thefuture, the permitting authority could atthat time designate a category of sourcesor individual sources on a case-by-casebasis. Therefore, today’s rule encouragescontrol of storm water discharges fromGroups A and B through self-initiated,voluntary BMPs, unless the discharge(or category of discharges) is designatedfor permitting by the permittingauthority. See discussion in section I.D.,EPA’s Reports to Congress.

3. ISTEA SourcesProvisions within the Intermodal

Surface Transportation and EfficiencyAct (ISTEA) of 1991 temporarily

exempted storm water dischargesassociated with industrial activity thatare owned or operated by municipalitiesserving populations less than 100,000people (except for airports, powerplants, and uncontrolled sanitarylandfills) from the need to apply for orobtain a storm water discharge permit(section 1068(c) of ISTEA). Congressextended the NPDES permittingmoratorium for these facilities to allowsmall municipalities additional time tocomply with NPDES requirements forcertain sources of industrial stormwater. The August 7, 1995 storm waterfinal rule (60 FR 40230) furtherextended this moratorium until August7, 2001. However, today’s rule changesthis deadline so that previouslyexempted industrial facilities owned oroperated by municipalities servingpopulations less than 100,000 people,must now submit an application for apermit within 3 years and 90 days fromdate of publication of today’s rule.

EPA received commentsrecommending that permit requirementsfor municipally owned or operatedindustrial storm water discharges,including those previously exemptunder ISTEA, be included in a singleNPDES permit for all MS4 storm waterdischarges. The existing NPDESregulations already provide permittingauthorities the ability to issue a single‘‘combination’’ permit for MS4discharges. However, if the permittingauthorities chose to issue this type ofpermit, they must make sure that indoing so, they are not creating a doublestandard for industrial facilities coveredunder the combination permit versusthose covered under separate general orindividual permits. In order to avoidthis double standard, combinationpermits would have to containrequirements that are the same or verysimilar to the requirements found inseparate MS4 and industrial permits,i.e., the minimum measures and othernecessary requirements of an MS4permit, and the SWPPP, monitoring andreporting requirements, and othernecessary requirements of an industrialpermit. If such a combined MS4 generalpermit were issued, the regulationsrequire that each discharger submitNOIs for their respective discharges,except for discharges from smallconstruction activities. Flexibility existsin developing a combination NOI whichcould reduce the need to submitduplicative information, e.g. owner/operator name and address. Thecombination NOI would still need torequire specific information for eachseparate municipally owned or operatedindustrial location, including



construction projects disturbing 5 ormore acres. The regulations at§ 122.28(b)(2)(ii) list the necessarycontents of an NOI, which require: thefacility name, facility address, type offacility or discharge and receivingstream for each industrial dischargelocation. When viewed in its entirety, acombination permit, which by necessitywould need to contain all elements ofotherwise separate industrial and MS4permit requirements, and require NOIinformation for each separate industrialactivity, may have few advantages whencompared to obtaining separate MS4and industrial general permit coverage.

In order to allow the permittingauthority to issue a single storm waterpermit for the MS4 and all municipallyowned or operated industrial facilities,including those previously exemptunder ISTEA, today’s rule requiresapplications for ISTEA sources within 3yrs and 90 days from date of publicationof today’s rule. The permitting authorityhas the ultimate decision to determinewhether or not a single all-encompassing MS4 permit isappropriate.

4. Residual Designation AuthorityThe NPDES permitting authority’s

existing designation authority, as wellas the petition provisions are beingretained. Today’s rule contains twoprovisions related to designationauthority at §§ 122.26(a)(9)(i)(C) and (D).Subsection (C) adds designationauthority where storm water controlsare needed for the discharge based uponwasteload allocations that are part ofTMDLs that address the pollutant(s) ofconcern. EPA intends that the NPDESpermitting authority have discretion inthe matter of designations based onTMDLs under subsection (C).Subsection (D) carries forward residualdesignation authority under former§ 122.26(g), and has been modified toprovide clarification on categoricaldesignation. Under today’s rule, EPAand authorized States continue toexercise the authority to designateremaining unregulated dischargescomposed entirely of storm water forregulation on a case-by-case basis(including § 123.35). Individual sourcesare subject to regulation if EPA or theState, as the case may be, determinesthat the storm water discharge from thesource contributes to a violation of awater quality standard or is a significantcontributor of pollutants to waters of theUnited States. This standard is based onthe text of section CWA 402(p). Intoday’s rule, EPA believes, as Congressdid in drafting section CWA402(p)(2)(E), that individual instances ofstorm water discharge might warrant

special regulatory attention, but do notfall neatly into a discrete,predetermined category. Today’s rulepreserves the regulatory authority tosubsequently address a source (orcategory of sources) of storm waterdischarges of concern on a localized orregional basis. For example, as Statesand EPA implement TMDLs, permittingauthorities may need to designate somepoint source discharges of storm wateron a categorical basis either locally orregionally in order to assure progresstoward compliance with water qualitystandards in the watershed.

EPA received comments asking that§ 122.26(a)(9)(i)(D) as proposed bemodified to include specific languageclarifying the permitting authority’sability to designate additional sourceson a categorical basis as explained inthe preamble to the proposed rule. Onecomment requested that the designationlanguage include ‘‘categories of sourceson a Statewide basis.’’ EPA agrees thatthe intent of the language may not havebeen clear regarding categoricaldesignation. Today’s rule modifiessubsection (D) to clarify that thedesignation authority can be appliedwithin different geographic areas to anysingle discharge (i.e., a specific facility),or category of discharges that arecontributing to a violation of a waterquality standard or are significantcontributors of pollutants to waters ofthe United States. The added term‘‘within a geographic area’’ allows‘‘State-wide’’ or ‘‘watershed-wide’’designation within the meaning of theterms.

One commenter questioned theAgency’s legal authority to provide forsuch residual designation authority. Thestakeholder argued that the lapse of theOctober 1, 1994, permitting moratoriumunder CWA section 402(p)(1) eliminatedthe significance of the CWA section402(p)(2) exceptions to the moratorium,including the exception for dischargesof storm water determined to becontributing to a violation of a waterquality standard or a significantcontributor of pollutants under CWAsection 402(p)(2)(E). The stakeholderfurther argued that EPA’s authority todesignate sources for regulation underCWA section 402(p)(6) is limited tostorm water discharges other than thosedescribed under CWA section 402(p)(2).Because CWA section 402(p)(2)(E)describes individually designateddischarges, the stakeholder concludedthat regulations under CWA section402(p)(6) cannot provide for post-promulgation designation of individualsources. EPA disagrees.

First, as explained previously, EPAanticipates that NPDES permitting

authorities may yet determine thatindividual unregulated point sources ofstorm water discharges requireregulation on a case-by-case basis. Thisconclusion is consistent with theCongress’ recognition of the potentialneed for such designation under the firstphase of storm water regulation asdescribed in CWA section 402(p)(2)(E).Under CWA section 402(p)(2)(E),Congress recognized the need for bothEPA and the State to retain authority toregulate unregulated point sources ofstorm water under the NPDES permitprogram. Second, to the extent thatCWA section 402(p)(6) requiresdesignation of a ‘‘category’’ of sources,the permitting authority may designatesuch (as yet unidentified) sources as acategory that should be regulated toprotect water quality. Though suchsources may exist and discharge today,if neither EPA nor the State/TribalNPDES permitting authority hasdesignated the source for regulationunder CWA section 402(p)(2)(E) to date,then CWA section 402(p)(6) providesthe authority to designate such sources.

The Agency can designate a categoryof ‘‘not yet identified’’ sources to beregulated, based on local concerns, evenif data do not exist to supportnationwide regulation of such sources.EPA does not interpret the language inCWA section 402(p) to preclude Statesfrom exercising designation authorityunder these provisions because suchdesignation (and subsequent regulationof designated sources) is within the‘‘scope’’ of the NPDES program.

EPA also believes that sourcesregulated pursuant to a Statedesignation are part of (and regulatedunder) a federally approved StateNPDES program, and thus subject toenforcement under CWA sections 309and 505. Under existing NPDES Stateprogram regulations, State programs thatare ‘‘greater in scope of coverage’’ arenot part of the federally-approvedprogram. By contrast, any such Stateregulation of sources in this ‘‘reservedcategory’’ will be within the scope of thefederal program because today’s rulerecognizes the need for such postpromulgation designations ofunregulated point sources of stormwater. Such regulation will be ‘‘morestringent’’ than the federal programrather than ‘‘greater in scope ofcoverage’’ (40 CFR 123.1(h)).

EPA does not interpret thecongressional direction in CWA section402(p)(6) to preclude regulation of pointsources of storm water that should beregulated to protect water quality.Under CWA section 510, Congressexpressly recognized and preserved theauthority of States to adopt and enforce



more stringent regulation of pointsources, as well as any requirementrespecting the control or abatement ofpollution. Section 510 applies, ‘‘exceptas expressly provided’’ in the CWA.CWA section 502(14) does expresslyprovide affirmative limitations on theregulation of certain pollutant sourcesthrough the point source controlprogram, the NPDES permittingprogram. Section 502(14) excludesagricultural storm water and returnflows from irrigated agriculture from thedefinition of point source, and section402(l) limits applicability of the section402 permit program for return flowsfrom irrigated agriculture, as well as forstorm water runoff from certain oil, gas,and mining operations. Unlike sections502(14) and 402(l), EPA does notinterpret CWA section 402(p)(6) as anexpress provision limiting the authorityto designate point sources of stormwater for regulation on a case-by-casebasis after the promulgation of finalregulations. Any source of storm waterdischarge is encouraged to assess itspotential for storm water contaminationand take preventive measures againstcontamination. Such proactive actionscould result in the avoidance of futureregulation.

One comment was receivedrequesting clarification of the term‘‘non-municipal’’ in § 122.26(a)(9)(ii).The commenter is concerned that theterm ‘‘non-municipal,’’ in this context,implies that municipally owned oroperated facilities cannot be designated.The term ‘‘non-municipal’’ in thiscontext refers to the universe ofunregulated industrial and commercialfacilities that could potentially bedesignated according to § 122.26(a)(9)(i)authority. There is no exemption formunicipally owned or operatedfacilities under these designationprovisions.

Finally, EPA received comments andevaluated the proposal under whichoperators of regulated small, medium,and large MS4s would be responsiblefor controlling discharges fromindustrial and other facilities into theirsystems in lieu of requiring NPDESpermit coverage for such facilities. EPAdid not adopt this framework due toconcerns with administrative andtechnical burden on the MS4 operators,as well as concerns about such anintergovernmental mandate.

J. Conditional Exclusion for ‘‘NoExposure’’ of Industrial Activities andMaterials to Storm Water

1. Background

In 1992, the Ninth Circuit courtremanded to EPA for further

rulemaking, a portion of the definitionof ‘‘storm water discharge associatedwith industrial activity’’ that excludedthe category of industrial activityidentified as ‘‘light industry’’ whenindustrial materials and/or activitieswere not exposed to storm water. SeeNRDC v. EPA, 966 F.2d 1292, 1305 (9thCir. 1992). Today’s final rule respondsto that remand. In the 1990 storm waterregulations, EPA excluded the lightindustry category from the requirementfor an NPDES permit if the industrialmaterials and/or activities were not‘‘exposed’’ to storm water (see§ 122.26(b)(14)). The Agency hadreasoned that most of the activity atthese types of facilities takes placeindoors and that emissions from stacks,use of unhoused manufacturingequipment, outside material storage ordisposal, and generation of largeamounts of dust or particles would beatypical (55 FR 48008, November 16,1990).

The Ninth Circuit determined that theexemption was arbitrary and capriciousfor two reasons. First, the court foundthat EPA had not established a record tosupport its assumption that lightindustry that was not exposed to stormwater was not ‘‘associated withindustrial activity,’’ particularly whenother types of industrial activity notexposed to storm water remained‘‘associated with industrial activity.’’The court specifically found that ‘‘[t]oexempt these industries from the normalpermitting process based on anunsubstantiated assumption about thisgroup of facilities is arbitrary andcapricious.’’ Second, the courtconcluded that the exemptionimpermissibly ‘‘altered the statutoryscheme’’ for permitting because theexemption relied on the unverifiedjudgment of the light industrial facilityoperator to determine non-applicabilityof the permit application requirements.In other words, the court was criticalthat the operator would determine foritself that there was ‘‘no exposure’’ andthen simply not apply for a permitwithout any further action. Without abasis for ensuring the effective operationof the permitting scheme—either thatfacilities would self-report actualexposure or that EPA would be requiredto inspect and monitor such facilities—the court vacated and remanded the ruleto EPA for further rulemaking.

One of the major concerns expressedby the FACA Committee, was that EPAstreamline and reinvent certaintroublesome or problematic aspects ofthe existing permitting program forstorm water discharges. One areaidentified was the mandatoryapplicability of the permitting program

to all industrial facilities, even those‘‘light industrial’’ activities that are ofvery low risk or of no risk to stormwater contamination. Such dischargersmay not have any industrial sources ofstorm water contamination on the plantsite, yet they are still required to applyfor an NPDES storm water permit andmeet all permitting requirements.Examples of such facilities are a soapmanufacturing plant (SIC Code 28) orhazardous waste treatment and disposalfacility, where all industrial activities,even loading docks, are inside abuilding or under a roof.

Although they did not provide awritten report, the FACA Committeemembers advised EPA that the existingstorm water program should be revisedto allow such facilities to seek anexclusion from the NPDES storm waterpermitting requirements. TheCommittee agreed that such anexclusion should also provide a strongincentive for other industrial facilitiesthat conduct industrial activitiesoutdoors to move the activities undercover or into buildings to preventcontamination of rainfall and stormwater runoff. The committee believedthat such a ‘‘no exposure’’ permitexclusion could be a valuable incentivefor storm water pollution prevention.

In today’s final rule, the Agencyresponds to both of the bases for thecourt’s remand. The exclusion frompermitting based on ‘‘no exposure’’applies to all industrial categories listedin the existing storm water regulationsexcept construction. The court’s opinionrejected EPA’s distinction between lightindustry and other industry, but it didnot preclude an interpretation that treatsall ‘‘non-exposed’’ industrial facilities inthe same fashion. Presuming that anindustrial facility adequately preventsexposure of industrial materials andactivities to storm water, today’s ruletreats discharges from ‘‘non-exposed’’industrial facilities in a manner similarto the way Congress intended fordischarges from administrativebuildings and parking lots. Specifically,permits will not be required for stormwater discharges from these facilities ona categorical basis.

To assure that discharges fromindustrial facilities really are similar todischarges from administrativebuildings and parking lots, and torespond to the second basis for thecourt’s remand, the permittingexclusion is ‘‘conditional’’. The personresponsible for a point source dischargefrom a ‘‘no exposure’’ industrial sourcemust meet the conditions of theexclusion, and complete, sign andsubmit the certification to thepermitting authority for tracking and



accountability purposes. EPA believestoday’s rule, therefore, is fullyconsistent with the direction providedby the court.

EPA relied upon the ‘‘no exposure’’concept discussed by the FACACommittee in developing the ‘‘noexposure’’ provisions of today’s rule.EPA is deleting the sentence regarding‘‘no exposure’’ for the facilities in§ 122.26(b)(14)(xi) and adding a new§ 122.26(g) titled ‘‘ConditionalExclusion for No Exposure of IndustrialActivities to Storm Water.’’ The ‘‘noexposure’’ provision will make stormwater discharges from all classes ofindustrial facilities eligible forexclusion, except storm waterdischarges from regulated constructionactivities. Regulated constructionactivities cannot claim ‘‘no exposure’’because the main pollutants of concern(e.g., sediment) generally cannotentirely be sheltered from storm water.

Today’s rule represents a significantexpansion in the scope of the ‘‘noexposure’’ provision originallypromulgated in the 1990 rule, whichwas only for storm water dischargesfrom light industry. The intent oftoday’s ‘‘no exposure’’ provision is toprovide a simplified method forcomplying with the CWA to allindustrial facilities that are entirelyindoors. This includes facilities that arelocated within a large office building, orat which the only items permanentlyexposed to precipitation are roofs,parking lots, vegetated areas, and othernon-industrial areas or activities.

EPA received several commentsrelated to storm water runoff fromparking lots, roof tops, lawns, and othernon-industrial areas of an industrialfacility. Storm water discharges fromthese areas, which may containpollutants or which may result inadditional storm water flows, are notdirectly regulated under the existingstorm water permitting program becausethey are not ‘‘storm water dischargesassociated with industrial activity’’.Many comments on this issue supportedmaintaining the exclusion from theexisting regulations for storm waterpermitting for discharges fromadministrative buildings, parking lots,and other non-industrial areas. Othercomments opposed allowing thecontinued exclusion for discharges fromnon-industrial areas of the site becausedischarges from these areas arepotentially a significant cause ofreceiving water impairment. Thesecomments urged that such dischargesshould not be excluded from NPDESpermit coverage. Today’s rule does notrequire permit coverage for dischargesfrom a facility’s exposed areas that are

separate from industrial activities suchas runoff from office buildings andaccompanying parking lots, lawns andother non-industrial areas. Thisapproach is consistent with the existingstorm water rules which were based onCongress’s intent to exclude non-industrial areas such as ‘‘parking lotsand administrative and employeebuildings.’’ 133 Cong. Rec. 985 (1987).EPA also lacks data indicating thatdischarges from these areas at anindustrial facility cause significantreceiving water impairments. Therefore,the non-industrial areas at a facility donot need to be assessed as part of the‘‘no exposure’’ certification.

EPA received comments related toindustrial facilities that achieve ‘‘noexposure’’ by constructing largeamounts of impervious surfaces, such asroofs, where previously there werepervious or porous surfaces into whichstorm water could infiltrate. Somecommenters made the point that largeamounts of impervious area may causea significant increase in storm watervolume flowing off the industrialfacility, and thus may cause adversereceiving water impacts simply due tothe increased quantity of storm waterflow. Some commenters said that stormwater discharges from impervious areasat an industrial facility are generallymore frequent, and often larger, thandischarges from the pre-existing naturalsurfaces. They believe that thesedischarges will contain pollutantstypical of commercial areas and roadsand are an equal threat to direct humanuses of the water and can cause equaldamage to aquatic life and its habitat.Other commenters believe that ifCongress or EPA addresses the issue offlow, it should be addressed on abroader scale than merely through the‘‘no exposure’’ exclusion, and that EPAhas no authority under any existinglegal framework to regulate flowdirectly. Some commenters stated thatdeveloping federal parameters for thecontrol of water quantity, i.e. flow,would result in federal intrusion intoland use planning, an authority thatthey claim is solely within the purviewof State governments and their politicalsubdivisions.

EPA is not attempting to regulate flowvia the ‘‘no exposure’’ provisions. EPAdoes agree, however, that increases inimpervious surfaces can result inincreased runoff volumes from the sitewhich in turn may increase pollutantloading. In addition, the Agency notesthat in some States water qualitystandards include water quality criteriafor flow or turbidity. Therefore, in orderto provide a minimal amount ofinformation on possible impacts from

increased pollutant loading and runoffvolume, EPA’s ‘‘no exposure’’certification form (see Appendix 4) asksthe discharger to indicate if they havepaved or roofed over a formerlyexposed, pervious area in order toqualify for the ‘‘no exposure’’ exclusion.If the answer is yes, the discharger mustindicate, by choosing from threepossible responses, approximately howmuch impervious area was created toachieve ‘‘no exposure’’. The choices are:(1) less than 1 acre, (2) 1 to 5 acres, and(3) more than 5 acres. This requirementprovides additional information thatwill aid in determining if dischargesfrom the facility are causing adversereceiving water impacts. EPA intends toprevent water quality impacts resultingfrom increased discharges of pollutants,which may result from increasedvolume of runoff. In many cases,consideration of the increased flow rate,velocity and energy of storm waterdischarges, following construction oflarge amounts of impervious surfaces,must be taken into consideration inorder to reduce the discharge ofpollutants, to meet water qualitystandards and to prevent degradation ofreceiving streams. EPA recommendsthat dischargers consider these factorswhen making modifications to their sitein order to qualify for the ‘‘no exposure’’exclusion.

2. Today’s RuleIn order to claim relief under the ‘‘no

exposure’’ provision, the discharger ofan otherwise regulated facility mustsubmit a no exposure certification thatincorporates the questions of§ 122.26(g)(4)(iii) to the NPDESpermitting authority once every 5 years.This provision applies across allcategories of industrial activity coveredby the existing program, exceptdischarges from construction activities.

In addition to submitting a ‘‘noexposure’’ certification every 5 years,the facility must allow the NPDESpermitting authority or operator of anMS4 (where there is a storm waterdischarge to the MS4) to inspect thefacility and to make such inspectionreports publicly available upon request.Also, upon request, the facility mustsubmit a copy of the ‘‘no exposure’’certification to the operator of the MS4into which the facility discharges (ifapplicable). All ‘‘no exposure’’certifications must be signed inaccordance with the signatoryrequirements of § 122.22. The ‘‘noexposure’’ certification is non-transferable. In the event that the facilityoperator changes, the new dischargermust submit a new ‘‘no exposure’’certification.



Members of the FACA Committeeurged that EPA not allow dischargerscertifying ‘‘no exposure’’ to take actionsto qualify for this provision that resultin a net environmental detriment. Indeveloping a regulatory implementationmechanism, however, EPA found thatthe phrase ‘‘no net environmentaldetriment,’’ was too imprecise to usewithin this context. Therefore, today’srule addresses this issue by requiringinformation that should help thepermitting authority to determinewhether actions taken to qualify for theexclusion interfere with the attainmentor maintenance of water qualitystandards, including designated uses.Permitting authorities will be able,where necessary, to make adetermination by evaluating theactivities that changed at the industrialsite to achieve ‘‘no exposure’’, andassess whether these changes cause anadverse impact on, or have thereasonable potential to cause aninstream excursion of, water qualitystandards, including designated uses.EPA anticipates that many efforts toachieve ‘‘no exposure’’ will employsimple good housekeeping andcontaminant cleanup activities. Otherefforts may involve moving materialsand industrial activities indoors intoexisting buildings or structures.

In very limited cases, industrialoperators may make major changes at asite to achieve ‘‘no exposure’’. Theseefforts may include constructing a newbuilding or cover to eliminate exposureor constructing structures to preventrun-on and storm water contact withindustrial materials or activities. Wheremajor changes to achieve ‘‘no exposure’’increase the impervious area of the site,the facility operator must provide thisinformation on the ‘‘no exposure’’certification form as discussed above.Using this and other available data andinformation, permitting authoritiesshould be able to assess whether anymajor change has resulted in increasedpollutant concentrations or loadings,toxicity of the storm water runoff, or achange in natural hydrological patternsthat would interfere with the attainmentand maintenance of water qualitystandards, including designated uses orappropriate narrative, chemical,biological, or habitat criteria where suchState or Tribal water quality standardsexist. In these instances, the facilityoperator and their NPDES permittingauthority should take appropriateactions to ensure that attainment ormaintenance of water quality standardscan be achieved. The NPDES permittingauthority should decide if the facilitymust obtain coverage under an

individual or general permit to ensurethat appropriate actions are taken toaddress adverse water quality impacts.

While the intent of today’s ‘‘noexposure’’ provision is to reduce theregulatory burdens on industrialfacilities and government agencies, theFACA Committee suggested that theNPDES permitting authority consider acompliance assessment program toensure that facilities that have availedthemselves of this ‘‘no exposure’’ optionmeet the applicable requirements.Inspections could be conducted at thediscretion of the NPDES authority andbe coordinated with other facilityinspections. EPA expects, however, thatthe permitting authority will conductinspections when it becomes aware ofpotential water quality impacts possiblycaused by the facility’s storm waterdischarges or when requested to do soby adversely affected members of thepublic. The intent of this provision isthat the 5 year ‘‘no exposure’’certification be fully available to, andenforceable by, appropriate federal andState authorities under the CWA.Private citizens can enforce againstfacilities for discharges of storm waterthat are inconsistent with a ‘‘noexposure’’ certification if storm waterdischarges from such facilities are nototherwise permitted and in compliancewith applicable requirements.

EPA received comments from owners,operators and representatives of Phase Ifacilities classified as ‘‘light industry’’ asdefined by the regulations at§ 122.26(b)(14)(xi). The commentsrecommended maintaining the approachof the existing regulations which doesnot require the discharger to submit anysupporting documentation to thepermitting authority in order to claimthe ‘‘no exposure’’ exclusion frompermitting. As discussed previously, the‘‘no exposure’’ concept was developedin response to the Ninth Circuit court’sremand of part of the existing rules backto EPA. The court found that EPAcannot rely on the ‘‘unverifiedjudgment’’ of the facility. The commentsopposing documentation did notaddress the ‘‘unverified judgment’’concern.

Today’s rule is a ‘‘conditional’’exclusion from permitting whichrequires all categories, including the‘‘light industrial’’ facilities that have noexposure of materials to storm water, tosubmit a certification to the permittingauthority. Upon receipt of a completecertification, the permitting authoritycan review the information, or call, orinspect the facility if there are doubtsabout the facility’s ‘‘no exposure’’ claim.Also, if the facility discharges into anMS4, the operator of the MS4 can

request a copy of the certification, andcan inspect the facility. The public canrequest a copy of the certification and/or inspection reports. In adopting theseconditional ‘‘no exposure’’ provisions,the Agency addressed the Ninth Circuitcourt’s ruling regarding the discharger’sunverified judgment.

EPA received one commentrequesting clarification on whether theanti-backsliding provisions in theregulations at § 122.44(l) apply toindustrial facilities that are currentlycovered under an NPDES storm waterpermit, and whether such facilitiescould qualify for the ‘‘no exposure’’exclusion under today’s rule. The anti-backsliding provisions will not preventmost industrial facilities that can certify‘‘no exposure’’ under today’s rule fromqualifying for an exclusion frompermitting. The anti-backslidingprovisions contain 5 exceptions thatallow permits to be renewed, reissued ormodified with less stringent conditions.One exception at § 122.44(l)(2)(A)allows less stringent conditions if‘‘material and substantial alterations oradditions to the permitted facilityoccurred after permit issuance whichjustify the application of a less stringenteffluent limitation.’’ Section122.44(l)(B)(1) also allows less stringentrequirements if ‘‘information isavailable which was not available at thetime of permit issuance and whichwould have justified the application ofless stringent effluent limitations at thetime of permit issuance.’’ Facility’soperators who certify ‘‘no exposure’’and submit the required informationonce every 5 years will have providedthe permitting authority ‘‘informationthat was not available at the time ofpermit issuance.’’ Also, some facilitiesmay, in order to achieve ‘‘no exposure’’,make ‘‘material and substantialalterations or additions to the permittedfacility.’’ Therefore, most facilitiescovered under existing NPDES generalpermits for storm water (e.g., EPA’sMulti-Sector General Permit) will beeligible for the conditional ‘‘noexposure’’ exclusion from permittingwithout concern about the anti-backsliding provisions. Suchdischargers will have met one or both ofthe anti-backsliding exceptions detailedabove. Facilities that are covered underindividual permits containing numericlimitations for storm water shouldconsult with their permitting authorityto determine whether the anti-backsliding provisions will preventthem from qualifying for the exclusionfrom permitting (for that dischargepoint) based on a certification of ‘‘noexposure’’.



EPA received several commentsregarding the timing of when the ‘‘noexposure’’ certification should besubmitted. The proposed rule said thatthe ‘‘no exposure’’ certification noticemust be submitted ‘‘at the beginning ofeach permit term or prior tocommencing discharges during a permitterm.’’ Some commenters interpretedthis statement to mean that existingfacilities can only submit thecertification at the time a permit is beingissued or renewed. EPA intended thephrase ‘‘at the beginning of each permitterm’’ to mean ‘‘once every 5 years’’ andtoday’s rule reflects this clarification.EPA envisions that the NPDES stormwater program will be implementedprimarily through general permitswhich are issued for a 5 year term.Likewise the ‘‘no exposure’’ certificationterm is 5 years. The NPDES permittingauthority will maintain a simpleregistration list that should impose onlya minor administrative burden on thepermitting authority. The registrationlist will allow for tracking of industrialfacilities claiming the exclusion. Thischange allows a facility to submit a ‘‘noexposure’’ certification at any timeduring the term of the permit, providedthat a new certification is submittedevery 5 years from the time it is firstsubmitted (assuming that the facilitymaintains a ‘‘no exposure’’ status). Oncea discharger has established that thefacility meets the definition of ‘‘noexposure’’, and submits the necessary‘‘no exposure’’ certification, thedischarger must maintain their ‘‘noexposure’’ status. Failure to maintain‘‘no exposure’’ at their facility couldresult in the unauthorized discharge ofpollutants to waters of the United Statesand enforcement for violation of theCWA. Where a discharger believes thatexposure could occur in the future dueto some anticipated change at thefacility, the discharger should submit anapplication and obtain coverage underan NPDES permit prior to suchdischarge to avoid penalties.

Where EPA is the permittingauthority, dischargers may submit a ‘‘noexposure’’ certification at any time afterthe effective date of today’s rule. WhereEPA is not the permitting authority,dischargers may not be able to submitthe certification until the non-federalpermitting authority completes anynecessary statutory or regulatorychanges to adopt this ‘‘no exposure’’provision. EPA recommends that thedischarger contact the permittingauthority for guidance on when the ‘‘noexposure’’ certification should besubmitted.

EPA received comments on theproposed rule requirement that the

discharger ‘‘must comply immediatelywith all the requirements of the stormwater program including applying forand obtaining coverage under an NPDESpermit,’’ if changes occur at the facilitywhich cause exposure of industrialactivities or materials to storm water.The comments expressed the difficultlyof immediate compliance. EPA expectsthat most facility changes can beanticipated, therefore dischargersshould apply for and obtain NPDESpermit coverage in advance of changesthat result in exposure to industrialactivities or materials. Permittingauthorities may grant additional time,on a case-by-case basis, for preparationand implementation of a storm waterpollution prevention plan.

Finally, today’s rule at § 122.26(g)(4)includes the information which must beincluded on the ‘‘no exposure’’certification. Authorized States, Tribesor U.S. Territories may develop theirown form which includes this requiredinformation, at a minimum. EPAadopted the requirements (withmodification) from the draft ‘‘NoExposure Certification Form’’ publishedas an appendix to the proposed rule.Modifications were made to the draftform to address comments received andto streamline the required information.EPA included these certificationrequirements in today’s rule in order topreserve its integrity. Dischargers inareas where EPA is the permittingauthority should use the ‘‘No ExposureCertification’’ form included inAppendix 4.

3. Definition of ‘‘No Exposure’’For purposes of this section, ‘‘no

exposure’’ means that all industrialmaterials or activities are protected by astorm resistant shelter to preventexposure to rain, snow, snowmelt, and/or runoff. Industrial materials oractivities include, but are not limited to,material handling equipment oractivities, industrial machinery, rawmaterials, intermediate products, by-products, final products, or wasteproducts. Material handling activitiesinclude the storage, loading andunloading, transportation, orconveyance of any raw material,intermediate product, final product orwaste product. However, storm resistantshelter is not required for: (1) Drums,barrels, tanks, and similar containersthat are tightly sealed, provided thosecontainers are not deteriorated and donot leak; (2) adequately maintainedvehicles used in material handling; and(3) final products, other than productsthat would be mobilized in storm waterdischarge (e.g., rock salt). Each of thesethree exceptions to the no exposure

definition are discussed in more detailbelow.

EPA intends the term ‘‘storm resistantshelter’’ to include completely roofedand walled buildings or structures, aswell as structures with only a top coverbut no side coverings, provided materialunder the structure is not otherwisesubject to any run-on and subsequentrunoff of storm water. While the Agencyintends that this provision promotepermanent ‘‘no exposure’’, EPAunderstands that certain vehicles couldpass between buildings and, duringpassage, be exposed to rain and snow.Adequately maintained vehicles such astrucks, automobiles, forklifts, or othersuch general purpose vehicles at theindustrial site that are not industrialmachinery, and that are not leakingcontaminants or are not otherwise asource of industrial pollutants, could beexposed to precipitation or runoff. Suchactivities alone does not prevent adischarger from being able to certify noexposure under this provision.Similarly, trucks or other vehiclesawaiting maintenance at vehiclemaintenance facilities, as defined at§ 122.26(b)(14)(viii), that are not leakingcontaminants or are not otherwise asource of industrial pollutants, are notconsidered exposed.

In addition, EPA recognizes that thereare circumstances where permanent ‘‘noexposure’’ of industrial activities ormaterials is not possible. Under suchconditions, materials and activities maybe sheltered with temporary covers,such as tarps, between periods ofpermanent enclosure. The final ruledoes not specify every such situation.EPA intends that permitting authoritieswill address this issue on a case-by-casebasis. Permitting authorities candetermine the circumstances underwhich temporary structures will or willnot meet the requirements of thissection. Until permitting authoritiesspecifically determine otherwise, EPArecommends application of the ‘‘noexposure’’ exclusion for temporarysheltering of industrial materials oractivities only during facility renovationor construction, provided that thetemporary shelter achieves the intent ofthis section. Moreover, ‘‘exposure’’ thatresults from a leak in protectivecovering would only be considered‘‘exposure’’ if not corrected prior to thenext storm water discharge event. EPAreceived one comment requesting thatthis allowance for temporary shelter belimited to facility renovation orconstruction directly related to theindustrial activity requiring temporaryshelter, and be scheduled to minimizethe use of temporary shelter. Anothercomment suggested placing time limits



on the use of temporary shelter. Thecommenter did not recommend aspecific time period, rather thecomment said that renovation in someinstances may take years, and that EPAshould not allow temporary shelter overprolonged periods. EPA agrees that theuse of temporary shelter must be relatedto the renovation or construction at thesite, and be scheduled or designed tominimize the use of temporary shelter.Further, EPA agrees that the use oftemporary shelter should be limited induration, but does not intend to define‘‘temporary’’ or ‘‘prolonged period’’.

Many final products are intended foroutdoor use and pose little risk of stormwater contamination, such as new cars.Therefore, final products, except thosethat can be mobilized in storm waterdischarge, can be ‘‘exposed’’ and stillallow the discharge to certify ‘‘noexposure’’. EPA intends the term ‘‘finalproducts’’ to mean those products thatare not used in producing anotherproduct. Any product that can be usedto make another product is consideredan ‘‘intermediate product.’’ Forexample, a facility that makes horsetrailers can store the finished trailersoutdoors as a final product. The storageof those final products does not preventeligibility to claim ‘‘no exposure’’.However, any facility that makes partsfor the horse trailers (e.g., metal tubing,sheet metal, paint) is not eligible for the‘‘no exposure’’ exclusion frompermitting if those ‘‘intermediateproducts’’ are stored outdoors (i.e.,‘‘exposed’’).

EPA received comments related tomaterials in drums, barrels, tanks andsimilar containers. Some commentsobjected to the language in the preambleto the proposed rule that would haverecommended that the ‘‘exposure’’determination for drums and barrels bebased on the ‘‘potential to leak.’’ Thosecomments said that all drums andbarrels have the potential to leak,thereby making certification impossible.They recommended allowing outdoorstorage of drums and barrels except forthose that ‘‘are leaking’’ at the time ofcertification. Other comments suggestedallowing drums and barrels to be storedoutside only if the drums and barrels:are empty; have secondary containment;or there is a spill contingency plan inplace. Opposing comments suggestedthat allowing outdoor exposure ofdrums and barrels, based on existingintegrity and condition, is inconsistentwith the ‘‘however packaged’’ proposedrule language, and also would notsatisfy the Ninth Circuit remand. Thecomments point out that the former rulewas invalidated by the court in partbecause it relied on the ‘‘unverified

judgment’’ of the light industrial facilityoperator to determine the non-applicability of the permit requirements,and that allowing the facility operator todetermine the condition of their drumsand barrels would result in the sameflaw.

In response, EPA believes that drumsand barrels that are stored outdoors poselittle risk of storm water contaminationunless they are open, deteriorated orleaking. The Agency has modifiedtoday’s rule accordingly. EPA intendsthe term ‘‘open’’ to mean any containerthat is not tightly sealed and ‘‘sealed’’ tomean banded or otherwise secured andwithout operational taps or valves.Drums, barrels, tanks, and similarcontainers may only be stored outdoorsunder this conditional exclusion. Theaddition of material to or withdrawingof material from these containers whileoutside is deemed ‘‘exposure’’. Movingthe containers while outside does notcreate ‘‘exposure’’ provided that thecontainers are not open, deteriorated orleaking. In order to complete the ‘‘noexposure’’ certification, a facilityoperator must inspect all drums, barrels,tanks or other containers stored outsideto ensure that they are not open,deteriorated, or leaking. EPArecommends that the dischargerdesignate someone at the facility toconduct frequent inspections to verifythat the drums, barrels, tanks or othercontainers remain in a condition suchthat they are not open, deteriorated orleaking. Drums, barrels, tanks or othercontainers stored outside that havevalves which are used to put material inor take material out of the container,and that have dripped or may drip, areconsidered to be ‘‘leaking’’ and must beunder a storm resistant shelter in orderto qualify for the no exposure exclusion.Likewise, leaking pipes containingcontaminants exposed to storm waterare deemed ‘‘exposed.’’ If at any timedrums, barrels, tanks or similarcontainers are opened, deteriorated orleaking, the discharger should takeimmediate actions to close or replacethe container. Any resultingunpermitted discharge would violatethe CWA. The Director, the operator ofthe MS4, or the municipality mayinspect the facility to verify that all ofthe applicable areas meet the ‘‘noexposure’’ conditions as specified in therule language. In requiring submissionof the conditional ‘‘no exposure’’certification and allowing the permittingauthority and the operator of the MS4 toinspect the facility, today’s rule does notrely on the unverified judgment of thefacility to determine that the noexposure provision is being met.

EPA received several commentsrelated to trash dumpsters that arelocated outside. The preamble to theproposed rule listed dumpsters in thesame grouping as drums and barrels,which based exposure on the ‘‘potentialto leak’’. Today’s rule distinguishesbetween dumpsters and drums/barrels.In the Phase I Question and Answerdocument (volume 1, question 52) theAgency noted that a covered dumpstercontaining waste material that is keptoutside is not considered ‘‘exposed’’ aslong as ‘‘the container is completelycovered and nothing can drain out holesin the bottom, or is lost in loading ontoa garbage truck.’’ EPA affirms thisapproach today. Industrial refuse andindustrial trash that is left uncovered isdeemed ‘‘exposed.’’

For purposes of this provision,particulate matter emissions from roofstacks/vents that are regulated and incompliance under other environmentalprotection programs, such as air qualitycontrol programs, and that do not causestorm water contamination, areconsidered ‘‘not exposed.’’ EPAreceived comments on the phrase in thedraft ‘‘no exposure’’ certification formthat asked whether ‘‘particulateemissions from roof stacks/vents nototherwise regulated, and in quantitiesdetectable in the storm water outflow,’’are exposed to precipitation. Onecomment expressed concern that thephrase ‘‘in quantities detectable in thestorm water outflow’’ implies that thefacility must conduct monitoring priorto completing the checklist, and mustcontinue to monitor after receiving theno exposure exclusion, in order to beable to verify compliance with the noexposure provision. Another commentsaid that current measurementtechnology allows detection ofpollutants at levels that may not causeenvironmental harm. EPA does notintend to require monitoring of runofffrom facilities with roof stacks/ventsprior to or after completing andsubmitting the no exposure certification.EPA has thus replaced the phrase ‘‘inquantities detectable’’ with ‘‘evident’’ toconvey the message that emissions fromsome roof stacks/vents have thepotential to contaminate storm waterdischarges in quantities that areconsidered significant or that cause orcontribute to a water quality standardsviolation. In those instances where thepermitting authority determines thatparticulate emissions from facility roofstacks/vents are a significant contributorof pollutants or contributing to waterquality violations, the permittingauthority may require the discharger toapply for and obtain coverage under a



permit. Visible deposits of residuals(e.g., particulate matter) near roof orside vents are considered ‘‘exposed’’.Likewise, visible ‘‘track out’’ (i.e.,pollutants carried on the tires ofvehicles) or windblown raw materialsare deemed ‘‘exposed.’’

EPA received a comment requestingan allowance under the ‘‘no exposure’’provision for industrial facilities withseveral outfalls at a site where some, butnot all of the outfalls drain non-exposedareas. The commenter provided anexample of an industrial facility that has5 outfalls draining different areas of thesite, where two of those outfalls drainareas where industrial activities ormaterials are not exposed to stormwater. The comment requested that thefacility in this example be allowed tosubmit a ‘‘no exposure’’ certification inorder to be relieved of permittingobligations for discharges from thosetwo outfalls.

EPA agrees, but the comment wouldbe implemented on an outfall-by-outfallbasis in the permitting process, notthrough the ‘‘no exposure’’ exclusion.The ‘‘no exposure’’ provision wasdeveloped to allow exclusion frompermitting of discharges from entireindustrial facilities (exceptconstruction), based on a claim of ‘‘noexposure’’ for all areas of the facilitywhere industrial materials or activitiesoccur. Where exposure to industrialmaterials or activities exist at some butnot all areas of the facility, the ‘‘noexposure’’ exclusion from permitting isnot allowed because permit coverage isstill required for storm water dischargesfrom the exposed areas. Relief frompermit requirements for outfallsdraining non-exposed areas should beaddressed through the permit process,in coordination with the permittingauthority. Most NPDES general permitsfor storm water discharge provideenough flexibility to allow minimal orno requirements for non-exposed areasat industrial facilities. If the permittingauthority determines that additionalflexibility is needed for this scenario,the permits could be modified asnecessary.

K. Public Involvement/Public RoleThe Phase II FACA Subcommittee

discussed the appropriate role of thepublic in successful implementation ofa municipal storm water program. EPAbelieves that an educated and activelyinvolved public is essential to asuccessful municipal storm waterprogram. An educated public increasesprogram compliance from residents andbusinesses as they realize theirindividual and collective responsibilityfor protecting water resources (e.g., the

residents and businesses could besubject to a local ordinance thatprohibits dumping used oil down stormsewers). Finally, the program is alsomore likely to receive public supportand participation when the public isactively involved from the program’sinception and allowed to participate inthe decision making process.

In a time of limited staff and financialresources, public volunteers offerdiverse backgrounds and expertise thatmay be used to plan, develop, andimplement a program that is tailored tolocal needs (e.g., participate in publicmeetings and other opportunities forinput, perform lawful volunteermonitoring, assist in programcoordination with other preexisting andrelated programs, aid in thedevelopment and distribution ofeducational materials, and providepublic training activities). The public’sparticipation is also useful in the areasof information dissemination/educationand reporting of violators, where largenumbers of community members can bemore effective than a few regulators.

The public can also petition theNPDES permitting authority to requirean NPDES permit for a dischargecomposed entirely of storm water thatcontributes to a violation of a waterquality standard or is a significantcontributor of pollutants to waters of theUnited States. In evaluating such apetition, the NPDES permittingauthority is encouraged to consider theset of designation criteria developed forthe evaluation of small MS4s locatedoutside of an urbanized area in placeswith a population of at least 10,000 anda population density of 1,000 or more.Furthermore, any person can protectwater bodies by taking civil actionunder section 505 of the CWA againstany person who is alleged to be inviolation of an effluent standard orpermit condition. If civil action is taken,EPA encourages citizen plaintiffs toresolve any disagreements or concernsdirectly with the parties involved, eitherinformally or through any availablealternative dispute resolution process.

EPA recognizes that publicinvolvement and participation posechallenges. It requires a substantialinitial investment of staff and financialresources, which could be very limited.Even with this investment, the publicmight not be interested in participating.In addition, public participation couldslow down the decision making process.However, the benefits are numerous.

EPA encourages members of thepublic to contact the NPDES permittingauthority or local MS4s operator forinformation on the municipal stormwater program and ways to participate.

Such information may also be availablefrom local environmental, nonprofit andindustry groups.

Some commenters stressed the needto suggest to the public that they havea responsibility to fund the municipalstorm water program. While EPAbelieves it is important that the programbe adequately funded, today’s rule doesnot address appropriate mechanisms orlevels for such funding.

EPA received comments expressingconcern that considerable publicinvolvement requirements could resultin increased litigation. EPA is notconvinced there is a correlation betweenmeaningful public education programsand any increased probability oflitigation.

Finally, EPA received commentsstating that the Agency should not encourage volunteer monitoring unlessproper procedures are followed. EPAagrees. EPA encourages only lawfulmonitoring, i.e., obtaining the necessaryapproval if there is any question aboutlawful access to sites. Moreover, as amatter of good practice and to enhancethe validity and usefulness of theresults, any party, public or private,conducting water quality monitoring isencouraged to use appropriate qualitycontrol procedures and approvedsampling and analytic methods.

L. Water Quality Issues

1. Water Quality Based Effluent Limits

In addition to technology basedrequirements, all point sourcedischarges of industrial storm water aresubject to more stringent NPDESpermitting requirements whennecessary to meet water qualitystandards. CWA sections 402(p)(3)(A)and 301(b)(1)(C). For municipal separatestorm sewers, EPA or the State maydetermine that other permit provisions(e.g. one of the minimum measures) areappropriate to protect water quality and,for discharges to impaired waters, toachieve reasonable further progresstoward attainment of water qualitystandards pending implementation of aTMDL. CWA section 402(p)(3)(B)(iii).See Defenders of Wildlife, et al.Browner, No. 98–71080 (9th cir., August11, 1999). Discharges of storm wateralso must comply with applicableantidegradation policies andimplementation methods to maintainand protect water quality. 40 CFR131.12. Section 122.34(a) emphasizesthis point by specifically noting that astorm water management programdesigned to reduce the discharge ofpollutants from the storm sewer system‘‘to the maximum extent practicable’’ isalso designed to protect water quality.



Permits issued to non-municipalsources of storm water must includewater quality-based effluent limitswhere necessary to meet water qualitystandards.

Commenters challenged EPA’sinterpretation of the CWA as requiringwater quality-based effluent limits forMS4s when necessary to protect waterquality. Commenters asserted that CWA402(p)(3)(B), which addresses permitrequirements for municipal discharges,limits the scope of municipal programrequirements to an effective prohibitionon non-storm water discharges to aseparate storm sewer and to controlswhich reduce pollutants to the‘‘maximum extent practicable, includingmanagement practices, controltechniques and system design andengineering methods.’’ They assertedthat the final rule should clarify thatneither numeric nor narrative waterquality-based limits are appropriate orauthorized for MS4s.

EPA disagrees that section 402(p)(3)divests permitting authorities of thetools necessary to issue permits to meetwater quality standards. Section402(p)(3)(B)(iii) specifically preservesthe authority for EPA or the State toinclude other provisions determinedappropriate to reduce pollutants inorder to protect water quality. Defendersof Wildlife, slip op. at 11688. SmallMS4s regulated under today’s rule aredesignated under CWA 402(p)(6) ‘‘toprotect water quality.’’

Commenters argued that water qualitystandards, particularly numeric criteria,were not designed to address stormwater discharges. The episodic natureand magnitude of storm water events,they argue, make it impossible to applythe ‘‘end of pipe’’ complianceassessment approach, for example, inthe development of water quality basedeffluent limits.

EPA’s disagrees with the commentersarguments about the inability of waterquality criteria to address high flowconditions. Today’s final rule does,however, address the concern thatnumeric effluent limits will necessitateend of pipe treatment and the need toprovide a workable alternative.

Today’s rule was developed under theapproach outlined in the InterimPermitting Policy for Water Quality-Based Effluent Limitations in StormWater Permits, issued on August 1,1996. 61 FR 43761 (November 26, 1996)(the ‘‘Interim Permitting Policy’’). EPAintends to issue NPDES permitsconsistent with the Interim PermittingPolicy, which provides as follows:

In response to recent questionsregarding the type of water quality-based effluent limitations that are most

appropriate for NPDES storm waterpermits, EPA is adopting an interimpermitting approach for regulating wetweather storm water discharges. Due tothe nature of storm water discharges,and the typical lack of information onwhich to base numeric water quality-based effluent limitations (expressed asconcentration and mass), EPA will usean interim permitting approach forNPDES storm water permits.

‘‘The interim permitting approachuses best management practices (BMPs)in first-round storm water permits, andexpanded or better-tailored BMPs insubsequent permits, where necessary, toprovide for the attainment of waterquality standards. In cases whereadequate information exists to developmore specific conditions or limitationsto meet water quality standards, theseconditions or limitations are to beincorporated into storm water permits,as necessary and appropriate. Thisinterim permitting approach is notintended to affect those storm waterpermits that already includeappropriately derived numeric waterquality-based effluent limitations. Sincethe interim permitting approach onlyaddresses water quality-based effluentlimitations, it also does not affecttechnology-based effluent limitations,such as those based on effluentlimitations guidelines or developedusing best professional judgment, thatare incorporated into storm waterpermits.

‘‘Each storm water permit shouldinclude a coordinated and cost-effectivemonitoring program to gather necessaryinformation to determine the extent towhich the permit provides forattainment of applicable water qualitystandards and to determine theappropriate conditions or limitations ofsubsequent permits. Such a monitoringprogram may include ambientmonitoring, receiving water assessment,discharge monitoring (as needed), or acombination of monitoring proceduresdesigned to gather necessaryinformation.

‘‘This interim permitting approachapplies only to EPA; however, EPA alsoencourages authorized States and Tribesto adopt similar policies for storm waterpermits. This interim permittingapproach provides time, wherenecessary, to more fully assess the rangeof issues and possible options for thecontrol of storm water discharges for theprotection of water quality. This interimpermitting approach may be modified asa result of the ongoing Urban WetWeather Flows Federal AdvisoryCommittee policy dialogue on thissubject.’’

One commenter challenged theInterim Permitting Policy on aprocedural basis, arguing that it waspublished without opportunity forpublic notice and comment. Inresponse, EPA notes that the Policy wasincluded verbatim and made availablefor public comment in the proposal totoday’s final rule. Prior to that proposal,the Agency defended the application ofthe Policy on a case-by-case basis inindividual permit proceedings.Moreover, the essential elements of thePolicy—that narrative effluentlimitations are the most appropriateform of effluent limitations for stormwater dischargers from municipalsources—was inherent in § 122.34(a) ofthe proposed rule, and was the subjectof extensive public comment. In anyevent, the Policy does not constitute abinding obligation. It is policy, notregulation.

Consistent with the recognition ofdata needs underlying the Policy, EPAwill evaluate the small MS4 storm waterregulations after the second round ofpermit issuance. Section 122.34(e)(2) oftoday’s rule expressly provides that forthe interim ten-year period, ‘‘EPAstrongly recommends that until theevaluation of the storm water programin § 122.37, no additional requirementsbeyond the minimum control measuresbe imposed on regulated small MS4swithout the agreement of the operator ofthe affected small MS4, except where anapproved TMDL or equivalent analysisprovides adequate information todevelop more specific measures toprotect water quality.’’ This approachaddresses the concern for protectingwater resources from the threat posed bystorm water discharges with theimportant qualification that there mustbe adequate information on thewatershed or a specific site as a basis forrequiring tailored storm water controlsbeyond the minimum control measures.As indicated, the Interim PermittingPolicy has several importantlimitations—it does not apply totechnology-based controls or to sourcesthat already have numeric end of pipeeffluent limitations. EPA encouragesauthorized States and Tribes to adoptpolicies similar to the InterimPermitting Policy when developingstorm water discharge programs. For adiscussion of appropriate monitoringactivities, see Section H.3.d., Evaluationand Assessment.

Where a water quality analysisindicates there is a need and basis forderiving water quality-based effluentlimits in NPDES permits for storm waterdischarges regulated under today’s rule,EPA believes that most of these caseswould be satisfied by narrative effluent



limitations that require theimplementation of BMPs. NPDES permitlimits will in most cases continue to bebased on the specific approach outlinedin today’s rule for the implementation ofBMPs as the most appropriate form ofeffluent limitation to satisfy technologyand water quality-based requirements.See § 122.34(a). For storm watermanagement plans with existing BMPs,this may require further tailoring ofBMPs to address the pollutant(s) ofconcern, the nature of the discharge andthe receiving water. If the permittingauthority determines that, throughimplementation of appropriate BMPsrequired by the NPDES storm waterpermit, the discharge has the necessarycontrols to provide for attainment ofwater quality standards, additionalcontrols are not needed in the permit.Conversely, if a discharger (MS4,industrial or construction) fails to adoptand implement adequate BMPs, thepermittee and/or the permittingauthority should consider a differentmix of BMPs or more specificconditions to ensure water qualityprotection.

Some commenters observed that therewas no evidence from the experience ofstorm water dischargers regulated underthe existing NPDES storm waterprogram, or from studies or reports thatallegedly support EPA’s position, thatimplementation of BMPs to satisfy thesix minimum control measures wouldmeet applicable water quality standardsfor a regulated small MS4. In response,EPA acknowledges that the sixminimum measures are intended toimplement the statutory requirement tocontrol discharges to the maximumextent practicable, and they may notresult in the attainment of water qualitystandards in all cases. The controlmeasures do, however, focus on andaddress well-documented threats towater quality associated with stormwater discharges. Based on thecollective expertise of the FACA Sub-committee, EPA believes thatimplementation of the six minimummeasures will, for most regulated smallMS4s, be adequate to protect waterquality, and for other regulated smallMS4s will substantially reduce theadverse impacts of their discharges onwater quality.

Some commenters asserted thatanalyses of existing water qualitycriteria suggest that numeric criteria foraquatic life may be overprotective ifapplied to storm water discharges.These comments maintained that anapproach that prohibits exceedance ofapplicable water quality criteria isunworkable. Various commentersrecommended wet weather specific

criteria, variances to the criteria duringwet weather events, and seasonaldesignated uses. Other commentersnoted that water quality-based effluentlimits in NPDES permits havetraditionally been developed based ondry weather flow conditions (e.g.,assuming critical low-flow conditions inthe receiving water to ensure protectionof aquatic life and human health). Wetweather discharges, however, typicallyoccur under high-flow conditions in thereceiving water. Assumptions regardingmass balance equations and size ofmixing zones may also not be pertinentduring wet weather.

EPA acknowledges the need to devisea regulatory program that is bothflexible enough to accommodate theepisodic nature, variability and volumeof wet weather discharges andprescriptive enough to ensure protectionof the water resource. EPA believes thatwet weather discharges can beadequately addressed in the existingregulations through refining designateduses and assigning criteria that aretailored to the level of water qualityprotection described by the refineddesignated use.

EPA believes that lack of precision inassigning designated uses andcorresponding criteria by States andTribes, in many cases may result inapplication of water quality criteria thatmay not appropriately match theintended condition of the water body.States and Tribes have frequentlydesignated uses without regard to site-specific wet weather conditions.Because certain uses (swimming, forexample) might not exist during high-intensity storm events or in the winter,States may factor such climaticconditions and seasonal uses into theiruse designations with appropriateanalyses. This would acknowledge thata lower level of control, at lowercompliance cost, would be appropriateto protect that use. Before modifyingany designated use, however, Stateswould need to evaluate the effect of lessstringent water quality criteria onprotecting other uses, including anythreatened or endangered species,drinking water supplies anddownstream uses. EPA will furtherevaluate these issues in the context ofthe Water Quality Standards Regulation,Advance Notice of Proposed RuleMaking (ANPRM), 63 FR, 36742, July 7,1998.

One of the major themes presented byEPA in the ANPRM is that refinementin use designations and tailoring ofwater quality criteria to match refineduse designations is an important futuredirection of the water quality standardsprogram. In assigning criteria to protect

general use classifications, a State orTribe must ensure that the criteria aresufficiently protective to safeguard thefull range of waters of the State, i.e.,criteria would be based on the mostsensitive use. This approach has beendisputed, especially for aquatic lifeuses, where evidence suggests that thegeneral use criteria will require controlsmore stringent than needed to protectthe existing or potential aquatic lifecommunity for a specific water body.EPA recognizes that there is a growingneed to more precisely tailor usedescriptions and criteria to match site-specific conditions, ensuring that usesand criteria provide an appropriate levelof protection, which, to the extentpossible, are not overprotective. EPA isengaged in an ongoing evaluation of itsregulations in this area through theANPRM effort. At the same time, EPAcontinues to encourage States andTribes to review the applicability of thedesignated uses and associated criteriausing existing provisions in the waterquality standards regulation.

2. Total Maximum Daily Loads andAnalysis To Determine the Need forWater Quality-Based Limitations

The development and implementationof total maximum daily loads (TMDLs)provide a link between water qualitystandards and effluent limitations. CWAsection 303(d) requires States to developTMDLs to provide more stringent waterquality-based controls when technology-based controls are inadequate to achieveapplicable water quality standards. ATMDL is the sum of the individualwasteload allocations for point sourcesand load allocations for nonpointsources, with consideration for naturalbackground conditions. A TMDLquantifies the maximum allowableloading of a pollutant to a water bodyand allocates this maximum load tocontributing point and nonpoint sourcesso that water quality criteria will not beexceeded and designated uses will beprotected. A TMDL also includes amargin of safety to account foruncertainty about the relationshipbetween pollutant loads and waterquality.

Today’s final rule refers to TMDLs inseveral provisions. For the purpose oftoday’s rule, EPA relies on thecomponent of the TMDL that evaluatesexisting conditions and allocates loads.For discharges to waters that are notimpaired and for which a TMDL has notbeen developed, today’s rule also refersto an ‘‘equivalent analysis.’’ Thediscussion that follows uses the term‘‘TMDL’’ for both.

Under revised § 122.26(a)(9)(i)(C), thepermitting authority may designate



storm water discharges that requireNPDES permits based on TMDLs thataddress the pollutants of concern. Forstorm water discharges associated withsmall construction activity,§ 122.26(b)(15)(i)(B) provides a waiverprovision where it may be determinedthat storm water controls are not neededbased on TMDLs that address sedimentand any other pollutants of concern.The NPDES permitting authority maywaive requirements under the programfor certain small MS4s within urbanizedareas serving less than 1,000 personsprovided that, if the small MS4discharges any pollutant that has beenidentified as a cause of impairment of awater body into which it discharges, thedischarge is in compliance with awasteload allocation in a TMDL for thepollutant of concern. The permittingauthority may also waive requirementsfor MS4s in urbanized areas servingbetween 1,000 and 10,000 persons, ifthe permitting authority determines thatstorm water controls are not needed, asprovided in § 123.35(d)(2). See§ 122.32(c).

Under CWA section 303(d), Statesidentify which of their water bodiesneed TMDLs and rank them in order ofpriority. Generally, once a TMDL hasbeen completed for one or morepollutants in a water body, a wasteloadallocation for each point sourcedischarging the pollutant(s) isimplemented as an enforceablecondition in the NPDES permit.Regulated small MS4s are essentiallylike other point source discharges forpurposes of the TMDL process.

A TMDL and the resulting wasteloadallocations for pollutant(s) of concern ina water body may not be availablebecause the water body is not on theState’s 303(d) list, the TMDL has not yetbeen completed, or the TMDL did notinclude specific pollutants of concern.In these cases, the permitting authoritymust determine whether point sourcesdischarge pollutant(s) in amounts thatcause, have the reasonable potential tocause, or contribute to excursions aboveState water quality standards, includingnarrative water quality criteria. This so-called ‘‘reasonable potential’’ analysis isintended to determine whether and forwhat pollutants water quality basedeffluent limits are required. The analysisis, in effect, a substitute for a similardetermination that would be made aspart of a TMDL, where necessary. When‘‘reasonable potential’’ exists,regulations at § 122.44(d) require awater quality-based effluent limit for thepollutant(s) of concern in NPDESpermits. The water quality-basedeffluent limits may be narrativerequirements to implement BMPs or,

where necessary, may be numericpollutant effluent limitations.

Commenters, generally from theregulated community, objected that, dueto references to the need to develop aprogram ‘‘to protect water quality’’ andto additional NPDES permitrequirements beyond the minimumcontrol measures based on TMDLs ortheir equivalent, regulated small MS4swill be subject to uncertain permitlimitations beyond the six minimumcontrol measures. Commenters alsoasserted that through the imposition ofa wasteload allocation under a TMDL inimpaired water bodies, there is alikelihood that unattainable, yetenforceable narrative and numericstandards will be imposed on regulatedsmall MS4s.

As is discussed in the precedingsection, NPDES permits must includeany more stringent limitations whennecessary to meet water qualitystandards. However, even if a regulatedsmall MS4 is subject to water qualitybased effluent limits, such limits may bein the form of narrative effluentlimitations that require theimplementation of BMPs. As discussedearlier, EPA has adopted the InterimPermitting Policy and incorporated it inthe development of today’s rule torecognize the appropriateness of BMP-based limits developed on a case-by-case basis.

EPA formed a Federal AdvisoryCommittee to provide advice to EPA onidentifying water quality-limited waterbodies, establishing TMDLs for them asappropriate, and developing appropriatewatershed protection programs for theseimpaired waters in accordance withCWA section 303(d). Operating underthe auspices of the National AdvisoryCouncil for Environmental Policy andTechnology (NACEPT), the committeeproduced its Report of the FederalAdvisory Committee on the TotalMaximum Daily Load (TMDL) Program(July 1998). EPA recently published aproposed rule to implement the Report’srecommendations (64 FR 46012, August23, 1999).

3. Anti-Backsliding

In general, the term ‘‘anti-backsliding’’ refers to statutoryprovisions at CWA sections 303(d)(4)and 402(o) and regulatory provisions at40 CFR 122.44(l). These provisionsprohibit the renewal, reissuance, ormodification of an existing NPDESpermit that contain effluent limits,permit terms, limitations andconditions, or standards that are lessstringent than those established in theprevious permit. There are also

exceptions to this prohibition known as‘‘antibacksliding exceptions.’’

The issue of backsliding from priorpermit limits, standards, or conditionsis not expected to initially apply to moststorm water dischargers designatedunder today’s proposal because theygenerally have not been previouslyauthorized by an NPDES permit.However, the backsliding prohibitionwould apply if a storm water dischargewas previously covered under anotherNPDES permit. Also, the backslidingprohibition could apply when anNPDES storm water permit is reissued,renewed, or modified. In most cases,however, EPA does not believe thatthese provisions would restrict revisionsto storm water NPDES permits.

One commenter questioned whether,if BMPs implemented by a regulatedsmall MS4 operator fail to produceresults in removal of pollutants and thepermittee attempts to substitute a moreeffective BMP, the small MS4 operatorcould be accused of violating the anti-backsliding provisions and also beexposed to citizen lawsuits. In response,EPA notes that in such circumstancesthe MS4’s permit has not changed and,therefore, the prohibition againstbacksliding is not applicable. Further,any change in the mix of BMPs that wasintended to be more effective atcontrolling pollutants would not beconsidered backsliding, even if it didnot include all of the previouslyimplemented BMPs.

4. Water Quality-Based Waivers andDesignations

Several sections of today’s final rulerefer to water quality standards inidentifying those storm water dischargesthat are and are not required to bepermitted under today’s rule. As notedin § 122.30 of today’s rule, CWA section402(p)(6) requires the designation ofmunicipal storm water sources thatneed to be regulated to protect waterquality and the establishment of acomprehensive storm water program toregulate these sources. Requirementsapplicable to certain municipal sourcesmay be waived based on the absence ofdemonstrable water quality impacts.Section 122.32(c). The section 402(p)(6)mandate to protect water quality alsoprovides the basis for regulatingdischarges associated with smallconstruction. See also § 122.26(b)(15)(i).Further, today’s rule carries forward theexisting authority for the permittingauthority to designate sources of stormwater discharges based upon waterquality considerations. Section122.26(a)(9)(i)(C) and (D).

As is discussed above in sectionsII.H.2.e (for small MS4s) and II.I.1.b.ii



(for small construction), therequirements of today’s rule may bewaived based on wasteload allocationsthat are part of ‘‘total maximum dailyloads’’ (TMDLs) that address thepollutants of concern or, in the case ofsmall construction and municipalitiesserving between 1,000 and 10,000persons, the equivalents of TMDLs. Onecommenter stated that waivers wouldallow exemptions to the technologybased requirements and would thus beinconsistent with the two-fold approachof the CWA (a technology basedminimum and a water quality basedoverlay). EPA acknowledges thatwaivers are not allowed for othertechnology-based requirements underthe CWA. A more flexible approach isallowed, however, for sourcesdesignated for regulation under402(p)(6) to protect water quality. Forsuch sources EPA may allow a waiverwhere it is demonstrated that anindividual source does not present the

threat to water quality that was the basisfor EPA’s designation.

III. Cost-Benefit Analysis

EPA has determined that the range ofthe rule’s benefits exceeds the range ofregulatory costs. The estimated rulecosts range from $847.6 million to$981.3 million annually withcorresponding estimated monetizedannual benefits which range from$671.5 million to $1.628 billion,expected to exceed costs.

The rule’s cost and benefit estimatesare based on an annual comparison ofcosts and benefits for a representativeyear (1998) in which the rule isimplemented. This differs from theapproach used for the proposed rulewhich projected cost and benefits overthree permit terms. EPA has chosen touse the current approach because itdetermined that the ratio of annualbenefits and costs would not changesignificantly over time. Moreover,

because there is not an initial outlay ofcapital costs with benefits accruing inthe future (i.e., benefits and costs arealmost immediately at a steady state), itis not necessary to discount costs inorder to account for a time differential.

EPA developed detailed estimates ofthe costs and benefits of complying witheach of the incremental requirementsimposed by the rule. The Agency usedtwo approaches, a national water qualitymodel and national water qualityassessment, to estimate the potentialbenefits of the rule. Both approachesshow that the benefits are likely toexceed costs.

These estimates, includingdescriptions of the methodology andassumptions used, are described indetail in the Economic Analysis of theFinal Phase II Rule, which is includedin the record of this rule making.Exhibit 3 summarizes costs and benefitsassociated with the basic elements oftoday’s rule.

EXHIBIT 3.—COMPARISON OF ANNUAL COMPLIANCE COST AND BENEFIT ESTIMATES 1

Monetized benefits

National waterquality model

(millions of 1998dollars)

National waterquality assess-

ment (millions of1998 dollars)

Municipal Minimum Measures ........................................................................................................................... ........................... $131.0–$410.2Controls for Construction Sites .......................................................................................................................... ........................... $540.5–$686.0

Total Annual Benefits ................................................................................................................................. $1,628.5 ........... $671.5–$1,096.2

Costs Millions of 1998 dollars 2

Municipal Minimum Measures ............................................................................................................................... $297.3Controls/Waivers for Construction Sites ................................................................................................................ $545.0–$678.7Federal/State Administrative Costs ....................................................................................................................... $5.3

Total Annual Costs $847.6–$981.31

1 National level benefits are not inclusive of all categories of benefits that can be expected to result from the regulation.2 Total may not add due to rounding.

A. Costs

1. Municipal CostsInitially, to determine municipal costs

for the proposed rule, EPA usedanticipated expenditure data includedin permit applications from a sample of21 Phase I MS4s. Certain commenterscriticized the Agency for usinganticipated expenditures because theycould be significantly different from theactual expenditures. These commenterssuggested that the Agency use the actualcost incurred by the Phase I MS4s.Other comments stated that because thePhase I MS4s, in general, are largemunicipalities, they may not berepresentative of the Phase II MS4s forestimating regulatory costs. Finally, onecommenter noted that the sample of 21municipalities used to project cost wasrelatively small.

To address the concerns of thecommenters, EPA utilized a NationalAssociation of Flood and StormwaterManagement Agencies (NAFSMA)survey of the Phase II community toobtain incremental cost estimates forPhase II municipalities. Using the list ofpotential Phase II designees publishedin the Federal Register (63 FR 1616),NAFSMA contacted more than 1,600jurisdictions. The goal of the survey wasto solicit information from thosecommunities about the proposed PhaseII NPDES storm water program. Severalof the survey questions correspondeddirectly to the minimum measuresrequired by the Phase II rule. Onehundred twenty-one surveys werereturned to NAFSMA and were used todevelop municipal costs.

Using the NAFSMA information, EPAestimated average annual per household

program costs for automaticallydesignated municipalities. EPA alsoestimated an average annual perhousehold administrative cost formunicipalities to address application,record keeping, and reportingrequirements of the Rule. The totalaverage per household cost of the ruleis expected to $9.16 per household.

To determine potential national levelcosts for municipalities, EPA multipliedthe number of households (32.5 million)by the per household cost ($9.16). EPAestimates the annual cost of the PhaseII municipal program at $298 million.

As an alternative method, and pointof comparison, to the NAFSMA-basedapproach, EPA reviewed actualexpenditures reported from 35 Phase IMS4s. The Agency targeted these 35Phase I MS4s because they hadparticipated in the NPDES program for



nearly one permit term, were smaller insize and had detailed data reflectingtheir actual program implementationcosts. Of the 35 MS4s, appropriate costdata was only available for 26 of thoseMS4s. EPA analyzed the expendituredata and identified the relevantexpenditures, excluding costs presentedin the annual reports unrelated to therequirements of the Rule. The cost rangeand annual per household programcosts of $9.08 are similar to those foundusing the NAFSMA survey data.

2. Construction CostsIn order to estimate the rule’s

construction-related cost on a nationallevel (the soil and erosion controls(SEC) requirements of the rule and thepotential impacts of the post-construction municipal measure onconstruction), EPA estimated a per sitecost for sites of one, three, and five acresand multiplied these costs by the totalnumber of estimated Phase IIconstruction starts across these sizecategories.

To estimate the percentage of startssubject to the soil and erosion controlrequirements between 1 and 5 acres,with respect to each category of buildingpermits (residential, commercial, etc.),EPA initially used data from PrinceGeorge’s County (PGC), Maryland, andapplied these percentages to nationaltotals. In the proposal, EPA recognizedthat the PGC data may not berepresentative of the entire country andrequested data that could be used todevelop better estimates of the numberof construction sites between 1 and 5acres. EPA did not receive anysubstantiated national data fromcommenters.

In view of the unavailability ofnational data from commenters, EPAmade extensive efforts to collectconstruction site data around thecountry. The Agency contacted morethan 75 municipalities. EPA determinedthat 14 of the contacted municipalitieshad useable construction site data.Using data from these 14 municipalities,EPA developed an estimate of thepercentage of construction starts on oneto five acres. EPA then multiplied thispercentage by the number of buildingpermits issued nationwide to determinethe total number of construction startsoccurring on one to five acres. Finally,to isolate the number of constructionstarts incrementally regulated by PhaseII, EPA subtracted the number ofactivities regulated under equivalentprograms (e.g., areas covered by theCoastal Zone Act ReauthorizationAmendments of 1990, and areas coveredby equivalent State level soil anderosion control requirements).

Ultimately, EPA estimated that 110,223construction starts would beincrementally covered by the ruleannually.

EPA then used standard costestimates from Building ConstructionCost Data and Site Work LandscapeCost Data (R.S. Means, 1997a and1997b) to estimate construction BMPcosts for 27 model sites in a variety oftypical site conditions across the UnitedStates. The model sites included threedifferent site sizes (one, three and fiveacres), three slope variations (3%, 7%,and 12%), and three soil erosivityconditions (low, medium, and high).EPA chose BMP combinationsappropriate to the model siteconditions. Based on the assumptionthat any combination of site factors isequally likely to occur in a given site,EPA developed average cost of sedimentand erosion control for all model sites.EPA estimated that, on average, BMPsfor a 1 acre site will cost $1,206, for a3 acre site $4,598 and for a 5 acre site$8,709.

EPA then estimated administrativecosts per construction site for thefollowing elements required under therule: Submittal of a notice of intent forpermit coverage; notification tomunicipalities; development of a stormwater pollution prevention plan; recordretention; and submittal of a notice oftermination. EPA estimated the averagetotal administrative cost per site to be$937.

EPA also considered the costimplications of NPDES permitauthorities waiving the applicability ofrequirements to storm water dischargesfrom small construction sites based ontwo different criteria involving waterquality impact and low rainfall. EPAreceived comments stating that a waiverwould require a significant investmentin training or acquisition of aconsultant. Based on commentsreceived, EPA eliminated one of thewaiver conditions involving low soilloss threshold because it necessitateduse of the Revised Universal Soil LossEquation which could require extensivetechnical expertise.

Based on the opinions of constructionindustry experts, EPA estimates that 15percent of the construction sites thatwould otherwise be covered by today’srule will be eligible to receive waivers.Therefore, the Agency has excluded 15percent of the construction sites whenderiving costs of sediment and erosioncontrol. The average cost for sites toqualify for the waiver is expected to be$34 per site. The construction costanalysis for the proposed rule did notinclude any costs for the preparationand submission of waiver applications

because EPA believed those costs wouldbe negligible. However, in response topublic comments, EPA has estimatedthese potential costs.

EPA has also estimated the potentialcosts for construction site operators toimplement the post-constructionminimum measure. These are costs thatmay be incurred by construction siteoperators if the MS4 chooses to meet thepost-construction minimum measure byrequiring on-site structural, site-by-sitecontrol of post-construction runoff.Municipalities may select from an arrayof structural and non-structural optionsin implementing this measure, so thepotential costs to construction operatorsis uncertain. Nonetheless, EPAdeveloped average annual BMP costs forsites of one, three, five and seven acres.EPA’s analysis accounted for varyinglevels of imperviousness thatcharacterize residential, commercial,and institutional land uses. Nationwide,these costs are expected to range from$44 million to $178 million annually.

Finally, to establish nationalincremental annual costs for Phase IIconstruction starts, EPA multiplied thetotal costs of compliance for the chosensite size categories by the total numberof Phase II construction starts and addedpost-construction costs. EPA estimatesthe annual compliance cost to rangefrom $545 million to $678.7 million.

B. Quantitative BenefitsIn the Economic Analysis for the

proposed rule, a ‘‘top-down’’ approachwas used to estimate economic benefits.Under this approach, the combinedeconomic benefits for wet weatherprograms were estimated first, and thenwere divided among various waterprograms on the basis of expert opinion.As a result, the benefits estimates for anindividual program were ratheruncertain. Moreover, this approach wasinconsistent with the approach used toestimate the cost of the proposed stormwater rule, which was developed usingmunicipal-based and cost-based data todevelop ‘‘bottom-up’’ costs. Therefore,EPA decided to use a ‘‘bottom-up’’approach for estimating benefits of thePhase II rule. To adequately reflect thequantifiable benefits of the rule, EPAused two different methods: (1) NationalWater Quality Model and (2) NationalWater Quality Assessment.

To monetize benefits in bothapproaches, the Agency applied Carsonand Mitchell’s (1993) estimates ofhousehold willingness-to-pay (WTP) forwater quality improvement to estimatesof waters impaired by storm waterdischarges. Carson and Mitchell’s 1993study reports the results of their 1983national survey of WTP for incremental



improvements in fresh water quality.Carson and Mitchell estimate the WTPfor three minimum levels of fresh waterquality: boatable, fishable, and sizable.EPA adjusted the WTP amounts toaccount for inflation, growth in real percapita income, and increased attitudestowards pollution control. The adjustedWTP amounts for improvements infresh water quality are $210 forboatable, $158 for fishable, and $177 forsizable. A brief summary of the nationalwater quality model and national waterquality assessment approaches follow.

1. National Water Quality Model

One approach EPA used to estimatethe benefits of the Phase II municipaland construction site controls was theNational Water Pollution ControlAssessment Model (NWPCAM).NWPCAM estimates benefits of thestorm water program at the nationallevel, including the impact on smallstreams. This model estimates waterquality and the resultant use support forthe 632,000 miles of rivers and streamsin the USEPA Reach File Version 1(RF1), which covers the continental

United States. The model analyzeswater quality changes by stream reach.The parameters modeled in theNWPCAM are biological oxygendemand (BOD), total suspended solids(TSS), dissolved oxygen (DO), and fecalcoliforms (FC).

The model projects changes in waterquality due to the Phase II municipaland construction site controls. Tocalculate the economic benefits ofchange in water quality, the number ofhouseholds in the proximity of thestream reach are determined, byoverlaying the model results on the1990 Census of Populated Places andMinor Civil Divisions, and updating thepopulation to 1998. Economic benefitsare calculated using the Carson andMitchell WTP values. The benefits areseparately estimated for local and non-local waters on the basis of WTP valuesand proximity to water quality changes.

The value of the change in usesupport for local waters is greater thanthe value of the non-local watersbecause of the opportunity to use localwaters by the local population. Thismodel assumes that if improvement

occurs in waters that are not close topopulation centers the economic valueis lower. Therefore, benefits areestimated for local and non-local watersseparately. This assumption is based onCarson and Mitchell’s survey whichasked respondents to apportion each oftheir stated WTP values betweenachieving the water quality goals intheir own State and achieving thosegoals in the nation as a whole. Onaverage, respondents allocated 67% oftheir values to achieving in-State waterquality goals and the remainder to thenation as a whole. Carson and Mitchellargue that for valuing local water qualitychanges 67% is a reasonable upperbound for the local multiplier and 33%for the non-local water quality changes.For the purposes of this analysis, thelocality is defined as urban sites andassociated populations linked into theNWPCAM framework. Using thismethodology, the total monetizedbenefits of Phase II control of urban andconstruction site runoff is estimated tobe $1.628 billion per year. The local andnon-local benefits due to Phase IIcontrols are presented in Exhibit 4.

EXHIBIT 4.—LOCAL AND NON-LOCAL BENEFITS ESTIMATES DUE TO PHASE II CONTROLS NATIONAL WATER QUALITYMODEL ESTIMATE

Use support Local benefits($million/yr)

Non-local bene-fits 1

($million/yr)

Total benefits($million/yr)

Swimming, Fishing, and Boating ............................................................................... 306.20 60.60 366.80Fishing and Boating ................................................................................................... 395.10 51.90 447.00Boating ....................................................................................................................... 700.10 114.60 814.70

Total .................................................................................................................... 1401.40 227.10 1628.50

1 To estimate non-local willingness to pay per household, the 33% of willingness is multiplied by the fraction of previously impaired national wa-ters (in each use category) that attain the beneficial use as a result of the Phase II rule. To estimate the aggregate non-local benefits, non-localwillingness to pay is multiplied with the total number of households in the US.

While the numbers of miles that areestimated to change their use supportare small, the benefits estimates arequite significant. This is because urbanrunoff and, to a large extent,construction activity occurs where thepeople actually reside and the waterquality changes mostly occur close tothese population centers. NWPCAMindicates that changes in pollution loadshave the most effect immediatelydownstream of pollution changes. As aresult, the aggregate WTP is largebecause large numbers of households inthese population centers are associatedwith the local waters that reflectimprovement in designated use support.

2. National Water Quality AssessmentEPA also estimated benefits of the

Phase II Storm Water program using the1998 National Water Quality Inventory(305(b)) Report to Congress, rather than

the NWPCAM as a basis for estimatingimpairment addressed by the rule. TheWater Quality Assessment methodseparately estimates benefits associatedwith improvements to fresh water,marine water and construction sitecontrols, and then aggregates theseseparate categories into an estimate oftotal annual benefits.

a. Municipal Measures

i. Fresh Waters Benefits

In order to develop estimates for thepotential value of the municipalmeasures (except storm water runoffcontrols for construction sites), EPAapplied Carson & Mitchell WTP valuesto estimated existing and projectedfuture fresh water impairment. Carson &Mitchell did not evaluate marine waters,so only fresh water values wereavailable from their research. Even

though the Carson and Mitchellestimates apply to all fresh water, it isnot clear how these values would beapportioned among rivers, lakes, andthe Great Lakes. The 305(b) dataindicate that lakes are the mostimpaired by urban runoff/storm sewers,followed closely by the Great Lakes, andthen rivers. Therefore, EPA applied theWTP values to the categories separatelyand assumed that the higher resultingvalue for lakes represents the high endof the range (i.e., assuming that lakeimpairment is more indicative ofnational fresh water impairment) andthat the lower resulting value forimpaired rivers represents the low endof a value range for all fresh waters (i.e.,assuming that river impairment is moreindicative of national fresh waterimpairment). In addition, EPA estimatedthat the post-construction runoff



requirements of the municipal programmight result in benefits of at least $16.8million annually from avoided futurerunoff. The post-construction estimatesignificantly underestimates potentialprogram benefits because it does notaccount for avoided hydrologic changesand resulting water quality impairmentassociated with increases inimperviousness from development andredevelopment. Summing the benefitsacross the water quality use supportlevels yields an estimate of benefitsranging from approximately $121.9million to $378.2 million per year.

ii. Marine Waters Benefits

In addition to the fresh water benefitscaptured by the Carson and Mitchellstudy, EPA anticipates benefits as aresult of improvements to marinewaters. Sufficient methods have notbeen developed to quantify national-level benefits for commercial orrecreational fishing. EPA used beachclosure data and visitation estimatesfrom its Beach Watch Program toestimate potential reductions in marineswimming visits due to storm waterrunoff contamination events in 1997.The estimated 86,100 trips that did notoccur because of beach closures incoastal Phase II communities is a lowerbound because it represents only thosebeaches that report both closures andvisitation data. EPA estimates potentialswimming benefits from the rule to beat least $2.1 million annually.

EPA developed an analysis ofpotential benefits associated withavoided health impacts from exposureto contaminants in storm sewer effluent.Based on a study of incrementalillnesses found among people whoswam within one yard of storm drainsin Santa Monica Bay, EPA estimated arange of incremental illnesses (Haile etal., 1996). Depending on assumptionsmade about number of exposures tocontaminants and contaminantconcentrations, benefits ranged from$7.0 million to $29.9 million annually.

b. Construction Benefits

The major pollutant resulting fromconstruction activities is sediment.However, in addition to sediment,construction activities also yieldpollutants such as pesticides, petroleumproducts, and solvents. Becausecircumstances will vary considerablyfrom site to site, data is not availablewith which to develop estimates ofbenefits for each site and aggregate toobtain a national-level estimate.

In the proposed rule, EPA estimatedthe combined benefits of all wet weatherprograms, and then used expertopinions to allocate them to differentindividual programs. To eliminate thepossible overlap between the benefits ofthe soil and erosion controlrequirements, municipal measures, andother wet weather storm waterprograms, EPA chose to use an approachin today’s final rule that directly

estimates the benefits of soil and erosionrequirements.

A survey of North Carolina residents(Paterson et al., 1993) indicated thathouseholds are willing to pay forerosion and sediment controls similar tothose in today’s rule. Based on incomeand other indicators, the values derivedfrom the study are expected to besimilar to values held in the rest of thecountry. Using the mean value of thewillingness to pay of $25 per household,EPA projects annual benefits of the soiland erosion requirements to range from$540.5–$686 million.

c. Summary of Benefits From theNational Water Quality Assessment

Total benefits from municipalmeasures and construction site controlsare expected to range from $671.5million to $1.1 billion per year,including benefits of approximately$13.7 million per year associated withsmall stream improvements. A summaryof the potential benefits is presented inExhibit 5.

As shown in Exhibit 5, it was notpossible to monetize all categories ofbenefits using the WTP estimates. Inparticular, benefits for improvingmarine water quality such as fishing andpassive use benefits are not included inthe values used to estimate the potentialbenefits of the municipal minimummeasures (excluding construction sitescontrols), and they are not estimatedseparately, because information is notcurrently available.

EXHIBIT 5.—POTENTIAL ANNUAL BENEFITS OF THE PHASE II STORM WATER RULE NATIONAL WATER QUALITYASSESSMENT ESTIMATE

Benefit category Annual WTP

Municipal Minimum Measures 1

Fresh Water Use and Passive Use 2 ..................................................................................................................... $121.9–$378.2Marine Recreational Swimming ............................................................................................................................. $2.1Human Health (Marine Waters) ............................................................................................................................. $7.0–$29.9Other Marine Use and Passive Use ...................................................................................................................... (∂)

Erosion and Sediment Controls for Construction Sites

Fresh Water and Marine Use and Passive Use 3 ................................................................................................. $540.5–$686

Total Phase II Program

Total Use & Passive Use (Fresh Water and Marine) ........................................................................................... >$671.5–>$1,096.2

+= positive benefits expected but not monetized.1 Includes water quality benefit of municipal programs, based on 80% effectiveness of municipal programs.2 Based on research by Carson and Mitchell (1993). Fresh water value only. Does not include commercial fishery, navigation, or diversionary

(e.g. municipal drinking water cost savings or risk reductions) benefits. May not fully capture human health risk reduction or ecological values.3 Based on research by Paterson et al. (1993). Although the survey’s description of the benefits of reducing soil erosion from construction sites

included reduced dredging, avoided flooding, and water storage capacity benefits, these benefit categories may not be fully incorporated in theWTP values. Small streams may account for over 2% of total benefits.

C. Qualitative Benefits

There are additional benefits to stormwater control that cannot be quantified

or monetized. Thus, the current estimateof monetized benefits may understatethe true value of storm water controls

because it omits many ways in whichsociety is likely to benefit from reducedstorm water pollution, such as improved



aesthetic quality of waters, benefits towildlife and to threatened andendangered species, cultural values, andbiodiversity benefits.

A benefit that EPA did not monetizecompletely is the flood control benefitsattributable to municipal storm watercontrols reducing downstream flooding,although flood control benefitsassociated with sediment and erosioncontrol are already reflected to someextent in the construction benefits.Similarly, the Agency could not valuethe benefits from increased propertyvalue due to storm water controlsreflected in the rule, even though acommenter suggested inclusion of thesebenefits in the estimates.

Moreover, while a number ofcommenters requested that EPA includeecological benefits, the Agency was notable to fully monetize these benefits.Urbanization usually increases theamount of sediment, nutrients, metalsand other pollutants associated withland disturbance and development.Development usually not only results ina dramatic increase in the volume ofwater runoff, but also in a substantialdecrease in that water’s quality due tostream scour, runoff and dispersion oftoxic pollutants, and oversiltation.These kinds of secondary benefits couldnot be fully reflected in the monetizedbenefits. EPA was able to only monetizethe aquatic life support benefits forwaters assumed to be impaired. Thus,only the aquatic life support benefitsattributable to municipal controls,reflected through human satisfaction,are taken into account.

Reduced nutrient level is anotherbenefit of the storm water control whichis not fully captured by the economicanalysis. High nutrient levels often leadto eutrophication of the aquatic system.The quality change in ecological sourcesas the result of storm water controls toreduce pollutants is not fully reflectedin the present benefits.

D. National Economic Impact

Finally, the Agency determined thatthe rule will have minimal impacts on

the economy or employment. This isbecause the final rule regulates smallMS4s and construction sites under 5acres, not the typical industrial plants orother non-construction activities thatcould directly impact production andthus those sectors of the economy.

Discussions with representativeswithin the construction industryindicate that construction costs willlikely be passed on to buyers, thus notseriously affecting the housing industrydirectly. One commenter argued that therule will have a negative employmenteffect because the builders will buildfewer homes requiring less buildingmaterials as a result of the decliningdemand induced by the cost of the soiland erosion controls. EPA disagreeswith this argument because the cost ofthe controls, as the percentage of theprice of a median home, is negligibleand will be passed on to final buyers.

Flexibility within the rule allowsMS4s to tailor the storm water programrequirements to their needs andfinancial position, minimizing impacts.For sedimentation and erosion controlson construction sites, the rulecontemplates application of commonlyused BMPs to reduce costs for theconstruction industry. Thus, the ruleattempts to use existing practices toprevent pollution, which shouldminimize impacts on States, Tribes,municipalities and the constructionindustry.

Thus, EPA concludes that the effect ofthe rule, if any, on the national economywill be minimal. The benefits of today’srule more than offset any cost impactson the national economy.

IV. Regulatory Requirements

A. Paperwork Reduction ActThe Office of Management and Budget

(OMB) has approved some of theinformation collection requirementscontained in this final rule (i.e. thosefound in 40 CFR 122.26(g) and123.35(b)) under the provisions of thePaperwork Reduction Act, 44 U.S.C.3501 et seq. and has assigned OMBcontrol number 2040–0211.

The burden and costs described beloware for the information collection,reporting, and record keepingrequirements for the three year periodbeginning with the effective date oftoday’s rule. Additional informationcollection requirements for regulatedsmall MS4s and small construction siteswill occur after this initial three yearperiod and will be counted in asubsequent information collectionrequirement. The total burden of theinformation collection requirements forthe first three years of this rule isestimated at 56,369 hours with acorresponding cost of $2,151,305million annually. This burden and costis for industrial facilities to completeand submit the no exposurecertification, for NPDES-authorizedStates to process and review the noexposure certification, and for theNPDES-authorized States to developdesignation criteria and assessadditional MS4s outside of urbanizedareas. Compliance with the applicableinformation collection requirementsimposed under this rule are mandatory,pursuant to CWA section 402.

Exhibit 6 presents average annualburden and cost estimates for Phase IIrespondents for the first three years.Burden means the total time, effort, orfinancial resources expended by personsto generate, maintain, retain, disclose orprovide information to or for a Federalagency. This includes the time neededto review instructions; develop, acquire,install, and utilize technology andsystems for the purposes of collecting,validating, and verifying information,processing and maintaininginformation, and disclosing andproviding information; adjust existingways for complying with any previouslyapplicable instructions andrequirements; train personnel to be ableto respond to a collection ofinformation; search data sources;complete and review the collection ofinformation; and transmit or otherwisedisclose the information.

EXHIBIT 6.—AVERAGE ANNUAL BURDEN AND COST ESTIMATES FOR PHASE II RESPONDENTS

Information collection activity

ARespondents

per year(projected) 1

BBurden hoursper respond-ent per year(predicted)

(A)×(B)=CAnnual re-

spondent bur-den hours(projected)

DRespondentlabor cost ($/hr) (1998 $)

(C)×(D)=EAnnual Cost

($) (projected)

Ind. No Expos. Facilities:2

No Expos. Certification ................................................. 36,377 1.0 36,377 44.35 1,613,320

Annual Subtotal ..................................................... ........................ ........................ 36,377 ........................ 1,613,320NPDES-Authorized States:3

Designation of Addit. MS4s 4 ........................................ 15 332.8 4,892 26.91 131,644



EXHIBIT 6.—AVERAGE ANNUAL BURDEN AND COST ESTIMATES FOR PHASE II RESPONDENTS—Continued

Information collection activity

ARespondents

per year(projected) 1

BBurden hoursper respond-ent per year(predicted)

(A)×(B)=CAnnual re-

spondent bur-den hours(projected)

DRespondentlabor cost ($/hr) (1998 $)

(C)×(D)=EAnnual Cost

($) (projected)

No Exp. Cert. Proc. & Rev ........................................... 30,200 0.5 15,100 26.91 406,341

Annual Subtotal ..................................................... ........................ ........................ 19,992 ........................ 537,985

Annual Totals ......................................................... ........................ ........................ 56,369 ........................ 2,151,305

Notes:1 Source: U.S. EPA, Office of Wastewater Management. Economic Analysis for the Storm Water Phase II Rule.2 The total number of potential no exposure respondents was divided by 5 to estimate an annual total. It was assumed that the annual number

of respondents for the no exposure certification would be spread over the five year period the exclusion applies.3 The number of respondents in each category represents only those respondents located within the 44 NPDES-authorized States and Terri-

tories. The burden and cost estimates provided in this section are for the NPDES-authorized States in their role as the permitting authority formunicipal designations and industrial no exposure.

4 The number of respondents for this activity, 15, represents the number of NPDES-authorized States and Territories that must develop des-ignation criteria and assess small MS4s located outside of an urbanized area for possible Phase II coverage divided by the three year ICR pe-riod.

Given the requirements of today’sregulation, EPA believes there will beno capital startup and no operation andmaintenance costs associated withinformation collection requirements ofthe rule.

The government burden associatedwith today’s rule will impact State,Tribal, and Territorial governments(NPDES-authorized governmentalentities) that have storm water programauthority, as well as the federalgovernment (i.e., EPA), where it is theNPDES permitting authority. As ofMarch 1999, 43 States and the VirginIslands had NPDES authority.

The annual burden imposed uponauthorized governmental entities(delegated States and the Virgin Islands)and the federal government for the nextthree years is estimated to be 19,992hours ($537,985) and 4,087 hours($115,948) respectively, for a total of24,079 hours ($653,933). This estimateis based on the average time thatgovernments will expend to carry outthe following activities: designateadditional MS4s (332.8 hours) andprocess and review ‘‘no exposure’’certificates from industrial dischargers(0.5 hour).

Under the existing rule, storm waterdischarges from light industrialactivities identified under§ 122.26(b)(14)(xi) were exempted fromthe permit application requirements ifthey were not exposed to storm water.Today’s rule expands the applicabilityof the ‘‘no exposure’’ exclusion toinclude all industrial activity regulatedunder § 122.26(b)(14) (except category(x), construction). The ‘‘no exposure’’provision is applied through the use ofa written certification process, thusrepresenting a slight reporting burdenincrease for ‘‘light’’ industries with ‘‘noexposure’.

In addition to the informationcollection, reporting, and recordkeeping burden for the next three years,today’s rule contains informationcollection requirements that will notbegin until three years or more from theeffective date of today’s rule. Theseinformation collection requirementswere not included in the informationcollection request approved by OMB.EPA will submit these burden estimatesfor OMB approval when it submits ICR2040–0211 to OMB for renewal in threeyears. The rule burdens for regulatedsmall MS4s and small construction sitesthat will be included in the ICR renewalfall into three areas: application for anNPDES permit or submittal of waiverinformation, record keeping of stormwater management activities, andsubmittal of reports to the permittingauthority. There will also be anadditional burden for the permittingauthority to review this information.

An agency may not conduct orsponsor, and a person is not required torespond to a collection of informationunless it displays a currently valid OMBcontrol number. The OMB controlnumbers for EPA’s regulations are listedin 40 CFR Part 9 and 48 CFR Chapter15. EPA is amending the table in 40 CFRPart 9 of currently approved ICR controlnumbers issued by OMB for variousregulations to list the first three years ofinformation requirements contained inthis final rule.

B. Executive Order 12866

Under Executive Order 12866, [58 FR51,735 (October 4, 1993)] the Agencymust determine whether the regulatoryaction is ‘‘significant’’ and thereforesubject to OMB review and therequirements of the Executive Order.The Order defines ‘‘significant

regulatory action’’ as one that is likelyto result in a rule that may:

(1) have an annual effect on theeconomy of $100 million or more oradversely affect in a material way theeconomy, a sector of the economy,productivity, competition, jobs, theenvironment, public health or safety, orState, local, or tribal governments orcommunities;

(2) create a serious inconsistency orotherwise interfere with an action takenor planned by another agency;

(3) materially alter the budgetaryimpact of entitlements, grants, user fees,or loan programs or the rights andobligations of recipients thereof; or

(4) raise novel legal or policy issuesarising out of legal mandates, thePresident’s priorities, or the principlesset forth in the Executive Order.

Pursuant to the terms of ExecutiveOrder 12866, it has been determinedthat this rule is a ‘‘significant regulatoryaction’’. As such, this action wassubmitted to OMB for review. Changesmade in response to OMB suggestions orrecommendations will be documentedin the public record.

C. Unfunded Mandates Reform ActTitle II of the Unfunded Mandates

Reform Act of 1995 (UMRA), PublicLaw 104–4, establishes requirements forFederal agencies to assess the effects oftheir regulatory actions on State, local,and tribal governments and the privatesector. Under section 202 of the UMRA,EPA generally must prepare a writtenstatement, including a cost-benefitanalysis, for proposed and final ruleswith ‘‘Federal mandates’’ that mayresult in expenditures to State, local,and tribal governments, in the aggregate,or to the private sector, of $100 millionor more in any one year. Beforepromulgating an EPA rule for which a



written statement is needed, section 205of the UMRA generally requires EPA toidentify and consider a reasonablenumber of regulatory alternatives andadopt the least costly, most cost-effective or least burdensome alternativethat achieves the objectives of the rule.The provisions of section 205 do notapply when they are inconsistent withapplicable law. Moreover, section 205allows EPA to adopt an alternative otherthan the least costly, most cost-effectiveor least burdensome alternative if theAdministrator publishes with the finalrule an explanation why that alternativewas not adopted.

EPA has determined that today’s rulecontains a Federal mandate that mayresult in expenditures of $100 million ormore in any one year for both State,local, and tribal governments, in theaggregate, and the private sector.Accordingly, EPA has prepared undersection 202 of the UMRA a writtenstatement which is summarized below.

1. Summary of UMRA Section 202Written Statement

EPA promulgates today’s storm waterregulation pursuant to the specificmandate of Clean Water Act section402(p)(6), as well as sections 301, 308,402, and 501. (33 U.S.C. sections1342(p)(6), 1311, 1318, 1342, 1361.)Section 402(p)(6) of the CWA requiresthat EPA designate sources to beregulated to protect water quality andestablish a comprehensive program toregulate those sources.

In the Economic Analysis of the FinalPhase II Rule (EA), EPA describes thequalitative and monetized benefitsassociated with today’s rule and thencompares the monetized benefits withthe estimated costs for the rule. EPAdeveloped detailed estimates of thecosts and benefits of complying witheach of the incremental requirementsimposed by the rule. These estimates,including descriptions of themethodology and assumptions used, aredescribed in detail in the EA. TheAgency used two approaches, a nationalwater quality model and national waterquality assessment, to estimate thepotential benefits of the rule. Bothapproaches show that the benefits arelikely to exceed costs. Exhibit 3 insection III of this preamble summarizesthe costs and benefits associated withthe basic elements of today’s rule.

There are additional benefits to stormwater control that cannot be quantifiedor monetized. Thus, the current estimateof monetized benefits may understatethe true value of storm water controlsbecause it omits many ways by whichsociety is likely to benefit from reducedstorm water pollution, such as improved

aesthetic quality of waters, benefits towildlife and to threatened andendangered species, cultural values, andbiodiversity benefits.

Several commenters asserted thattoday’s rule is an unfunded mandateand that, without funding, themonitoring of the already existingpollution control programs wouldsuffer. In section II.D.3 of the preamble,EPA lists some of the programs that EPAanticipates may provide funds to helpdevelop and, in limited circumstances,implement storm water managementprograms.

In the EA, EPA reviewed the expectedeffect of today’s rule on the nationaleconomy. The Agency determined thatthe rule will have minimal impacts onthe economy or employment. This isbecause the final rule regulates smallMS4s and construction sites under 5acres, not the typical industrial plants orother non-construction activities thatcould directly impact production andthus those sectors of the economy.

Discussions with representativeswithin the construction industryindicate that construction costs willlikely be passed on to buyers, thus notseriously affecting the housing industrydirectly. Flexibility within the ruleallows MS4s to tailor the storm waterprogram requirements to their needsand financial position, minimizingimpacts. For sedimentation and erosioncontrols on construction sites, the rulecontemplates application of commonlyused BMPs to reduce costs for theconstruction industry. Thus, the ruleattempts to use existing practices toprevent pollution, which shouldminimize impacts on States, Tribes,municipalities and the constructionindustry.

Thus, EPA concludes that the effect ofthe rule, if any, on the national economywould be minimal. The benefits oftoday’s rule more than offset any costimpacts on the national economy.

Consistent with the intergovernmentalconsultation provisions of section 204 ofthe UMRA and Executive Order 12875,‘‘Enhancing the IntergovernmentalPartnership,’’ EPA consulted with thegovernmental entities affected by thisrule.

First, EPA provided States, Tribal andlocal governments with the opportunityto comment on draft alternativeapproaches for the proposed rulethrough publishing a notice requestinginformation and public comment in theFederal Register on September 9, 1992(57 FR 41344). This notice presented afull range of regulatory alternatives. Atthat time, EPA received more than 130comments, including approximately 43percent from municipalities and 24

percent from State or Federal agencies.These comments were the genesis ofmany of the provisions in the today’srule, including reliance on the NPDESprogram framework (including generalpermits), providing State and localgovernments flexibility in selectingadditional sources requiring regulation,and focusing on high priority polluters.These comments helped to focus onpollution prevention, watershed-basedconcerns and BMPs. They also led tocertain exemptions for facilities that donot pollute national waters.

In early 1993, EPA, in conjunctionwith the Rensselaerville Institute, heldpublic and expert meetings to assist indeveloping and analyzing options foridentifying unregulated storm watersources and possible controls. Thesemeetings provided participants anadditional opportunity to provide inputinto the CWA section 402(p)(6) programdevelopment process. The final ruleaddresses several of the key concernsidentified in these groups, includingprovisions that provide flexibility to theStates to select sources to be controlledand types of permits to be issued, andflexibility to MS4s in selecting BMPs.

EPA also conducted outreach withrepresentatives of small entities,including small governmentrepresentatives, in conjunction with theconvening of a Small BusinessAdvocacy Review Panel under SBREFAwhich is discussed in section IV.E. ofthe preamble.

In addition, EPA established theUrban Wet Weather Flows AdvisoryCommittee under the Federal AdvisoryCommittee Act (FACA). The Urban WetWeather Flows Advisory Committee, inturn established the Storm Water PhaseII Subcommittee. Consistent withFACA, the membership of theCommittee and the Storm Water PhaseII Subcommittee was balanced amongEPA’s various outside stakeholderinterests, including representatives fromState governments, municipalgovernments (both elected officials andappointed officials) and Tribalgovernments, as well as industrial andcommercial sectors, agriculture,environmental and public interestgroups.

In general, municipal and Tribalgovernment representatives supportedthe NPDES approach in today’s rule forthe following reasons: It will beuniformly applied on a nationwidebasis; it provides flexibility to allowincorporation of State and localprograms; it resolves the problem ofdonut holes that cause water qualityimpacts in urbanized areas; and itallows co-permitting of small regulated



MS4s with those regulated under theexisting storm water program.

In contrast, State representativessought alternative approaches for Stateimplementation of the storm waterprogram for Phase II sources. Staterepresentatives asserted that a non-NPDES alternative approach bestfacilitated watershed management andavoided duplication and overlappingregulations. These representativespointed out that there are a variety ofState programs—not based on theCWA—implementing effective stormwater controls, and that EPA shouldprovide incentives for theirimplementation and improvement inperformance. EPA continues to believethat an NPDES approach is the bestapproach in order to adequately protectwater quality. However, EPA hasworked with States on an alternativeapproach that provides flexibilitywithin the NPDES framework. The finalrule allows States with a watershedpermitting approach to phase in permitcoverage for MS4s in jurisdictions witha population less than 10,000 andprovides two waivers from coverage forsmall MS4s. This issue is discussed insection II.C of the preamble, ProgramFramework: NPDES Approach.

Some municipal governmentsobjected that the rule’s minimummeasures for small MS4s violate theTenth Amendment insofar as theyrequire the operators of MS4s to regulatethird parties according to the‘‘minimum measures’’ for municipalstorm water management programs. EPAdisagrees that today’s rule isinconsistent with Tenth Amendmentprinciples. Permits issued under today’srule will not compel politicalsubdivisions of States to regulate intheir sovereign capacities, but rather toeffectively control discharges out oftheir storm sewer systems in theirowner/operator capacities. For MS4sthat do not accept this ‘‘default’’minimum measures-based approach (tocontrol discharges out of the stormsewer system by exercising local powersto control discharges into the stormsewer system), today’s rule allows foralternative permits through individualpermit applications. EPA maderevisions to the rule to allow regulatedsmall MS4s to opt out of the minimummeasures approach and instead applyfor an individual permit. This issue isdiscussed in section II.H.3.c.iii of thepreamble, Alternative Permit Option/Tenth Amendment.

2. Selection of the Least Costly, MostCost-Effective or Least BurdensomeAlternative That Achieves theObjectives of the Statute

Today’s rule evolved over time andincorporated aspects of alternatives thatresponded to concerns presented by thevarious stakeholders. A primarycharacteristic of today’s rule is theflexibility it offers both the permittingauthority and the regulated sources(small MS4s and small constructionsites), by the use of general permits,implementation of BMPs suited tospecific locations, and allowing MS4s todevelop their own program goals.

In the administrative recordsupporting the proposed rule, EPAestimated ranges of costs associatedwith six different options, including ano action option, the proposed option,and four other options that consideredvarious combinations of the following:Covering all the unregulatedconstruction sites below 5 acres, allsmall MS4s, certain industrial andcommercial activities, and all pointsources. EPA developed detailed costestimates for the incrementalrequirements imposed under the finalregulation, and for each of thealternatives, and applied these estimatesto the remaining unregulated pointsources of storm water. The Agencycompared the estimated annual range ofcosts imposed under today’s rule andother major options considered. Therange of values for each option includedthe costs for compliance, includingpaperwork requirements for theoperators of small construction sites,industrial facilities, and MS4s andadministrative costs for State andFederal NPDES permitting authorities.

Today’s rule reflects the least costlyoption that achieves the objectives ofthe statute, thus meeting therequirements of section 205. EPA didnot consider ‘‘no regulation’’ to be an‘‘option’’ because it would not achievethe objectives of CWA section 402(p)(6).A portion of currently unregulated pointsources of storm water need to reducepollutants to protect water quality.

Today’s rule is estimated to range incost from $847.6 million to $981.3million annually, although the costestimate for the proposed rule wasreported as a range of $138 to $869million annually. That range reflected aunit cost range for the municipalminimum measures and a cost range perconstruction site for soil erosion control.EPA has since revised its cost analysisto allow it to report the current estimate,which is toward the high end of theoriginal cost range. The four otherregulatory options considered at

proposal involved higher regulatorycosts and, therefore, were not selected.These four options and their estimatedcosts are as follows:

(1) An option based on the August 7,1995 direct final rule was estimated tocost between $2.2 billion and $78.9billion per year.

(2) A ‘‘Plan B’’ option was estimatedto cost between $0.6 billion and $3.2billion per year.

(3) An option based on the September30, 1996 draft proposed rule wasestimated to cost between $0.2 billionand $3.7 billion per year.

(4) An option based on the February13, 1997 draft proposed rule, wasestimated to cost between $0.2 billionand $3.5 billion.

There are three reasons why the costsfor these four options exceeded theestimated cost range for the proposedrule. The first two options regulatedsubstantially more municipalgovernments. The first, third, and fourthoptions required industrial facilities toapply for permits. Finally, the first threeoptions applied permit requirements toconstruction sites below 1 acre.Consequently, these options would bemore costly than today’s rule even withthe revised analysis methods used toestimate costs.

3. Effects on Small GovernmentsBefore EPA establishes any regulatory

requirements that may significantly oruniquely affect small governments,including tribal governments, it musthave developed under section 203 of theUMRA a small government agency plan.The plan must provide for notifyingpotentially affected small governments,enabling officials of affected smallgovernments to have meaningful andtimely input in the development of EPAregulatory proposals with significantFederal intergovernmental mandates,and informing, educating, and advisingsmall governments on compliance withthe regulatory requirements. EPA hasdetermined that this rule contains noregulatory requirements that mightsignificantly or uniquely affect smallgovernments. Although today’s ruleexpands the NPDES program (withmodifications) to certain MS4s servingpopulations below 100,000 andalthough many MS4s are owned bysmall governments, EPA does notbelieve today’s rule significantly oruniquely affects small governments. Asexplained in section IV.E. of thepreamble, EPA today certifies that therule will not have a significant impacton small governmental jurisdictions. Inaddition, the rule will not have a uniqueimpact on small governments becausethe rule will affect small governments in



to the same extent as (or to a lesserextent than) larger governments that arealready covered by the existing stormwater rules. Thus, today’s rule is notsubject to the requirements of section203 of UMRA.

Notwithstanding this finding, indeveloping today’s rule, EPA providednotice of the requirements to potentiallyaffected small governments; enabledofficials of affected small governmentsto provide meaningful and timely inputin the development of regulatoryproposals; and informed, educated andadvised small governments oncompliance with the requirements.

Concerning notice, EPA providedStates, local, and Tribal governmentswith the opportunity to comment onalternative approaches for an early draftof the proposed rule by publishing anotice requesting information andpublic comment in the Federal Registeron September 9, 1992 (57 FR 41344).This notice presented a full range ofregulatory alternatives. At that time,EPA received more than 130 comments,including approximately 43 percentfrom municipalities and 24 percent fromState or Federal agencies.

The Agency also provided, throughthe SBREFA panel process and theFACA process, the opportunity forelected officials of small governments(and their representatives) tomeaningfully participate in thedevelopment of the rule. Through suchparticipation and exchange, EPA notonly notified potentially affected smallgovernments of requirements of thedeveloping rule, but also allowedofficials of affected small governmentsto have meaningful and timely inputinto the development of regulatoryproposals.

In addition to involvingmunicipalities in the development ofthe rule, EPA also continues to inform,educate, and advise small governmentson compliance with the requirements oftoday’s rule. For example, EPAsupported 10 workshops, presented bythe American Public Works Associationfrom September 1998 through May1999, designed to educate localgovernments on the implementation ofthe rule. The workshop curriculumincluded information on a variety of keyissues such as anticipated regulatoryrequirements, agency reporting, bestmanagement practices, construction sitecontrols, post construction managementfor new and redeveloped sites, publiceducation and public involvementstrategies, detection and control of illicitdischarges, and good housekeepingpractices. Moreover, EPA has prepareda series of fact sheets, available on the

EPA website at www.epa.gov/owm/sw/toolbox, that explains the rule in detail.

Finally, to assist small governments inimplementing the Phase II program,EPA is committed to the following: (1)developing a tool box of implementationstrategies; (2) providing writtentechnical assistance, including guidanceon developing BMPs and measurablegoals; and (3) compiling acomprehensive evaluation of the NPDESmunicipal storm water Phase II programover the next 13 years.

D. Executive Order 13132Executive Order 13132, entitled

‘‘Federalism’’ (64 FR 43255, August 10,1999), requires EPA to develop anaccountable process to ensure‘‘meaningful and timely input by Stateand local officials in the development ofregulatory policies that have federalismimplications.’’ ‘‘Policies that havefederalism implications’’ is defined inthe Executive Order to includeregulations that have ‘‘substantial directeffects on the States, on the relationshipbetween the national government andthe States, or on the distribution ofpower and responsibilities among thevarious levels of government.’’ UnderExecutive Order 13132, EPA may notissue a regulation that has federalismimplications, that imposes substantialdirect compliance costs, and that is notrequired by statute, unless the Federalgovernment provides the fundsnecessary to pay the direct compliancecosts incurred by State and localgovernments, or EPA consults withState and local officials early in theprocess of developing the proposedregulation. EPA also may not issue aregulation that has federalismimplications and that preempts Statelaw unless the Agency consults withState and local officials early in theprocess of developing the proposedregulation.

If EPA complies by consulting,Executive Order 13132 requires EPA toprovide to the Office of Managementand Budget (OMB), in a separatelyidentified section of the preamble to therule, a federalism summary impactstatement (FSIS). The FSIS must includea description of the extent of EPA’sprior consultation with State and localofficials, a summary of the nature oftheir concerns and the agency’s positionsupporting the need to issue theregulation, and a statement of the extentto which the concerns of State and localofficials have been met. For final rulessubject to Executive Order 13132, EPAalso must submit to OMB a statementfrom the agency’s Federalism Officialcertifying that EPA has fulfilled theExecutive Order’s requirements.

EPA has concluded that this final rulemay have federalism implications. Asdiscussed above in section IV.C., therule contains a Federal mandate thatmay result in the expenditure by State,local and tribal governments, in theaggregate, of $100 million or more inany one year. Accordingly, the rule mayhave substantial direct effects on theStates, on the relationship between thenational government and the States, oron the distribution of power andresponsibilities among the variouslevels of government, as specified inExecutive Order 13132. Moreover, therule will impose substantial directcompliance costs on State or localgovernments. Accordingly, EPAprovides the following FSIS undersection 6(b) of Executive Order 13132.

1. Description of the Extent of theAgency’s Prior Consultation with Stateand Local Governments

Although this rule was proposed longbefore the November 2, 1999 effectivedate of Executive Order 13132, EPAconsulted extensively with affectedState and local governments pursuant tothe intergovernmental consultationprovisions of Executive Order 12875,‘‘Enhancing the IntergovernmentalPartnership’’ (now revoked by ExecutiveOrder 13132) and section 204 of UMRA.

First, EPA provided State and localgovernments the opportunity tocomment on draft alternativeapproaches for the proposed rulethrough publishing a notice requestinginformation and public comment in theFederal Register on September 9, 1992(57 FR 41344). This notice presented afull range of regulatory alternatives. Atthat time, EPA received more than 130comments, including approximately 43percent from municipalities and 24percent from State or Federal agencies.These comments were the genesis ofmany of the provisions in the today’srule, including reliance on the NPDESprogram framework (including generalpermits), providing State and localgovernments flexibility in selectingadditional sources requiring regulation,and focusing on high priority polluters.These comments helped to focus onpollution prevention, watershed-basedconcerns and BMPs. They also led tocertain exemptions for facilities that donot pollute national waters.

In early 1993, EPA, in conjunctionwith the Rensselaerville Institute, heldpublic and expert meetings to assist indeveloping and analyzing options foridentifying unregulated storm watersources and possible controls. Thesemeetings provided participants anadditional opportunity to provide inputinto the CWA section 402(p)(6) program



development process. The final ruleaddresses several of the key concernsidentified in these groups, includingprovisions that provide flexibility to theStates to select sources to be controlledand types of permits to be issued, andflexibility to MS4s in selecting BMPs.

EPA also conducted outreach withrepresentatives of small entities,including small governments, inconjunction with the convening of aSmall Business Advocacy Review Panelunder SBREFA which is discussed insection III.F. of the preamble.

In addition, EPA established theUrban Wet Weather Flows AdvisoryCommittee (FACA), which in turnestablished the Storm Water Phase IISubcommittee. Consistent with theFederal Advisory Committee Act, themembership of the Committee and theStorm Water Phase II Subcommittee wasbalanced among EPA’s various outsidestakeholder interests, includingrepresentatives from State governments,municipal governments (both electedofficials and appointed officials) andTribal governments, as well asindustrial and commercial sectors,agriculture, environmental and publicinterest groups.

2. Summary of Nature of State and LocalGovernment Concerns, and Statement ofthe Extent to Which Those ConcernsHave Been Met

In general, municipal governmentrepresentatives supported the NPDESapproach in today’s rule for thefollowing reasons: it will be uniformlyapplied on a nationwide basis; itprovides flexibility to allowincorporation of State and localprograms; it resolves the problem ofdonut holes that cause water qualityimpacts in urbanized areas; and itallows co-permitting of small regulatedMS4s with those regulated under theexisting storm water program.

In contrast, State representativessought alternative approaches for Stateimplementation of the storm waterprogram for Phase II sources. Staterepresentatives asserted that a non-NPDES alternative approach bestfacilitated watershed management andavoided duplication and overlappingregulations. These representativespointed out that there are a variety ofState programs—not based on theCWA—implementing effective stormwater controls, and that EPA shouldprovide incentives for theirimplementation and improvement inperformance. EPA continues to believethat an NPDES approach is the bestapproach in order to adequately protectwater quality. However, EPA hasworked with States on an alternative

approach that provides flexibilitywithin the NPDES framework. The finalrule allows States with a watershedpermitting approach to phase in permitcoverage for MS4s in jurisdictions witha population less than 10,000 andprovides two waivers from coverage forsmall MS4s. This issue is discussed insection II.C of the preamble, ProgramFramework: NPDES Approach.

Some municipal governmentsobjected that the rule’s minimummeasures for small MS4s violate theTenth Amendment insofar as theyrequire the operators of MS4s to regulatethird parties according to the‘‘minimum measures’’ for municipalstorm water management programs. EPAdisagrees that today’s rule isinconsistent with Tenth Amendmentprinciples. Permits issued under today’srule will not compel politicalsubdivisions of States to regulate intheir sovereign capacities, but rather toeffectively control discharges out oftheir storm sewer systems in theirowner/operator capacities. For MS4sthat do not accept this ‘‘default’’minimum measures-based approach (tocontrol discharges out of the stormsewer system by exercising local powersto control discharges into the stormsewer system), today’s rule allows foralternative permits through individualpermit applications. EPA maderevisions to the rule to allow regulatedsmall MS4s to opt out of the minimummeasures approach and instead applyfor an individual permit. This issue isdiscussed in section II.H.3.c.iii of thepreamble, Alternative Permit Option/Tenth Amendment.

3. Summary of the Agency’s PositionSupporting the Need To Issue theRegulation

As discussed more fully in section I.B.above, today’s rule is needed becauseuncontrolled storm water dischargesfrom areas of urban development andconstruction activity have been shownto have negative impacts on receivingwaters by changing the physical,biological, and chemical composition ofthe water, resulting in an unhealthyenvironment for aquatic organisms,wildlife, and people. As discussed insection II.C., the NPDES approach intoday’s rule is needed to ensure uniformapplication on a nationwide basis, toprovide flexibility to allowincorporation of State and localprograms, to resolve the problem ofdonut holes that cause water qualityimpacts in urbanized areas, and to allowco-permitting of small regulated MS4swith those regulated under the existingstorm water program.

The draft final rule was transmitted toOMB on July 6, 1999. Becausetransmittal occurred before theNovember 2, 1999 effective date ofExecutive Order 13132, certificationunder section 8 of the Executive Orderis not required.

E. Regulatory Flexibility Act (RFA), asamended by the Small BusinessRegulatory Enforcement Fairness Act of1996 (SBREFA), 5 U.S.C. 601 et seq.

The RFA generally requires anAgency to prepare a regulatoryflexibility analysis of any rule subject tonotice and comment rulemakingrequirements under the AdministrativeProcedure Act or any other statuteunless the agency certifies that the rulewill not have a significant economicimpact on a substantial number of smallentities. Small entities include smallbusinesses, small organizations, andsmall governmental jurisdictions.

For purposes of assessing the impactof today’s rule on small entities, smallentity is defined as: (1) a buildingcontractor (SIC 15) with up to $17.0million in annual revenue; (2) a smallgovernmental jurisdiction that is agovernment of a city, county, town,school district, or special district with apopulation of less than 50,000; and (3)a small organization that is any not-for-profit enterprise which is independentlyowned and operated and is notdominant in its field.

After considering the economicimpacts of today’s final rule on smallentities, I certify that this action will nothave a significant economic impact ona substantial number of small entities.

Although this final rule will not havea significant economic impact on asubstantial number of small entities,EPA nonetheless has tried to reduce theimpact of this rule on small entities.

For purposes of evaluating theeconomic impact of this rule on smallgovernmental jurisdictions, EPAcompared annual compliance costs withannual government revenues obtainedfrom the 1992 Census of Governments,using state-specific estimates of annualrevenue per capita for municipalities inthree population size categories (fewerthan 10,000, 10,000–25,000, and25,000–50,000).

In order to estimate the annualcompliance cost for small governmentaljurisdictions, EPA used the meanvariable municipal cost of $8.93 perhousehold as calculated in a 1998 studyof 121 municipalities conducted by thenational Association of Flood andStormwater Management Agencies(NAFSMA). In addition, EPA used theestimated fixed administrative costs of$1,545 per municipality for reporting,



recordkeeping, and applicationrequirements for today’s rule.

In evaluating the economic impact ofthis rule on small governmentaljurisdictions, EPA determined thatcompliance costs represent more than 1percent of estimated revenues for only10 percent of small governments andmore than 3 percent of the revenue for0.7 percent of these entities. In bothabsolute and relative terms, EPA doesnot consider this a significant economicimpact on a substantial number of smallentities.

EPA normally uses the ‘‘sales test’’ fordetermining the economic impact onsmall businesses. Under a sales test,annual compliance costs are comparedwith the small business’s total annualsales. However, the direct application ofthe sales test is not suitable in this case,because of the uncertainty associatedwith estimating the number of units an‘‘average’’ developer/contractordevelops or builds in a typical year. Forthis rule, EPA has approximated thesales test by estimating compliancecosts for three sizes of construction sitesand comparing them with arepresentative sale price for threebuilding categories. Although EPA’sanalysis is not exactly a ‘‘sales test,’’ itis similar to the sales test, producingcomparable results.

For small building contractors, EPAestimated administrative compliancecosts of $870 per site for applying forcoverage, reporting, record keeping,monitoring and preparing a storm waterpollution prevention plan. EPAestimated compliance costs forinstalling soil and erosion controls asranging from $1,206 to $8,709 per site.EPA compliance cost estimates arebased on 27 theoretical modelconstruction sites designed to mimic themostly likely used best managementpractices around the country.

In evaluating the economic impact onsmall building contractors, EPA dividedthe revised compliance costs perconstruction start by the appropriatehomes-to-site ratio for each of the threesizes of construction sites. The averagecompliance cost per home ranges fromapproximately $450 to $650. EPAconcluded that compliance costs areroughly 0.22 to 0.43 percent of both themean, $181,300, and median, $151,000,sale price of a home.

The absence of data to specificallyassess annual compliance costs forbuilding contractors as a percentage ofannual sales (i.e., a very direct estimateof the impact on potentially affectedsmall businesses) led EPA to performadditional market analysis to examinethe ability of potentially affected firmsto pass along regulatory costs to buyers

for single-family homes constructedsubject to today’s rule. If the smallbuilding contractors covered by the ruleare able to pass on the costs ofcompliance, either completely orpartially, to their purchasers, then therule’s impact on these small businessentities is significantly reduced. Themarket analysis shows that demand forhomes is not overly sensitive to smallchanges in price, therefore buildersshould be able to pass on at least asignificant fraction of the compliancecosts to buyers.

EPA also assessed the effect of thebuilding contractors’ costs on averagemonthly mortgage rates and on thedemand for new homes. Based on thatscreening analysis, EPA concludes thatthe costs to building contractors, andthe potential changes in housing pricesand monthly mortgage payments forsingle-family home buyers, are notexpected to have a significant impact onthe market for single-family houses. Inboth absolute and relative terms, EPAdoes not consider this a significanteconomic impact on a substantialnumber of small entities.

EPA also certified this rule atproposal. Even though the Agency wasnot required to, we convened a SmallBusiness Advocacy Review Panel(‘‘Panel’’) in June 1997. A number ofsmall entity representatives had alreadybeen actively involved with EPAthrough the FACA process, and were,therefore, broadly knowledgeable aboutthe development of the proposed andfinal rules. Prior to convening the Panel,EPA consulted with the Small BusinessAdministration to identify a group ofsmall entity representatives to advisethe Panel. The Agency distributed abriefing package describing itspreliminary analysis under the RFA tothe small entity representatives (as wellas to representatives from OMB andSBA) and conducted two telephoneconference calls and an all-day meetingat EPA Headquarters in May of 1997with small entity representatives. Withthis preliminary work complete, in June1997, EPA formally convened theSBREFA Panel, comprisingrepresentatives from OMB, SBA, EPA’sOffice of Water and EPA’s SmallBusiness Advocacy Chair. The Panelreceived written comments from smallentity representatives based on theirinvolvement in the earlier meetings, andinvited additional comments.

Consistent with requirements of theRFA, the Panel evaluated the assembledmaterials and small-entity comments onissues related to: (1) a description andthe number of small entities that wouldbe regulated; (2) a description of theprojected record keeping, reporting and

other compliance requirementsapplicable to small entities; (3)identification of other Federal rules thatmay duplicate, overlap, or conflict withthe proposal to the final rule; and (4)regulatory alternatives that wouldminimize any significant economicimpact of the rule on small entitieswhile accomplishing the statedobjectives of the CWA section 402(p)(6).

On August 7, 1997, the Panelprovided a Final Report (hereinafter,‘‘Report’’) to the EPA Administrator. Acopy of the Report is included in thedocket for the rule. The Panelacknowledged and commended EPA’sefforts to work with stakeholders,including small entities, through theFACA process. The SBREFA Panelstated that, because of EPA’s extensiveoutreach and responsiveness inaddressing stakeholder concerns,commenters during the SBREFA processraised fewer concerns than mightotherwise have been expected. Based onthe advice and recommendations of thePanel, today’s rule includes a number ofprovisions designed to minimize anysignificant impact on small entities. (SeeAppendix 5).

F. National Technology Transfer AndAdvancement Act

Section 12(d) of the NationalTechnology Transfer and AdvancementAct of 1995 (‘‘NTTAA’’), Public Law104–113, section 12(d) (15 U.S.C. 272note) directs EPA to use voluntaryconsensus standards in its regulatoryactivities unless to do so would beinconsistent with applicable law orotherwise impractical. Voluntaryconsensus standards are technicalstandards (e.g., materials specifications,test methods, sampling procedures, andbusiness practices) that are developed oradopted by voluntary consensusstandard bodies. The NTTAA directsEPA to provide Congress, through OMB,explanations when the Agency decidesnot to use available and applicablevoluntary consensus standards.

This action does not mandate the useof any particular technical standards,although in designing appropriate BMPsregulated small MS4s and smallconstruction sites are encouraged to useany voluntary consensus standards thatmay be applicable and appropriate.Because no specific technical standardsare included in the rule, section 12(d) ofthe NTTAA is not applicable.

G. Executive Order 13045Executive Order 13045: ‘‘Protection of

Children from Environmental HealthRisks and Safety Risks’’ (62 FR 19885,April 23, 1997) applies to any rule that:(1) Is determined to be ‘‘economically



significant’’ as defined under E.O.12866, and (2) concerns anenvironmental health or safety risk thatEPA has reason to believe may have adisproportionate effect on children. Ifthe regulatory action meets both criteria,the Agency must evaluate theenvironmental health or safety effects ofthe planned rule on children, andexplain why the planned regulation ispreferable to other potentially effectiveand reasonably feasible alternativesconsidered by the Agency.

This final rule is not subject to E.O.13045 because it does not concern anenvironmental health or safety risk thatmay have a disproportionate effect onchildren. The rule expands the scope ofthe existing NPDES permitting programto require small municipalities andsmall construction sites to regulate theirstorm water discharges. The rule doesnot itself, however, establish standardsor criteria that would be included inpermits for those sources. Suchstandards or criteria will be developedthrough other actions, for example, inthe establishment of water qualitystandards or subsequently in theissuance of permits themselves. Assuch, today’s action does not concern anenvironmental health or safety risk thatmay have a disproportionate effect onchildren. To the extent it does addressa risk that may have a disproportionateeffect on children, expanding the scopeof the permitting program will have acorresponding disproportionate benefitto children to protect them from suchrisk.

H. Executive Order 13084Under Executive Order 13084, EPA

may not issue a regulation that is notrequired by statute, that significantly oruniquely affects the communities ofIndian tribal governments, and thatimposes substantial direct compliancecosts on those communities, unless theFederal government provides the fundsnecessary to pay the direct compliancecosts incurred by the Tribal

governments, or EPA consults withthose governments. If EPA complies byconsulting, Executive Order 13084requires EPA to provide to the Office ofManagement and Budget, in a separatelyidentified section of the preamble to therule, a description of the extent of EPA’sprior consultation with representativesof affected Tribal governments, asummary of the nature of their concerns,and a statement supporting the need toissue the regulation. In addition,Executive Order 13084 requires EPA todevelop an effective process permittingelected officials and otherrepresentatives of Indian Tribalgovernments ‘‘to provide meaningfuland timely input in the development ofregulatory policies on matters thatsignificantly or uniquely affect theircommunities.’’

Today’s rule does not significantly oruniquely affect the communities ofIndian Tribal governments. Even thoughthe Agency is not required to addressTribes under the Regulatory FlexibilityAct, EPA used the same revenue testthat was used for municipalities toassess the impact of the rule oncommunities of Tribal governments anddetermine that they will not besignificantly affected. In addition, therule will not have a unique impact onthe communities of Tribal governmentsbecause small municipal governmentsare also covered by this rule and largermunicipal governments are alreadycovered by the existing storm waterrules. Accordingly, the requirements ofsection 3(b) of Executive Order 13084do not apply to this rule.

I. Congressional Review ActThe Congressional Review Act, 5

U.S.C. section 801 et seq., as added bythe Small Business RegulatoryEnforcement Fairness Act of 1996,generally provides that before a rulemay take effect, the agencypromulgating the rule must submit arule report, which includes a copy ofthe rule, to each House of the Congress

and the Comptroller General of theUnited States. EPA will submit a reportcontaining this rule and other requiredinformation to the U.S. Senate, the U.S.House of Representatives, and theComptroller General of the UnitedStates prior to publication of the rule inthe Federal Register. A major rulecannot take effect until 60 days after itis published in the Federal Register.This rule is a ‘‘major rule’’ as defined by5 U.S.C. 804(2). This rule will beeffective on February 7, 2000.

List of Subjects

40 CFR Part 9

Environmental protection, Reportingand recordkeeping requirements.

40 CFR Part 122

Administrative practice andprocedure, Confidential businessinformation, Environmental protection,Hazardous substances, Incorporation byreference, Reporting and recordkeepingrequirements, Sewage disposal, Wastetreatment and disposal, Water pollutioncontrol.

40 CFR Part 123

Administrative practice andprocedure, Confidential businessinformation, Hazardous materials,Indians—lands, Intergovernmentalrelations, Penalties, Reporting andrecordkeeping requirements, Sewagedisposal, Waste treatment and disposal,Water pollution control, Penalties.

40 CFR Part 124

Administrative practice andprocedure, Air pollution control,Hazardous waste, Indians—lands,Reporting and recordkeepingrequirements, Water pollution control,Water supply.

Dated: October 29, 1999.Carol M. Browner,Administrator.

Appendices to the Preamble

APPENDIX 1 TO PREAMBLE—FEDERALLY-RECOGNIZED AMERICAN INDIAN AREAS LOCATED FULLY OR PARTIALLY INBUREAU OF THE CENSUS URBANIZED AREAS

[Based on 1990 Census data]

State American Indian Area Urbanized Area

AZ ....... Pascua Yacqui Reservation (pt.): Pascua Yacqui Tribe of Arizona ................................... Tucson, AZ (Phase I).AZ ....... Salt River Reservation (pt.): Salt River Pima-Maricopa Indian Community of the Salt

River Reservation, California.Phoenix, AZ (Phase I).

AZ ....... San Xavier Reservation (pt.): Tohono O’odham Nation of Arizona (formerly known asthe Papago Tribe of the Sells, Gila Bend & San Xavier Reservation).

Tucson, AZ (Phase I).

CA ....... Augustine Reservation: Augustine Band of Cahuilla Mission of Indians of the AugustineReservation, CA.

Indio-Coachella, CA (Phase I).

CA ....... Cabazon Reservation: Cabazon Band of Cahuilla Mission Indians of the Cabazon Res-ervation, CA.

Indio-Coachella, CA (Phase I).


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