National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System General Permit Remand Rule, 89320-89352 [2016-28426]
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Federal Register / Vol. 81, No. 237 / Friday, December 9, 2016 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 122
[EPA–HQ–OW–2015–0671; FRL–9955–11–
OW]
RIN 2040–AF57
National Pollutant Discharge
Elimination System (NPDES) Municipal
Separate Storm Sewer System General
Permit Remand Rule
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is revising the regulations
governing regulated small municipal
separate storm sewer system (MS4)
permits to respond to a remand from the
United States Court of Appeals for the
Ninth Circuit in Environmental Defense
Center, et al. v. EPA, 344 F.3d 832 (9th
Cir. 2003). In that decision, the court
determined that the regulations for
providing coverage under small MS4
general permits did not provide for
adequate public notice and opportunity
to request a hearing. Additionally, the
court found that EPA failed to require
permitting authority review of the best
management practices (BMPs) to be
used at a particular MS4 to ensure that
the small MS4 permittee reduces
pollutants in the discharge from their
systems to the ‘‘maximum extent
practicable’’ (MEP), the standard
established by the Clean Water Act
(CWA) for such permits. The final rule
establishes two alternative approaches a
permitting authority can use to issue
National Pollutant Discharge
Elimination (NPDES) general permits for
small MS4s and meet the requirements
of the court remand. The first option is
to establish all necessary permit terms
and conditions to require the MS4
operator to reduce the discharge of
pollutants from its MS4 to the MEP, to
protect water quality, and to satisfy the
appropriate water quality requirements
of the Clean Water Act (‘‘MS4 permit
standard’’) upfront in one
comprehensive permit. The second
option allows the permitting authority
to establish the necessary permit terms
and conditions in two steps: A first step
to issue a base general permit that
contains terms and conditions
applicable to all small MS4s covered by
the permit and a second step to
establish necessary permit terms and
conditions for individual MS4s that are
not in the base general permit. Public
notice and comment and opportunity to
request a hearing would be necessary for
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SUMMARY:
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both steps of this two-step general
permit. This final rule does not establish
any new substantive requirements for
small MS4 permits.
DATES: This final rule is effective on
January 9, 2017.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OW–2015–0671. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
e.g., confidential business information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available electronically through https://
www.regulations.gov.
Greg
Schaner, Office of Wastewater
Management, Water Permits Division
(4203M), Environmental Protection
Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460; telephone
number: (202) 564–0721; email address:
schaner.greg@epa.gov. Refer also to
EPA’s Web site for further information
related to the final rule at https://
www.epa.gov/npdes/stormwater-rulesand-notices#proposed.
SUPPLEMENTARY INFORMATION: The
Federal Register published EPA’s
proposed rule on January 6, 2016 (81 FR
415).
FOR FURTHER INFORMATION CONTACT:
Table of Contents
I. General Information
A. Does this action apply to me?
B. What action is the Agency taking?
C. What is the Agency’s authority for
taking this action?
D. What are the incremental costs of this
action?
II. Background
A. Statutory and Regulatory Overview
B. MS4 Permitting Requirements
C. Judicial Review of the Phase II Rule and
Partial Remand
III. Summary of the Proposed Rule and
Comments Received
A. Scope of the Proposed Rule
B. Description of Options Proposed
C. General Summary of Comments
Received
IV. Summary of the Final Rule
A. Selection of the ‘‘Permitting Authority
Choice’’ Approach
B. Description of the Two Permitting
Alternatives Under the Permitting
Authority Choice Approach
C. Summary of Regulatory Changes To
Adopt the Permitting Authority Choice
Approach
D. Commonalities Among the Two Types
of General Permits
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E. Role of the NOI Under the Permitting
Authority Choice Approach
F. Permitting Authority Flexibility To
Choose Most Suitable Approach
G. Why EPA Did Not Choose Proposed
Option 1 or 2 as Stand-Alone Options
V. How the Two General Permit Options
Work
A. Comprehensive General Permit
Approach
B. Two-Step General Permit Approach
C. Permittee Publication of Public Notice
VI. Requirements for Permit Terms and
Conditions
A. Permitting Authority as the Ultimate
Decision-Maker
B. ‘‘Clear, Specific, and Measurable’’
Permit Requirements
C. Narrative, Numeric, and Other Forms of
Permit Requirements
D. Considerations in Developing
Requirements for Successive Permits
E. Relationship Between the Storm Water
Management Program Document
(SWMP) and Required Permit Terms and
Conditions
F. Explaining How the Permit Terms and
Conditions Meet the MS4 Permit
Standard
G. Minimum Federal Permit Requirements
H. Comments Beyond the Scope of This
Rulemaking
VII. Revisions to Other Parts of § 122.34
A. Compliance Timeline for New MS4
Permittees
B. Revisions to Evaluation and Assessment
Provisions
C. Establishing Water Quality-Based
Requirements
D. Establishing Water Quality-Based Terms
and Conditions Under the Two Types of
General Permits
E. Restructuring, Consolidating,
Conforming, and Other Editorial
Revisions
VIII. Final Rule Implementation
A. When the Final Rule Must Be
Implemented
B. Status of 2004 Guidance Memorandum
IX. Consistency With the NPDES Electronic
Reporting Rule
X. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
(UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
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K. Congressional Review Act
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I. General Information
A. Does this action apply to me?
Entities regulated [or affected] by this
rule include:
North American
industry
classification
system
(NAICS) code
Category
Examples of regulated entities
Federal and state government ......
EPA or state NPDES stormwater permitting authorities; operators of small municipal separate storm sewer systems.
Operators of small municipal separate storm sewer systems ..............................................
Local governments ........................
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This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
regulated by this action. This table lists
the types of entities that EPA is now
aware could potentially be regulated or
otherwise affected by this action. Other
types of entities not listed in the table
could also be regulated. To determine
whether your entity is regulated by this
action, you should carefully examine
the applicability criteria found in 40
CFR 122.32, and the discussion in the
preamble. If you have questions
regarding the applicability of this action
to a particular entity, consult the person
listed in the FOR FURTHER INFORMATION
CONTACT section.
B. What action is the Agency taking?
EPA is issuing a final rule to revise its
regulations governing the way in which
small municipal separate storm sewer
systems (MS4s) obtain coverage under
National Pollutant Discharge
Elimination System (NPDES) general
permits and how required permit
conditions are established. The rule
results from a decision by the U.S. Court
of Appeals for the Ninth Circuit in
Environmental Defense Center, et al. v.
EPA, at 344 F.3d 832 (9th Cir. 2003)
(‘‘EDC decision’’), which found that
EPA regulations for obtaining coverage
under a small MS4 general permit did
not provide for adequate public notice,
the opportunity to request a hearing, or
permitting authority review to
determine whether the best management
practices (BMPs) selected by each MS4
in its stormwater management program
(SWMP) meets the CWA requirements
including the requirement to ‘‘reduce
pollutants to the maximum extent
practicable.’’ The Federal Register
published EPA’s proposed rule on
January 6, 2016 (81 FR 415). EPA
proposed and solicited public comment
on three options for addressing the
remand. One option (called the
‘‘Traditional General Permit Approach’’)
would require the permitting authority
to establish within the general permit all
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requirements necessary for the regulated
small MS4s to meet the applicable
permit standard (to reduce pollutants to
the maximum extent practicable (MEP),
to protect water quality, and to satisfy
the appropriate water quality
requirements of the CWA), which would
be subject to public notice and comment
and an opportunity to request a hearing.
The second proposed option (called the
‘‘Procedural Approach’’) would require
the permitting authority to incorporate
an additional review and public
comment step into the existing Phase II
regulatory framework for permitting
small MS4s through general permits.
More specifically, once an MS4 operator
submitted its Notice of Intent (NOI)
requesting coverage under the general
permit, an additional step would take
place in which the permitting authority
would review, and the public would be
given an opportunity to comment and
request a hearing on, the merits of the
MS4’s proposed BMPs and measurable
goals for complying with the
requirement to reduce discharges to the
MEP, to protect water quality, and to
satisfy the appropriate water quality
requirements of the CWA. A third
proposed option (called the ‘‘State
Choice Approach’’) would enable the
permitting authority to choose between
the Traditional General Permit and
Procedural Approaches, or to
implement a combination of these
approaches in issuing and authorizing
coverage under a general permit. Today,
EPA is issuing a rule that promulgates
the ‘‘State Choice Approach’’ and has
renamed it as the ‘‘Permitting Authority
Choice Approach.’’
C. What is the Agency’s authority for
taking this action?
The authority for this rule is the
Federal Water Pollution Control Act, 33
U.S.C. 1251 et seq., including sections
402 and 501.
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D. What are the incremental costs of this
action?
The Economic Analysis estimates the
incremental costs to implement the final
rule. EPA assumed that all other costs
accrued as a result of the existing small
MS4 program, which were accounted
for in the Economic Analysis
accompanying the 1999 final Phase II
MS4 regulations, remain the same and
are not germane to the Economic
Analysis, unless the rule change would
affect the baseline program costs. In this
respect, EPA focused only on new costs
that may be imposed as a result of
implementing the final rule. It is,
therefore, unnecessary to reevaluate the
total program costs of the Phase II rule,
since those costs were part of the
original economic analysis conducted
for the 1999 Phase II rule (see 64 FR
68722, December 8, 1999). For further
information, refer to the Economic
Analysis that is included in the rule
docket.
EPA estimates the annualized cost of
the final rule to be between $558,025
and $604,770, depending on the
assumed discount rate. This can be
thought of as the annual budgeted
amounts each permitting authority
would need to make available each year
in order to be able to cover the increase
in permitting authority efforts that
would result every 5 years. The total net
present value of the compliance cost
ranges from $5.5 million to $8.4 million,
depending on the assumed discount
rate. These estimates are all below the
threshold level established by statute
and various executive orders for
determining that a rule has an
economically significant or substantial
impact on affected entities. See further
discussion in Section X of this
preamble.
The Economic Analysis assumes that
permitting authorities are the only
entities that are expected to be impacted
from this rule because the requirements
modified by the rule focus only on the
administrative manner in which general
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permits are issued and how coverage
under those permits is granted. EPA
emphasizes that this final rule does not
change the stringency of the underlying
requirements in the statute or Phase II
regulations to which small MS4
permittees are subject, nor does it
establish new substantive requirements
for MS4 permittees. Therefore, the
Economic Analysis does not attribute
new costs to regulated small MS4s
beyond what they are already subject to
under the statute and Phase II
regulations. EPA acknowledges that
many permitting authorities consider
permitting a cost-neutral function,
therefore some may increase permit fees
to cover the increased costs associated
with this rule.
EPA used conservative assumptions
about impacts on state workloads,
meaning that the actual economic costs
of complying with the final rule and
implementing any new procedural
changes are most likely lower than what
is actually presented. EPA considers the
cost assumptions to be conservative
because as more permitting authorities
issue general permits consistent with
the new rule, other permitting
authorities can use and build on those
examples, reducing the amount of time
it takes to draft the permit requirements,
and permitting authorities will likely
learn from experience as they move
forward how to work more efficiently to
issue and administer their general
permits. EPA has issued guidance to
permitting authorities on how to write
better MS4 permits (MS4 Permit
Improvement Guide (EPA, 2010);
Compendium of MS4 Permitting
Approaches—Part 2: Post Construction
Standards (EPA, 2016); Compendium of
MS4 Permitting Approaches—Part 3:
Water Quality-Based Requirements
(EPA, 2016)), and additional examples
of permit provisions that are written in
a ‘‘clear, specific, and measurable’’
manner for the six minimum control
measures are included in the preamble
to this rule. EPA also anticipates issuing
further guidance once the rule is
promulgated to assist permitting
authorities in implementing the new
rule requirements, which will in turn
hopefully make permit writing more
efficient. These gained efficiencies were
not, however, accounted for in the
option-specific cost assumptions.
II. Background
A. Statutory and Regulatory Overview
Stormwater discharges are a
significant cause of water quality
impairment because they can contain a
variety of pollutants such as sediment,
nutrients, chlorides, pathogens, metals,
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and trash that are mobilized and
ultimately discharged to storm sewers or
directly to water bodies. Furthermore,
the increased volume and velocity of
stormwater discharges that result from
the creation of impervious cover can
alter streams and rivers by causing
scouring and erosion. These surface
water impacts can threaten public
health and safety due to the increased
risk of flooding and increased level of
pollutants; can lead to economic losses
to property and fishing industries; can
increase drinking water treatment costs;
and can decrease opportunities for
recreation, swimming, and wildlife
uses.
Stormwater discharges are subject to
regulation under section 402(p) of the
CWA. Under this provision, Congress
required the following stormwater
discharges initially to be subject to
NPDES permitting requirements:
Stormwater discharges for which
NPDES permits were issued prior to
February 4, 1987; discharges ‘‘associated
with industrial activity’’; discharges
from MS4s serving populations of
100,000 or more; and any stormwater
discharge determined by EPA or a state
to ‘‘contribute . . . to a violation of a
water quality standard or to be a
significant contributor of pollutants to
waters of the United States.’’ Congress
further directed EPA to study other
stormwater discharges and determine
which needed additional controls. With
respect to MS4s, section 402(p)(3)(B)
provides that NPDES permits may be
issued on a system-wide or jurisdictionwide basis, and requires that MS4
NPDES permits ‘‘include a requirement
to effectively prohibit non-stormwater
discharges into the storm sewers’’ and
require ‘‘controls to reduce the
discharge of pollutants to the maximum
extent practicable . . . and such other
provisions as the Administrator or the
State determines appropriate for the
control of such pollutants.’’
EPA developed the stormwater
regulations under section 402(p) of the
CWA in two phases, as directed by the
statute. In the first phase, under section
402(p)(4) of the CWA, EPA promulgated
regulations establishing application and
other NPDES permit requirements for
stormwater discharges from medium
(serving populations of 100,000 to
250,000) and large (serving populations
of 250,000 or more) MS4s, and
stormwater discharges associated with
industrial activity. EPA published the
final Phase I rule on November 16, 1990
(55 FR 47990). The Phase I rule, among
other things, defined ‘‘municipal
separate storm sewer’’ as publiclyowned conveyances or systems of
conveyances that discharge to waters of
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the U.S. and are designed or used for
collecting or conveying stormwater, are
not combined sewers, and are not part
of a publicly-owned treatment works at
§ 122.26(b)(8). EPA included
construction sites disturbing five acres
or more in the definition of ‘‘stormwater
discharges associated with industrial
activity’’ at § 122.26(b)(14)(x).
In the second phase, section 402(p)(5)
and (6) of the CWA required EPA to
conduct a study to identify other
stormwater discharges that needed
further controls ‘‘to protect water
quality,’’ report to Congress on the
results of the study, and to designate for
regulation additional categories of
stormwater discharges not regulated in
Phase I on the basis of the study and in
consultation with state and local
officials. EPA promulgated the Phase II
rule on December 8, 1999, designating
discharges from certain small MS4s and
from small construction sites (disturbing
equal to or greater than one acre and
less than five acres) and requiring
NPDES permits for these discharges (64
FR 68722, December 8, 1999). A
regulated small MS4 is generally
defined as any MS4 that is not already
covered by the Phase I program and that
is located within the urbanized area
boundary as determined by the latest
U.S. Decennial Census. Separate storm
sewer systems such as those serving
military bases, universities, large
hospitals or prison complexes, and
highways are also included in the
definition of ‘‘small MS4.’’ See
§ 122.26(b)(16). In addition, the Phase II
rule includes authority for EPA (or
states authorized to administer the
NPDES program) to require NPDES
permits for currently unregulated
stormwater discharges through a
designation process. See
§ 122.26(a)(9)(i)(C) and (D). Other small
MS4s located outside of an urbanized
area may be designated as a regulated
small MS4 if the NPDES permitting
authority determines that its discharges
cause, or have the potential to cause, an
adverse impact on water quality. See
§§ 122.32(a)(2) and 123.35(b)(3).
B. MS4 Permitting Requirements
The Phase I regulations are primarily
comprised of requirements that must be
addressed in applications for individual
permits from large and medium MS4s.
The regulations at § 122.26(d)(2)(iv)
require these MS4s to develop a
proposed stormwater management
program (SWMP), which is considered
by EPA or the authorized state
permitting authority when establishing
permit conditions to reduce pollutants
to the ‘‘maximum extent practicable’’
(MEP).
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Like the Phase I rule, the Phase II rule
requires regulated small MS4s to
develop and implement SWMPs. The
regulations at § 122.34(a) requires that
SWMPs be designed to reduce
pollutants discharged from the MS4 ‘‘to
the maximum extent practicable (MEP),
to protect water quality, and to satisfy
the appropriate water quality
requirements of the Clean Water Act,’’
and requires that the SWMPs include
six ‘‘minimum control measures.’’ The
minimum control measures are: Public
education and outreach, public
participation and involvement, illicit
discharge detection and elimination,
construction site runoff control, post
construction runoff control, pollution
prevention and good housekeeping. See
§ 122.34(b). Under the Phase II rule, a
regulated small MS4 may seek coverage
under an available general permit or
may apply for an individual permit. To
be authorized to discharge under a
general permit, the rule requires
submission of a Notice of Intent (NOI)
to be covered by the general permit
containing a description of the best
management practices (BMPs) to be
implemented and the measurable goals
for each of the BMPs, including timing
and frequency, as appropriate. See
§§ 122.33(a)(1), 122.34(d)(1).
EPA anticipated that under the first
two or three permit cycles, whether
required in individual permits or in
general permits, BMP-based controls
implementing the six minimum control
measures would, if properly
implemented, ‘‘be sufficiently stringent
to protect water quality, including water
quality standards, so that additional,
more stringent and/or more prescriptive
water quality based effluent limitations
will be unnecessary.’’ (64 FR 68753,
December 8, 1999). In the final Phase II
rule preamble, EPA also stated that it
‘‘has intentionally not provided a
precise definition of MEP to allow
maximum flexibility in MS4 permitting.
MS4s need the flexibility to optimize
reductions in storm water pollutants on
a location-by-location basis. . . .
Therefore, each permittee will
determine appropriate BMPs to satisfy
each of the six minimum control
measures through an evaluative
process.’’ (64 FR 68754, December 8,
1999).
The agency described the approach to
meet the MS4 permit standard in the
preamble to the Phase II rule as an
‘‘iterative process’’ of developing,
implementing, and improving
stormwater control measures contained
in SWMPs. As EPA further stated in the
preamble to the Phase II rule, ‘‘MEP
should continually adapt to current
conditions and BMP effectiveness and
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should strive to attain water quality
standards. Successive iterations of the
mix of BMPs and measurable goals will
be driven by the objective of assuring
maintenance of water quality standards.
. . . If, after implementing the six
minimum control measures there is still
water quality impairment associated
with discharges from the MS4, after
successive permit terms the permittee
will need to expand or better tailor its
BMPs within the scope of the six
minimum control measures for each
subsequent permit.’’ (64 FR 68754,
December 8, 1999).
C. Judicial Review of the Phase II Rule
and Partial Remand
The Phase II rule was challenged in
petitions for review filed by
environmental groups, municipal
organizations, and industry groups,
resulting in a partial remand of the rule.
Environmental Defense Center v. U.S.
Environmental Protection Agency, 344
F.3d. 832 (9th Cir. 2003) (EDC). The
court remanded the Phase II rule’s
provisions for small MS4 general
permits because they lacked procedures
for permitting authority review and
public notice and the opportunity to
request a hearing on NOIs submitted
under general MS4 permits.
In reviewing how the Phase II rule
provided for general permit coverage for
small MS4s, the court found that the
way in which NOIs function under the
rule was not the same as in other
NPDES general permits. Other general
permits contain within the body of the
general permit the specific effluent
limitations and conditions applicable to
the class of dischargers for which the
permit is available. In this situation,
authorization to discharge under a
general permit is obtained by filing an
NOI in which the discharger agrees to
comply with the terms of the general
permit and in which the operator
provides some basic information (e.g.,
site location, receiving waters) to help
determine eligibility. In contrast, the
court held that under the Phase II rule,
because the NOI submitted by the MS4
contains the information describing
what the MS4 will do to reduce
pollutants to the MEP, it is the
‘‘functional equivalent’’ of an individual
permit application. See EDC, 344 F.3d.
at 857. Because the CWA requires
public notice and the opportunity to
request a public hearing for all permit
applications, the court held that failure
to require public notice and the
opportunity for a public hearing for
NOIs under the Phase II rule is contrary
to the Act. See EDC, 344 F.3d. at 858.
Similarly, the court found the Phase
II rule allows the MS4 to identify the
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BMPs that it will undertake in its
SWMP without any permitting authority
review. The court held that the lack of
review ‘‘to ensure that the measures that
any given operator of a small MS4 has
decided to undertake will in fact reduce
discharges of pollutants to the
maximum extent practicable’’ also does
not comport with CWA requirements.
The court stated, ‘‘That the Rule allows
a permitting authority to review an NOI
is not enough; every permit must
comply with the standards articulated
by the Clean Water Act, and unless
every NOI issued under general permit
is reviewed, there is no way to ensure
that such compliance has been
achieved.’’ See EDC, 344 F.3d. at 855
n.32. The court therefore vacated and
remanded ‘‘those portions of the Phase
II Rule that address these procedural
issues . . . so that EPA may take
appropriate action to comply with Clean
Water Act.’’ See EDC, 344 F.3d. at 858.
III. Summary of the Proposed Rule and
Comments Received
A. Scope of the Proposed Rule
EPA proposed revisions to the Phase
II MS4 NPDES permitting requirements
on January 6, 2016 (81 FR 415) to
respond to the Ninth Circuit’s remand
in Environmental Defense Center v. U.S.
Environmental Protection Agency, 344
F.3d. 832 (9th Cir. 2003). To address the
remand, the regulations must ensure
that permitting authorities determine
what permit requirements are needed to
reduce pollutants from each permitted
small MS4 ‘‘to the maximum extent
practicable (MEP), to protect water
quality, and to satisfy the appropriate
water quality requirements of the Clean
Water Act’’ (referred to hereinafter as
the ‘‘MS4 permit standard’’). The rule
must also require NPDES permitting
authorities to provide the public with
the opportunity to review, submit
comments, and request a public hearing
on these permit requirements. EPA did
not propose modifications to any of the
substantive requirements that were
promulgated in the Phase II rule (nor
did EPA reopen or seek comment on
any aspect of the Phase I rule, which
was described in the preamble of the
proposed rule for informational
purposes only).
In the remand decision, the court
established in broad and clear terms
what is needed for general permits that
cover regulated small MS4s and
therefore provided EPA with what
minimum attributes should be part of
any revisions to the Phase II regulations.
The court stated that ‘‘every permit
must comply with the standards
articulated by the Clean Water Act, and
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unless every NOI issued under a general
permit is reviewed, there is no way to
ensure that such compliance has been
achieved.’’ See EDC, 344 F.3d at 855, n.
32. In the court’s view, the NOI served
as the document that established how
the MEP standard would be met:
‘‘Because a Phase II NOI establishes
what the discharger will do to reduce
discharges to the ‘maximum extent
practicable,’ the Phase II NOI crosses the
threshold from being an item of
procedural correspondence to being a
substantive component of a regulatory
scheme.’’ See EDC, 344 F.3d at 853.
Since review of the NOI by the
permitting authority was not specified
in the regulation, and § 122.34(a) stated
that compliance with the storm water
management program developed by the
permittee constituted compliance with
the MEP standard, the court also
expressed concern that the regulation
put the MS4 in charge of establishing its
own requirements. ‘‘[U]nder the Phase II
Rule nothing prevents the operator of a
small MS4 from misunderstanding or
misrepresenting its own stormwater
situation and proposing a set of
minimum measures for itself that would
reduce discharges by far less than the
maximum extent practicable.’’ See EDC,
344 F.3d at 855. Further, the court
found that the failure to require public
notice or opportunity to submit
comments or request a public hearing
for each NOI violated requirements
applicable to all CWA permits in
accordance with section 402(b)(3). See
EDC, 344 F.3d at 857.
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B. Description of Options Proposed
EPA proposed for comment the
following three options to address the
regulatory shortcomings found in the
remand decision.
1. Option 1 (‘‘Traditional General Permit
Approach’’)
Under the proposed Traditional
General Permit Approach, the
permitting authority must establish in
any small MS4 general permit the full
set of requirements that are deemed
necessary to meet the MS4 permit
standard (‘‘reduce pollutants to the
maximum extent practicable, protect
water quality and satisfy the appropriate
water quality requirements of the Clean
Water Act’’), and the administrative
record would include an explanation of
the rationale for its determination. (This
approach contrasts with the original
regulations, which appeared to the court
to provide the permittee with the ability
to establish its own requirements.) Once
the permit is issued, and the terms and
conditions in the permit are fixed for
the term of the permit, neither the
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development of a SWMP document nor
the submittal of an NOI for coverage
would represent new permit
requirements. Thus, because the permit
contains all of the requirements that
will be used to assess permittee
compliance, the permitting authority
would no longer need to rely on the
MS4’s NOI as the mechanism for
ascertaining what will occur during the
permit term. Under this approach, the
function of the NOI would be more
similar to that of any other general
permit NOI, and more specifically other
stormwater general permits, whereby
the NOI is used to establish certain
minimum facts about the discharger,
including the operator’s contact details,
the discharge location(s), and
confirmation that the operator is eligible
for permit coverage and has agreed to
comply with the terms of the permit. By
removing the possibility that effluent
limits could be proposed in the NOI
(and for that matter in the SWMP) and
made part of the permit once permit
coverage is provided, the NOI would no
longer look and function like an
individual permit application, as the
court found with respect to MS4 NOIs
under the Phase II regulations currently
in effect. Therefore, it would not be
necessary to carry out the type of
additional permitting authority review
and public participation procedures
contemplated by the Ninth Circuit court
in the remand decision. These
requirements would be met during the
process of issuing the general permit.
2. Option 2 (‘‘Procedural Approach’’)
Under the proposed Procedural
Approach, the permitting authority
would establish applicable permit
requirements to meet the MS4 permit
standard by going through a second
permitting step following the issuance
of the general permit (referred to as the
‘‘base general permit’’), similar to the
procedures used to issue individual
NPDES permits. Eligible MS4 operators
would be required to submit NOIs with
the same information that has always
been required under the Phase II
regulations, that is, a description of the
BMPs to be implemented by the MS4
operator during the permit term, and the
measurable goals associated with each
BMP. Following the receipt of the NOI,
the permitting authority would review
the NOI to assess whether the proposed
BMPs and measurable goals meet the
MS4 permit standard. If not, the
permitting authority would request
supplemental information or revisions
as necessary to ensure that the
submission satisfies the regulatory
requirements. Once satisfied with the
submission, the permitting authority
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would be required to propose
incorporating the BMPs and measurable
goals in the NOI as permit requirements
and to provide public notice of the NOI
and an opportunity to submit comments
and to request a hearing in accordance
with §§ 124.10 through 124.13. After
consideration of comments received and
a hearing, if held, the permitting
authority would provide notice of its
decision to authorize coverage under the
general permit, along with any MS4specific requirements established during
this second process. Upon completion
of this process, the MS4 would be
required to comply with the
requirements set forth in the base
general permit and the additional terms
and conditions established through the
second-step process.
3. Option 3 (‘‘State Choice Approach’’)
The proposed rule also requested
comment on a State Choice Approach,
which would allow permitting
authorities to choose either the
Traditional General Permit Approach or
the Procedural Approach, or some
combination of the two as would best
suit their needs and circumstances. As
described in the proposed rule, the
permitting authority could, for example,
choose to use Option 1 for small MS4s
that have fully established programs and
uniform core requirements, and Option
2 for MS4s that it finds would benefit
from the additional flexibility to address
unique circumstances, such as those
encountered by non-traditional MS4s
(e.g., state departments of
transportation, public universities,
military bases). Alternatively, a state
could apply a hybrid of the two
approaches within one permit by
defining some elements within the
general permit, which, consistent with
the Option 1 approach, are deemed to
meet the MS4 permit standard, and
establishing additional permit
requirements through the Option 2
procedural approach for each MS4
seeking coverage under the General
Permit. Under a hybrid approach, any
requirements established in the general
permit that fully articulate what is
required to meet the MS4 permit
standard would require no further
permitting authority review and public
notice proceedings; however, for any
terms and conditions established for
individual MS4s based in part on
information submitted with the NOI
would need to follow the Option 2
approach for incorporating these
requirements into the permit as
enforceable requirements.
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EPA received about 70 unique
comments on the proposed rule from
the MS4 community, states,
environmental groups, industry
associations, and engineering firms.
Most commenters favored Option 3—the
‘‘State Choice’’ option. While several
expressed support for their states using
the Traditional General Permit or
Procedural Approach, a number of these
same commenters acknowledged that
these approaches would likely not work
in all situations if EPA were to adopt
either one as the sole option under the
final rule. EPA notes that while most of
the environmental organization
commenters expressed support for a
hybrid option, which technically falls
under the State Choice option, they also
strongly recommended mandating that
the Traditional General Permit
Approach be used for permit
requirements related to the six
minimum control measures and that the
Procedural Approach be used for water
quality-based requirements, such as
requirements for implementing total
maximum daily loads (TMDLs).
A common reason given for
supporting the State Choice approach
included the flexibility it would give
authorized states to use different
options to address different situations
and that it would minimize disruption
to existing programs. Several states that
now use a traditional general permit
approach or a procedural approach
stressed the importance of providing
choices for other states. EPA notes that
no commenter expressly opposed the
State Choice approach. EPA discusses
these comments in the context of its
decision to adopt the State Choice
approach in the final rule in Section IV
of the preamble below.
EPA received a significant number of
comments concerning its proposed
changes to the way in which permit
terms and conditions must be
expressed, particularly with respect to
the proposed deletion of the word
‘‘narrative’’ in § 122.34(a). These
comments focused on the concern that
EPA was moving away from support of
the use of BMPs to comply with
stormwater permits and from the
longstanding ‘‘iterative approach’’ to
meeting MS4 permit requirements. EPA
discusses these comments and the
changes made in response to these
comments in the final rule in Section V
of the preamble.
In addition to responding to major
comments in the preamble, EPA has
prepared a Response to Comment
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below. For this reason, to provide
coverage to eligible small MS4s, the
permitting authority can use a
IV. Summary of the Final Rule
traditional general permit NOI as
described in § 122.28(b)(2)(ii), and does
A. Selection of the ‘‘Permitting
not need to require additional
Authority Choice’’ Approach
information from each operator
EPA is selecting proposed Option 3
concerning how they will comply with
(the ‘‘State Choice Approach’’) for the
the permit, for instance the BMPs that
final rule, described in Section III.B.3.
will be implemented and the
The new name for this option better
measurable goals for each control
captures the universe of entities that
measure, as a prerequisite to authorizing
will implement the rule, i.e., any NPDES
the discharge. See further discussion of
permitting authority including EPA
the role of the NOI in Section IV.E.
Regions and authorized states. Under
• Two-Step General Permit
this approach, the NPDES permitting
(combination of the proposed
authority may choose between two
Procedural and Hybrid Approaches)—
alternative means of establishing permit For the Two-Step General Permit, after
requirements in general permits for
issuing a base general permit, the
small MS4s. The final rule amends
permitting authority establishes through
§ 122.28(d) to require permitting
the completion of a second permitting
authorities to choose one of these two
step additional permit terms and
types of general permits whenever
conditions that are necessary to meet
issuing a small MS4 general permit.
the MS4 permit standard for each MS4
Permitting authorities are required to
seeking authorization to discharge
select either the ‘‘Comprehensive
under the general permit. These
General Permit’’ or ‘‘Two-Step General
additional terms and conditions
Permit’’. The ‘‘Comprehensive General
supplement the requirements of the
Permit’’ is essentially the ‘‘Traditional
general permit for individual MS4
General Permit’’, or ‘‘Option 1’’, from
permittees. It is in the second permitting
the proposed rule. The ‘‘Two-Step
step where the permitting authority
General Permit’’ encompasses both the
satisfies its obligation to review the NOI
‘‘Procedural Approach’’, or ‘‘Option 2’’
for adequacy, determine what additional
and the ‘‘hybrid approach’’ that was
requirements are needed for the MS4 to
described as part of ‘‘Option 3’’ from the meet the MS4 permit standard, and
proposed rule. The Two-Step General
provide public notice and an
Permit allows the permitting authority
opportunity for the public to submit
to establish some requirements in the
comments and to request a hearing. See
general permit and others applicable to
discussion of the second permitting step
individual MS4s through a second
in Section V.B. Upon completion of this
proposal and public comment process.
process, the MS4 permittee is
authorized to discharge subject to the
B. Description of the Two Permitting
terms of the general permit and the
Alternatives Under the Permitting
additional requirements that apply
Authority Choice Approach
individually to that MS4.
As described in Section IV.A, the
The Two-Step General Permit
Permitting Authority Choice Approach
encompasses the ‘‘hybrid’’ approach
requires permitting authorities to choose described in the proposed rule (see
between two alternative approaches to
Section VI.C), where the permitting
issue general permits for small MS4s.
authority includes specific permit terms
These two types of general permits are
and conditions within the base general
described briefly as follows:
permit, but also establishes additional
• Comprehensive General Permit—
requirements to meet the MS4 permit
For this type of general permit, the
standard through a second permitting
permitting authority issues a small MS4 step. For the final rule, EPA
general permit that includes the full set
intentionally used rule language that
of requirements necessary to meet the
would enable permitting authorities to
MS4 permit standard of ‘‘reducing
use a Two-Step General Permit to
pollutant discharges from the MS4 to
implement a hybrid approach by
the maximum extent practicable (MEP), referring to both ‘‘required permit terms
to protect water quality, and to satisfy
and conditions in the general permit
the appropriate water quality
applicable to all eligible small MS4s’’
requirements of the CWA.’’ Under the
and ‘‘additional terms and conditions to
Comprehensive General Permit, all
satisfy one or more of the permit
requirements are contained within the
requirements in § 122.34 for individual
general permit, and no additional
small MS4 operators.’’ See
requirements are established after
§ 122.28(d)(2).
The final rule requires that the
permit issuance, as is the case with the
permitting authority indicate which
‘‘Two-Step General Permit’’ described
document, which can be found in the
docket for this rulemaking.
C. General Summary of Comments
Received
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type of general permit it is using for any
small MS4 general permit. This
statement or explanation may be
included in the general permit itself or
in the permit fact sheet. EPA notes that
the permitting authority may choose to
change the permitting approach for
subsequent permits. Questions
concerning when the final rule change
takes effect are discussed in Section
VIII.A.
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C. Summary of Regulatory Changes To
Adopt the Permitting Authority Choice
Approach
The final rule implements the
Permitting Authority Choice option in
several different sections of the NPDES
regulations. Below is a brief summary of
the most significant changes and where
they can be found in the final rule:
• Permitting Authority Choice
Approach (§ 122.28(d)): The final rule
adds a new paragraph (d) to § 122.28
that requires the permitting authority to
select between two alternative general
permits. This section describes both
types of general permits (the
‘‘Comprehensive General Permit’’ and
the ‘‘Two-Step General Permit’’) and the
minimum requirements associated with
each. EPA chose to include the
Permitting Authority Choice in a
different section of the regulations than
was proposed. EPA determined upon
further consideration that rather than
including all of the requirements within
the application and NOI section of the
Phase II regulations now at § 122.33, the
two alternatives comprising the
Permitting Authority Choice Approach
fit better within the general permit
regulations as a unique set of
requirements affecting general permits
for regulated small MS4s.
• Changes to the NOI requirements
(§ 122.33): The final rule includes
modifications to the requirements for
what must be included in NOIs
submitted for coverage under small MS4
general permits. The required contents
of the NOI vary depending on the type
of general permit used. For permitting
authorities choosing a Comprehensive
General Permit, the final rule enables
the permitting authority to reduce the
information required in NOIs to the
minimum information required for any
general permit NOI in § 122.28(b)(2)(ii).
See § 122.33(b)(1)(i). For permitting
authorities choosing the Two-Step
General Permit, the final rule provides
the permitting authority with the ability
to determine what information it deems
necessary to establish individual
requirements for MS4 operators that
meet the MS4 permit standard. See
§ 122.33(b)(1)(ii), and additional
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discussion of these and other changes to
§ 122.33 in Section V.D.1.
• Clarifications to the requirements
for small MS4 permits (§ 122.34):
Regardless of the permitting approach
chosen by the NPDES authority, the
terms and conditions of the resulting
general permits must adhere to the
requirements of § 122.34. The final rule
retains modifications from the proposed
rule that clarify that it is the permitting
authority’s responsibility, and not that
of the small MS4 permittee, to establish
permit terms and conditions that meet
the MS4 regulatory standard and to
delineate the requirements for
implementing the six minimum control
measures, other terms and conditions
deemed necessary by the permitting
authority to protect water quality, as
well as any other requirement. The final
rule also emphasizes that permit
requirements must be expressed in
‘‘clear, specific, and measurable’’ terms.
These modifications do not alter the
existing, substantive requirements of the
six minimum control measures in
§ 122.34(b). See further discussion of
these changes in Section VI.
D. Commonalities Among the Two
Types of General Permits
The two options available to the
permitting authority under the final rule
involve different steps and require
differing levels of administrative
oversight; however, at a basic level, they
share the same underlying
characteristics. Each type of general
permit shares in common that through
the permitting process, the permitting
authority must determine which
requirements a small MS4 must meet in
order to satisfy the MS4 permit
standard. Both types of general permits
also require that the specific actions that
comprise what is necessary to meet the
MS4 permit standard be established
through the permitting process. The key
distinction between the two types of
permits is that they establish permit
terms and conditions at different points
in time during the permitting process.
For Comprehensive General Permits, the
determination as to what requirements
are needed to satisfy the MS4 permit
standard is made as part of the issuance
of the general permit. By contrast, for
Two-Step General Permits, the
permitting authority makes this
determination both in the process of
issuing the general permit and in the
process of establishing additional
permit requirements applicable on an
individual basis to each MS4 covered
under the general permit, based on
information in the NOI.
The final rule also places both types
of general permits on a level playing
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field with respect to the requirements
that must be addressed in any general
permit issued to a small MS4.
Regardless of which type of general
permit is used to establish permit terms
and conditions, every small MS4
general permit must include
requirements that address the minimum
control measures (§ 122.34(b)), water
quality-based requirements where
needed (§ 122.34(c)), and evaluation and
assessment requirements (§ 122.34(d)).
The final rule clarifies that all such
terms and conditions must be expressed
in terms that are ‘‘clear, specific, and
measurable.’’ The important attribute
here is that permit requirements must be
enforceable, and must provide a set of
performance expectations and schedules
that are readily understood by the
permittee, the public, and the
permitting authority alike. For both
types of general permits, requirements
may be expressed in narrative or
numeric form, as long as they are clear,
specific, and measurable. This
requirement for clear, specific, and
measurable requirements applies to any
permit term or condition established
under § 122.34, including requirements
addressing the minimum control
measures, any water quality-based
requirements, and the evaluation,
recordkeeping, and reporting
requirements. Section VII of this
preamble contains a detailed discussion
about establishing permit terms and
conditions.
Importantly, the final rule also
ensures that the process for issuing both
types of general permit addresses the
deficiencies found by the Ninth Circuit
to exist in the Phase II regulations.
While the court’s opinion focused on
the role of the NOI in the Phase II rule
for MS4 general permits, the court made
it clear that under the CWA, the
permitting authority must determine
which MS4 permit requirements are
adequate to meet the MS4 permit
standard, and that the public must have
the opportunity to review and comment
on those permit requirements and to
request a hearing. All of these core CWA
requirements are present in the final
rule. For Comprehensive General
Permits, once the permit is issued it has
gone through permitting authority
review, public notice and comment, and
the opportunity to request a hearing.
Permitting authority review and public
comment and opportunity for a hearing
occurs in the process of drafting permit
conditions and soliciting comment on
the draft general permit. Permitting
authority determination of what an MS4
must do to meet the MS4 permit
standard occurs in the process of issuing
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the final permit after consideration of
comments. By comparison, for TwoStep General Permits, permitting
authority review, public notice and
comment, and the opportunity to
request a hearing occur first on the draft
general permit and again on the
additional terms and conditions
applicable to each MS4 authorized to
discharge under the general permit.
Under the Two-Step process, the CWA
requirements for permitting authority
review and public comment and
opportunity for hearing are only fully
addressed after the completion of the
discharge authorization process for each
individual small MS4 operator seeking
coverage under the general permit. To
ensure that these CWA requirements are
met, the final rule supplements the
administrative steps necessary to issue
the base general permit with procedures
that ensure that any decision to
authorize an individual MS4 to
discharge based on information
included in the NOI is subject to review
by the permitting authority, and the
public has the opportunity to review
and submit comments, and to request a
hearing on the terms and conditions that
will be incorporated as enforceable
permit terms.
E. Role of the NOI Under the Permitting
Authority Choice Approach
The two permitting options available
under the final rule include important
changes in the relationship between the
MS4 operator’s NOI and the general
permit. Under the 1999 Phase II
regulations, any MS4 operator seeking
coverage under a small MS4 general
permit has been required to submit
information in the NOI describing, at a
minimum, the BMPs that would be
implemented for each minimum control
measure during the permit term, and the
measurable goals associated with each
BMP. These NOIs differ significantly
from the typical general permit NOI,
which is required to include far less
information, and ‘‘represents no more
than a formal acceptance of [permit]
terms elaborated elsewhere’’ in the
general permit. See EDC, 344 F. 3d. at
852. Under the NPDES regulations at
§ 122.28(b)(2)(ii), the NOI is a
procedural mechanism to document
operator eligibility, to certify that the
information submitted by the operator is
accurate and truthful, and to confirm
the operator’s intention to be covered by
the terms and conditions of the general
permit.
The Ninth Circuit court, in its remand
decision, likened the NOI under the
remanded regulations to being
‘‘functionally equivalent to a detailed
application for an individualized
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permit,’’ since the MS4 operator was in
essence proposing to the permitting
authority what it intended to
accomplish to satisfy the MS4 permit
standard. The court found it to differ
markedly from the NOI utilized for most
general permits, that is, limited to ‘‘an
item of procedural correspondence.’’
344 F. 3d. at 853. The similarity in the
court’s view between the NOI under the
Phase II regulations and an individual
permit application, combined with the
failure of the regulations to require
permitting authority review or to
provide the opportunity for the public
to comment and request a hearing on
the NOI, were key factors in the Ninth
Circuit finding that the regulations had
violated the CWA.
The final rule modifies the way in
which the NOI functions in important
respects so that it addresses the
problems found by the Ninth Circuit.
For a Comprehensive General Permit,
because the permit contains all of the
requirements that will be used to assess
permittee compliance, the permitting
authority no longer needs to rely on the
MS4’s NOI as the mechanism for
ascertaining what will occur during the
permit term. In this way, the function of
the NOI is the same as that of any other
general permit NOI, and more
specifically other stormwater general
permits, where the NOI is used to
establish certain minimum facts about
the discharger, including the operator’s
contact details, the discharge
location(s), and confirmation that the
operator is eligible for permit coverage
and has agreed to comply with the terms
of the permit. It is for this reason,
therefore, that the final rule establishes
no additional requirements for the
information required to be included in
NOIs beyond what is already required
for other general permits in
§ 122.28(b)(2)(ii). See § 122.33(b)(1) in
the final rule. By removing the
possibility that permit requirements
could be proposed in the NOI (or in the
SWMP) and made part of the permit
once permit coverage is provided under
the Comprehensive General Permit
approach, the NOI will no longer look
and function like an individual permit
application, as the court found with
respect to MS4 NOIs under the original
Phase II regulations. Similarly, because
the NOI no longer bears the similarity of
an individual permit application, it is
no longer necessary to carry out the type
of additional permitting authority
review and public participation steps
contemplated by the Ninth Circuit.
By contrast, for coverage under a
Two-Step General Permit, the NOI
needs to include information to assist
the permitting authority in developing
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the additional permit requirements for
each permittee. For this NOI, the
permitting authority requires more
detailed information from the MS4
operator so that it can determine what
additional permit terms and conditions
are necessary in order to satisfy the MS4
permit standard. The NOI in the TwoStep General Permit is likely to include
much of the same information that has
been required of MS4 operators under
the regulations since they were
promulgated in 1999. The major
difference now is that the permitting
authority reviews the NOI materials to
determine what additional permit terms
and conditions are necessary for the
individual MS4 to meet the MS4 permit
standard, and to provide an opportunity
for the public to comment and request
a hearing on this determination.
The proposed rule would have
required the full set of information
required for individual permit
applications in § 122.33(b)(2)(i),
including the proposed BMPs to be
implemented for the minimum control
measures, measurable goals for each
BMP (as required by § 122.34(d) of the
original regulations), the persons
responsible for implementing the
stormwater management program, the
square mileage served by the MS4, and
any other information deemed
necessary. In the final rule, EPA is
taking a slightly different approach and
giving the permitting authority the
flexibility to determine what
information it needs to request in its
Two-Step General Permit NOI rather
than requiring by default that all of the
individual permit application
information be submitted. This will give
the permitting authority the ability to
request what information it needs to
establish the necessary additional terms
and conditions for each individual MS4
to meet the MS4 permit standard. If the
permitting authority needs information
from all of its MS4s on the BMPs and
measurable goals they propose for the
permit term in order to establish
suitable permit requirements, then it has
the discretion to require this
information. See §§ 122.28(d)(2)(i) and
122.33(b)(1)(ii), which states that the
information requested by the permitting
authority ‘‘may include, but is not
limited to, the information required
under § 122.33(b)(2)(i).’’
Alternatively, under the final rule, if
the general permit terms and conditions
already define what is required to meet
the MS4 permit standard for several of
the minimum control measures then the
permitting authority could decide that it
is no longer necessary to require the
submittal of information on the BMPs
and measurable goals associated with
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those minimum control measures. As
noted by a commenter, requiring
information from MS4s related to permit
terms and conditions that have already
been established is likely to be
redundant and represent an unnecessary
burden. At the same time, the
permitting authority must be able to
obtain sufficient information to
establish clear, specific, and measurable
permit terms and conditions. Under the
final rule, there is no minimum
requirement with respect to what
information is needed. In short, the
permitting authority must request the
information it needs to be able to make
an informed decision when establishing
clear, specific, and measurable permit
terms and conditions for the permittee
to ensure that it will meet the MS4
permit standard. The final rule enables
the permitting authority to determine
what the right amount of information is
needed to meet this requirement.
F. Permitting Authority Flexibility To
Choose the Most Suitable Approach
The final rule provides permitting
authorities with full discretion to
choose which option is best suited for
its permitting needs and specific
circumstances. While there are
significant considerations, advantages,
and disadvantages to selecting either of
the two permitting approaches, EPA is
leaving the decision of which method to
adopt for each general permit up to the
permitting authority. In providing full
discretion to the permitting authority to
choose which approach to use, EPA
agreed with commenters that
recommended against adopting
conditions or constraints on the
selection of either of the two options.
EPA also expects that the decision as to
which approach to adopt for any given
small MS4 general permit may change
from one permit term to the next.
Therefore, if the permitting authority
elects to issue its next general permit by
implementing the ‘‘Comprehensive
General Permit Approach’’ there is
nothing preventing the permitting
authority from switching approaches to
the ‘‘Two-Step General Permit
Approach’’ in subsequent permit terms,
or vice versa.
EPA requested comment on whether
the agency should constrain the
permitting authority’s discretion under
Option 3 by requiring the use of the
‘‘Traditional General Permit Approach’’
(now the ‘‘Comprehensive General
Permit’’) for some types of permit terms
and conditions, while allowing the
‘‘Procedural Approach (now the ‘‘TwoStep General Permit’’) to be used for
other requirements. Several commenters
recommended that EPA require
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permitting authorities to use the
proposed ‘‘Traditional General Permit
Approach’’ to establish permit
requirements for the minimum control
measures in § 122.34(b) and to allow the
use of the proposed ‘‘Procedural
Approach’’ for the establishment of
water quality-based effluent limits, such
as those implementing total maximum
daily loads (TMDLs). EPA refers to this
approach below as a ‘‘fixed hybrid
approach.’’ Other commenters were
opposed to a fixed hybrid approach and
urged EPA to provide permitting
authorities with maximum discretion to
choose which option works best without
stipulating which option must be used
for specific types of permit
requirements.
After consideration of these
comments, EPA has determined that it
is unnecessary to mandate which
permitting approach is used for specific
types of requirements. Primarily, EPA
does not wish to prejudge what
approach permitting authorities use to
arrive at clear, specific, and measurable
requirements that result in achieving the
MS4 permit standard. As an overall
matter, EPA views both of the
approaches in the final rule as equally
valid ways of establishing the required
permit terms and conditions and
meeting the remand requirements.
Having said this, however, EPA
recognizes that some types of
requirements are more easily
established through the general permit
than others. For instance, clear, specific,
and measurable permit requirements
that address the minimum control
measures, due to their broad
applicability to all MS4s, may be easier
to develop and include within the
general permit, than requirements
addressing TMDLs. EPA’s MS4 Permit
Improvement Guide (EPA, 2010) and the
MS4 permit compendia 1 provide a
number of ready examples for how
permits may establish clear, specific,
and measurable requirements that
implement the six minimum control
measures. On the other hand, the
necessarily site- and watershed-specific
nature of TMDLs, combined with the
fact that effective implementation of
TMDLs is enhanced through
involvement of the public at the local
level, makes these types of requirements
more amenable to being developed
through the procedural requirements of
the second permitting step within the
Two-Step General Permit. To illustrate
this point, a number of states have
already adopted approaches that enable
the MS4s to first develop and propose
something like a TMDL implementation
plan, followed by a step where the state
permitting authority reviews and
approves the plan to make it an
enforceable part of the permit. See
related examples in EPA’s Compendium
of MS4 Permitting Approaches—Part 3:
Water Quality-Based Requirements
(EPA, 2016).2 In this situation, under
the final rule, the permitting authority
would establish the MS4’s TMDL
implementation requirements as part of
the second step of the general permit
and follow the procedures applicable to
the Two-Step General Permit in
§ 122.28(d)(2).
EPA anticipates that some permitting
authorities may over time appreciate the
benefits of not having to go through a
second process step for individual
review and individualized public
notices for each MS4, and may as an
alternative choose to establish the
required permit terms and conditions
necessary to meet the MS4 permit
standard in the general permit. Under
the Two-Step General Permit, the
permitting authority must provide
public notice for each MS4’s NOI and
the proposed additional permit terms
and conditions to be applied to the
MS4, and review and process comments
and any requests for a public hearing
before finalizing the permit terms and
conditions. By comparison, there is only
one public notice for an opportunity to
comment and request a hearing for a
Comprehensive General Permit. Even if
deciding that a Comprehensive General
Permit is not the best fit, some
permitting authorities may find it easier
over time to move more requirements
into the base general permit so that the
number of permitting provisions subject
to the additional individualized review
and public notice is reduced.
1 These documents can be found on EPA’s Web
site at https://www.epa.gov/npdes/stormwaterdischarges-municipal-sources#resources.
2 This document will be made available on EPA’s
Web site at https://www.epa.gov/npdes/stormwaterdischarges-municipal-sources#resources.
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G. Why EPA Did Not Choose Proposed
Option 1 or 2 as Stand-Alone Options
By adopting the proposed State
Choice Approach (Option 3) (now called
the ‘‘Permit Authority Choice
Approach’’) for the final rule, EPA is
making a decision to not adopt Option
1 (the ‘‘Traditional General Permit
Approach’’) or Option 2 (the
‘‘Procedural Approach’’) from the
proposal as the sole approach by which
permitting authorities issue and
administer their small MS4 general
permits. As stated in Section V.B., the
public comments were heavily in favor
of adopting Option 3, although there
were also proponents for finalizing
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proposed Option 1 and for finalizing an
approach that would require use of
proposed Option 1 for the minimum
control measures and proposed Option
2 for water quality-based requirements.
EPA ultimately found most persuasive
the comments arguing in favor of
choosing Option 3 to give permitting
authorities flexibility and discretion to
determine how it would develop
different permit requirements.
A major theme among comments
favoring Option 3 was the emphasis on
the flexibility it would provide
permitting authorities to choose which
approach works best in their state. This
flexibility will be important, according
to a number of commenters, to continue
to be able to administer a program that
includes local governments with
divergent geography, land resources and
uses, and financial and resource
capacities. According to a number of
commenters, Option 3 would also give
permitting authorities a range of options
for crafting permit conditions for nontraditional MS4s (e.g., universities,
hospitals, military bases, road and
highway systems), which in many cases
require different types of permit
provisions than traditional MS4s due to
their lack of regulatory, land use, and/
or police powers and more limited
audiences. Other comments focused on
the significant burden that would be
placed on states and regulated MS4s if
required to adopt one uniform
approach, especially in cases where the
permitting authority is already
implementing approaches that are
similar to either proposed Option 1 or
2. In some cases, the way in which
permitting authorities write and
administer their small MS4 general
permits is a direct result of state case
law or concern about the risk of state
litigation, and these states argue
forcefully in their comments about the
importance of retaining their approach
in light of this history. According to
these comments, those permitting
authorities that have chosen one or the
other of Option 1 or 2 should be able to
continue implementing that approach.
Another related common theme
among the comments was an argument
against adopting either proposed Option
1 or Option 2 as a national, one size fits
all approach. These comments
emphasized the difficulties associated
with forcing all permit terms and
conditions into one general permit for
all MS4 types and all water quality
considerations using the proposed
Option 1 approach, and underscored the
resource demands associated with
implementing an Option 2 approach.
Many of these commenters concluded
that Option 3 would be the best way of
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preserving the permitting authority’s
flexibility to tailor their approach based
on what would work best for each
state’s circumstances.
Based on these comments, EPA chose
Option 3, the Permitting Authority
Choice option, because both options are
valid ways of addressing the court’s
remand and there is no reason to
compel permitting authorities to adopt
one or the other of the approaches in
proposed Option 1 or Option 2. EPA
also appreciates that those state
permitting authorities that are already
moving their small MS4 permitting
approaches in the direction of either
Option 1 or 2 are doing so for a number
of legitimate reasons that relate to these
states’ individual circumstances. By
enabling permitting authorities to
choose which option works best, EPA is
avoiding disrupting already established
state preferences. This is not to say that
permitting authorities will not have to
make changes to conform their
procedures to the requirements of the
final rule.
EPA also received comments urging
the Agency not to adopt Option 2 as the
only permitting choice available to
permitting authorities because of the
resource burdens associated with the
Option 2 approach, especially the
requirement to individually review and
approve terms and conditions for their
small MS4s. EPA does not dispute the
fact that Option 2, which has been
finalized as the ‘‘Two-Step General
Permit’’, is resource intensive; this
approach requires significant
administrative oversight by design. The
process of conducting an individual
review of each MS4 operator’s NOI,
developing a proposal for comment of
unique terms and conditions based on
the NOI, and processing any public
comments or requests for public
hearings will require additional
resources of the permitting authority if
it is not already implementing this type
of approach. Any permitting authority
choosing this approach will need to
carefully consider whether it has the
resource capacity to handle the large
amount of administrative oversight and
review responsibilities that the TwoStep General Permit requires. EPA
expects that the resource requirements
alone will provide sufficient enough
reason for a number of permitting
authorities to choose the
Comprehensive General Permit, or to
minimize the number of terms and
conditions it develops for individual
MS4 to lessen the administrative burden
associated with the Two-Step General
Permit.
EPA understands that a permitting
authority’s decision to adopt the Two-
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Step General Permit will mean that
members of the public interested in
commenting on small MS4 permit
conditions may end up needing to
review not only the draft general permit
but also the public notice that proposes
the additional terms and conditions for
each MS4 that seeks coverage under the
general permit. Some commenters
considered this a disadvantage because
it would be burdensome for the public
as well. EPA does not see this as
sufficient reason for EPA to choose
Option 1 as the only option and deprive
permitting authorities of the flexibility
to use a two-step procedure. The TwoStep General Permit closely resembles,
after all, the approach suggested in the
EDC remand decision, which
emphasized the need for permitting
authority review and public
participation procedures prior to the
establishment of enforceable permit
requirements. EPA appreciates the level
of interest and concern there is among
the public for ensuring that MS4
discharges are being adequately
controlled and are making
improvements in water quality. EPA
notes that any permitting authority that
takes on the Two-Step permitting
process will need to be prepared to
review and respond to any comments
that it receives in response to the
individual public notices it publishes,
and will need to provide a rationale for
any final permit terms and conditions
established through the process. While
states currently using a two-step type of
procedure report that they receive few,
if any public comments about
requirements for individual MS4s, this
will not necessarily hold true for the
future. With this in mind, EPA found it
important to clarify in the final rule that
permitting authorities may switch to a
Comprehensive General Permit for the
next permit term simply by explaining
which option they will use to provide
coverage under the general permit.
V. How the Two General Permit
Options Work
A. Comprehensive General Permit
Approach
Permitting authorities opting to issue
Comprehensive General Permits must
establish the full set of requirements
that are deemed necessary to meet the
MS4 permit standard in § 122.34. (See
§ 122.28(d)(1), which requires that ‘‘the
Director includes all required permit
terms and conditions in the general
permit.’’) The permit must therefore
include terms and conditions that
define what is required to meet the MS4
permit standard for the minimum
control measures (§ 122.34(b)),
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additional permit terms and conditions
based on an approved total maximum
daily load (TMDL) or other appropriate
requirements to protect water quality
(§ 122.34(c)), and requirements to
evaluate and report on compliance with
the permit (§ 122.34(d)). As a result, the
Comprehensive General Permit is no
different than other general permits in
that all applicable effluent limitations
and other conditions are included
within the permit itself, and the NOI is
used primarily to determine whether a
specific MS4 is eligible and to secure
coverage for that MS4 under the permit
subject to its limits and conditions.
While a number of comments
expressed support for the proposed
Option 1 approach (now called the
‘‘Comprehensive General Permit’’ in the
final rule), there were also comments
expressing concern about the difficulty
of putting together a permit that would
comprehensively establish terms and
conditions that would be suitable for
and achievable by all eligible MS4s,
including both traditional and nontraditional MS4s. Others questioned the
ability of permitting authorities to write
a single permit that would establish
uniform requirements that would
contain appropriate requirements for
MS4s that have been regulated since the
beginning of the Phase II program as
well as for MS4s brought into the Phase
II program by the latest Census, not to
mention a permit that would be able to
establish watershed-specific
requirements addressing TMDLs. EPA
acknowledges the challenge that
permitting authorities will face in
developing and issuing a
Comprehensive General Permit.
Synthesizing the collective
understanding of MS4 capabilities
across an entire state, and translating
this into effective and achievable permit
requirements, will require a greater
effort up front in developing one of
these permits. However, as described in
further detail below, there are ways of
addressing challenges such as these, for
example, by subcategorizing MS4s by
experience, size, or other factors, and
creating different requirements for each
subcategory.
To assist permitting authorities in
developing permit conditions for a
Comprehensive General Permit, EPA
has compiled examples of permit
provisions from existing permits that
implement the minimum control
measures, which are written in a ‘‘clear,
specific, and measurable’’ manner.
These examples are included in a
document entitled Compendium of MS4
Permitting Approaches—Part 1: Six
Minimum Control Measure Provisions
(EPA, 2016). EPA has also included in
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a separate compendium examples of
permit provisions to consider when
addressing approved TMDLs.3 A
number of commenters requested that
EPA continue to provide these types of
examples to help permitting authorities
implement the final rule. EPA agrees
with these comments, and plans to
regularly update these compendia and
provide other similar types of technical
assistance.
There are a variety of permitting
approaches that should be considered to
address the concerns raised about
developing a Comprehensive General
Permit for the large number and variety
of regulated MS4s, and which address
the array of localized or watershedbased issues. One approach that may
work is to issue two different
comprehensive general permits or to
subdivide the permitted universe,
establish in the main body of the permit
requirements that apply to all MS4s,
and to provide a separate appendix that
establishes MS4-specific terms and
conditions, which apply uniquely to
different categories of MS4s. For
instance, the state of Washington has
issued two MS4 general permits, one for
the eastern part of the state and the
other for the western part of the state.
Further, the Western Washington Small
MS4 General Permit includes a TMDL
appendix, which establishes additional
permit requirements for specific MS4s
based on the watershed in which they
are located and the waterbody to which
they discharge. These additional
requirements are each translated from
the approved TMDL for that watershed
and the specific waterbody. Another
approach that permitting authorities can
consider is to establish different
requirements for each minimum control
measure for separate sub-categories of
MS4s based on type of MS4 or other
factors.4 Permits could also include
separate sections for traditional versus
non-traditional MS4s,5 or alternatively
separate permits may be issued for these
different categories of MS4s, as several
states are doing for departments of
transportation MS4s. The main benefit
of these different approaches is that they
provide the permitting authority with a
way of dividing up the universe of small
3 See EPA’s Compendium of MS4 Permitting
Approaches—Part 3: Water Quality-Based
Requirements (EPA, 2016).
4 For example, Colorado’s 2016 Small MS4
General Permit includes a different set of actions
and corresponding deadlines for ‘‘new permittees’’
and ‘‘renewal permittees.’’ See Section H, https://
www.colorado.gov/pacific/sites/default/files/
COR090000-PermitCertification.PDF.
5 See California’s 2013 Small MS4 General
Permit, https://www.waterboards.ca.gov/water_
issues/programs/stormwater/docs/phsii2012_5th/
order_final.pdf.
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MS4s into smaller categories, which are
composed of municipalities with a
greater degree of similarity among them.
B. Two-Step General Permit Approach
Inherent in the Two-Step General
Permit approach is the fact that the
general permit requirements are not on
their own adequate to meet the MS4
permit standard in § 122.34. In order to
fill in the gaps, the permitting authority
must individually review information
submitted with each eligible MS4
operator’s NOI, and propose additional
permit requirements to apply to the
MS4 individually that, together with the
base general permit requirements, meet
the MS4 permit standard for that MS4.
These proposed additional permit
requirements and the information on
which it is based is then subject to
public notice and comment, and the
opportunity to request a hearing.
The first step of the Two-Step General
Permit is to develop and issue the final
small MS4 general permit, or ‘‘base
general permit.’’ The need for the
second step arises because the base
general permit does not include all of
the terms and conditions necessary to
meet the MS4 permit standard, and
therefore has left the development of the
additional requirements to a second
process. NOIs for general permits using
this approach must include more
information than NOIs for typical
general permits.
The proposed rule described the steps
that would be involved in the second
step of the permitting process in Section
VI.B of the preamble (81 FR 427,
January 6, 2016). EPA requested
comment on modifying the applicable
parts of the NPDES regulations to enable
permitting authorities to incorporate
additional, enforceable elements of the
Two-Step General Permit for individual
MS4s following a process that would
require public notice, the opportunity to
request a public hearing, and a final
permitting determination. The model
that EPA proposed for this procedure
was based on several of the key
components of the permitting
framework adopted for Concentrated
Animal Feeding Operations (CAFOs) in
§ 122.23(h). EPA proposed that the new
‘‘Option 2’’ process would be contained
in § 122.33(b)(1), where the NOI
requirements for small MS4 general
permits are located. The proposal
described the rule provisions as follows:
• At a minimum, the operator must
include in the NOI the BMPs that it
proposes to implement to comply with
the permit, the measurable goals for
each BMP, the person or persons
responsible for implementing the
SWMP, and any additional information
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required in the NOI by the general
permit. The Director must review the
NOI to ensure that it includes adequate
information to determine if the
proposed BMPs, timelines, and any
other actions are adequate to reduce the
discharge of pollutants from the MS4 to
the maximum extent practicable, to
protect water quality, and to satisfy the
appropriate water quality requirements
of the Clean Water Act. When the
Director finds that additional
information is necessary to complete the
NOI or clarify, modify, or supplement
previously submitted material, the
Director may request such additional
information from the MS4 operator.
• If the Director makes a preliminary
determination that the NOI contains the
required information and that the
proposed BMPs, schedules, and any
other actions necessary to reduce the
discharge of pollutants from the MS4 to
the maximum extent practicable, to
protect water quality, and to satisfy the
appropriate water quality requirements
of the Clean Water Act, the permitting
authority must notify the public of its
proposal to authorize the MS4 to
discharge under the general permit and,
consistent with § 124.10, make available
for public review and comment and
opportunity for public hearing the NOI,
and the specific BMPs, milestones, and
schedules from the NOI that the Director
proposes to be incorporated into the
permit as enforceable requirements. The
process for submitting public comments
and hearing requests, and the hearing
process if a hearing is granted, must
follow the procedures applicable to
draft permits in §§ 124.11 through
124.13. The permitting authority must
respond to significant comments
received during the comment period, as
provided in § 124.17, and, if necessary
revise the proposed BMPs and/or
timelines to be included as terms of the
permit.
• When the Director authorizes
coverage for the MS4 to discharge under
the general permit, the specific elements
identified in the NOI are incorporated as
terms and conditions of the general
permit for that MS4. The permitting
authority must, consistent with
§ 124.15, notify the MS4 operator and
inform the public that coverage has been
authorized and of the elements from the
NOI that are incorporated as terms and
conditions of the general permit
applicable to the MS4 (81 FR at 427–
420, January 6, 2016).
The final rule matches closely with
what was proposed as the steps
necessary to implement Option 2. These
steps, which are part of what was
finalized as the ‘‘Two-Step General
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Permit,’’ are described as follows in
§ 122.28(d)(2):
(1) The MS4 operator submits the NOI
with the information about its activities
as specified in the general permit.
(2) The permitting authority reviews
the NOI to determine if the information
is complete and to develop proposed
additional permit requirements
necessary to meet the MS4 permit
standard;
(3) If the permitting authority makes
a preliminary determination to
authorize the small MS4 operator to
discharge it must give the public notice
of and opportunity to comment and
request a public hearing on the
proposed additional permit terms and
conditions, and the basis for these
additional requirements, including the
NOI and other relevant information
submitted by the MS4. These
procedures must be carried out in
accordance with 40 CFR part 124.
(4) Upon completion of the
procedures in step (3), the permitting
authority may authorize the discharge
from the MS4 subject to the
requirements of the base general permit
and the final requirements established
in the second step. Using this approach,
the permitting authority may choose to
rely fully on the completion of this
process to establish most of required
permit terms and conditions for a
particular MS4, or it may rely on a
hybrid approach wherein some of the
necessary requirements are established
within the base general permit at permit
issuance while the remaining set of
requirements are developed during the
process of authorizing individual MS4
discharges in the second step.
Where EPA has modified the TwoStep General Permit from the proposed
rule, it is to clarify a point made in the
proposed rule. For instance, EPA makes
a clarification in the final rule regarding
the requirements for NOI review in the
Two-Step approach. The proposed rule
explained that the purpose of the
permitting authority’s review is to
determine whether the NOI is complete
and whether the operator’s proposed set
of BMPs and measurable goals are
adequate to meet the MS4 permit
standard. The final rule places emphasis
on the fact that the information
submitted by the MS4 operator with its
NOI is for the purpose of informing the
permitting authority’s determination as
to what ‘‘additional terms and
conditions necessary to meet the
requirements of § 122.34.’’ See
§ 122.28(d)(2)(ii). What the operator
submits in the NOI is determined by the
permitting authority when establishing
the base general permit. The permitting
authority may request descriptions of
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BMPs to be implemented and
measurable goals as the MS4’s proposal
for what it considers to be adequate to
‘‘reduce pollutants to the maximum
extent practicable, protect water quality
and satisfy the appropriate water quality
requirements of the Clean Water Act.’’
Under the Two-Part General Permit in
the final rule, the permitting authority
reviews this information to craft what it
determines are the necessary permit
terms and conditions to meet this MS4
permit standard; these terms and
conditions are then subject to the
permitting procedures for public
comment and the opportunity to request
a hearing. The specific requirements
developed out of this process may bear
a substantial similarity to the operator’s
proposed BMPs and measurable goals,
but they also may be modified or further
refined based on the permitting
authority’s own determination as to the
specific requirements that it deems
necessary to meet the MS4 permit
standard. For instance, instead of
proposing to adopt all of the BMP
details that are submitted by the MS4
operator with the NOI as enforceable
permit requirements, the permitting
authority may instead develop proposed
requirements that focus in on the
specific actions and milestones that it
believes would represent significant
progress during the permit term. This is
a clarification from the proposed rule
description of the NOI review process,
which did not clearly articulate the
permitting authority’s role in reviewing
the operator’s BMP and measurable goal
information, or other information
requested in the base general permit (or
fact sheet).
Another clarification made to the
proposed Two-Step process relates to
the 40 CFR part 124 procedures to
follow during the second step. The final
rule incorporates by reference several
specific sections of part 124. These
specific references are consistent with
the proposed rule’s reference generally
to part 124, however, in the final rule
EPA focused in on the specific
procedural requirements that ensure
that the public participation aspects of
the Two-Step General Permit are
consistent with the NPDES regulations.
These part 124 requirements are
necessary because the permitting
authority is proposing to add additional
terms and conditions to the general
permit applicable to individual MS4
permittees. EPA likens these additional
terms and conditions to the
development of a ‘‘draft permit’’ under
§ 124.6, and, as such, these draft
requirements must undergo minimum
permitting procedures for public notice,
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comments, and hearings before they are
established in final form. The following
procedural requirements are referenced
directly:
Public Notice of Permit Actions and
Public Comment Period (§ 124.10,
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—By incorporating these provisions of
§ 124.10 for the Two-Part General
Permit, this means that the permitting
authority’s notice must adhere to the
following minimum public notice
requirements for the draft permit
conditions:
• The notice must provide a
minimum of 30 days for the public to
provide comment on the draft permit
terms and conditions. The permitting
authority must provide notice to the
public at least 30 days prior to holding
a public hearing on these draft
requirements. See § 124.10(b).
• The permitting authority must
provide public notice to the MS4
operator who submitted the NOI, to any
relevant agencies or other entities
referenced in § 124.10(c)(1), and
members of the public on the permitting
authority’s mailing list pursuant to
§ 124.10(c)(1)(ix). The public notice
must also be sent in a manner
constituting legal notice to the public
under state law (if the permit program
is administered by an approved state),
and by using ‘‘any other method
reasonably calculated to give actual
notice’’ of the draft terms and
conditions being added to the permit.
See § 124.10(c)(3) and (4).
• The public notice must consist of:
(1) The name and address of the office
processing the NOI and draft terms and
conditions for the MS4 operator; (2)
name, address, and telephone number of
a person from whom interested persons
may obtain further information,
including copies of the draft terms and
conditions, statement of basis or fact
sheet, and the NOI; (3) a brief
description of the comment procedures
required by §§ 124.11 and 124.12 and
the time and place of any hearing that
will be held, including a statement of
procedures to request a hearing, and any
other procedures by which the public
may participate in the final
authorization decision; (4) for EPAissued permits, the location of the
administrative record required by
§ 124.9, the times when the record will
be open for public inspection, and a
statement that all data submitted by the
operator is available as part of the
administrative record; (5) a general
description of the location of each
discharge point and the name of the
receiving water; and (6) any additional
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information considered ‘‘necessary or
proper.’’ The public notice of a hearing
under § 124.12 must include: (1)
Reference to the date of previous public
notices relating to the same MS4; (2)
date, time, and place of the hearing; and
(3) a brief description of the nature and
purpose of the hearing, including the
applicable rules and procedures. See
§ 124.10(d).
• In addition to the public notice, the
permitting authority must mail a copy of
the fact sheet or statement of basis, the
NOI, and the draft terms and conditions
to the operator and other agencies and
entities listed in § 124.10(c)(1)(ii) and
(iii). See § 124.10(e).
A cross-reference to § 124.10(c)(2) is
not included in the final rule. Although
these requirements apply to general
permits, EPA distinguishes in the TwoStep General Permit between the base
general permit and the terms and
conditions that are added through the
second permitting step for individual
MS4 permittees. The permitting
authority is required to comply with
§ 124.10(c)(2) when issuing the general
permit (i.e., the base general permit).
However, because the additional MS4specific terms and conditions are
developed in a manner that is similar to
the way in which terms in an individual
permit would be developed, EPA
concluded that the public notice
requirements that apply to individual
permits are more appropriate for the
second step in the process of
authorizing an MS4 to discharge under
a Two-Step General Permit. For this
reason, EPA does not apply the specific
requirements of § 124.10(c)(2) to the
proposed additional terms and
conditions, but does apply the other
applicable public notice requirements of
§ 124.10.
Public Comments and Public Hearings
(§§ 124.11 and 124.17)
Consistent with § 124.11, during the
public comment period for the draft
permit conditions, any member of the
public may submit comments and may
request a hearing, if none has already
been scheduled. The permitting
authority is required to consider
comments received during the comment
period in making the decision to
authorize the discharge. When the
permitting authority has made a final
determination to authorize an
individual small MS4 to discharge
under the general permit, subject to the
additional incorporated requirements, it
must also make available to the public
its responses to comments received,
subject to the applicable requirements of
§ 124.17.
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Public Hearings (§ 124.12)
If the permitting authority holds a
public hearing on the draft permit
conditions, public notice of the hearing
must be provided as specified in
§ 124.10 and the hearing must be
conducted in accordance with the
requirements of § 124.12.
Obligation To Raise Issues During the
Public Comment Period (§ 124.13)
During the public comment period for
the draft permit conditions, commenters
are obligated to raise ‘‘all reasonably
ascertainable issues and submit all
reasonably available arguments
supporting their position’’ as required in
§ 124.13.
Upon completion of these procedures,
in which permitting authority review,
public notice and comment, and any
public hearings take place in accordance
with the appropriate sections of part
124, the permitting authority may
authorize the MS4 to discharge under
the terms of the permit. When
authorization occurs, the final terms and
conditions that were the subject of the
public comment and hearing process
described above become enforceable
permit terms and conditions for that
MS4 permittee. No significant changes
were made to this step from the
proposed rule. EPA clarifies that the
permitting authority may choose the
method by which the permittee is
notified of the final decision to
authorize the discharge and the final
permit conditions, and by which the
public is informed of the same. EPA
oversight of state-issued NPDES permits
must also be taken into account. Under
the Two-Step General Permit, EPA has
authority to review all terms and
conditions of the permit, whether
established in a base general permit or
in the second step that establishes terms
and conditions for individual MS4s. See
§ 123.44.
C. Permittee Publication of Public
Notice
A question arose during the
development of the proposed rule as to
whether the MS4 could carry out public
notice requirements for the Procedural
Approach (now referred to as the ‘‘TwoStep General Permit’’). Several states
currently require MS4 permittees to
provide public notice of individual MS4
NOIs (and their proposed SWMPs in
many states), including information on
how the public can submit comments to
the state and to request a public hearing.
EPA requested comment on whether
permitting authorities that have relied
on the MS4 to place public notices in
the past should be able to use this
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approach to satisfy their public notice
requirements for individual NOIs under
the Two-Part General Permit. EPA did
not propose this approach to be adopted
as part of the rulemaking effort, and is
not including in the final rule any
specific requirements related to this
practice.
EPA received several comments in
response to this question. State
permitting authorities and one statewide
MS4 association voiced their support for
allowing permitting authorities to
require MS4 permittees to publish
public notices, and to establish
procedures within the final rule to
accommodate this practice. One state
suggested that if a permitting authority
is allowed to rely on the MS4 to publish
the public notice of the NOI, such
public notice must follow all of the
minimum requirements related to the
contents and methods of providing
notice, and any public comments
received should be acknowledged and
considered by the state and documented
in the final permit decision. Another
commenter recommended that the
permitting authority be the only entity
authorized to conduct public notice and
comment procedures given the
differences of opinion that may arise
during the process, but suggested that as
an alternative EPA could allow states to
establish their own process for these
procedures as long as they are
consistent with the regulations.
Other commenters were opposed to
allowing permitting authorities to rely
on the MS4 permittee to carry out
applicable public participation
requirements. These commenters
emphasized the clear requirement in the
regulations for the permitting authority
to conduct these activities, pointing to
the fact that the NOI should be treated
no differently than any permit
application. These comments noted that
members of the public wishing to
review and potentially submit
comments and request a hearing on
NOIs should have a centralized place to
refer to for reviewing public notices of
NOIs, and feared that allowing a
decentralized approach where the MS4
handles the public notice would be
unlikely to reach the intended audience.
Another point made was that in keeping
with the permitting authority’s
responsibility to review and determine
the adequacy of each MS4’s NOI, the
public notice and comment proceedings
that are associated with the NOIs should
be managed by the same entity. These
commenters also questioned whether
delegating these responsibilities to the
MS4 made sense given the fact that it is
the state that is most familiar with how
to meet its own administrative rules and
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protocols, and that is best equipped
from a technical and physical capacity
standpoint to receive and process
comments, many of which will be
submitted electronically, and
potentially hold hearings. Additionally,
some commenters worried about the
effect of placing more burden on the
municipalities.
The final rule does not address the
issue of whether the permitting
authority may rely on its MS4
permittees to carry out public notice
responsibilities on its behalf in the final
rule, but instead incorporates by
reference the existing set of
requirements that apply to all draft
permits in § 124.10. As to whether
permitting authorities may rely on the
permittee to publish the public notice,
it is EPA’s view that they may do so as
long as the public notice meets all of the
applicable requirements in § 124.10.
The public notice responsibilities in the
NPDES regulations apply to the
permitting authority, therefore these are
requirements that it must ensure are
met. The state must conduct any public
hearing, consider the comments
received, respond to them, and make
decisions as to what changes are
necessary as a result of the comments.
VI. Requirements for Permit Terms and
Conditions
EPA proposed several clarifying
changes to the regulatory language in
§ 122.34 regarding the expression of
permit limits for small MS4s. First, EPA
proposed to clarify that the permitting
authority is responsible for establishing
permit requirements that meet the MS4
permit standard. Second, proposed
changes would address issues of clarity
in permit terms and the different ways
in which permit requirements can be
expressed. Third, the proposal would
reinforce the expectation that the MS4
standard must be independently met for
each 5-year permit term. Each of these
categories of regulatory changes is
discussed below. The final rule
incorporates these proposed changes,
with some modification to the proposed
rule language in response to comments
and for additional clarity.
A. Permitting Authority as the Ultimate
Decision-Maker
To directly address the clear message
from the Ninth Circuit remand that the
regulations need to preclude the small
MS4 from determining on its own what
actions are sufficient to meet the MS4
standard ‘‘to reduce pollutants to the
maximum extent practicable, protect
water quality and satisfy the appropriate
water quality requirements of the
CWA,’’ EPA proposed revisions
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throughout § 122.34 to make it clear that
the permitting authority is responsible
for establishing permit requirements
that meet the standard. For this reason,
EPA proposed to shift the focus of the
requirements in § 122.34 to the ‘‘NPDES
permitting authority’’ rather than the
regulated small MS4. Similarly, the
proposed rule modified the guidance
provisions to focus on permitting
authorities as well as MS4s. In most
cases, this meant substituting the term
‘‘NPDES permitting authority’’ for
‘‘you’’ or ‘‘your’’ (referring to the
regulated small MS4) and referring to
the regulated small MS4 as the
‘‘operator.’’ A related change tied to the
remand was the proposed deletion of
the sentence ‘‘Implementation of best
management practices consistent with
the provisions of the storm water
management program required pursuant
to this section and the provisions of the
permit required pursuant to § 122.33
constitutes compliance with the
standard of reducing pollutants to the
‘maximum extent practicable.’ ’’ The
Ninth Circuit court specifically raised
this sentence as a demonstration that
‘‘nothing in the Phase II regulations
requires that NPDES permitting
authorities review these Minimum
Measures to ensure that the measures
that any given operator of a small MS4
has decided to undertake will in fact
reduce discharges to the maximum
extent practicable.’’ See EDC, 344 F.3d
at 832, 854. The proposal to remove this
sentence, combined with the other
changes, would reinforce the fact that
the permitting authority is the entity
responsible for establishing the terms
and conditions of the permit necessary
to meet the MS4 permit standard. These
changes also would shift the focus of
§ 122.34 to the development of permit
requirements and away from the
identification of what the MS4 should
include in its SWMP.
EPA received a relatively small
number of comments responding to
these proposed changes. Some
commenters expressed a preference to
continue to have the MS4 in charge of
defining the MS4 standard for itself or
requested that the deleted sentence
(‘‘Implementation of best management
practices consistent with the provisions
of the stormwater management plan.
. . .’’) be retained. Other commenters
pointed out that the proposed changes
should apply to all regulated small MS4
permits, regardless of the type of permit
(e.g., Traditional General Permit,
Procedural General Permit, or
individual), and requested that EPA
clarify this in the final rule.
The final rule retains the proposed
rule changes that emphasize that it is
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the permitting authority with the
ultimate authority to determine what
small MS4s must do to meet the MS4
permit standard. These changes respond
to the Ninth Circuit’s finding in the EDC
decision that the Phase II rule did not,
contrary to the CWA, require the
permitting authority to determine
whether the MS4 permittee’s proposed
program would in fact meet the MS4
permit standard. Indeed, while the EDC
decision specifically addressed the
general permit process, the underlying
rationale for the court’s rejection of the
general permitting process—the failure
of the rule to ensure that the permitting
authority, not the permittee, determine
what is needed to meet the standard
applicable to MS4 permits under the
CWA—applies whether the MS4 permit
is a general permit or an individual
permit. Therefore, EPA is amending
§ 122.34 to apply to any permit issued
to regulated small MS4s (except those
small MS4s applying for an individual
permit under § 122.33(b)(2)(ii)).
These changes, including the deletion
of the sentence ‘‘Implementation of best
management practices consistent with
the provisions of the storm water
management program required pursuant
to this section and the provisions of the
permit required pursuant to § 122.33
constitutes compliance with the
standard of reducing pollutants to the
maximum extent practicable,’’ more
clearly establish the permit as the
enforceable document, not the
stormwater management program or
what has been described in the SWMP.
(See VI.E of this preamble for a
discussion of the function of the
‘‘SWMP’’ under EPA’s small MS4
regulation.)
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B. ‘‘Clear, Specific, and Measurable’’
Permit Requirements
EPA also proposed rule revisions
related to the expression of permit
terms. Consistent with current EPA
guidance, the proposed rule specified
that permit requirements be expressed
in ‘‘clear, specific, and measurable’’
terms. The preamble to the proposed
rule contained a detailed discussion
about what ‘‘clear, specific, and
measurable’’ meant and EPA put in the
rulemaking docket a draft compendium
of example language from actual permits
to further illustrate the meaning of
‘‘clear specific, and measurable.’’ See
updated permit compendium in the
final rule docket, MS4 Compendium of
Permitting Approaches: Part 1: Six
Minimum Control Measures (EPA,
2016). EPA also included in the
preamble to the proposed rule,
examples of permit language that do not
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appear to have the type of detail that
would be needed.
In addition to specifying that permit
terms and conditions must be ‘‘clear,
specific, and measurable,’’ the proposed
rule text clarified that effluent
limitations may be in the form of BMPs,
and provided non-exclusive examples of
how these BMP requirements may
appear in the permit, such as in the
form of specific tasks, BMP design
requirements, performance
requirements or benchmarks, schedules
for implementation and maintenance,
and the frequency of actions. This
language was proposed to substitute for
existing language that states: ‘‘Narrative
effluent limitations requiring
implementation of best management
practices (BMPs) are generally the most
appropriate form of effluent limitations
when designed to satisfy technology
requirements . . . and to protect water
quality.’’
EPA also proposed to delete a related
guidance paragraph in § 123.34(e)(2). As
explained in the proposed rule
preamble, the guidance no longer
reflects current practice.6 The deletion
of this paragraph is also consistent with
EPA guidance developed since 1999
regarding the types of requirements that
are recommended for MS4 permits.7
EPA received numerous comments on
these proposed changes. For the most
part, commenters from all stakeholder
groups expressed approval for the
‘‘clear, specific, and measurable’’
language. However, a variety of
commenters read the deletion of
‘‘narrative’’ to mean that numeric
effluent limitations (e.g., end-of-pipe
pollutant concentration limitations)
would be required in small MS4 permits
or that ‘‘narrative’’ limits would no
longer be acceptable. As stated in the
preamble, EPA did not intend to make
substantive changes to § 122.34 beyond
what would be required to address the
court remand. The term ‘‘narrative’’ was
proposed to be deleted to recognize that
other expressions of effluent limitations
may be appropriate, not to preclude the
use of narrative effluent limitations. To
avoid misinterpretation of the
regulation, however, the final rule
instead describes appropriate
requirements as being ‘‘narrative,
numeric, or other requirements.’’ EPA
intends for the final rule text to more
6 See EPA’s Compendium of MS4 Permitting
Approaches—Part 3: Water Quality-Based
Requirements (EPA, 2016).
7 See EPA memorandum entitled Revisions to the
November 22, 2002 Memorandum ‘‘Establishing
Total Maximum Daily Load (TMDL) Wasteload
Allocations (WLAs) for Storm Water Sources and
NPDES Permit Requirements Based on Those
WLAs,’’ November 26, 2014.
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broadly encompass the various types of
controls for stormwater discharges that
could be required of small MS4s.
Regarding the insertion of ‘‘clear,
specific, and measurable’’ to describe
permit requirements, most commenters
perceived benefits for permittees,
permitting authorities, and the public,
particularly because it will be more
clearly stated in the permit what is
expected for compliance. Some
commenters observed that ‘‘clear,
specific, and measurable’’ terms would
enable better enforcement of the MS4
permit requirements, and would
provide a more effective path to
improved water quality. Some small
MS4s themselves pointed out that
greater certainty in permit terms could
put them into a better position to plan
and to garner local political support and
critical funding for their programs.
Other MS4s, however, voiced
uncertainty as to how the terms ‘‘clear,
specific, and measurable’’ would be
implemented and what would actually
be required of them by their permits and
concern that their flexibility would be
unduly restricted. Some commenters
also suggested that regulatory provisions
associated with the expression of permit
limits, while discussed in the preamble
to the proposed rule in the context of
Option 1, should apply regardless of the
option chosen. Several groups requested
that ‘‘clear, specific, and measurable’’ be
changed instead to ‘‘focused, flexible,
and effective.’’ Other commenters
requested that ‘‘enforceable’’ be added
to this phrase. Some groups
representing MS4 permittees and
industry expressed concern that
‘‘measurable’’ meant that permits would
now contain water quality monitoring
requirements or that ‘‘measurable,’’
together with the deletion of ‘‘narrative’’
to describe effluent limitations, meant
that EPA was opening the door for small
MS4 permits to now be required to
contain numeric effluent limitations,
e.g., end-of-pipe pollutant concentration
limits for each outfall in the system. A
concern that ‘‘clear, specific, and
measurable’’ would preclude or reduce
MS4 flexibility to change program
elements as a program encountered
successes or failures (i.e., adaptations
made during the permit term or to meet
MS4-specific circumstances) was also
stated as a disadvantage associated with
this language. In a related vein, several
commenters warned against permit
terms that were too specific and left
very little discretion to the MS4. Some
commenters requested that the
regulatory text indicate that the
expectation that permit requirements be
‘‘clear, specific, and measurable’’ apply
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to each BMP and other requirements in
the permit, and accompanied by
reporting requirements that related to
measurable requirements, rather than
measureable goals as in the current
regulation.
The final rule retains the proposed
rule requirement for ‘‘clear, specific,
and measurable’’ permit terms and
conditions. Accompanying the
promulgation of this requirement, EPA
is also publishing an updated version of
its compendium of permit examples
from the proposed rule (i.e., MS4
Compendium of Permitting Approaches:
Part 1: Six Minimum Control Measures
(EPA, 2016)), which includes provisions
from EPA and state MS4 general permits
that provide examples of clear, specific,
and measurable requirements. EPA also
retains the examples provided in the
proposed rule preamble of permit
language that would generally not
qualify as clear, specific, and
measurable, which is included here,
with minor edits:
• Permit provisions that simply copy
the language of the Phase II regulations
verbatim without providing further
detail on the level of effort required or
that do not include the minimum
actions that must be carried out during
the permit term. For instance, where a
permit includes the language in
§ 122.34(b)(4)(ii)(B) (i.e., requiring ‘‘. . .
construction site operators to implement
appropriate erosion and sediment
control best management practices’’)
and does not provide further details on
the minimum set of accepted practices,
the requirement would not provide
clear, specific, and measurable
requirements within the intended
meaning of the proposed Traditional
General Permit Approach. The same
would also be true if the permit just
copies the language from the other
minimum control measure provisions in
§ 122.34(b) without further detailing the
particular actions and schedules that
must be achieved during the permit
term.
• Permit requirements that include
‘‘caveat’’ language, such as ‘‘if feasible,’’
‘‘if practicable,’’ ‘‘to the maximum
extent practicable,’’ and ‘‘as necessary’’
or ‘‘as appropriate’’ unless defined.
Without defining parameters for such
terms (for example, ‘‘infeasible’’ means
‘‘not technologically possible or not
economically practicable and achievable
in light of best industry practices’’), this
type of language creates uncertainty as
to what specific actions the permittee is
expected to take, and is therefore
difficult to comply with and assess
compliance.
• Permit provisions that preface the
requirement with non-mandatory
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words, such as ‘‘should’’ or ‘‘the
permittee is encouraged to . . . .’’ This
type of permit language makes it
difficult to assess compliance since it is
ultimately left to the judgment of the
permittee as to whether it will comply.
EPA notes that the Phase II regulations
include ‘‘guidance’’ in places (e.g.,
§ 122.34(b)(1)(ii), (b)(2)(ii), and
(b)(3)(iv)) that suggest practices for
adoption by MS4s and within permits,
but does not mandate that they be
adopted. This guidance language is
intended for permitting authorities to
consider in establishing their permit
requirements. Permitting authorities
may find it helpful to their permittees
to include guidance language within
their permits in order to provide
suggestions to their permittees, and it
may be included. However, guidance
language phrased as suggested
guidelines would not qualify as an
enforceable permit requirement under
the final rule.
• Permit requirements that lack a
measurable component. For instance,
permit language implementing the
construction minimum control measure
that requires inspections ‘‘at a frequency
determined by the permittee’’ based on
a number of factors. This type of
provision includes no minimum
frequency that can be used to measure
adequacy and, therefore, would not
constitute a measurable requirement for
the purposes of the rule.
• Provisions that require the
development of a plan to implement one
of the minimum control measures, but
does not include details on the
minimum contents or requirements for
the plan, or the required outcomes,
deadlines, and corresponding
milestones. For example, permit
language requiring the MS4 to develop
a plan to implement the public
education minimum control measure,
which informs the public about steps
they can take to reduce stormwater
pollution. The requirement leaves all of
the decisions on what specific actions
will be taken during the permit term to
comply with this provision to the MS4
permittee, thus enabling almost any
type of activity, no matter how minor or
insubstantial, to be considered in
compliance with the permit.
Regarding the suggestion to add
‘‘enforceable,’’ in EPA’s view, clear,
specific and measurable terms and
conditions together define what makes a
permit requirement enforceable.
Therefore, adding ‘‘enforceable’’ to this
list of attributes would not add to the
enforceability of permit terms and
conditions. With respect to the
suggestion to replace ‘‘clear, specific,
and measurable’’ with ‘‘focused,
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flexible, and effective,’’ EPA clarifies
that nothing in the final rule prevents a
permitting authority from developing
permit requirements that are focused,
flexible, and effective, as long as those
requirements are articulated in clear,
specific, and measurable terms.
The word ‘‘specific’’ also generated a
number of comments. EPA proposed
‘‘specific’’ to indicate what activities an
MS4 would be required to undertake to
implement the various required
elements of the minimum control
measures described in § 122.34(b) or to
achieve a specified level of performance
that would constitute compliance with
the permit. Some commenters
advocated for more specificity in
permits, while others cautioned against
too much specificity. Still others simply
asked for more guidance about how
‘‘specific’’ a general permit would need
to be. EPA intends for ‘‘specific’’ to
mean that a permitting authority
describes in enough in detail that an
MS4 can determine from permit terms
and conditions what activity they need
to undertake, when or how often they
must undertake it, and whether they
must undertake it in a particular way. It
must be clear what does and does not
constitute compliance. As noted in the
preamble to the proposed regulation, a
verbatim repetition of the minimum
control measures described in
§ 122.34(b) does not provide a sufficient
level of specificity.
At the same time, EPA intends for the
permitting authority to retain discretion
in determining how much specificity is
needed for different permit
requirements. The level of specificity
may change over time, for example, to
reflect a more robust understanding of
more effective stormwater management
controls or to meet specific state needs.
There is a wide range of ways to
implement a stormwater management
program and the permitting authority
will need to determine how to craft
permit terms and conditions that
establish clear expectations that
implement the various requirements in
§ 122.34 in specific terms, and this can
be done while also providing flexibility
to MS4s to choose how they will
comply with permit terms. For example,
a requirement to ‘‘Develop a public
education program about the effect of
stormwater on water quality’’ is not a
sufficiently specific permit requirement.
To provide greater specificity, some
permitting authorities have provided a
menu of specific public education
activities in the permit, and the MS4
must choose from among them
indicating how they will comply with
the permit. For a hypothetical example,
the permit might require that the MS4
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undertake four public education
activities each year from a list of
activities specified in the permit and
include at least one each year that is
directed at students in all public schools
within the MS4 area, using an existing
or new curriculum, to explain ways in
which stormwater can harm water
quality. In this hypothetical example,
the MS4 has the flexibility to choose
from a list of activities the permitting
authority has determined are acceptable
and, for the required activity involving
public schools, and to choose a
curriculum that already exists or
develop a new one that is tailored to
specific stormwater problems in the
community. The specific (clear and
measurable) permit terms are:
(1) To undertake four education
activities per year from a specified list
of allowable activities; and (2) to ensure
that at least one of the activities
involves education about stormwater at
all public schools. Compliance would
be completion of four activities each
year. One type of activity is specified in
the permit, but the MS4 can choose the
audience, the medium, and the specific
message for the other three required
activities. Even within the more specific
requirement related to public schools,
the permittee would have discretion in
determining the form and content of the
curriculum. In this hypothetical
example, the permit contained
requirements of varying specificity, but
the boundaries of what constitutes
compliance is readily apparent and it is
clear what the MS4 must do and the
timeframe for compliance.
What is not specified in a permit
implicitly defines the level of discretion
the MS4 has to meet the terms and
conditions of the permit. EPA
recognizes that it can be useful for MS4s
to retain the ability to change specific
stormwater control activities during the
term of the permit without the need to
seek a permit modification for every
change. In the above hypothetical
example, if the MS4 finds that, after the
second year of the permit term that the
curriculum it chose was not effective, it
could develop a different one or choose
another curriculum, e.g., one that
involves field work rather than just
classroom instruction. The change in
curriculum would not require a permit
modification because the permit did not
specify the particular curriculum that
must be used. The permit terms in this
case also provide the public with
sufficient information to offer comments
on the activities available, their number
and frequency, and the degree of
discretion left to the MS4. EPA
emphasizes that it is not necessary that
every detail be spelled out in a permit
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as an enforceable requirement under the
CWA. See further discussion of the
considerations related to permit
modifications in Section VI.E.
In the above hypothetical example,
the permitting authority could have
chosen more specific terms. For
example, it could have required that the
MS4s undertake activities A and B in
the first year, activities C and D in the
second year, and so on. It could have
specified the medium to be used, e.g.,
television or social media and each of
the audiences that must be addressed in
the outreach plan (e.g., businesses,
commercial establishments, developers).
EPA notes that increased specificity
does not necessarily mean that the
permit is more stringent. It does,
however, decrease the flexibility left to
the MS4 to determine how to meet the
permit requirement. Conversely, the
permitting authority in the above
hypothetical example could have been
less specific, for instance, by not
requiring one activity each year to be
carried out in public schools. Permitting
authorities need to consider what level
of specificity is appropriate based on the
particular factors at play in their permit
area. The level of specificity may change
over time, and should be evaluated in
each successive permit. There may be
differences of opinion about the degree
of specificity needed, but that call
would be open for public comment on
the general permit or, if the Two-Part
General Permit is used, on the public
notice for the additional terms and
conditions applicable to individual
MS4s.
Another example of how the permit
can provide greater specificity is to
include distinct requirements based on
type of MS4. For example, Section
3.2.1.3 of the Arkansas general permit
states: ‘‘The stormwater public
education and outreach program shall
include more than one mechanism and
target at least five different stormwater
themes or messages over the permit
term. At a minimum, at least one theme
or message shall be targeted to the land
development community. For nontraditional MS4s, the land development
community refers to landscaping and
construction contractors working within
its boundaries (emphasis added). The
stormwater public education and
outreach program shall reach at least 50
percent of the population over the
permit term.’’ Here, the permitting
authority further specifies the target
audience as applied to non-traditional
MS4s.
Alternatively, specific permit terms
could be established uniformly for all
eligible small MS4s, which would have
the benefit of leveling the playing field
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among small MS4s. The final rule gives
permitting authorities some discretion
to decide how much specificity to
include in the permit and how much
flexibility to leave to the MS4 when
working out the details of how it will
comply with permit terms. The public
would have an opportunity to provide
comments on such preliminary
decisions about the level of specificity
in permit terms and conditions needed
during the public comment period on
the general permit or on the second step
of a Two-Step General Permit, or in
some cases on both.
EPA also received comments on the
term ‘‘measurable.’’ In response to
comments, EPA clarifies that
‘‘measurable’’ does not necessarily mean
that water quality monitoring must be
required in every instance to assess
compliance. Likewise, it does not mean
that numeric, end-of-pipe pollutant
concentrations or loadings must be
included in permits. While these
examples do represent a type of
measurable requirement, they are not
required to be in every MS4 permit.
Rather, the term ‘‘measurable’’ means
that the permit requirement has been
articulated in such a way that
compliance with it can be assessed in a
straightforward manner. For example, a
permit provision that requires
inspections at construction sites to be
conducted once per week until final
stabilization has been verified is a
measurable requirement. To help assess
compliance, the permit should also
contain a way to track whether the
requirement has been met, such as
requiring the permittee to keep a log of
each inspection, including the date and
any relevant findings. On the other
hand, a requirement that construction
sites be inspected ‘‘after storms as
needed’’ would not be a measurable
requirement. For this requirement, the
permittee would have to determine
whether a ‘‘storm’’ occurred and, if so,
whether an inspection was called for,
both of which are determinations that
are left completely up to the permittee
to determine. A permitting authority
could not easily assess that this
requirement was or was not met.
Like the term ‘‘measurable,’’
‘‘numeric’’ is another term that is often
misunderstood to require numeric endof-pipe concentration and/or mass
pollutant limitations similar to those
that commonly appear in permits issued
to other types of point source
dischargers (e.g., industrial process
discharges and discharges from sewage
treatment plants). EPA intends numeric
to be read more broadly to include an
objective, quantifiable value related to
the performance of different
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requirements for small MS4 programs.
For example, ‘‘numeric’’ can refer to the
number or frequency of required actions
to be taken such as a requirement to
‘‘clean 25% of the catch basins in your
service area on a yearly basis’’ or
‘‘complete 6 of 10 public education
events specified in the following table
on an annual basis.’’ ‘‘Numeric’’ can
also refer to a specified numeric
performance levels, such as a retention
standard for post-construction
discharges from new development and
re-development sites, e.g., ‘‘The first
inch of any precipitation must be
retained on-site.’’ Another example of a
numeric performance requirement is
exemplified by the following provision
from the 2016 Vermont Small MS4
general permit: ‘‘The control measure(s)
is designed to treat at a minimum the
80th percentile storm event. The control
measure(s) shall be designed to treat
stormwater runoff in a manner expected
to reduce the event mean concentration
of total suspended solids (TSS) to a
median value of 30 mg/L or less.’’ See
Section E.4.a.iv.B.
A commenter requested that EPA
require measurable conditions for each
BMP. EPA interprets this comment as
recommending that permit terms
implementing the minimum control
measures, which are often articulated as
narrative requirements, each be
expressed in a measurable manner. EPA
agrees that permit terms and conditions
that are established to satisfy a
minimum control measure need to have
measurable (as well as clear and
specific) requirements associated with
them that assist the MS4 and permitting
authority in determining whether
required elements of the minimum
control measures or other permit terms
and conditions have been achieved.
In the final rule, EPA has decided to
substitute the term ‘‘terms and
conditions’’ for ‘‘effluent limitations’’
because stakeholders asserted the term
effluent limitations connotes end-ofpipe numeric limits even though EPA is
not insisting that these types of
limitations be used. In sum, EPA
intends that terms and conditions are a
type of effluent limitations and that they
are interchangeable and both mean
permit requirements. As defined in the
Clean Water Act, ‘‘effluent limitation’’
means ‘‘any restriction established by a
State or the Administrator on quantities,
rates, and concentrations of chemical,
physical, biological, and other
constituents which are discharged from
point sources into navigable waters, the
waters of the contiguous zone, or the
ocean, including schedules of
compliance.’’ See CWA section 502(11).
The Clean Water Act also authorizes
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inclusion of permit conditions. See
CWA section 402(a)(1) and (2). Both
‘‘effluent limitations or other
limitations’’ under section 301 of the
Act and ‘‘any permit or condition
thereof’’ are an enforceable ‘‘effluent
standard or limitation’’ under the
citizen suit provision, section 505(f) of
the Clean Water Act, and the general
enforcement provisions, section 309 of
the Act. EPA uses these terms
interchangeably when referring to
actions designed to reduce pollutant
discharges. For the purposes of this final
rule, changing the small MS4
regulations to refer instead to ‘‘terms
and conditions’’ is intended to be read
as consistent with the meaning of
‘‘effluent limitations’’ in the regulations
and CWA.
C. Narrative, Numeric, and Other Forms
of Permit Requirements
As explained in the previous section
of this preamble, EPA has clarified that
permit limits need not be expressed
only as ‘‘narrative’’ limits but can
consist of ‘‘narrative, numeric, and other
types’’ of permit requirements. The final
rule provides a non-exclusive list of the
types of narrative, numeric, and other
types of terms and conditions that
would be appropriate for small MS4
permits by stating that allowable terms
and conditions could include, among
other things ‘‘implementation of specific
tasks or best management practices
(BMPs), BMP design requirements,
performance requirements, adaptive
management requirements, schedules
for implementation and maintenance,
and frequency of actions.’’ These
examples are the same as those
proposed, with the exception of
removing the term ‘‘benchmarks’’ and
adding in its place, ‘‘adaptive
management requirements.’’ Several
commenters noted that the term
‘‘benchmarks’’ is used in EPA’s and
many states’ Multi-Sector General
Permit for Stormwater Discharges
Associated with Industrial Activity, or
‘‘MSGP,’’ to mean numeric pollutant
concentration levels that must be
measured, and if exceeded, trigger
further monitoring or corrective action
requirements. To eliminate any
confusion, the commenters requested
that a different term be used. EPA did
not intend ‘‘benchmarks’’ to be precisely
defined, but instead to generally refer to
various types of identified
measurements of performance and to
undertake different actions or controls if
performance is not at the measured
level. To avoid confusion, EPA is
replacing ‘‘benchmarks’’ with the phrase
‘‘adaptive management requirements,’’
since adaptive management approaches
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are used widely in the MS4
communities. Adaptive management
enables MS4 permittees to iteratively
improve their stormwater control
strategies and practices as they
implement their programs and learn
from experience to better control
pollutant discharges.
With respect to establishing permit
terms and conditions, use of the term
‘‘BMP’’ in § 122.34(a) is intended to take
on a broad meaning and could
encompass both the enforceable terms
and conditions of the permit as well as
particular activities and practices
selected by the permittee that will be
undertaken to meet the permit
requirements but that are not
themselves enforceable. BMPs are
defined in § 122.2. The term is defined
to include schedules of activities,
prohibitions of practices, maintenance
procedures, and other management
practices to prevent or reduce water
pollution. The regulatory definition also
includes treatment requirements,
operating procedures, and practices to
control runoff, spillage or leads, sludge,
or waste disposal, or drainage from raw
material storages as BMPs. The defined
regulatory term was developed to
describe requirements to undertake
certain activities to reduce the amount
of pollutants discharged that are not
described as numeric pollutant effluent
discharge limitations or represent
specific performance levels. See
§ 122.44(k). EPA intends, in § 122.34(a)
of the final rule, to use BMP in its
broadest sense to refer to any type of
structural or non-structural practice or
activity undertaken by the MS4 in the
course of implementing its SWMP.
Whether a BMP is an enforceable
requirement depends on whether the
permitting authority has established it
as a term and condition of the permit.
The term BMP in § 122.34(a) is not
intended to be used interchangeably
with enforceable requirements
necessary to demonstrate compliance
with the permit. Instead, it refers to any
type of activity that is used to reduce
pollutants in the MS4’s discharge. This
distinction is important because, as
discussed elsewhere in the preamble,
some BMPs may be changed without
first requiring a permit modification, but
only if they are not included as
enforceable requirements of the permit.
D. Considerations in Developing
Requirements for Successive Permits
A final change to § 122.34(a) that EPA
proposed was to reflect the iterative
nature of the MS4 permit standard and
require that what is considered adequate
to meet the MS4 permit standard,
including what constitutes ‘‘maximum
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extent practicable,’’ needs to be
determined for each new permit term.
The final rule provision is retained from
the proposed rule, which requires that
for each successive permit, the
permitting authority must include terms
and conditions that meet the
requirements of § 122.34 based on its
evaluation of the current permit
requirements, record of permittee
compliance and program
implementation progress, current water
quality conditions, and other relevant
information. The preamble to the
proposed rule explained: ‘‘A
foundational principle of MS4 permits
is that from permit term to permit term
iterative progress will be made towards
meeting water quality objectives, and
that adjustments in the form of modified
permit requirements will be made
where necessary to reflect current water
quality conditions, BMP effectiveness,
and other current relevant information.’’
(81 FR 422, Jan. 6, 2015). The preamble
further listed possible sources to inform
the evaluation such as past annual
reports, current SWMP documents,
audit reports, receiving water
monitoring results, existing permit
requirements, and applicable TMDLs.
EPA received numerous comments on
the language regarding the development
of each successive permit. One
commenter asked EPA to include
additional factors in the rule text that
would need to be considered when
developing a new small MS4 permit,
including impairment status of the
waterbody and applicable TMDLs, and
permits developed by other states. Other
factors requested to be included in the
text were discussed in the preamble to
the proposed rule include: how long the
MS4 has been permitted, the degree of
progress made by the small MS4
permittees as a whole and by individual
MS4s, the reasons for any lack of
progress, and the capability of these
MS4s to achieve more focused
requirements. Another commenter
stated that while it is appropriate to reexamine the permit requirements for
continued applicability and
effectiveness, EPA should not presume
that successive permits would always
require more stringent requirements.
Instead, the commenter continues, the
permit could only require adjustments
of existing BMPs. EPA also received
general comments about the nature of
‘‘maximum extent practicable’’ that
were reflected in comments concerning
the new language about successive
permits.
EPA has retained substantially the
same text as it proposed. In
§ 122.34(a)(2), permitting authorities are
required to revisit permit terms and
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conditions during the permit issuance
process, and to make any necessary
changes in order to ensure that the
subsequent permit continues to meet the
MS4 permit standard. Thus, in advance
of issuing any new small MS4 general
permit, the permitting authority will
need to review, among other things,
available information on the relative
progress made by permittees to meet
any applicable milestones under the
expiring permit, compliance problems
that may have arisen, the effectiveness
of the required activities and selected
BMPs under the existing permit, and
any improvements or degradation in
water quality. This requirement applies
regardless of the type of permit
(individual or general) or the specific
general permitting approach that is
chosen by the permitting authority.
As commenters pointed out, there are
other factors that the permitting
authority can consider in establishing
the permit requirements in successive
permits that meet the MS4 permit
standard. This provision, however, is
intended to state a general requirement
to update each permit and therefore
uses broader, more general terms rather
than trying to name all of the factors and
considerations that may bear on the
development of specific permit terms
and conditions in successive permits.
The crux of this requirement is that
permitting authorities cannot simply
reissue the same permit term after term
without considering whether more
progress can or should be made to meet
water quality objectives or that other
changes to the permit are in order. As
is the case with NPDES permits
generally, the permitting authority
considers anew what is appropriate
each time it issues a permit. For
example, new stormwater management
techniques may have arisen or become
affordable during the expiring permit
term that should be taken into
consideration. The factors identified by
commenters and discussed in the
proposed rule preamble are all relevant
considerations. First and foremost, as
noted by one commenter, ‘‘the
understanding of which pollution
control measures and standards are the
most effective and practicable can
evolve, requiring corresponding changes
in permit conditions to meet the ‘MEP’
standard.’’ Likewise, the stressors
affecting water quality can change over
time. The water quality of the receiving
water and any applicable TMDLs are
factors that should be considered, but
additional rule language is unnecessary
since these factors are already
encompassed within the final rule’s
reference to ‘‘current water quality
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conditions.’’ (Also see, § 122.34(c)
which requires permit conditions based
on applicable TMDLs.) How long an
MS4 has been permitted also could
point to establishing different or
‘‘tiered’’ requirements based on whether
the MS4 is on its third or fourth permit
with a mature program or is a newly
regulated MS4 that must build its
program ‘‘from scratch.’’ Using broad,
general terms to describe considerations
that may change over time provides
critical flexibility, while ensuring that
the assessment of current circumstances
and information is done.
Contrary to the assumption that EPA
presumes that each successive permit
will contain more stringent conditions
for each permit requirement, EPA
recognizes that this is not the case. It is
possible that some permit conditions
remain relatively static in a successive
permit. If a permit, however, contained
a less stringent requirement or less
specific language than had been
included in the previous permit this
would require an explanation, backed
by empirical evidence or other objective
rationale that the requirement was no
longer practicable or that another
approach is more effective, and that
making this requirement less stringent
would not result in greater levels of
pollutant discharges. This would be
especially true where the MS4 is
discharging pollutants to an impaired
water due to an excess of those
pollutants. How quickly pollutants must
be reduced and which elements of a
program need greater or less emphasis
are certainly considerations that an MS4
(or others) can raise during the comment
period. Likewise, an MS4 that is seeking
an individual permit or coverage under
a Two-Step General Permit, can propose
BMPs or other management measures to
the permitting authority that reflect its
judgment about how and to what extent
permit terms and conditions should
change or stay the same.
One commenter asserted that EPA
should require consideration of other
states’ permits in determining permit
conditions. The commenter reasoned
that if one state adopts a requirement
that achieves greater pollutant reduction
than another state, the other state
should have to adopt the more effective
permit condition or explain why it is
not practicable for MS4s in its state. The
commenter also noted that EPA has
taken similar positions with respect to
technology-based requirements for other
types of discharges. Finally, the
commenter urged EPA to continue to
provide and update examples of permit
conditions developed by various states.
EPA does not find it necessary to
expressly require the rule to compel
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permitting authorities to consider the
terms and conditions of permits in other
jurisdictions in determining the need to
modify their own permits. Each
permitting authority is required to issue
permits that independently meet the
MS4 permit standard based on an
evaluation of, among other things, how
well the past permit conditions worked
and what more can be reasonably
achieved in the next permit term. This
evaluation involves factors that are
necessarily unique to the permitting
jurisdiction. Furthermore, the factors
that led to one state permit’s adoption
of stricter requirements than another
state makes a straightforward analysis
between the two difficult, and
potentially misleading. While EPA does
not agree that permitting authorities
should be required to consider other
state permits, EPA agrees that much can
be learned from other states’ permitting
approaches and it may be a relevant
factor to consider in a particular
permitting proceeding.
Commenters suggest that EPA’s
publication of its MS4 permit
compendia (EPA, 2016), as well as
EPA’s MS4 Permit Improvement Guide
(EPA, 2010), providing examples of
permit provisions that are written in a
‘‘clear, specific, and measurable’’
manner, makes it easier for permitting
authorities to write better permits. EPA
agrees with commenters that sharing
examples among states is an effective
tool for developing permit conditions
and has updated the compendium of
state practices to accompany the final
rule for this very reason. See
Compendium of MS4 Permitting
Approaches—Part 1: Six Minimum
Control Measures (EPA, 2016) in the
final rule docket.8 EPA plans to
facilitate information transfer on a
continuing basis.
E. Relationship Between the SWMP and
Required Permit Terms and Conditions
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a. Enforceability of SWMP Documents
In the proposed rule, EPA clarified
that the SWMP document does not
include enforceable effluent limitations
or any other term or condition of the
permit. EPA also proposed to delete the
language in the Phase II regulations
stating that implementation of the
SWMP would constitute compliance
with the MS4 permit standard. This
clarification is retained in the final rule.
8 This document, and two additional compendia,
Compendium of MS4 Permitting Approaches—Part
2: Post Construction Standards (EPA, 2016) and
Compendium of MS4 Permitting Approaches—Part
3: Water Quality-Based Requirements (EPA, 2016),
will be available at EPA’s Web site at https://
www.epa.gov/npdes/stormwater-dischargesmunicipal-sources#resources.
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EPA is revising § 122.34(a) to clarify that
the permit, not the stormwater
management program, contains the
requirements, including requirements
for each of the six minimum measures,
for reducing pollutants to the maximum
extent practicable, protecting water
quality and satisfying the appropriate
water quality requirements of the CWA.
See also Section VIII.A for further
discussion of the deleted provision in
§ 122.34(a). The final rule at § 122.34(b)
requires each permit to require the
permittee to develop a ‘‘written storm
water management program document
or documents that, at a minimum,
describes in detail how the permittee
intends to comply with the permit’s
requirements for each minimum control
measure.’’ Requiring that portions of the
SWMP be in the form of written
documentation is not a new
requirement, but rather a clarification.
The minimum control measure
requirements have always required that
certain aspects of the permittee’s SWMP
be documented in writing, e.g., the
storm sewer system map, ordinances or
other regulatory mechanisms to regulate
illicit non-stormwater discharges into
the MS4 and to require erosion and
sediment controls. The written SWMP
provides the permitting authority
something concrete to review to
understand how the MS4 will comply
with permit requirements and
implement its stormwater management
program. EPA included a specific
requirement for written documentation
to clarify, as requested by some
commenters, the difference between a
MS4’s stormwater management program
itself from the written description of the
program.
EPA received several comments
regarding the role of the SWMP
document under the different permitting
options. Among these comments were
several focusing on whether the
implementation details described in the
SWMP document itself, including the
BMPs to be implemented and
measurable goals to be achieved, would
be enforceable as permit requirements.
One commenter noted that some states
consider a SWMP document to be an
integral part of the permit and
recommended that EPA do nothing in
the rule to limit a permitting authority’s
ability to enforce against an MS4 for
failure to implement any particular
aspect of the SWMP and to require an
accurate, up-to-date SWMP document
that contains the provisions required by
the permit. Other commenters,
representing the regulated MS4 point of
view, emphasized the role of the SWMP
document as a planning tool for the
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permittee, one that is intended to be
continually updated to reflect their
adaptive management approach to
permit compliance. These commenters
cautioned against implying directly or
indirectly that the SWMP document is
an ‘‘effluent limitation’’ that is part of
the permit, and felt that under Option
1 of the proposed rule, provisions in
SWMP documents could be interpreted
by the public to be effluent limitations,
thereby opening all details described in
the SWMP document to enforcement.
These commenters recommended that
EPA more narrowly define ‘‘effluent
limitation’’ and clarify that SWMPs are
for planning purposes only and not
subject to challenge by outside parties.
In response to these comments, EPA
clarifies that, under EPA’s small MS4
regulations, the details included in the
permittee’s SWMP document are not
directly enforceable as effluent
limitations of the permit. The SWMP
document is intended to be a tool that
describes the means by which the MS4
establishes its stormwater controls and
engages in the adaptive management
process during the term of the permit.
While the requirement to develop a
SWMP document is an enforceable
condition of the permit (see § 122.34(b)
of the final rule), the contents of the
SWMP document and the SWMP
document itself are not enforceable as
effluent limitations of the permit, unless
the document or the specific details
within the SMWP are specifically
incorporated by the permitting authority
into the permit. In accordance with the
final rule, therefore, if an MS4 permittee
fails to develop a SWMP document that
meets the requirements of its permit,
this failure constitutes a permit
violation. By contrast, the details of any
part of the permittee’s program that are
described in the SWMP, unless
specifically incorporated into the
permit, are not enforceable under the
permit, and because they are not terms
of the permit, the MS4 may revise those
parts of the SWMP if necessary to meet
any permit requirements or to make
improvements to stormwater controls
during the permit term. As discussed in
more detail below, the permitting
authority has discretion to determine
what elements, if any, of the SWMP are
to be made enforceable, but in order to
do so it must follow the procedural
requirements for the second step under
§ 122.28(d)(2).
The regulations envision that the MS4
permittee will develop a written SWMP
document that provides a road map for
how the permittee will comply with the
permit. The SWMP document(s) can be
changed based on adaptations made
during the course of the permit, which
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enable the permittee to react to
circumstances and experiences on the
ground and to make adjustments to its
program to better comply with the
permit. The fact that the SWMP is an
external tool and not required to be part
of the permit is intended to enable the
MS4 permittee to be able to modify and
retool its approach during the course of
the permit term in order to continually
improve how it complies with the
permit and to do this without requiring
the permitting authority to review and
approve each change as a permit
modification. The fact that the
regulations do not require the
implementation details of the SWMP
document to be made enforceable under
the permit does not mean that a
permitting authority cannot decide to
directly incorporate portions of the
SWMP or the entire SWMP as
enforceable terms and conditions of the
permit. However, in order to adopt any
part of the SWMP document as an
enforceable term or condition it must go
through the proper permitting steps to
do so. If a permitting authority chooses
to directly incorporate elements of the
SWMP document as enforceable permit
requirements, once completing the
minimum permitting steps to propose
and finalize NPDES permit conditions,
those elements of the SWMP are no
longer external to the permit, but
instead become enforceable terms and
conditions of the permit.
Lastly, EPA understands that some
state permitting authorities already
incorporate elements of their permittees’
SWMP document using a process that is
similar to the Two-Step General Permit
process in the final rule. EPA
emphasizes that under the final rule if
a permitting authority chooses to adopt
portions of their permittees’ SWMPs
using the Two-Step General Permit
process this would be a valid way to
formally incorporate these as permit
terms and conditions; this is because in
order to make these requirements
enforceable under the permit the
permitting authority provided the
necessary review and public notice and
comment procedures. By contrast, EPA
generally would not consider general
permits that state that the SWMP
documents developed by the MS4 are
enforceable under the permit, without
first formally adopting the details of
these documents to the individual
permitting authority review and public
participation required by the second
step of the Two-Step General Permit, to
be an adequate way in which to
incorporate the details of the SWMP as
enforceable requirements of the permit.
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b. Permit Modification Considerations
EPA raised the issue in the proposed
rule of whether under the Procedural
Approach (now in the final rule as the
‘‘Two-Step General Permit’’ approach) a
permit modification would be necessary
during the permit term if BMPs or
measurable goals were changed by the
permittee from that which was
submitted to the permitting authority.
EPA specifically sought comment on
what criteria should apply for
distinguishing between when a change
to BMPs is ‘‘substantial’’ requiring a full
public participation process or ‘‘not
substantial’’ that would be subject to
public notice but not public comment
under a permit modification process
similar to the process in § 122.42(e)(6).
A number of commenters expressed
support for treating some types of
changes as non-substantial
modifications to the permit.
Commenters emphasized the fact that
the types of plans, strategies, and
practices implemented under MS4
SWMP are subject to considerable
change, and that requiring these changes
to undergo a review for a permit
modification would stifle the process as
well as innovation. Some commenters
offered suggestions for what types of
changes to the SWMP should constitute
a substantial modification and should
be reviewable by the permitting
authority, and which types of changes
should be considered non-substantial.
Some thought that a complete change to
a BMP should be reviewed by the
permitting authority for a modification,
while others felt that such changes
should not be submitted for review if
the replacement BMP would be
considered to provide equal or better
pollutant removal. Another commenter
suggested that EPA incorporate
applicable requirements from the CAFO
regulations whereby the permittee
submits proposed changes to the
permitting authority and the permitting
authority must determine whether such
changes comply with applicable,
substantive legal requirements, and if
the changes are substantial, then the
permitting authority must require public
notice, and an opportunity to provide
comments or request a hearing before
the determination is made on the
modification.
The Two-Step approach requires the
MS4 operator to provide information
about what it intends to do during the
permit term to satisfy some or even all
of the permit requirements for meeting
the MS4 permit standard. The rule then
requires the permitting authority,
through a review and public comment
process, to establish MS4-specific
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permit terms and conditions that the
permitting authority deems necessary to
meet the MS4 permit standard. Once
issued, these additional permit
requirements are set for the permit term,
and compliance is measured based on
the permittee’s ability to meet these
enforceable terms and conditions. When
the final permit terms and conditions
are established, changes to those
requirements can only be made through
a formal modification process, which is
subject to the requirements of § 122.62,
or § 122.63 if the proposed change
constitutes a minor modification.
A distinction between what
constitutes a potential change in permit
terms and what amounts to merely a
change in implementation of the SWMP
is important to consider in the context
of the Two-Step General Permit. Where
a permittee proposes to change a BMP
that it is implementing, and the change
does not require the enforceable permit
conditions to be changed in any way,
but rather offers an alternative means of
complying with the same permit
conditions, EPA would not consider this
to be a permit modification. For
instance, if the MS4’s permit requires
that it conduct field tests of 20 percent
of its priority outfalls on an annual basis
for illicit discharges, and the permittee
changes its method of conducting such
tests that is described in its SWMP
document, even though a revision to the
SWMP document maintained by the
permittee may be necessary, no permit
modification would be necessary
because the 20 percent requirement is
still in effect. By contrast, where a
permittee proposes to substitute one of
its BMPs for another one, and that
change would alter the compliance
expectations defined in the permit, the
permittee will need to notify the
permitting authority before proceeding
to determine if a permit modification is
necessary. For example, if the
permittee’s requirements specify in
precise detail the field screening
methodology that the MS4 will utilize
for its priority outfalls, and the
permittee has indicated it no longer
intends to use this approach, then this
proposed change will need to be
evaluated by the permitting authority
for whether a formal permit
modification is needed. The important
test here is to compare the permittee’s
proposed change with the terms and
conditions of the permit.
EPA shares the views of commenters
who emphasized the problems that
would be created by any permitting
scheme that would require permit
modifications to be formally reviewed
and approved for every SWMP change.
Changes and adjustments made to the
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SWMP document during its
implementation are a fundamental part
of the Phase II program, which has
always emphasized the need for
adaptive management to make iterative
progress towards water quality goals.
Requiring every adaptive management
change to undergo review and approval
by the permitting authority would
constrain implementation and
innovation, as commenters suggested,
and could greatly increase the burden
on permitting authorities. Having said
this, however, EPA recognizes that in
some circumstances, as illustrated in the
example above, the wording of a permit
provision may require that a
modification be made before a permittee
may proceed with a proposed change to
its SWMP document. If the permitting
authority wants to minimize the
instances when a permit modification
would be needed, it could incorporate
with specificity only those elements in
the SWMP document that it deems
essential for meeting the MS4 permit
standard. For example, a permitting
authority could decide that as an
alternative to incorporating all of the
details of the permittee’s proposed
outfall screening plan in its ‘‘illicit
discharge detection and elimination’’
portion of its SWMP document into the
permit, it might instead consider
selecting the specific aspects of the
screening plan that in its judgment
would meet the MS4 permit standard,
such as that the permittee will screen all
‘‘high priority’’ outfalls by a specific
date and that all illicit discharges will
be eliminated within a specified amount
of time. By not incorporating every
aspect of the specific plans and
procedures described by the permittee
in its SWMP document, the permittee
can modify its implementation
approach during the permit term
without needing to check with the
permitting authority before making any
such changes and having that change
approved under the permit.
Apart from the issue of whether or not
proposed SWMP document changes
require a permit modification is the
need for permitting authorities to
specify what procedures it will follow to
review and process any permit
modifications. EPA agrees with the
commenter that suggested that such
procedures are needed. Rather than
establishing a unique set of procedures,
however, it is EPA’s view that the
existing regulatory procedures in
§§ 122.62 and 122.63, which apply to all
NPDES permit modifications, are
sufficient for modifications to a TwoStep General Permit. EPA advises
permitting authorities to include in their
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permits a clear description of what
types of proposed SWMP document
changes will need to be reviewed as
potential permit modifications, and the
procedures for submitting and
reviewing these changes.
F. Explaining How the Permit Terms
and Conditions Meet the MS4 Permit
Standard
Several commenters recommended
that the final rule clarify, both in the
preamble and in the rule language itself,
that permitting authorities are required
to include an explanation in the
permit’s administrative record as to why
the adopted permit provisions meet the
MS4 permit standard. The commenters
specified that this requirement should
apply regardless of the option EPA
chooses to include in the final rule.
EPA agrees that the permitting
authority’s rationale for adopting
specific small MS4 permit requirements
should be documented consistent with
the requirements for any NPDES permit
requirements under § 124.8 and, if EPA
is the permitting authority, § 124.9. This
rationale should describe the basis for
the draft permit terms and conditions,
including support for why the
permitting authority has determined
that the requirements meet the required
MS4 permit standard. EPA agrees with
the commenters’ suggestion that this
rationale should be provided under both
permitting approaches in the final rule.
This position is consistent with the
Ninth Circuit’s remand decision, which
emphasized the need for permitting
authorities to determine that
requirements satisfy the MS4 permit
standard and that the public be given an
opportunity to provide comments and to
request a hearing on this determination.
For clarification purposes, EPA
includes additional language in the final
rule for the Two-Step General Permit
approach to emphasize that the
permitting authority’s public notice for
the second step (pursuant to
§ 122.28(d)(2)(ii)) must include, apart
from the NOI and the proposed
additional permit terms and conditions,
‘‘the basis for these additional
requirements.’’ This requirement is
consistent with the requirements of
§ 124.8(b) for what must be included in
a permit fact sheet. EPA does not find
it necessary for the permitting authority
to produce a full fact sheet for each
individual MS4 permittee under a TwoStep General Permit, nor do the
regulations require this for the type of
permit requirements that are being
established under the second step. A
fact sheet is required for the issuance of
the general permit, regardless of
whether the general permit is a
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Comprehensive General Permit or the
base general permit in a Two-Step
General Permit. See § 124.8(a), which
requires fact sheets to be prepared for
general permits. However, the NPDES
regulations do not require a separate fact
sheet to be developed for the additional
terms and conditions that are
established for individual MS4s in the
second step of the Two-Step General
Permit, since these requirements are not
themselves part of the base general
permit, nor do they necessarily fall
under any of the other types of permits
listed in § 124.8(a) as requiring a fact
sheet (e.g., a ‘‘major’’ NPDES facility or
site). Short of requiring a separate fact
sheet for the draft additional permit
conditions, EPA finds it reasonable to
expect the proposed additional permit
terms and conditions to be accompanied
by the supporting rationale for why
these requirements satisfy the MS4
permit standard.
One commenter also suggested that
permitting authorities be required to
explain in the administrative record
why any alternative standards
recommended in public comments or
included in any of EPA’s MS4 permit
compendia were not adopted.
Permitting authorities are required to
respond to significant comments
received in response to the public notice
for the Comprehensive General Permit
and the base general permit of a TwoStep General Permit, and, in addition, to
respond to the comments on the second
step public notice under a Two-Step
General Permit. Such comments could
include alternative standards suggested
for inclusion in the permit. EPA does
not agree that permitting authorities
should be required to explain in the
administrative record why a provision
included in any of the agency’s MS4
permit compendia was not used in any
particular permit. Again, the example
permit provisions that are highlighted in
the permit compendia are provided as
guidance and are not intended to
provide a floor for what types of
provisions must be used in MS4
permits.
G. Minimum Federal Permit
Requirements
Several commenters requested
clarification or raised concerns about
the extent to which the Phase II
regulations establish minimum permit
requirements. This question is often
raised in the context of state laws that
prohibit the permitting authority from
including terms and conditions in a
permit that are more stringent than the
federal minimum requirements or
include more than the federal minimum
requirements. Some comments confuse
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‘‘minimum permit requirements’’ with
the specified elements of the minimum
control measures described in
§ 122.34(b). In a related manner, a
number of permitting authorities have
shared with EPA their experiences in
encountering resistance to a proposed
permit requirement on the basis that it
is not explicitly required in the federal
regulations. In addition, some
commenters asked EPA to clarify that
suggestions made in the ‘‘guidance’’
paragraphs that are unique to the small
MS4 regulations are not mandatory
permit terms.
The regulations specify the elements
that must be addressed in a permit. It is
up to the permitting authority to
establish the specific terms and
conditions to meet the MS4 permit
standard for each of these elements. The
minimum control measures set forth in
§ 122.34(b), for instance, are not
intended as minimum permit
requirements, but rather areas of
municipal stormwater management that
must be addressed in permits through
terms and conditions that are
determined adequate to meet the MS4
permit standard. For that matter, if a
permitting authority were to merely use
the minimum control measure language
from § 122.34(b) word-for-word and
include no further enforceable permit
terms and conditions, this permit would
not satisfactorily meet the requirement
to establish clear, specific, and
measurable requirements that together
ensure permittees will comply with the
MS4 permit standard. EPA emphasizes
that what constitutes compliance with
the MS4 permit standard continues to
evolve. The need to reevaluate what is
meant by ‘‘maximum extent
practicable’’ for each permit term, as
well as the need to determine what is
necessary to protect water quality and
satisfy the appropriate water quality
requirements of the CWA, means that
what constitutes compliance will by
necessity change over time. Therefore,
in EPA’s view, those that argue that the
minimum federal requirements are what
is included in the wording of the
minimum control measures, are
misconstruing the intent of the
regulations, and are handicapping
permits by artificially tying the MS4
permit standard to the minimum control
measures.
EPA emphasizes that the minimum
control measures do not restrict the
permitting authority from regulating
additional sources of stormwater
pollutant discharges, not specifically
mentioned in the minimum control
measure language. For example, some
states require small MS4s with very
large populations to implement a
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program that addresses industrial sites
due to the concentration of industrial
sites in many of their larger urban areas.
(Consider that some small MS4s can be
the same size as ‘‘medium’’ MS4s,
which are required to have a program
for addressing stormwater discharges
from industrial sites.) Such a
requirement represents what is
necessary, for those small MS4s, to
reduce pollutants as necessary to meet
the MS4 permit standard. This does not
mean that the requirement is more
stringent than the minimum control
measures, but rather it constitutes what
is needed in the permitting authority’s
view to satisfy the MS4 permit standard.
In response to the comments relating
to the guidance language in § 122.34(b),
EPA verifies that this ‘‘guidance’’ is
intended to act as suggested methods of
implementation, not mandatory permit
terms. Having said this, EPA points out
that these guidelines could form the
basis of permit terms that meet the
§ 122.34(a) requirement to articulate
requirements in a clear, specific, and
measurable manner. EPA’s interest in
having more specific requirements in
permits is to provide clarity of
expectations and to hold MS4s
accountable for implementing a program
that continues to make progress toward
achievement of water quality objectives.
For a permitting authority to include
requirements in a permit based on these
‘‘guidance requirements,’’ because in its
view they are necessary to ensure MS4s
meet the MS4 permit standard, does not
mean that the permit has established
requirements beyond the federal
minimum or that the permitting
authority impermissibly used guidance
to develop enforceable requirements.
H. Comments Beyond the Scope of This
Rulemaking
EPA received numerous public
comments suggesting revisions to the
substantive requirements in § 122.34.
EPA clearly stated its intent in the
preamble to the proposed rule that it
was not proposing to change any
substantive requirement and therefore
the many comments suggesting the
addition of specific requirements (e.g.,
establish or do not establish a numeric
retention standard for post-construction
stormwater controls) are outside the
scope of this rulemaking.
VII. Revisions to Other Parts of § 122.34
A. Compliance Timeline for New MS4
Permittees
EPA proposed a minor revision to
§ 122.34(a) to include the word ‘‘new’’
before ‘‘permittees’’ to indicate that the
five-year period allowed to develop and
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implement their stormwater
management program applies to the
initial permit for new permittees. New
permittees could include small MS4s
that are in urbanized areas for the first
time because of demographic changes
reflected in the latest decennial census,
or they could be specifically designated
by a permitting authority as needing an
NPDES permit to protect water quality.
This change is intended to preserve the
flexibility included in Phase II
regulations in place prior to this final
rule, and to more clearly indicate that
the extended time period for
compliance is intended to apply to
MS4s that must put a stormwater
management program in place for the
first time. This revision does not change
the status quo; it merely recognizes that
first-time small MS4 permittees have up
to five years to develop and implement
their SWMPs, while small MS4s that
have already been permitted will have
developed and implemented their
SWMPs when they reapply for permit
coverage under an individual permit or
submit an NOI under the next small
MS4 general permit. This is not to say
that all actions necessary to achieve
pollutant reductions must be completed
in the first five years. EPA recognizes
that MS4s may need more time, for
example, to complete the various steps
needed to get structural controls into
place and operational (e.g., design
project(s), secure funding, follow
procurement procedures, etc. before
installing structural BMPs). Therefore,
EPA is retaining in the final rule the
proposed clarification that permitting
authorities may provide up to 5 years
for small MS4s being permitted for the
first time to come into compliance with
the terms and conditions of the permit
and to implement necessary BMPs.
B. Revisions to Evaluation and
Assessment Provisions
EPA proposed to renumber existing
§ 122.34(g) as § 122.34(d) and to
incorporate the stylistic changes
described in Section VII.E of this
preamble. Several commenters
suggested that the terminology in this
paragraph be changed to conform to the
text changes made elsewhere. EPA
agrees that changes to reflect the remand
changes similar to the ones made
elsewhere in the section are appropriate
for the newly designated § 122.34(d)(1)
concerning requirements for evaluation
and assessment. The new § 122.34(d)(1)
now states that the permit must require
the permittee to evaluate compliance
with the terms and conditions of the
permit, the effectiveness of the
components of its stormwater
management program, and of achieving
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the measurable requirements in the
permit. Rather than evaluate the
appropriateness of self-identified BMPs
and measurable goals as previously
required, the final rule requires permits
to include terms and conditions to
evaluate compliance with permit
requirements, including achievement of
measurable requirements established as
permit requirements. This language
more closely aligns the required
evaluation and assessment requirements
with the newly articulated requirements
for developing permit conditions that
are clear, specific, and measurable. It
also more accurately describes the
objectives of the evaluation and
assessment requirements, given other
revisions made in response to the
remand to clarify that permitting
authorities determine what is
constitutes compliance, not the
regulated MS4s.
The proposed rule inadvertently
omitted a recent amendment to
§ 122.34(g) (§ 122.34(d) in the final rule)
that was added by the eReporting rule
(80 FR 64064, Oct. 22, 2015). This
omission is corrected in the rule text
that appears in this Federal Register
document. The relevant provision in
§ 122.34(d)(3) states that, among other
things, starting on December 21, 2020
all reports submitted in compliance
with this section must be submitted
electronically by the owner, operator, or
the duly authorized representative of
the small MS4 to the permitting
authority or initial recipient, as defined
in 40 CFR 127.2(b), in compliance with
this section and 40 CFR part 3
(including, in all cases, subpart D to part
3), § 122.22, and 40 CFR part 127, and
that prior to this date, and independent
of part 127, the owner, operator, or the
duly authorized representative of the
small MS4 may be required to report
electronically if specified by a particular
permit or if required to do so by state
law. Section IX addresses in more detail
the relationship between this final rule
and the eReporting rule.
EPA received a request to revise
proposed § 122.34(d)(2) regarding
recordkeeping requirements to mandate
that MS4s post on-line the SWMP
documents required under § 122.34(b).
Currently, MS4s are only required to
make summaries of their SWMP
available to the public upon request.
EPA is of the view that on-line posting
of information is an effective way to
communicate stormwater program
information, and encourages MS4s to
post on-line documents that describe
their stormwater management plans, as
well as provide other information about
managing stormwater for various
audiences. EPA, however, declines to
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adopt a regulatory requirement for MS4s
to post documents on-line. EPA did not
propose any changes to the
recordkeeping requirements, and
accordingly, the request is outside the
scope of the proposal. EPA notes that
some permitting authorities have
required on-line posting of SWMP
information and educational materials
to implement minimum controls
measures for public education and
involvement, as well as elements of
other minimum control measures such
as the illicit discharge detection and
elimination, construction and postconstruction program minimum
controls, and other permit requirements.
C. Establishing Water Quality-Based
Requirements
EPA made minor changes to the
provisions for establishing ‘‘other
applicable requirements.’’ See
§ 122.34(c). The following discussion
explains these changes and describes
how the section has been rearranged. It
then discusses issues raised about how
water quality-based requirements can be
established under the two general
permit options.
EPA proposed to consolidate existing
paragraphs (e)(1) and (f) into one
paragraph and to move this
consolidated provision to § 122.34(c).
EPA also proposed to delete guidance
paragraph (e)(2). Existing § 122.34(e)(1)
addresses the need to comply with
permit requirements that are in addition
to the minimum control measures based
on a TMDL or equivalent analysis.
Existing § 122.34(f) requires compliance
with permit requirements that have
been developed consistent with
provisions in §§ 122.41 through 122.49,
as appropriate. EPA is promulgating the
proposed revisions, with minor editorial
changes, as discussed below.
The new § 122.34(c)(1) states that the
permit will include, as appropriate,
more stringent terms and conditions,
including permit requirements that
modify, or are in addition to, the
minimum control measures, based on an
approved total maximum daily load
(TMDL) or equivalent analysis, or where
the NPDES permitting authority
determines such terms and conditions
are needed to protect water quality. EPA
replaced the term ‘‘effluent limitations’’
with ‘‘terms and conditions’’ to be
consistent with changes made to
§ 122.34(a). In a minor change from the
proposal, the paragraph now more
clearly indicates that the permitting
authority has the discretion to require
additional measures to protect water
quality, not limited to requirements
based on a TMDL or equivalent analysis.
This change reflects the authority
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granted by the statute to protect water
quality in section 402(p)(6) of the CWA.
It also responds to a comment that due
to the time it takes for TMDL
development, permitting authorities
should not be limited to consideration
of only TMDL or equivalent analyses
before imposing water quality based
requirements. As a general matter, EPA
agrees that other types of watershed
plans that identify sources that should
be controlled can provide a valid basis
for establishing additional permit terms
and conditions. Additionally, EPA
recognizes that there may be instances
where other information about the water
quality impacts of the MS4 discharges
may be sufficient to indicate the need
for additional controls. (Of course,
permitting authorities must have a
rational basis and record support for
determining that additional
requirements serve a water quality
objective.)
The final rule deletes existing
§ 122.34(e)(2), as was proposed. As
explained in the preamble to the
proposed rule, the guidance in existing
§ 122.34(e)(2) reflects EPA’s
recommendation for the initial round of
permit issuance, which has already
occurred for all permitting authorities.
The phrasing of the guidance language
no longer represents EPA policy with
respect to including additional
requirements. EPA has found that an
increasing number of permitting
authorities are already including
specific requirements in their small
MS4 permits that address not only
wasteload allocations in TMDLs, but
also other requirements that are in
addition to permit provisions
implementing the six minimum control
measures irrespective of the status of
EPA’s § 122.37 evaluation. See EPA’s
Compendium of MS4 Permitting
Approaches—Part 3: Water QualityBased Requirements (EPA, 2016).9
Based on the advancements made by
specific permitting programs, and
information that points to stormwater
discharges continuing to cause
waterbody impairments around the
country, prior to the promulgation of
this final rule, EPA has advised in
guidance that permitting authorities
write MS4 permits with provisions that
are ‘‘clear, specific, measurable, and
enforceable,’’ incorporating such
requirements as clear performance
standards, and including measurable
goals or quantifiable targets for
9 This document will be made available at on
EPA’s Web site at https://www.epa.gov/npdes/
stormwater-discharges-municipalsources#resources.
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implementation.10 This guidance is a
more accurate reflection of the agency’s
current views on how the Phase II
regulations should be implemented than
the guidance currently in § 122.34(e)(2).
EPA received few comments about the
proposed removal of § 122.34(e)(2).
Several commenters strongly supported
the deletion of § 122.34(e)(2), while
others expressed concern that MS4s
may not be in a position to implement
additional controls. The MS4 permit
standard embodies a great deal of
flexibility and gives the permitting
authority discretion to address
particular water quality impairments.
Where a waterbody is impaired in part
due to discharges from small MS4s,
especially where an approved TMDL
allocates wasteload reduction
responsibilities to those MS4s,
additional controls to achieve
reasonable progress towards attainment
of water quality standards will need to
be considered. The permitting authority
has the ability under the final rule to
develop requirements tailored to a
particular MS4, either by issuing an
individual permit or by employing the
Two-Step General Permit process in
§ 122.28(d)(2). Some permitting
authorities have successfully created
requirements for specific MS4s in a
more comprehensive general permit. For
example, the 2013 California Small MS4
general permit establishes additional
requirements for small MS4s
discharging to waters with an approved
TMDL. Each set of ‘‘deliverables’’ or
‘‘actions required’’ is tailored to the
individual MS4, or groupings of MS4s,
based on the pollutant of concern and
the particular wasteload allocation. See
Appendix G of the 2013 California
Small MS4 general permit.
D. Establishing Water Quality-Based
Requirements Under the Two General
Permit Options
EPA received a number of questions
and suggestions concerning how
requirements to implement applicable
TMDLs should be incorporated into
general permits under any of the
proposed options. Some comments
asserted that there is incompatibility
between the proposed Option 1
approach and the need to establish
permit terms and conditions that
address TMDLs, which require
watershed- and MS4-specific
provisions. One commenter questioned
whether a general permit can
incorporate different water qualitybased effluent limitations for different
MS4s asserting that the NPDES
10 See EPA’s MS4 Permit Improvement Guide
(EPA, 2010).
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regulations require that general permits
include the same water quality-based
effluent limits for sources within the
same category. Several commenters also
suggested that requirements addressing
TMDLs are ones that are amenable to
using the Option 2 approach given their
inherently watershed-specific nature
and the fact that TMDL implementation
plans often need to be developed with
the involvement of the community so
that issues such as implementation
schedules and BMP approaches reflect
the interests of the affected public and
are attainable.
EPA clarifies that in order to comply
fully with the Comprehensive General
Permit approach, all terms and
conditions established based on
approved TMDLs must be included
within the permit itself. Use of the
Comprehensive General Permit
approach means that the permit needs
to spell out the requirements necessary
for permittees ‘‘to achieve reasonable
further progress toward attainment of
water quality standards.’’ (64 FR 68753,
December 8, 1999) Therefore, where a
TMDL establishes wasteload allocations
specifically or categorically for MS4
discharges to the impaired water, the
permittee should expect to find ‘‘clear,
specific, and measurable’’ requirements
within the permit that delineate their
responsibilities during the permit term
relative to that TMDL and associated
wasteload allocation(s). There are a
variety of approaches for incorporating
these TMDL-related requirements into
general permits for specific MS4s. One
noteworthy approach places all
applicable water quality-based effluent
limitations in an appendix to the
general permit (e.g., Appendix 2 of the
2012 Western Washington Small MS4
General Permit). For this particular
permit, the state evaluated all relevant
TMDLs addressing discharges from
small MS4s eligible for coverage under
the permit and assigned additional
requirements focused on reducing the
discharge of the impairment pollutant.
See EPA’s Compendium of MS4
Permitting Approaches—Part 3: Water
Quality-Based Requirements (EPA,
2016), which will be posted on EPA’s
Web site at https://www.epa.gov/npdes/
stormwater-discharges-municipalsources#resources, for additional
examples.
EPA does not view any of these
approaches as inconsistent with the
NPDES regulatory requirement that
‘‘where sources within a specific
category or subcategory of dischargers
are subject to water quality-based limits
. . . the sources in that specific category
or subcategory shall be subject to the
same water quality-based effluent
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limitations.’’ See § 122.28(a)(3). It is
certainly true that, due to the
watershed-specific nature of TMDLs,
requirements in general permit based on
TMDLs can vary for individual MS4s
based on the impaired water to which
they discharge and the specific details
of the applicable TMDL. EPA, however,
does not view these differing water
quality-based limit requirements within
the same general permit as running
afoul of the § 122.28(a)(3) requirement.
EPA considers the different water
quality-based requirements that are
unique to a TMDL and/or to MS4s that
are subject to the TMDL to be the
equivalent of dividing the MS4
permittee universe into subcategories
based on these requirements. This
categorization is not dissimilar to the
way in which EPA and many states
issue their Multi-Sector General Permits
for Stormwater Discharges Associated
with Industrial Activity, in which there
are requirements common to all
facilities and a separate set of
requirements that apply to different
industrial sectors or subsectors. By
establishing different permittee
subcategories based on TMDLs, the
permit remains consistent with the
requirement in § 122.28(a)(3).
Use of a Two-Step General Permit
similarly requires that where
requirements are necessary under
§ 122.34(c) to address TMDLs that they
be expressed in a clear, specific, and
measurable manner. These requirements
can be included in the base general
permit or they can be developed
through the second permitting step of
the Two-Step General Permit approach
where additional terms and conditions
are established for individual MS4s.
EPA agrees with the commenters that,
given the watershed-specific nature of
TMDLs and the strategies needed to
address them, in many cases it may be
that a Two-Step General Permit is the
approach that provides the greatest
amount of flexibility to account for
these differences. The advantage of this
approach is that it allows each MS4 to
develop and propose stormwater control
strategies that are supported by the
community and that can then be
reviewed by the permitting authority for
adequacy. EPA notes that there are
several states that have already set up
permit approaches that require MS4s to
first develop TMDL implementation
plans that are then reviewed and
approved by the permitting authority.
These approaches may provide useful
models to draw from especially for
those permitting authorities that choose
to establish water quality-based
requirements through a Two-Step
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General Permit. See examples in EPA’s
compendium document, Compendium
of MS4 Permitting Approaches—Part 3:
Water Quality-Based Requirements
(EPA, 2016), which will be posted on
EPA’s Web site at https://www.epa.gov/
npdes/stormwater-dischargesmunicipal-sources#resources.
E. Restructuring, Consolidating,
Conforming, and Other Editorial
Revisions
EPA proposed a restructuring of
certain provisions in § 122.34(c) through
(e) and making a number of minor
editorial revisions to reflect the changes
made elsewhere to meet remand
requirements and to change the style of
regulatory text, as discussed earlier in
this preamble. EPA proposed to update
the cross-references in § 122.35 to
conform to the rearrangement of
provisions in § 122.34. The preamble at
Section VIII.B addresses changes to
address water quality-based permit
provisions currently in § 122.34(e) and
to consolidate existing paragraphs (e)
and (f) into new paragraph (c). This
section explains other revisions. For the
most part, EPA is promulgating these
proposed revisions and has added
similar revisions to additional
provisions that were identified in
comments. The following discussion
briefly explains those changes.
First, the current § 122.34(c) of the
regulations concerning ‘‘qualifying local
programs’’ has been moved to
§ 122.34(e) as proposed. The only
changes to the text of the existing
language are to remove the words ‘‘you’’
and replace it with ‘‘the permittee.’’
EPA received no comments on this
proposed revision.
Second, the current § 122.34(d) that
addresses information requirements for
obtaining NPDES permit coverage under
a general or individual permit has been
moved to § 122.33(b)(2). All basic
information requirements necessary to
obtain permit coverage under the two
types of individual permits and two
types of general permits are now
consolidated in § 122.33. EPA clarifies
that these information requirements
apply to individual permits, while the
information required to be included in
NOIs for general permits is to be
determined by the permitting authority
based on what it needs in order to
establish the permit terms and
conditions necessary to meet the MS4
permit standard. See further discussion
in Sections IV.C and E.
Third, EPA also proposed to delete
paragraphs (d)(2) and (3) in § 122.34 that
required the permitting authority to
provide a menu of BMPs for each
minimum control measure, and, where
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such a menu of BMPS had not been
provided, stated that a small MS4 need
not be held to any ‘‘measurable goal’’ for
that BMP. The final rule deletes these
paragraphs as no longer necessary. EPA
provided a menu of BMPs that has been
available on its Web site for a number
of years. EPA expects that this menu
and any similar state menus will
continue to be available. In addition, the
function of ‘‘measurable goals’’ in the
permitting process is clarified under the
final rule. In order to address the EDC
court’s concerns about the lack of
permitting authority review of the NOI,
which contains information such as the
MS4 operator’s proposed measurable
goals, the final rule clarifies that
measurable goals are submitted in
proposed form and must be reviewed
and approved, and modified where
necessary, by the permitting authority
prior to becoming effective as
enforceable requirements. Therefore, in
the final rule, ‘‘measurable goals’’ are
now ‘‘proposed measurable goals’’ that
are submitted by an MS4 seeking an
individual permit to implement the
requirements in § 122.34, and at the
discretion of the permitting authority, if
included as required to be submitted in
an NOI for coverage under a Two-Step
General Permit under § 122.28(d)(2) as
information necessary to establish
permit conditions.
Some commenters favored keeping
the requirements for a menu of BMPs as
a way to promote equitable treatment
among MS4s that have similar
circumstances. While EPA has deleted
the proviso that MS4s will not be held
accountable for their selected
measurable goals if a menu of BMPs has
not been developed by the permitting
authority, EPA does not expect
permitting authorities to eliminate
existing and future BMPs menus. Under
§ 123.35(g), an approved state is still
obligated to establish BMP menus for
the minimum control measures to
facilitate effective program
implementation. Not making
information about BMPs available
would be counter to effective program
implementation. EPA anticipates that
equity amongst MS4s will be further
enhanced by the requirement for clear,
specific, and measurable permit terms
and conditions. It should be clear from
any proposed general permit if similar
MS4s are not being treated equitably
and the public will have an opportunity
to voice (through comments or a public
hearing, if one is held) support or
objections to different permit terms and
conditions among MS4s. MS4s include
a broad range of entities that, as noted
by several commenters, are likely to
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need different terms and conditions for
their particular situations, e.g., state
departments of transportation that
generally do not have the same police
powers as local governments and who
serve a largely transient audience. EPA
also expects that dissimilar
requirements for similar MS4s would be
explained in the fact sheet or other
document that provides the rationale for
permit terms and conditions.
Finally, in the proposed rule, EPA
used the term ‘‘Director’’ in place of
‘‘NPDES Permitting Authority’’ in
§§ 122.33–122.35. This proposed
revision was intended to use
terminology in the Phase II regulations
that is used in other sections of part 122.
‘‘Director’’ and ‘‘NPDES Permitting
Authority’’ mean the same thing, i.e.,
the Regional Administrator or the
Director of an authorized State NPDES
program, depending on which entity
issues the NPDES permits in a particular
area. EPA uses these terms
interchangeably. However, for purposes
of minimizing the number of changes
not directly related to the remand, EPA
has decided to retain the status quo with
respect to how these terms are used
currently. In the sections that address
the small MS4 program (§§ 122.32—
122.35), the final rule uses the term
‘‘NPDES permitting authority.’’ This is
different than the terminology that was
proposed. The other sections of part
122, for example, §§ 122.26 and 122.28,
will continue to use the term ‘‘Director.’’
VIII. Final Rule Implementation
A. When the Final Rule Must Be
Implemented
EPA received comments from state
permitting authorities requesting
clarification on the implementation
timeframe for the new rule. EPA also
received comments from environmental
organizations indicating that given the
length of time since the Ninth Circuit
found the procedural aspects of the
Phase II regulations to be invalid, that
permitting authorities should be
required to modify their general permit
procedures now to comport their
program with the CWA requirements for
permitting authority review and public
participation, and also recommended
that EPA should require current permits
to be reopened for this purposes.
To clarify, this final rule becomes
effective on January 9, 2017. It is not
EPA’s expectation that permitting
authorities be required to reopen
permits currently in effect to comply
with the requirements of this final rule.
However, EPA does expect that
permitting authorities comply with the
final rule when the next permit is being
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issued following the expiration of the
current permit. Having said this, EPA
acknowledges that there are a small
number of states whose permits are
expiring within a few months of the
final rule’s effective date, and for these
states it is likely too late in their process
for them to make the necessary changes
to fully comply with the final rule.
Therefore, a permitting authority that
has proposed a permit, is in the final
stages of issuing a new permit (e.g., after
the close of the public comment period),
or has issued a final permit before this
rule becomes effective will not be
expected to re-open those permits.
Where the permitting authority has not
yet proposed a permit, EPA expects that
these permits will be issued consistent
with the final rule’s requirements.
EPA recognizes that development of a
new small MS4 general permit starts
well in advance of the expiration of
existing permits. Still, EPA anticipates
that most states can develop clear,
specific, and measurable permit terms
and conditions without the need for a
change to their legal authorities to
implement the type(s) of general permits
it plans to use. The substantive standard
has not changed (i.e., the MS4 permit
standard); the final rule merely clarifies
the way in which permit terms and
conditions that comply with the
standard must be expressed and how
they are established. Even where a state
determines that it needs to change its
regulations to establish new procedural
requirements to implement the final
rule, such as where a state establishes
the general permit through a rulemaking
process, it may be able to develop
necessary permit terms and conditions
consistent with the final rule based on
its existing statutory authorities. In the
event that states must change their legal
authorities before they can act, the
existing regulations at § 123.62 provides
states up to one year to make the
necessary changes and up to two years
if a statutory change is needed.
B. Status of the 2004 Interim Guidance
This final rule, upon its effective date
on January 9, 2017, establishes the
requirements for issuing general permits
for small MS4 discharges in response to
the U.S. Court of Appeals for the Ninth
Circuit’s decision in Environmental
Defense Center v. EPA. The 2004
Interim Guidance (Implementing the
Partial Remand of the Stormwater Phase
II Regulations Regarding Notices of
Intent & NPDES General Permitting for
Phase II MS4s, EPA (2004)), by its own
terms, ‘‘provides interim guidance to
EPA and State NPDES permitting
authorities pending a rulemaking to
conform the Phase II rule to the court’s
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order.’’ With the promulgation of this
final rule, the ‘‘interim guidance’’ is no
longer needed.
IX. Consistency With the NPDES
Electronic Reporting Rule
EPA issued a final NPDES Electronic
Reporting Rule (referred to as the
‘‘eReporting Rule’’) requiring that
permitting authorities and regulated
entities electronically submit permit
and reporting information instead of
submitting paper forms. (80 FR 64064,
Oct. 22, 2015) The promulgation of the
eReporting Rule includes ‘‘data
elements’’ (in appendix A of the rule)
that must be reported on by both Phase
II small MS4s and permitting authorities
related to individual NOIs submitted for
general permit coverage and required
program reports. The data elements
included in the eReporting Rule for
Phase II MS4s are based on the
regulatory requirements in existence at
the time that rule was promulgated.
These data elements, therefore, do not
reflect changes that are being made to
the corresponding requirements as part
of this MS4 remand rule.
EPA received two public comments,
which were similarly focused on the
need to ensure consistency between the
final MS4 remand rule and the
eReporting Rule. One commenter
recommended that EPA be prepared
once the MS4 remand rule is finalized
to make conforming regulatory changes
to the eReporting Rule so that programs
are again aligned. The other commenter
also gave examples of how the wording
of the eReporting data elements would
be inconsistent with the rule language
under consideration for Option 1 of the
proposed MS4 remand rule. More
specifically, the commenter questioned
how permitting authorities would be
able to populate the required data
elements for the NOI for a general
permit implemented under proposed
Option 1 considering that information
on the MS4 operator’s BMPs and
measurable goals would no longer be
required as part of the NOI.
EPA agrees with the commenters on
the importance of consistency between
this final rule and the eReporting Rule.
Because the appendix A data elements
are no more than a reflection of what the
NPDES regulations require for NOIs and
compliance reports, where the
underlying regulations change, as they
are under the final MS4 remand rule, it
is necessary to make conforming
changes to appendix A. Now that the
final MS4 remand rule language is set,
there are some data elements that will
need to be updated to conform to the
new expectations for NOIs and program
reports. EPA is aware of the following
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types of inconsistencies between the
final MS4 remand rule and the
appendix A data elements related to
small MS4s:
• References to ‘‘measurable goals’’ in
data name and data descriptions
associated with minimum control
measures—Under the final MS4 remand
rule, the MS4 operator’s measurable
goals no longer take on the same role
that they did under the previous
regulations. See related discussion in
Section VII.E. Under the new
regulations, the final terms and
conditions in the general permit and
any additional requirements developed
through the Two-Step process, are what
is relevant. References in appendix A to
the permittee’s measurable goals will
need to be substituted with appropriate
references to the final terms and
conditions of the permit. Additional
updates are also needed in some places
in appendix A to change the reference
from ‘‘measurable goals’’ to the
applicable schedule or deadline for
compliance with the specific permit
requirement.
• References to the permittee’s
intended actions during the permit
term—The data elements in appendix A,
Table 2 describe a number of the
minimum control measure elements as
reflecting what the permittee intends to
accomplish during the permit term.
Under the final MS4 remand rule, the
MS4’s intended actions are not what the
permittee is held to, but rather the final
permit terms and conditions. Therefore,
EPA will need to update any references
to intended actions to reflect the fact
that the terms and conditions of the
permit are what is necessary to report as
a data element.
• Regulatory citations—Updates are
also necessary to the citations in
appendix A to reflect changes made to
the Phase II regulations by the final MS4
remand rule.
• NPDES Data Group Number
(appendix A, Table 2)—This number
corresponds to the entity that is
required to provide information on the
data element under the eReporting Rule.
Table 1 of appendix A assigns a ‘‘Data
Provider’’ number to various entities,
which is reflected in Table 2. In the
portion of appendix A related to
information from the NOIs, the ‘‘Data
Provider’’ for most of the minimum
control measure data elements is
indicated as the ‘‘Authorized NPDES
Program’’ (or permitting authority) and/
or the ‘‘NPDES Permittee.’’ Because the
permitting authority under the final
MS4 remand rule is solely responsible
for establishing final permit terms and
conditions, EPA will need to update the
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Data Provider to remove references to
the NPDES Permittee, where applicable.
EPA has also discovered in reviewing
this issue that it inadvertently omitted
two data elements from the final
eReporting Rule. These data elements
correspond to the schedules, deadlines,
and milestones that are specified in the
permit for the pollution prevention and
good housekeeping for municipal
operations requirements established
under § 122.34(b)(6), and any additional
requirements that may be established
under § 122.34(c).
EPA is interested in taking the time
needed to ensure that the edits required
to appendix A are made precisely. Due
to the time constraints associated with
finalizing the MS4 remand rule, EPA
has determined that the updates needed
in appendix A require a separate
regulatory action outside of this
rulemaking. In addition, EPA notes that
the deadline for implementation of the
affected eReporting rule provisions is
December 21, 2020, therefore there
should be sufficient time to make the
necessary changes before electronic
reporting is required under the
regulations. EPA will initiate the
rulemaking process immediately and
will complete it as soon as possible. In
the meantime, EPA will continue to
work with its state counterparts to
provide appropriate guidance on
applying the data elements in the near
term.
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X. Statutory and Executive Orders
Reviews
Additional information about these
statutes and Executive Orders can be
found at https://www2.epa.gov/lawsregulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is a significant regulatory
action that was submitted to the Office
of Management and Budget (OMB) for
review. Any changes made in response
to OMB recommendations have been
documented in the docket for this
action. In addition, EPA prepared an
analysis of the potential costs associated
with this action. This analysis,
‘‘Economic Analysis for the Municipal
Separate Storm Sewer System (MS4)
General Permit Remand Rule,’’ is
summarized in Section I.D and is
available in the docket.
B. Paperwork Reduction Act (PRA)
This action does not impose any new
information collection burden under the
PRA. OMB has previously approved the
information collection activities
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contained in the existing regulations
and has assigned OMB control number
2040–0004.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have
a significant economic impact on a
substantial number of small entities
under the RFA. Although small MS4s
are regulated under the Phase II
regulations, this rule does not change
the underlying requirements to which
these entities are subject. Instead, the
focus of this rule is on ensuring that the
process by which NPDES permitting
authorities authorize discharges from
small MS4s using general permits
comports with the legal requirements of
the Clean Water Act and the applicable
NPDES regulations.
D. Unfunded Mandates Reform Act
(UMRA)
This action does not contain an
unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C.
1531–1538. This action does not
significantly or uniquely affect small
governments because this rulemaking
focuses on the way in which state
permitting authorities administer
general permit coverage to small MS4s,
and does not modify the underlying
permit requirements to which they are
subject. Nonetheless, EPA consulted
with small governments concerning the
regulatory requirements that might
indirectly affect them, as described in
Section I.E.
E. Executive Order 13132: Federalism
This rule will not have substantial
direct effects on the states, the
relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government. The rule makes
changes to the way in which NPDES
permitting authorities, including
authorized state government agencies,
provide general permit coverage to
small MS4s. The impact to states which
are NPDES permitting authorities may
range from $558,025 and $604,770
annually, depending upon the rule
option that is finalized. Details of this
analysis are presented in ‘‘Economic
Analysis for the Final Municipal
Separate Storm Sewer System General
Permit Remand Rule,’’ which is
available in the docket for the rule at
https://www.regulations.gov under
Docket ID No. EPA–HQ–OW–2015–
0671.
Keeping with the spirit of E.O. 13132
and consistent with EPA’s policy to
promote communications between EPA
and state and local governments, EPA
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met with state and local officials
throughout the process of developing
the proposed rule and received feedback
on how proposed options would affect
them. EPA engaged in extensive
outreach via conference calls to
authorized states (e.g., individual state
permitting authorities, and the
Association of Clean Water
Administrators) and regulated MS4s
(e.g., the National Association of Clean
Water Agencies, Water Environment
Federation, National Association of
Flood & Stormwater Management
Agencies, National Municipal
Stormwater Alliance) to gather input on
how EPA’s current regulations are
affecting them, and to enable officials of
affected state and local governments to
have meaningful and timely input into
the development of the options
presented in this rule. EPA also reached
out to a number of environmental
organizations (e.g., American Rivers,
Chesapeake Bay Foundation, Cahaba
River Society, Natural Resources
Defense Council, PennFuture, River
Network) and regulated industry (e.g.,
National Association of Home Builders).
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications as specified in Executive
Order 13175 since it does not have a
direct substantial impact on one or more
federally recognized tribes. The rule
affects the way in which small MS4s are
covered under a general permit for
stormwater discharges and primarily
affects the NPDES permitting
authorities. No tribal governments are
authorized NPDES permitting
authorities at this time. The rule could
have an indirect impact on an Indian
tribe that is a regulated MS4 in that the
NOI required for coverage under a
general permit may be changed as a
result of the rule (if finalized) or may be
subject to closer scrutiny by the
permitting authority and more of the
requirements could be established as
enforceable permit conditions.
However, the substance of what an MS4
must do will not change significantly as
a result of this rule. Thus, Executive
Order 13175 does not apply to this
action.
Consistent with the EPA Policy on
Consultation and Coordination with
Indian Tribes, EPA conducted outreach
to tribal officials during the
development of this action. EPA spoke
with tribal members during a conference
call with the National Tribal Water
Council to gather input on how tribal
governments are currently affected by
MS4 regulations and may be affected by
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the options in this rule. Based on this
outreach and additional, internal
analysis, EPA confirmed that this action
would have little tribal impact.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
EPA interprets Executive Order 13045
as applying only to those regulatory
actions that concern environmental
health or safety risks that EPA has
reason to believe may
disproportionately affect children, per
the definition of ‘‘covered regulatory
action’’ in section 2–202 of the
Executive Order. This action is not
subject to Executive Order 13045
because it does not concern an
environmental health risk or safety risk.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
I. National Technology Transfer and
Advancement Act
This rulemaking does not involve
technical standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
EPA determined that the human
health or environmental risk addressed
by this action will not have potential
disproportionately high and adverse
human health or environmental effects
on minority, low-income, or indigenous
populations. This action affects the
procedures by which NPDES permitting
authorities provide general permit
coverage for small MS4s, to help ensure
that small MS4s ‘‘reduce the discharge
of pollutants to the maximum extent
practicable (MEP), to protect water
quality and to satisfy the water quality
requirements of the Clean Water Act.’’ It
does not change any current human
health or environmental risk standards.
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K. Congressional Review Act
This action is subject to the CRA, and
EPA will submit a rule report to each
House of the Congress and to the
Comptroller General of the United
States. This action is not a ‘‘major rule’’
as defined by 5 U.S.C. 804(2).
Environmental protection, Storm
water, Water pollution.
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For the reasons stated in the
preamble, EPA amends 40 CFR part 122
as set forth below:
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 122
continues to read as follows:
■
Authority: The Clean Water Act, 33 U.S.C.
1251 et seq.
2. Amend § 122.28 by adding
paragraph (d) to read as follows:
■
§ 122.28 General permits (applicable to
State NPDES programs, see § 123.25).
*
This action is not subject to Executive
Order 13211, because it does not
significantly affect energy supply,
distribution, or use.
List of Subjects in 40 CFR Part 122
Dated: November 17, 2016.
Gina McCarthy,
Administrator.
*
*
*
*
(d) Small municipal separate storm
sewer systems (MS4s) (Applicable to
State programs). For general permits
issued under paragraph (b) of this
section for small MS4s, the Director
must establish the terms and conditions
necessary to meet the requirements of
§ 122.34 using one of the two permitting
approaches in paragraph (d)(1) or (2) of
this section. The Director must indicate
in the permit or fact sheet which
approach is being used.
(1) Comprehensive general permit.
The Director includes all required
permit terms and conditions in the
general permit; or
(2) Two-step general permit. The
Director includes required permit terms
and conditions in the general permit
applicable to all eligible small MS4s
and, during the process of authorizing
small MS4s to discharge, establishes
additional terms and conditions not
included in the general permit to satisfy
one or more of the permit requirements
in § 122.34 for individual small MS4
operators.
(i) The general permit must require
that any small MS4 operator seeking
authorization to discharge under the
general permit submit a Notice of Intent
(NOI) consistent with § 122.33(b)(1)(ii).
(ii) The Director must review the NOI
submitted by the small MS4 operator to
determine whether the information in
the NOI is complete and to establish the
additional terms and conditions
necessary to meet the requirements of
§ 122.34. The Director may require the
small MS4 operator to submit additional
information. If the Director makes a
preliminary decision to authorize the
small MS4 operator to discharge under
the general permit, the Director must
give the public notice of and
opportunity to comment and request a
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public hearing on its proposed
authorization and the NOI, the proposed
additional terms and conditions, and
the basis for these additional
requirements. The public notice, the
process for submitting public comments
and hearing requests, and the hearing
process if a request for a hearing is
granted, must follow the procedures
applicable to draft permits set forth in
§§ 124.10 through 124.13 (excluding
§ 124.10(c)(2)). The Director must
respond to significant comments
received during the comment period as
provided in § 124.17.
(iii) Upon authorization for the MS4
to discharge under the general permit,
the final additional terms and
conditions applicable to the MS4
operator become effective. The Director
must notify the permittee and inform
the public of the decision to authorize
the MS4 to discharge under the general
permit and of the final additional terms
and conditions specific to the MS4.
■ 3. Revise § 122.33 to read as follows:
§ 122.33 Requirements for obtaining
permit coverage for regulated small MS4s.
(a) The operator of any regulated
small MS4 under § 122.32 must seek
coverage under an NPDES permit issued
by the applicable NPDES permitting
authority. If the small MS4 is located in
an NPDES authorized State, Tribe, or
Territory, then that State, Tribe, or
Territory is the NPDES permitting
authority. Otherwise, the NPDES
permitting authority is the EPA Regional
Office for the Region where the small
MS4 is located.
(b) The operator of any regulated
small MS4 must seek authorization to
discharge under a general or individual
NPDES permit, as follows:
(1) General permit. (i) If seeking
coverage under a general permit issued
by the NPDES permitting authority in
accordance with § 122.28(d)(1), the
small MS4 operator must submit a
Notice of Intent (NOI) to the NPDES
permitting authority consistent with
§ 122.28(b)(2). The small MS4 operator
may file its own NOI, or the small MS4
operator and other municipalities or
governmental entities may jointly
submit an NOI. If the small MS4
operator wants to share responsibilities
for meeting the minimum measures
with other municipalities or
governmental entities, the small MS4
operator must submit an NOI that
describes which minimum measures it
will implement and identify the entities
that will implement the other minimum
measures within the area served by the
MS4. The general permit will explain
any other steps necessary to obtain
permit authorization.
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(ii) If seeking coverage under a general
permit issued by the NPDES permitting
authority in accordance with
§ 122.28(d)(2), the small MS4 operator
must submit an NOI to the Director
consisting of the minimum required
information in § 122.28(b)(2)(ii), and
any other information the Director
identifies as necessary to establish
additional terms and conditions that
satisfy the permit requirements of
§ 122.34, such as the information
required under § 122.33(b)(2)(i). The
general permit will explain any other
steps necessary to obtain permit
authorization.
(2) Individual permit. (i) If seeking
authorization to discharge under an
individual permit to implement a
program under § 122.34, the small MS4
operator must submit an application to
the appropriate NPDES permitting
authority that includes the information
required under § 122.21(f) and the
following:
(A) The best management practices
(BMPs) that the small MS4 operator or
another entity proposes to implement
for each of the storm water minimum
control measures described in
§ 122.34(b)(1) through (6);
(B) The proposed measurable goals for
each of the BMPs including, as
appropriate, the months and years in
which the small MS4 operator proposes
to undertake required actions, including
interim milestones and the frequency of
the action;
(C) The person or persons responsible
for implementing or coordinating the
storm water management program;
(D) An estimate of square mileage
served by the small MS4;
(E) Any additional information that
the NPDES permitting authority
requests; and
(F) A storm sewer map that satisfies
the requirement of § 122.34(b)(3)(i)
satisfies the map requirement in
§ 122.21(f)(7).
(ii) If seeking authorization to
discharge under an individual permit to
implement a program that is different
from the program under § 122.34, the
small MS4 operator must comply with
the permit application requirements in
§ 122.26(d). The small MS4 operator
must submit both parts of the
application requirements in
§ 122.26(d)(1) and (2). The small MS4
operator must submit the application at
least 180 days before the expiration of
the small MS4 operator’s existing
permit. Information required by
§ 122.26(d)(1)(ii) and (d)(2) regarding its
legal authority is not required, unless
the small MS4 operator intends for the
permit writer to take such information
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into account when developing other
permit conditions.
(iii) If allowed by your NPDES
permitting authority, the small MS4
operator and another regulated entity
may jointly apply under either
paragraph (b)(2)(i) or (ii) of this section
to be co-permittees under an individual
permit.
(3) Co-permittee alternative. If the
regulated small MS4 is in the same
urbanized area as a medium or large
MS4 with an NPDES storm water permit
and that other MS4 is willing to have
the small MS4 operator participate in its
storm water program, the parties may
jointly seek a modification of the other
MS4 permit to include the small MS4
operator as a limited co-permittee. As a
limited co-permittee, the small MS4
operator will be responsible for
compliance with the permit’s conditions
applicable to its jurisdiction. If the small
MS4 operator chooses this option it
must comply with the permit
application requirements of § 122.26,
rather than the requirements of
§ 122.33(b)(2)(i). The small MS4
operator does not need to comply with
the specific application requirements of
§ 122.26(d)(1)(iii) and (iv) and (d)(2)(iii)
(discharge characterization). The small
MS4 operator may satisfy the
requirements in § 122.26 (d)(1)(v) and
(d)(2)(iv) (identification of a
management program) by referring to
the other MS4’s storm water
management program.
(4) Guidance for paragraph (b)(3) of
this section. In referencing the other
MS4 operator’s storm water
management program, the small MS4
operator should briefly describe how the
existing program will address
discharges from the small MS4 or would
need to be supplemented in order to
adequately address the discharges. The
small MS4 operator should also explain
its role in coordinating storm water
pollutant control activities in the MS4,
and detail the resources available to the
small MS4 operator to accomplish the
program.
(c) If the regulated small MS4 is
designated under § 122.32(a)(2), the
small MS4 operator must apply for
coverage under an NPDES permit, or
apply for a modification of an existing
NPDES permit under paragraph (b)(3) of
this section, within 180 days of notice
of such designation, unless the NPDES
permitting authority grants a later date.
■ 4. Revise § 122.34 to read as follows:
§ 122.34 Permit requirements for regulated
small MS4 permits.
(a) General requirements. For any
permit issued to a regulated small MS4,
the NPDES permitting authority must
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include permit terms and conditions to
reduce the discharge of pollutants from
the MS4 to the maximum extent
practicable (MEP), to protect water
quality, and to satisfy the appropriate
water quality requirements of the Clean
Water Act. Terms and conditions that
satisfy the requirements of this section
must be expressed in clear, specific, and
measurable terms. Such terms and
conditions may include narrative,
numeric, or other types of requirements
(e.g., implementation of specific tasks or
best management practices (BMPs),
BMP design requirements, performance
requirements, adaptive management
requirements, schedules for
implementation and maintenance, and
frequency of actions).
(1) For permits providing coverage to
any small MS4s for the first time, the
NPDES permitting authority may
specify a time period of up to 5 years
from the date of permit issuance for the
permittee to fully comply with the
conditions of the permit and to
implement necessary BMPs.
(2) For each successive permit, the
NPDES permitting authority must
include terms and conditions that meet
the requirements of this section based
on its evaluation of the current permit
requirements, record of permittee
compliance and program
implementation progress, current water
quality conditions, and other relevant
information.
(b) Minimum control measures. The
permit must include requirements that
ensure the permittee implements, or
continues to implement, the minimum
control measures in paragraphs (b)(1)
through (6) of this section during the
permit term. The permit must also
require a written storm water
management program document or
documents that, at a minimum,
describes in detail how the permittee
intends to comply with the permit’s
requirements for each minimum control
measure.
(1) Public education and outreach on
storm water impacts. (i) The permit
must identify the minimum elements
and require implementation of a public
education program to distribute
educational materials to the community
or conduct equivalent outreach
activities about the impacts of storm
water discharges on water bodies and
the steps that the public can take to
reduce pollutants in storm water runoff.
(ii) Guidance for NPDES permitting
authorities and regulated small MS4s:
The permittee may use storm water
educational materials provided by the
State, Tribe, EPA, environmental, public
interest or trade organizations, or other
MS4s. The public education program
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should inform individuals and
households about the steps they can
take to reduce storm water pollution,
such as ensuring proper septic system
maintenance, ensuring the proper use
and disposal of landscape and garden
chemicals including fertilizers and
pesticides, protecting and restoring
riparian vegetation, and properly
disposing of used motor oil or
household hazardous wastes. EPA
recommends that the program inform
individuals and groups how to become
involved in local stream and beach
restoration activities as well as activities
that are coordinated by youth service
and conservation corps or other citizen
groups. EPA recommends that the
permit require the permittee to tailor the
public education program, using a mix
of locally appropriate strategies, to
target specific audiences and
communities. Examples of strategies
include distributing brochures or fact
sheets, sponsoring speaking
engagements before community groups,
providing public service
announcements, implementing
educational programs targeted at school
age children, and conducting
community-based projects such as storm
drain stenciling, and watershed and
beach cleanups. In addition, EPA
recommends that the permit require that
some of the materials or outreach
programs be directed toward targeted
groups of commercial, industrial, and
institutional entities likely to have
significant storm water impacts. For
example, providing information to
restaurants on the impact of grease
clogging storm drains and to garages on
the impact of oil discharges. The permit
should encourage the permittee to tailor
the outreach program to address the
viewpoints and concerns of all
communities, particularly minority and
disadvantaged communities, as well as
any special concerns relating to
children.
(2) Public involvement/participation.
(i) The permit must identify the
minimum elements and require
implementation of a public
involvement/participation program that
complies with State, Tribal, and local
public notice requirements.
(ii) Guidance for NPDES permitting
authorities and regulated small MS4s:
EPA recommends that the permit
include provisions addressing the need
for the public to be included in
developing, implementing, and
reviewing the storm water management
program and that the public
participation process should make
efforts to reach out and engage all
economic and ethnic groups.
Opportunities for members of the public
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to participate in program development
and implementation include serving as
citizen representatives on a local storm
water management panel, attending
public hearings, working as citizen
volunteers to educate other individuals
about the program, assisting in program
coordination with other pre-existing
programs, or participating in volunteer
monitoring efforts. (Citizens should
obtain approval where necessary for
lawful access to monitoring sites.)
(3) Illicit discharge detection and
elimination. (i) The permit must
identify the minimum elements and
require the development,
implementation, and enforcement of a
program to detect and eliminate illicit
discharges (as defined at § 122.26(b)(2))
into the small MS4. At a minimum, the
permit must require the permittee to:
(A) Develop, if not already completed,
a storm sewer system map, showing the
location of all outfalls and the names
and location of all waters of the United
States that receive discharges from those
outfalls;
(B) To the extent allowable under
State, Tribal or local law, effectively
prohibit, through ordinance, or other
regulatory mechanism, non-storm water
discharges into the storm sewer system
and implement appropriate enforcement
procedures and actions;
(C) Develop and implement a plan to
detect and address non-storm water
discharges, including illegal dumping,
to the system; and
(D) Inform public employees,
businesses, and the general public of
hazards associated with illegal
discharges and improper disposal of
waste.
(ii) The permit must also require the
permittee to address the following
categories of non-storm water discharges
or flows (i.e., illicit discharges) only if
the permittee identifies them as a
significant contributor of pollutants to
the small MS4: Water line flushing,
landscape irrigation, diverted stream
flows, rising ground waters,
uncontaminated ground water
infiltration (as defined at 40 CFR
35.2005(b)(20)), uncontaminated
pumped ground water, discharges from
potable water sources, foundation
drains, air conditioning condensation,
irrigation water, springs, water from
crawl space pumps, footing drains, lawn
watering, individual residential car
washing, flows from riparian habitats
and wetlands, dechlorinated swimming
pool discharges, and street wash water
(discharges or flows from firefighting
activities are excluded from the effective
prohibition against non-storm water and
need only be addressed where they are
identified as significant sources of
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pollutants to waters of the United
States).
(iii) Guidance for NPDES permitting
authorities and regulated small MS4s:
EPA recommends that the permit
require the plan to detect and address
illicit discharges include the following
four components: Procedures for
locating priority areas likely to have
illicit discharges; procedures for tracing
the source of an illicit discharge;
procedures for removing the source of
the discharge; and procedures for
program evaluation and assessment.
EPA recommends that the permit
require the permittee to visually screen
outfalls during dry weather and conduct
field tests of selected pollutants as part
of the procedures for locating priority
areas. Illicit discharge education actions
may include storm drain stenciling, a
program to promote, publicize, and
facilitate public reporting of illicit
connections or discharges, and
distribution of outreach materials.
(4) Construction site storm water
runoff control. (i) The permit must
identify the minimum elements and
require the development,
implementation, and enforcement of a
program to reduce pollutants in any
storm water runoff to the small MS4
from construction activities that result
in a land disturbance of greater than or
equal to one acre. Reduction of storm
water discharges from construction
activity disturbing less than one acre
must be included in the program if that
construction activity is part of a larger
common plan of development or sale
that would disturb one acre or more. If
the Director waives requirements for
storm water discharges associated with
small construction activity in
accordance with § 122.26(b)(15)(i), the
permittee is not required to develop,
implement, and/or enforce a program to
reduce pollutant discharges from such
sites. At a minimum, the permit must
require the permittee to develop and
implement:
(A) An ordinance or other regulatory
mechanism to require erosion and
sediment controls, as well as sanctions
to ensure compliance, to the extent
allowable under State, Tribal, or local
law;
(B) Requirements for construction site
operators to implement appropriate
erosion and sediment control best
management practices;
(C) Requirements for construction site
operators to control waste such as
discarded building materials, concrete
truck washout, chemicals, litter, and
sanitary waste at the construction site
that may cause adverse impacts to water
quality;
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(D) Procedures for site plan review
which incorporate consideration of
potential water quality impacts;
(E) Procedures for receipt and
consideration of information submitted
by the public, and
(F) Procedures for site inspection and
enforcement of control measures.
(ii) Guidance for NPDES permitting
authorities and regulated small MS4s:
Examples of sanctions to ensure
compliance include non-monetary
penalties, fines, bonding requirements
and/or permit denials for noncompliance. EPA recommends that the
procedures for site plan review include
the review of individual preconstruction site plans to ensure
consistency with local sediment and
erosion control requirements.
Procedures for site inspections and
enforcement of control measures could
include steps to identify priority sites
for inspection and enforcement based
on the nature of the construction
activity, topography, and the
characteristics of soils and receiving
water quality. EPA also recommends
that the permit require the permittee to
provide appropriate educational and
training measures for construction site
operators, and require storm water
pollution prevention plans for
construction sites within the MS4’s
jurisdiction that discharge into the
system. See § 122.44(s) (NPDES
permitting authorities’ option to
incorporate qualifying State, Tribal and
local erosion and sediment control
programs into NPDES permits for storm
water discharges from construction
sites). Also see § 122.35(b) (The NPDES
permitting authority may recognize that
another government entity, including
the NPDES permitting authority, may be
responsible for implementing one or
more of the minimum measures on the
permittee’s behalf).
(5) Post-construction storm water
management in new development and
redevelopment. (i) The permit must
identify the minimum elements and
require the development,
implementation, and enforcement of a
program to address storm water runoff
from new development and
redevelopment projects that disturb
greater than or equal to one acre,
including projects less than one acre
that are part of a larger common plan of
development or sale, that discharge into
the small MS4. The permit must ensure
that controls are in place that would
prevent or minimize water quality
impacts. At a minimum, the permit
must require the permittee to:
(A) Develop and implement strategies
which include a combination of
structural and/or non-structural best
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management practices (BMPs)
appropriate for the community;
(B) Use an ordinance or other
regulatory mechanism to address postconstruction runoff from new
development and redevelopment
projects to the extent allowable under
State, Tribal or local law; and
(C) Ensure adequate long-term
operation and maintenance of BMPs.
(ii) Guidance for NPDES permitting
authorities and regulated small MS4s: If
water quality impacts are considered
from the beginning stages of a project,
new development and potentially
redevelopment provide more
opportunities for water quality
protection. EPA recommends that the
permit ensure that BMPs included in
the program: Be appropriate for the local
community; minimize water quality
impacts; and attempt to maintain predevelopment runoff conditions. EPA
encourages the permittee to participate
in locally-based watershed planning
efforts which attempt to involve a
diverse group of stakeholders including
interested citizens. When developing a
program that is consistent with this
measure’s intent, EPA recommends that
the permit require the permittee to
adopt a planning process that identifies
the municipality’s program goals (e.g.,
minimize water quality impacts
resulting from post-construction runoff
from new development and
redevelopment), implementation
strategies (e.g., adopt a combination of
structural and/or non-structural BMPs),
operation and maintenance policies and
procedures, and enforcement
procedures. In developing the program,
the permit should also require the
permittee to assess existing ordinances,
policies, programs and studies that
address storm water runoff quality. In
addition to assessing these existing
documents and programs, the permit
should require the permittee to provide
opportunities to the public to
participate in the development of the
program. Non-structural BMPs are
preventative actions that involve
management and source controls such
as: Policies and ordinances that provide
requirements and standards to direct
growth to identified areas, protect
sensitive areas such as wetlands and
riparian areas, maintain and/or increase
open space (including a dedicated
funding source for open space
acquisition), provide buffers along
sensitive water bodies, minimize
impervious surfaces, and minimize
disturbance of soils and vegetation;
policies or ordinances that encourage
infill development in higher density
urban areas, and areas with existing
infrastructure; education programs for
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developers and the public about project
designs that minimize water quality
impacts; and measures such as
minimization of percent impervious
area after development and
minimization of directly connected
impervious areas. Structural BMPs
include: Storage practices such as wet
ponds and extended-detention outlet
structures; filtration practices such as
grassed swales, sand filters and filter
strips; and infiltration practices such as
infiltration basins and infiltration
trenches. EPA recommends that the
permit ensure the appropriate
implementation of the structural BMPs
by considering some or all of the
following: Pre-construction review of
BMP designs; inspections during
construction to verify BMPs are built as
designed; post-construction inspection
and maintenance of BMPs; and penalty
provisions for the noncompliance with
design, construction or operation and
maintenance. Storm water technologies
are constantly being improved, and EPA
recommends that the permit
requirements be responsive to these
changes, developments or
improvements in control technologies.
(6) Pollution prevention/good
housekeeping for municipal operations.
(i) The permit must identify the
minimum elements and require the
development and implementation of an
operation and maintenance program
that includes a training component and
has the ultimate goal of preventing or
reducing pollutant runoff from
municipal operations. Using training
materials that are available from EPA,
the State, Tribe, or other organizations,
the program must include employee
training to prevent and reduce storm
water pollution from activities such as
park and open space maintenance, fleet
and building maintenance, new
construction and land disturbances, and
storm water system maintenance.
(ii) Guidance for NPDES permitting
authorities and regulated small MS4s:
EPA recommends that the permit
address the following: Maintenance
activities, maintenance schedules, and
long-term inspection procedures for
structural and non-structural storm
water controls to reduce floatables and
other pollutants discharged from the
separate storm sewers; controls for
reducing or eliminating the discharge of
pollutants from streets, roads, highways,
municipal parking lots, maintenance
and storage yards, fleet or maintenance
shops with outdoor storage areas, salt/
sand storage locations and snow
disposal areas operated by the
permittee, and waste transfer stations;
procedures for properly disposing of
waste removed from the separate storm
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sewers and areas listed above (such as
dredge spoil, accumulated sediments,
floatables, and other debris); and ways
to ensure that new flood management
projects assess the impacts on water
quality and examine existing projects
for incorporating additional water
quality protection devices or practices.
Operation and maintenance should be
an integral component of all storm water
management programs. This measure is
intended to improve the efficiency of
these programs and require new
programs where necessary. Properly
developed and implemented operation
and maintenance programs reduce the
risk of water quality problems.
(c) Other applicable requirements. As
appropriate, the permit will include:
(1) More stringent terms and
conditions, including permit
requirements that modify, or are in
addition to, the minimum control
measures based on an approved total
maximum daily load (TMDL) or
equivalent analysis, or where the
Director determines such terms and
conditions are needed to protect water
quality.
(2) Other applicable NPDES permit
requirements, standards and conditions
established in the individual or general
permit, developed consistent with the
provisions of §§ 122.41 through 122.49.
(d) Evaluation and assessment
requirements—(1) Evaluation. The
permit must require the permittee to
evaluate compliance with the terms and
conditions of the permit, including the
effectiveness of the components of its
storm water management program, and
the status of achieving the measurable
requirements in the permit.
Note to paragraph (d)(1): The NPDES
permitting authority may determine
monitoring requirements for the permittee in
accordance with State/Tribal monitoring
plans appropriate to the watershed.
Participation in a group monitoring program
is encouraged.
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(2) Recordkeeping. The permit must
require that the permittee keep records
required by the NPDES permit for at
least 3 years and submit such records to
the NPDES permitting authority when
specifically asked to do so. The permit
must require the permittee to make
records, including a written description
of the storm water management
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program, available to the public at
reasonable times during regular
business hours (see § 122.7 for
confidentiality provision). (The
permittee may assess a reasonable
charge for copying. The permit may
allow the permittee to require a member
of the public to provide advance notice.)
(3) Reporting. Unless the permittee is
relying on another entity to satisfy its
NPDES permit obligations under
§ 122.35(a), the permittee must submit
annual reports to the NPDES permitting
authority for its first permit term. For
subsequent permit terms, the permittee
must submit reports in year two and
four unless the NPDES permitting
authority requires more frequent
reports. As of December 21, 2020 all
reports submitted in compliance with
this section must be submitted
electronically by the owner, operator, or
the duly authorized representative of
the small MS4 to the NPDES permitting
authority or initial recipient, as defined
in 40 CFR 127.2(b), in compliance with
this section and 40 CFR part 3
(including, in all cases, subpart D to part
3), § 122.22, and 40 CFR part 127. Part
127 is not intended to undo existing
requirements for electronic reporting.
Prior to this date, and independent of
part 127, the owner, operator, or the
duly authorized representative of the
small MS4 may be required to report
electronically if specified by a particular
permit or if required to do so by state
law. The report must include:
(i) The status of compliance with
permit terms and conditions;
(ii) Results of information collected
and analyzed, including monitoring
data, if any, during the reporting period;
(iii) A summary of the storm water
activities the permittee proposes to
undertake to comply with the permit
during the next reporting cycle;
(iv) Any changes made during the
reporting period to the permittee’s storm
water management program; and
(v) Notice that the permittee is relying
on another governmental entity to
satisfy some of the permit obligations (if
applicable), consistent with § 122.35(a).
(e) Qualifying local program. If an
existing qualifying local program
requires the permittee to implement one
or more of the minimum control
measures of paragraph (b) of this
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Sfmt 9990
section, the NPDES permitting authority
may include conditions in the NPDES
permit that direct the permittee to
follow that qualifying program’s
requirements rather than the
requirements of paragraph (b). A
qualifying local program is a local, State
or Tribal municipal storm water
management program that imposes, at a
minimum, the relevant requirements of
paragraph (b).
5. Amend § 122.35 by revising the
section heading and paragraph (a) to
read as follows:
■
§ 122.35 May the operator of a regulated
small MS4 share the responsibility to
implement the minimum control measures
with other entities?
(a) The permittee may rely on another
entity to satisfy its NPDES permit
obligations to implement a minimum
control measure if:
(1) The other entity, in fact,
implements the control measure;
(2) The particular control measure, or
component thereof, is at least as
stringent as the corresponding NPDES
permit requirement; and
(3) The other entity agrees to
implement the control measure on the
permittee’s behalf. In the reports, the
permittee must submit under
§ 122.34(d)(3), the permittee must also
specify that it is relying on another
entity to satisfy some of the permit
obligations. If the permittee is relying on
another governmental entity regulated
under section 122 to satisfy all of the
permit obligations, including the
obligation to file periodic reports
required by § 122.34(d)(3), the permittee
must note that fact in its NOI, but the
permittee is not required to file the
periodic reports. The permittee remains
responsible for compliance with the
permit obligations if the other entity
fails to implement the control measure
(or component thereof). Therefore, EPA
encourages the permittee to enter into a
legally binding agreement with that
entity if the permittee wants to
minimize any uncertainty about
compliance with the permit.
*
*
*
*
*
[FR Doc. 2016–28426 Filed 12–8–16; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\09DER4.SGM
09DER4
]]>Agencies
[Federal Register Volume 81, Number 237 (Friday, December 9, 2016)]
[Rules and Regulations]
[Pages 89320-89352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28426]
[[Page 89319]]
Vol. 81
Friday,
No. 237
December 9, 2016
Part IV
Environmental Protection Agency
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40 CFR Parts 122
National Pollutant Discharge Elimination System (NPDES) Municipal
Separate Storm Sewer System General Permit Remand Rule; Final Rule
Federal Register / Vol. 81 , No. 237 / Friday, December 9, 2016 /
Rules and Regulations
[[Page 89320]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 122
[EPA-HQ-OW-2015-0671; FRL-9955-11-OW]
RIN 2040-AF57
National Pollutant Discharge Elimination System (NPDES) Municipal
Separate Storm Sewer System General Permit Remand Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is revising the
regulations governing regulated small municipal separate storm sewer
system (MS4) permits to respond to a remand from the United States
Court of Appeals for the Ninth Circuit in Environmental Defense Center,
et al. v. EPA, 344 F.3d 832 (9th Cir. 2003). In that decision, the
court determined that the regulations for providing coverage under
small MS4 general permits did not provide for adequate public notice
and opportunity to request a hearing. Additionally, the court found
that EPA failed to require permitting authority review of the best
management practices (BMPs) to be used at a particular MS4 to ensure
that the small MS4 permittee reduces pollutants in the discharge from
their systems to the ``maximum extent practicable'' (MEP), the standard
established by the Clean Water Act (CWA) for such permits. The final
rule establishes two alternative approaches a permitting authority can
use to issue National Pollutant Discharge Elimination (NPDES) general
permits for small MS4s and meet the requirements of the court remand.
The first option is to establish all necessary permit terms and
conditions to require the MS4 operator to reduce the discharge of
pollutants from its MS4 to the MEP, to protect water quality, and to
satisfy the appropriate water quality requirements of the Clean Water
Act (``MS4 permit standard'') upfront in one comprehensive permit. The
second option allows the permitting authority to establish the
necessary permit terms and conditions in two steps: A first step to
issue a base general permit that contains terms and conditions
applicable to all small MS4s covered by the permit and a second step to
establish necessary permit terms and conditions for individual MS4s
that are not in the base general permit. Public notice and comment and
opportunity to request a hearing would be necessary for both steps of
this two-step general permit. This final rule does not establish any
new substantive requirements for small MS4 permits.
DATES: This final rule is effective on January 9, 2017.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OW-2015-0671. All documents in the docket are listed on the
https://www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available
electronically through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Greg Schaner, Office of Wastewater
Management, Water Permits Division (4203M), Environmental Protection
Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone
number: (202) 564-0721; email address: schaner.greg@epa.gov. Refer also
to EPA's Web site for further information related to the final rule at
https://www.epa.gov/npdes/stormwater-rules-and-notices#proposed.
SUPPLEMENTARY INFORMATION: The Federal Register published EPA's
proposed rule on January 6, 2016 (81 FR 415).
Table of Contents
I. General Information
A. Does this action apply to me?
B. What action is the Agency taking?
C. What is the Agency's authority for taking this action?
D. What are the incremental costs of this action?
II. Background
A. Statutory and Regulatory Overview
B. MS4 Permitting Requirements
C. Judicial Review of the Phase II Rule and Partial Remand
III. Summary of the Proposed Rule and Comments Received
A. Scope of the Proposed Rule
B. Description of Options Proposed
C. General Summary of Comments Received
IV. Summary of the Final Rule
A. Selection of the ``Permitting Authority Choice'' Approach
B. Description of the Two Permitting Alternatives Under the
Permitting Authority Choice Approach
C. Summary of Regulatory Changes To Adopt the Permitting
Authority Choice Approach
D. Commonalities Among the Two Types of General Permits
E. Role of the NOI Under the Permitting Authority Choice
Approach
F. Permitting Authority Flexibility To Choose Most Suitable
Approach
G. Why EPA Did Not Choose Proposed Option 1 or 2 as Stand-Alone
Options
V. How the Two General Permit Options Work
A. Comprehensive General Permit Approach
B. Two-Step General Permit Approach
C. Permittee Publication of Public Notice
VI. Requirements for Permit Terms and Conditions
A. Permitting Authority as the Ultimate Decision-Maker
B. ``Clear, Specific, and Measurable'' Permit Requirements
C. Narrative, Numeric, and Other Forms of Permit Requirements
D. Considerations in Developing Requirements for Successive
Permits
E. Relationship Between the Storm Water Management Program
Document (SWMP) and Required Permit Terms and Conditions
F. Explaining How the Permit Terms and Conditions Meet the MS4
Permit Standard
G. Minimum Federal Permit Requirements
H. Comments Beyond the Scope of This Rulemaking
VII. Revisions to Other Parts of Sec. 122.34
A. Compliance Timeline for New MS4 Permittees
B. Revisions to Evaluation and Assessment Provisions
C. Establishing Water Quality-Based Requirements
D. Establishing Water Quality-Based Terms and Conditions Under
the Two Types of General Permits
E. Restructuring, Consolidating, Conforming, and Other Editorial
Revisions
VIII. Final Rule Implementation
A. When the Final Rule Must Be Implemented
B. Status of 2004 Guidance Memorandum
IX. Consistency With the NPDES Electronic Reporting Rule
X. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
[[Page 89321]]
K. Congressional Review Act
I. General Information
A. Does this action apply to me?
Entities regulated [or affected] by this rule include:
----------------------------------------------------------------------------------------------------------------
North American
industry
Category Examples of regulated entities classification
system (NAICS)
code
----------------------------------------------------------------------------------------------------------------
Federal and state government................................ EPA or state NPDES stormwater 924110
permitting authorities;
operators of small municipal
separate storm sewer systems.
Local governments........................................... Operators of small municipal 924110
separate storm sewer systems.
----------------------------------------------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated or otherwise affected by this action.
Other types of entities not listed in the table could also be
regulated. To determine whether your entity is regulated by this
action, you should carefully examine the applicability criteria found
in 40 CFR 122.32, and the discussion in the preamble. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the FOR FURTHER INFORMATION
CONTACT section.
B. What action is the Agency taking?
EPA is issuing a final rule to revise its regulations governing the
way in which small municipal separate storm sewer systems (MS4s) obtain
coverage under National Pollutant Discharge Elimination System (NPDES)
general permits and how required permit conditions are established. The
rule results from a decision by the U.S. Court of Appeals for the Ninth
Circuit in Environmental Defense Center, et al. v. EPA, at 344 F.3d 832
(9th Cir. 2003) (``EDC decision''), which found that EPA regulations
for obtaining coverage under a small MS4 general permit did not provide
for adequate public notice, the opportunity to request a hearing, or
permitting authority review to determine whether the best management
practices (BMPs) selected by each MS4 in its stormwater management
program (SWMP) meets the CWA requirements including the requirement to
``reduce pollutants to the maximum extent practicable.'' The Federal
Register published EPA's proposed rule on January 6, 2016 (81 FR 415).
EPA proposed and solicited public comment on three options for
addressing the remand. One option (called the ``Traditional General
Permit Approach'') would require the permitting authority to establish
within the general permit all requirements necessary for the regulated
small MS4s to meet the applicable permit standard (to reduce pollutants
to the maximum extent practicable (MEP), to protect water quality, and
to satisfy the appropriate water quality requirements of the CWA),
which would be subject to public notice and comment and an opportunity
to request a hearing. The second proposed option (called the
``Procedural Approach'') would require the permitting authority to
incorporate an additional review and public comment step into the
existing Phase II regulatory framework for permitting small MS4s
through general permits. More specifically, once an MS4 operator
submitted its Notice of Intent (NOI) requesting coverage under the
general permit, an additional step would take place in which the
permitting authority would review, and the public would be given an
opportunity to comment and request a hearing on, the merits of the
MS4's proposed BMPs and measurable goals for complying with the
requirement to reduce discharges to the MEP, to protect water quality,
and to satisfy the appropriate water quality requirements of the CWA. A
third proposed option (called the ``State Choice Approach'') would
enable the permitting authority to choose between the Traditional
General Permit and Procedural Approaches, or to implement a combination
of these approaches in issuing and authorizing coverage under a general
permit. Today, EPA is issuing a rule that promulgates the ``State
Choice Approach'' and has renamed it as the ``Permitting Authority
Choice Approach.''
C. What is the Agency's authority for taking this action?
The authority for this rule is the Federal Water Pollution Control
Act, 33 U.S.C. 1251 et seq., including sections 402 and 501.
D. What are the incremental costs of this action?
The Economic Analysis estimates the incremental costs to implement
the final rule. EPA assumed that all other costs accrued as a result of
the existing small MS4 program, which were accounted for in the
Economic Analysis accompanying the 1999 final Phase II MS4 regulations,
remain the same and are not germane to the Economic Analysis, unless
the rule change would affect the baseline program costs. In this
respect, EPA focused only on new costs that may be imposed as a result
of implementing the final rule. It is, therefore, unnecessary to
reevaluate the total program costs of the Phase II rule, since those
costs were part of the original economic analysis conducted for the
1999 Phase II rule (see 64 FR 68722, December 8, 1999). For further
information, refer to the Economic Analysis that is included in the
rule docket.
EPA estimates the annualized cost of the final rule to be between
$558,025 and $604,770, depending on the assumed discount rate. This can
be thought of as the annual budgeted amounts each permitting authority
would need to make available each year in order to be able to cover the
increase in permitting authority efforts that would result every 5
years. The total net present value of the compliance cost ranges from
$5.5 million to $8.4 million, depending on the assumed discount rate.
These estimates are all below the threshold level established by
statute and various executive orders for determining that a rule has an
economically significant or substantial impact on affected entities.
See further discussion in Section X of this preamble.
The Economic Analysis assumes that permitting authorities are the
only entities that are expected to be impacted from this rule because
the requirements modified by the rule focus only on the administrative
manner in which general
[[Page 89322]]
permits are issued and how coverage under those permits is granted. EPA
emphasizes that this final rule does not change the stringency of the
underlying requirements in the statute or Phase II regulations to which
small MS4 permittees are subject, nor does it establish new substantive
requirements for MS4 permittees. Therefore, the Economic Analysis does
not attribute new costs to regulated small MS4s beyond what they are
already subject to under the statute and Phase II regulations. EPA
acknowledges that many permitting authorities consider permitting a
cost-neutral function, therefore some may increase permit fees to cover
the increased costs associated with this rule.
EPA used conservative assumptions about impacts on state workloads,
meaning that the actual economic costs of complying with the final rule
and implementing any new procedural changes are most likely lower than
what is actually presented. EPA considers the cost assumptions to be
conservative because as more permitting authorities issue general
permits consistent with the new rule, other permitting authorities can
use and build on those examples, reducing the amount of time it takes
to draft the permit requirements, and permitting authorities will
likely learn from experience as they move forward how to work more
efficiently to issue and administer their general permits. EPA has
issued guidance to permitting authorities on how to write better MS4
permits (MS4 Permit Improvement Guide (EPA, 2010); Compendium of MS4
Permitting Approaches--Part 2: Post Construction Standards (EPA, 2016);
Compendium of MS4 Permitting Approaches--Part 3: Water Quality-Based
Requirements (EPA, 2016)), and additional examples of permit provisions
that are written in a ``clear, specific, and measurable'' manner for
the six minimum control measures are included in the preamble to this
rule. EPA also anticipates issuing further guidance once the rule is
promulgated to assist permitting authorities in implementing the new
rule requirements, which will in turn hopefully make permit writing
more efficient. These gained efficiencies were not, however, accounted
for in the option-specific cost assumptions.
II. Background
A. Statutory and Regulatory Overview
Stormwater discharges are a significant cause of water quality
impairment because they can contain a variety of pollutants such as
sediment, nutrients, chlorides, pathogens, metals, and trash that are
mobilized and ultimately discharged to storm sewers or directly to
water bodies. Furthermore, the increased volume and velocity of
stormwater discharges that result from the creation of impervious cover
can alter streams and rivers by causing scouring and erosion. These
surface water impacts can threaten public health and safety due to the
increased risk of flooding and increased level of pollutants; can lead
to economic losses to property and fishing industries; can increase
drinking water treatment costs; and can decrease opportunities for
recreation, swimming, and wildlife uses.
Stormwater discharges are subject to regulation under section
402(p) of the CWA. Under this provision, Congress required the
following stormwater discharges initially to be subject to NPDES
permitting requirements: Stormwater discharges for which NPDES permits
were issued prior to February 4, 1987; discharges ``associated with
industrial activity''; discharges from MS4s serving populations of
100,000 or more; and any stormwater discharge determined by EPA or a
state to ``contribute . . . to a violation of a water quality standard
or to be a significant contributor of pollutants to waters of the
United States.'' Congress further directed EPA to study other
stormwater discharges and determine which needed additional controls.
With respect to MS4s, section 402(p)(3)(B) provides that NPDES permits
may be issued on a system-wide or jurisdiction-wide basis, and requires
that MS4 NPDES permits ``include a requirement to effectively prohibit
non-stormwater discharges into the storm sewers'' and require
``controls to reduce the discharge of pollutants to the maximum extent
practicable . . . and such other provisions as the Administrator or the
State determines appropriate for the control of such pollutants.''
EPA developed the stormwater regulations under section 402(p) of
the CWA in two phases, as directed by the statute. In the first phase,
under section 402(p)(4) of the CWA, EPA promulgated regulations
establishing application and other NPDES permit requirements for
stormwater discharges from medium (serving populations of 100,000 to
250,000) and large (serving populations of 250,000 or more) MS4s, and
stormwater discharges associated with industrial activity. EPA
published the final Phase I rule on November 16, 1990 (55 FR 47990).
The Phase I rule, among other things, defined ``municipal separate
storm sewer'' as publicly-owned conveyances or systems of conveyances
that discharge to waters of the U.S. and are designed or used for
collecting or conveying stormwater, are not combined sewers, and are
not part of a publicly-owned treatment works at Sec. 122.26(b)(8). EPA
included construction sites disturbing five acres or more in the
definition of ``stormwater discharges associated with industrial
activity'' at Sec. 122.26(b)(14)(x).
In the second phase, section 402(p)(5) and (6) of the CWA required
EPA to conduct a study to identify other stormwater discharges that
needed further controls ``to protect water quality,'' report to
Congress on the results of the study, and to designate for regulation
additional categories of stormwater discharges not regulated in Phase I
on the basis of the study and in consultation with state and local
officials. EPA promulgated the Phase II rule on December 8, 1999,
designating discharges from certain small MS4s and from small
construction sites (disturbing equal to or greater than one acre and
less than five acres) and requiring NPDES permits for these discharges
(64 FR 68722, December 8, 1999). A regulated small MS4 is generally
defined as any MS4 that is not already covered by the Phase I program
and that is located within the urbanized area boundary as determined by
the latest U.S. Decennial Census. Separate storm sewer systems such as
those serving military bases, universities, large hospitals or prison
complexes, and highways are also included in the definition of ``small
MS4.'' See Sec. 122.26(b)(16). In addition, the Phase II rule includes
authority for EPA (or states authorized to administer the NPDES
program) to require NPDES permits for currently unregulated stormwater
discharges through a designation process. See Sec. 122.26(a)(9)(i)(C)
and (D). Other small MS4s located outside of an urbanized area may be
designated as a regulated small MS4 if the NPDES permitting authority
determines that its discharges cause, or have the potential to cause,
an adverse impact on water quality. See Sec. Sec. 122.32(a)(2) and
123.35(b)(3).
B. MS4 Permitting Requirements
The Phase I regulations are primarily comprised of requirements
that must be addressed in applications for individual permits from
large and medium MS4s. The regulations at Sec. 122.26(d)(2)(iv)
require these MS4s to develop a proposed stormwater management program
(SWMP), which is considered by EPA or the authorized state permitting
authority when establishing permit conditions to reduce pollutants to
the ``maximum extent practicable'' (MEP).
[[Page 89323]]
Like the Phase I rule, the Phase II rule requires regulated small
MS4s to develop and implement SWMPs. The regulations at Sec. 122.34(a)
requires that SWMPs be designed to reduce pollutants discharged from
the MS4 ``to the maximum extent practicable (MEP), to protect water
quality, and to satisfy the appropriate water quality requirements of
the Clean Water Act,'' and requires that the SWMPs include six
``minimum control measures.'' The minimum control measures are: Public
education and outreach, public participation and involvement, illicit
discharge detection and elimination, construction site runoff control,
post construction runoff control, pollution prevention and good
housekeeping. See Sec. 122.34(b). Under the Phase II rule, a regulated
small MS4 may seek coverage under an available general permit or may
apply for an individual permit. To be authorized to discharge under a
general permit, the rule requires submission of a Notice of Intent
(NOI) to be covered by the general permit containing a description of
the best management practices (BMPs) to be implemented and the
measurable goals for each of the BMPs, including timing and frequency,
as appropriate. See Sec. Sec. 122.33(a)(1), 122.34(d)(1).
EPA anticipated that under the first two or three permit cycles,
whether required in individual permits or in general permits, BMP-based
controls implementing the six minimum control measures would, if
properly implemented, ``be sufficiently stringent to protect water
quality, including water quality standards, so that additional, more
stringent and/or more prescriptive water quality based effluent
limitations will be unnecessary.'' (64 FR 68753, December 8, 1999). In
the final Phase II rule preamble, EPA also stated that it ``has
intentionally not provided a precise definition of MEP to allow maximum
flexibility in MS4 permitting. MS4s need the flexibility to optimize
reductions in storm water pollutants on a location-by-location basis. .
. . Therefore, each permittee will determine appropriate BMPs to
satisfy each of the six minimum control measures through an evaluative
process.'' (64 FR 68754, December 8, 1999).
The agency described the approach to meet the MS4 permit standard
in the preamble to the Phase II rule as an ``iterative process'' of
developing, implementing, and improving stormwater control measures
contained in SWMPs. As EPA further stated in the preamble to the Phase
II rule, ``MEP should continually adapt to current conditions and BMP
effectiveness and should strive to attain water quality standards.
Successive iterations of the mix of BMPs and measurable goals will be
driven by the objective of assuring maintenance of water quality
standards. . . . If, after implementing the six minimum control
measures there is still water quality impairment associated with
discharges from the MS4, after successive permit terms the permittee
will need to expand or better tailor its BMPs within the scope of the
six minimum control measures for each subsequent permit.'' (64 FR
68754, December 8, 1999).
C. Judicial Review of the Phase II Rule and Partial Remand
The Phase II rule was challenged in petitions for review filed by
environmental groups, municipal organizations, and industry groups,
resulting in a partial remand of the rule. Environmental Defense Center
v. U.S. Environmental Protection Agency, 344 F.3d. 832 (9th Cir. 2003)
(EDC). The court remanded the Phase II rule's provisions for small MS4
general permits because they lacked procedures for permitting authority
review and public notice and the opportunity to request a hearing on
NOIs submitted under general MS4 permits.
In reviewing how the Phase II rule provided for general permit
coverage for small MS4s, the court found that the way in which NOIs
function under the rule was not the same as in other NPDES general
permits. Other general permits contain within the body of the general
permit the specific effluent limitations and conditions applicable to
the class of dischargers for which the permit is available. In this
situation, authorization to discharge under a general permit is
obtained by filing an NOI in which the discharger agrees to comply with
the terms of the general permit and in which the operator provides some
basic information (e.g., site location, receiving waters) to help
determine eligibility. In contrast, the court held that under the Phase
II rule, because the NOI submitted by the MS4 contains the information
describing what the MS4 will do to reduce pollutants to the MEP, it is
the ``functional equivalent'' of an individual permit application. See
EDC, 344 F.3d. at 857. Because the CWA requires public notice and the
opportunity to request a public hearing for all permit applications,
the court held that failure to require public notice and the
opportunity for a public hearing for NOIs under the Phase II rule is
contrary to the Act. See EDC, 344 F.3d. at 858.
Similarly, the court found the Phase II rule allows the MS4 to
identify the BMPs that it will undertake in its SWMP without any
permitting authority review. The court held that the lack of review
``to ensure that the measures that any given operator of a small MS4
has decided to undertake will in fact reduce discharges of pollutants
to the maximum extent practicable'' also does not comport with CWA
requirements. The court stated, ``That the Rule allows a permitting
authority to review an NOI is not enough; every permit must comply with
the standards articulated by the Clean Water Act, and unless every NOI
issued under general permit is reviewed, there is no way to ensure that
such compliance has been achieved.'' See EDC, 344 F.3d. at 855 n.32.
The court therefore vacated and remanded ``those portions of the Phase
II Rule that address these procedural issues . . . so that EPA may take
appropriate action to comply with Clean Water Act.'' See EDC, 344 F.3d.
at 858.
III. Summary of the Proposed Rule and Comments Received
A. Scope of the Proposed Rule
EPA proposed revisions to the Phase II MS4 NPDES permitting
requirements on January 6, 2016 (81 FR 415) to respond to the Ninth
Circuit's remand in Environmental Defense Center v. U.S. Environmental
Protection Agency, 344 F.3d. 832 (9th Cir. 2003). To address the
remand, the regulations must ensure that permitting authorities
determine what permit requirements are needed to reduce pollutants from
each permitted small MS4 ``to the maximum extent practicable (MEP), to
protect water quality, and to satisfy the appropriate water quality
requirements of the Clean Water Act'' (referred to hereinafter as the
``MS4 permit standard''). The rule must also require NPDES permitting
authorities to provide the public with the opportunity to review,
submit comments, and request a public hearing on these permit
requirements. EPA did not propose modifications to any of the
substantive requirements that were promulgated in the Phase II rule
(nor did EPA reopen or seek comment on any aspect of the Phase I rule,
which was described in the preamble of the proposed rule for
informational purposes only).
In the remand decision, the court established in broad and clear
terms what is needed for general permits that cover regulated small
MS4s and therefore provided EPA with what minimum attributes should be
part of any revisions to the Phase II regulations. The court stated
that ``every permit must comply with the standards articulated by the
Clean Water Act, and
[[Page 89324]]
unless every NOI issued under a general permit is reviewed, there is no
way to ensure that such compliance has been achieved.'' See EDC, 344
F.3d at 855, n. 32. In the court's view, the NOI served as the document
that established how the MEP standard would be met: ``Because a Phase
II NOI establishes what the discharger will do to reduce discharges to
the `maximum extent practicable,' the Phase II NOI crosses the
threshold from being an item of procedural correspondence to being a
substantive component of a regulatory scheme.'' See EDC, 344 F.3d at
853. Since review of the NOI by the permitting authority was not
specified in the regulation, and Sec. 122.34(a) stated that compliance
with the storm water management program developed by the permittee
constituted compliance with the MEP standard, the court also expressed
concern that the regulation put the MS4 in charge of establishing its
own requirements. ``[U]nder the Phase II Rule nothing prevents the
operator of a small MS4 from misunderstanding or misrepresenting its
own stormwater situation and proposing a set of minimum measures for
itself that would reduce discharges by far less than the maximum extent
practicable.'' See EDC, 344 F.3d at 855. Further, the court found that
the failure to require public notice or opportunity to submit comments
or request a public hearing for each NOI violated requirements
applicable to all CWA permits in accordance with section 402(b)(3). See
EDC, 344 F.3d at 857.
B. Description of Options Proposed
EPA proposed for comment the following three options to address the
regulatory shortcomings found in the remand decision.
1. Option 1 (``Traditional General Permit Approach'')
Under the proposed Traditional General Permit Approach, the
permitting authority must establish in any small MS4 general permit the
full set of requirements that are deemed necessary to meet the MS4
permit standard (``reduce pollutants to the maximum extent practicable,
protect water quality and satisfy the appropriate water quality
requirements of the Clean Water Act''), and the administrative record
would include an explanation of the rationale for its determination.
(This approach contrasts with the original regulations, which appeared
to the court to provide the permittee with the ability to establish its
own requirements.) Once the permit is issued, and the terms and
conditions in the permit are fixed for the term of the permit, neither
the development of a SWMP document nor the submittal of an NOI for
coverage would represent new permit requirements. Thus, because the
permit contains all of the requirements that will be used to assess
permittee compliance, the permitting authority would no longer need to
rely on the MS4's NOI as the mechanism for ascertaining what will occur
during the permit term. Under this approach, the function of the NOI
would be more similar to that of any other general permit NOI, and more
specifically other stormwater general permits, whereby the NOI is used
to establish certain minimum facts about the discharger, including the
operator's contact details, the discharge location(s), and confirmation
that the operator is eligible for permit coverage and has agreed to
comply with the terms of the permit. By removing the possibility that
effluent limits could be proposed in the NOI (and for that matter in
the SWMP) and made part of the permit once permit coverage is provided,
the NOI would no longer look and function like an individual permit
application, as the court found with respect to MS4 NOIs under the
Phase II regulations currently in effect. Therefore, it would not be
necessary to carry out the type of additional permitting authority
review and public participation procedures contemplated by the Ninth
Circuit court in the remand decision. These requirements would be met
during the process of issuing the general permit.
2. Option 2 (``Procedural Approach'')
Under the proposed Procedural Approach, the permitting authority
would establish applicable permit requirements to meet the MS4 permit
standard by going through a second permitting step following the
issuance of the general permit (referred to as the ``base general
permit''), similar to the procedures used to issue individual NPDES
permits. Eligible MS4 operators would be required to submit NOIs with
the same information that has always been required under the Phase II
regulations, that is, a description of the BMPs to be implemented by
the MS4 operator during the permit term, and the measurable goals
associated with each BMP. Following the receipt of the NOI, the
permitting authority would review the NOI to assess whether the
proposed BMPs and measurable goals meet the MS4 permit standard. If
not, the permitting authority would request supplemental information or
revisions as necessary to ensure that the submission satisfies the
regulatory requirements. Once satisfied with the submission, the
permitting authority would be required to propose incorporating the
BMPs and measurable goals in the NOI as permit requirements and to
provide public notice of the NOI and an opportunity to submit comments
and to request a hearing in accordance with Sec. Sec. 124.10 through
124.13. After consideration of comments received and a hearing, if
held, the permitting authority would provide notice of its decision to
authorize coverage under the general permit, along with any MS4-
specific requirements established during this second process. Upon
completion of this process, the MS4 would be required to comply with
the requirements set forth in the base general permit and the
additional terms and conditions established through the second-step
process.
3. Option 3 (``State Choice Approach'')
The proposed rule also requested comment on a State Choice
Approach, which would allow permitting authorities to choose either the
Traditional General Permit Approach or the Procedural Approach, or some
combination of the two as would best suit their needs and
circumstances. As described in the proposed rule, the permitting
authority could, for example, choose to use Option 1 for small MS4s
that have fully established programs and uniform core requirements, and
Option 2 for MS4s that it finds would benefit from the additional
flexibility to address unique circumstances, such as those encountered
by non-traditional MS4s (e.g., state departments of transportation,
public universities, military bases). Alternatively, a state could
apply a hybrid of the two approaches within one permit by defining some
elements within the general permit, which, consistent with the Option 1
approach, are deemed to meet the MS4 permit standard, and establishing
additional permit requirements through the Option 2 procedural approach
for each MS4 seeking coverage under the General Permit. Under a hybrid
approach, any requirements established in the general permit that fully
articulate what is required to meet the MS4 permit standard would
require no further permitting authority review and public notice
proceedings; however, for any terms and conditions established for
individual MS4s based in part on information submitted with the NOI
would need to follow the Option 2 approach for incorporating these
requirements into the permit as enforceable requirements.
[[Page 89325]]
C. General Summary of Comments Received
EPA received about 70 unique comments on the proposed rule from the
MS4 community, states, environmental groups, industry associations, and
engineering firms. Most commenters favored Option 3--the ``State
Choice'' option. While several expressed support for their states using
the Traditional General Permit or Procedural Approach, a number of
these same commenters acknowledged that these approaches would likely
not work in all situations if EPA were to adopt either one as the sole
option under the final rule. EPA notes that while most of the
environmental organization commenters expressed support for a hybrid
option, which technically falls under the State Choice option, they
also strongly recommended mandating that the Traditional General Permit
Approach be used for permit requirements related to the six minimum
control measures and that the Procedural Approach be used for water
quality-based requirements, such as requirements for implementing total
maximum daily loads (TMDLs).
A common reason given for supporting the State Choice approach
included the flexibility it would give authorized states to use
different options to address different situations and that it would
minimize disruption to existing programs. Several states that now use a
traditional general permit approach or a procedural approach stressed
the importance of providing choices for other states. EPA notes that no
commenter expressly opposed the State Choice approach. EPA discusses
these comments in the context of its decision to adopt the State Choice
approach in the final rule in Section IV of the preamble below.
EPA received a significant number of comments concerning its
proposed changes to the way in which permit terms and conditions must
be expressed, particularly with respect to the proposed deletion of the
word ``narrative'' in Sec. 122.34(a). These comments focused on the
concern that EPA was moving away from support of the use of BMPs to
comply with stormwater permits and from the longstanding ``iterative
approach'' to meeting MS4 permit requirements. EPA discusses these
comments and the changes made in response to these comments in the
final rule in Section V of the preamble.
In addition to responding to major comments in the preamble, EPA
has prepared a Response to Comment document, which can be found in the
docket for this rulemaking.
IV. Summary of the Final Rule
A. Selection of the ``Permitting Authority Choice'' Approach
EPA is selecting proposed Option 3 (the ``State Choice Approach'')
for the final rule, described in Section III.B.3. The new name for this
option better captures the universe of entities that will implement the
rule, i.e., any NPDES permitting authority including EPA Regions and
authorized states. Under this approach, the NPDES permitting authority
may choose between two alternative means of establishing permit
requirements in general permits for small MS4s. The final rule amends
Sec. 122.28(d) to require permitting authorities to choose one of
these two types of general permits whenever issuing a small MS4 general
permit. Permitting authorities are required to select either the
``Comprehensive General Permit'' or ``Two-Step General Permit''. The
``Comprehensive General Permit'' is essentially the ``Traditional
General Permit'', or ``Option 1'', from the proposed rule. The ``Two-
Step General Permit'' encompasses both the ``Procedural Approach'', or
``Option 2'' and the ``hybrid approach'' that was described as part of
``Option 3'' from the proposed rule. The Two-Step General Permit allows
the permitting authority to establish some requirements in the general
permit and others applicable to individual MS4s through a second
proposal and public comment process.
B. Description of the Two Permitting Alternatives Under the Permitting
Authority Choice Approach
As described in Section IV.A, the Permitting Authority Choice
Approach requires permitting authorities to choose between two
alternative approaches to issue general permits for small MS4s. These
two types of general permits are described briefly as follows:
Comprehensive General Permit--For this type of general
permit, the permitting authority issues a small MS4 general permit that
includes the full set of requirements necessary to meet the MS4 permit
standard of ``reducing pollutant discharges from the MS4 to the maximum
extent practicable (MEP), to protect water quality, and to satisfy the
appropriate water quality requirements of the CWA.'' Under the
Comprehensive General Permit, all requirements are contained within the
general permit, and no additional requirements are established after
permit issuance, as is the case with the ``Two-Step General Permit''
described below. For this reason, to provide coverage to eligible small
MS4s, the permitting authority can use a traditional general permit NOI
as described in Sec. 122.28(b)(2)(ii), and does not need to require
additional information from each operator concerning how they will
comply with the permit, for instance the BMPs that will be implemented
and the measurable goals for each control measure, as a prerequisite to
authorizing the discharge. See further discussion of the role of the
NOI in Section IV.E.
Two-Step General Permit (combination of the proposed
Procedural and Hybrid Approaches)-- For the Two-Step General Permit,
after issuing a base general permit, the permitting authority
establishes through the completion of a second permitting step
additional permit terms and conditions that are necessary to meet the
MS4 permit standard for each MS4 seeking authorization to discharge
under the general permit. These additional terms and conditions
supplement the requirements of the general permit for individual MS4
permittees. It is in the second permitting step where the permitting
authority satisfies its obligation to review the NOI for adequacy,
determine what additional requirements are needed for the MS4 to meet
the MS4 permit standard, and provide public notice and an opportunity
for the public to submit comments and to request a hearing. See
discussion of the second permitting step in Section V.B. Upon
completion of this process, the MS4 permittee is authorized to
discharge subject to the terms of the general permit and the additional
requirements that apply individually to that MS4.
The Two-Step General Permit encompasses the ``hybrid'' approach
described in the proposed rule (see Section VI.C), where the permitting
authority includes specific permit terms and conditions within the base
general permit, but also establishes additional requirements to meet
the MS4 permit standard through a second permitting step. For the final
rule, EPA intentionally used rule language that would enable permitting
authorities to use a Two-Step General Permit to implement a hybrid
approach by referring to both ``required permit terms and conditions in
the general permit applicable to all eligible small MS4s'' and
``additional terms and conditions to satisfy one or more of the permit
requirements in Sec. 122.34 for individual small MS4 operators.'' See
Sec. 122.28(d)(2).
The final rule requires that the permitting authority indicate
which
[[Page 89326]]
type of general permit it is using for any small MS4 general permit.
This statement or explanation may be included in the general permit
itself or in the permit fact sheet. EPA notes that the permitting
authority may choose to change the permitting approach for subsequent
permits. Questions concerning when the final rule change takes effect
are discussed in Section VIII.A.
C. Summary of Regulatory Changes To Adopt the Permitting Authority
Choice Approach
The final rule implements the Permitting Authority Choice option in
several different sections of the NPDES regulations. Below is a brief
summary of the most significant changes and where they can be found in
the final rule:
Permitting Authority Choice Approach (Sec. 122.28(d)):
The final rule adds a new paragraph (d) to Sec. 122.28 that requires
the permitting authority to select between two alternative general
permits. This section describes both types of general permits (the
``Comprehensive General Permit'' and the ``Two-Step General Permit'')
and the minimum requirements associated with each. EPA chose to include
the Permitting Authority Choice in a different section of the
regulations than was proposed. EPA determined upon further
consideration that rather than including all of the requirements within
the application and NOI section of the Phase II regulations now at
Sec. 122.33, the two alternatives comprising the Permitting Authority
Choice Approach fit better within the general permit regulations as a
unique set of requirements affecting general permits for regulated
small MS4s.
Changes to the NOI requirements (Sec. 122.33): The final
rule includes modifications to the requirements for what must be
included in NOIs submitted for coverage under small MS4 general
permits. The required contents of the NOI vary depending on the type of
general permit used. For permitting authorities choosing a
Comprehensive General Permit, the final rule enables the permitting
authority to reduce the information required in NOIs to the minimum
information required for any general permit NOI in Sec.
122.28(b)(2)(ii). See Sec. 122.33(b)(1)(i). For permitting authorities
choosing the Two-Step General Permit, the final rule provides the
permitting authority with the ability to determine what information it
deems necessary to establish individual requirements for MS4 operators
that meet the MS4 permit standard. See Sec. 122.33(b)(1)(ii), and
additional discussion of these and other changes to Sec. 122.33 in
Section V.D.1.
Clarifications to the requirements for small MS4 permits
(Sec. 122.34): Regardless of the permitting approach chosen by the
NPDES authority, the terms and conditions of the resulting general
permits must adhere to the requirements of Sec. 122.34. The final rule
retains modifications from the proposed rule that clarify that it is
the permitting authority's responsibility, and not that of the small
MS4 permittee, to establish permit terms and conditions that meet the
MS4 regulatory standard and to delineate the requirements for
implementing the six minimum control measures, other terms and
conditions deemed necessary by the permitting authority to protect
water quality, as well as any other requirement. The final rule also
emphasizes that permit requirements must be expressed in ``clear,
specific, and measurable'' terms. These modifications do not alter the
existing, substantive requirements of the six minimum control measures
in Sec. 122.34(b). See further discussion of these changes in Section
VI.
D. Commonalities Among the Two Types of General Permits
The two options available to the permitting authority under the
final rule involve different steps and require differing levels of
administrative oversight; however, at a basic level, they share the
same underlying characteristics. Each type of general permit shares in
common that through the permitting process, the permitting authority
must determine which requirements a small MS4 must meet in order to
satisfy the MS4 permit standard. Both types of general permits also
require that the specific actions that comprise what is necessary to
meet the MS4 permit standard be established through the permitting
process. The key distinction between the two types of permits is that
they establish permit terms and conditions at different points in time
during the permitting process. For Comprehensive General Permits, the
determination as to what requirements are needed to satisfy the MS4
permit standard is made as part of the issuance of the general permit.
By contrast, for Two-Step General Permits, the permitting authority
makes this determination both in the process of issuing the general
permit and in the process of establishing additional permit
requirements applicable on an individual basis to each MS4 covered
under the general permit, based on information in the NOI.
The final rule also places both types of general permits on a level
playing field with respect to the requirements that must be addressed
in any general permit issued to a small MS4. Regardless of which type
of general permit is used to establish permit terms and conditions,
every small MS4 general permit must include requirements that address
the minimum control measures (Sec. 122.34(b)), water quality-based
requirements where needed (Sec. 122.34(c)), and evaluation and
assessment requirements (Sec. 122.34(d)). The final rule clarifies
that all such terms and conditions must be expressed in terms that are
``clear, specific, and measurable.'' The important attribute here is
that permit requirements must be enforceable, and must provide a set of
performance expectations and schedules that are readily understood by
the permittee, the public, and the permitting authority alike. For both
types of general permits, requirements may be expressed in narrative or
numeric form, as long as they are clear, specific, and measurable. This
requirement for clear, specific, and measurable requirements applies to
any permit term or condition established under Sec. 122.34, including
requirements addressing the minimum control measures, any water
quality-based requirements, and the evaluation, recordkeeping, and
reporting requirements. Section VII of this preamble contains a
detailed discussion about establishing permit terms and conditions.
Importantly, the final rule also ensures that the process for
issuing both types of general permit addresses the deficiencies found
by the Ninth Circuit to exist in the Phase II regulations. While the
court's opinion focused on the role of the NOI in the Phase II rule for
MS4 general permits, the court made it clear that under the CWA, the
permitting authority must determine which MS4 permit requirements are
adequate to meet the MS4 permit standard, and that the public must have
the opportunity to review and comment on those permit requirements and
to request a hearing. All of these core CWA requirements are present in
the final rule. For Comprehensive General Permits, once the permit is
issued it has gone through permitting authority review, public notice
and comment, and the opportunity to request a hearing. Permitting
authority review and public comment and opportunity for a hearing
occurs in the process of drafting permit conditions and soliciting
comment on the draft general permit. Permitting authority determination
of what an MS4 must do to meet the MS4 permit standard occurs in the
process of issuing
[[Page 89327]]
the final permit after consideration of comments. By comparison, for
Two-Step General Permits, permitting authority review, public notice
and comment, and the opportunity to request a hearing occur first on
the draft general permit and again on the additional terms and
conditions applicable to each MS4 authorized to discharge under the
general permit. Under the Two-Step process, the CWA requirements for
permitting authority review and public comment and opportunity for
hearing are only fully addressed after the completion of the discharge
authorization process for each individual small MS4 operator seeking
coverage under the general permit. To ensure that these CWA
requirements are met, the final rule supplements the administrative
steps necessary to issue the base general permit with procedures that
ensure that any decision to authorize an individual MS4 to discharge
based on information included in the NOI is subject to review by the
permitting authority, and the public has the opportunity to review and
submit comments, and to request a hearing on the terms and conditions
that will be incorporated as enforceable permit terms.
E. Role of the NOI Under the Permitting Authority Choice Approach
The two permitting options available under the final rule include
important changes in the relationship between the MS4 operator's NOI
and the general permit. Under the 1999 Phase II regulations, any MS4
operator seeking coverage under a small MS4 general permit has been
required to submit information in the NOI describing, at a minimum, the
BMPs that would be implemented for each minimum control measure during
the permit term, and the measurable goals associated with each BMP.
These NOIs differ significantly from the typical general permit NOI,
which is required to include far less information, and ``represents no
more than a formal acceptance of [permit] terms elaborated elsewhere''
in the general permit. See EDC, 344 F. 3d. at 852. Under the NPDES
regulations at Sec. 122.28(b)(2)(ii), the NOI is a procedural
mechanism to document operator eligibility, to certify that the
information submitted by the operator is accurate and truthful, and to
confirm the operator's intention to be covered by the terms and
conditions of the general permit.
The Ninth Circuit court, in its remand decision, likened the NOI
under the remanded regulations to being ``functionally equivalent to a
detailed application for an individualized permit,'' since the MS4
operator was in essence proposing to the permitting authority what it
intended to accomplish to satisfy the MS4 permit standard. The court
found it to differ markedly from the NOI utilized for most general
permits, that is, limited to ``an item of procedural correspondence.''
344 F. 3d. at 853. The similarity in the court's view between the NOI
under the Phase II regulations and an individual permit application,
combined with the failure of the regulations to require permitting
authority review or to provide the opportunity for the public to
comment and request a hearing on the NOI, were key factors in the Ninth
Circuit finding that the regulations had violated the CWA.
The final rule modifies the way in which the NOI functions in
important respects so that it addresses the problems found by the Ninth
Circuit. For a Comprehensive General Permit, because the permit
contains all of the requirements that will be used to assess permittee
compliance, the permitting authority no longer needs to rely on the
MS4's NOI as the mechanism for ascertaining what will occur during the
permit term. In this way, the function of the NOI is the same as that
of any other general permit NOI, and more specifically other stormwater
general permits, where the NOI is used to establish certain minimum
facts about the discharger, including the operator's contact details,
the discharge location(s), and confirmation that the operator is
eligible for permit coverage and has agreed to comply with the terms of
the permit. It is for this reason, therefore, that the final rule
establishes no additional requirements for the information required to
be included in NOIs beyond what is already required for other general
permits in Sec. 122.28(b)(2)(ii). See Sec. 122.33(b)(1) in the final
rule. By removing the possibility that permit requirements could be
proposed in the NOI (or in the SWMP) and made part of the permit once
permit coverage is provided under the Comprehensive General Permit
approach, the NOI will no longer look and function like an individual
permit application, as the court found with respect to MS4 NOIs under
the original Phase II regulations. Similarly, because the NOI no longer
bears the similarity of an individual permit application, it is no
longer necessary to carry out the type of additional permitting
authority review and public participation steps contemplated by the
Ninth Circuit.
By contrast, for coverage under a Two-Step General Permit, the NOI
needs to include information to assist the permitting authority in
developing the additional permit requirements for each permittee. For
this NOI, the permitting authority requires more detailed information
from the MS4 operator so that it can determine what additional permit
terms and conditions are necessary in order to satisfy the MS4 permit
standard. The NOI in the Two-Step General Permit is likely to include
much of the same information that has been required of MS4 operators
under the regulations since they were promulgated in 1999. The major
difference now is that the permitting authority reviews the NOI
materials to determine what additional permit terms and conditions are
necessary for the individual MS4 to meet the MS4 permit standard, and
to provide an opportunity for the public to comment and request a
hearing on this determination.
The proposed rule would have required the full set of information
required for individual permit applications in Sec. 122.33(b)(2)(i),
including the proposed BMPs to be implemented for the minimum control
measures, measurable goals for each BMP (as required by Sec. 122.34(d)
of the original regulations), the persons responsible for implementing
the stormwater management program, the square mileage served by the
MS4, and any other information deemed necessary. In the final rule, EPA
is taking a slightly different approach and giving the permitting
authority the flexibility to determine what information it needs to
request in its Two-Step General Permit NOI rather than requiring by
default that all of the individual permit application information be
submitted. This will give the permitting authority the ability to
request what information it needs to establish the necessary additional
terms and conditions for each individual MS4 to meet the MS4 permit
standard. If the permitting authority needs information from all of its
MS4s on the BMPs and measurable goals they propose for the permit term
in order to establish suitable permit requirements, then it has the
discretion to require this information. See Sec. Sec. 122.28(d)(2)(i)
and 122.33(b)(1)(ii), which states that the information requested by
the permitting authority ``may include, but is not limited to, the
information required under Sec. 122.33(b)(2)(i).''
Alternatively, under the final rule, if the general permit terms
and conditions already define what is required to meet the MS4 permit
standard for several of the minimum control measures then the
permitting authority could decide that it is no longer necessary to
require the submittal of information on the BMPs and measurable goals
associated with
[[Page 89328]]
those minimum control measures. As noted by a commenter, requiring
information from MS4s related to permit terms and conditions that have
already been established is likely to be redundant and represent an
unnecessary burden. At the same time, the permitting authority must be
able to obtain sufficient information to establish clear, specific, and
measurable permit terms and conditions. Under the final rule, there is
no minimum requirement with respect to what information is needed. In
short, the permitting authority must request the information it needs
to be able to make an informed decision when establishing clear,
specific, and measurable permit terms and conditions for the permittee
to ensure that it will meet the MS4 permit standard. The final rule
enables the permitting authority to determine what the right amount of
information is needed to meet this requirement.
F. Permitting Authority Flexibility To Choose the Most Suitable
Approach
The final rule provides permitting authorities with full discretion
to choose which option is best suited for its permitting needs and
specific circumstances. While there are significant considerations,
advantages, and disadvantages to selecting either of the two permitting
approaches, EPA is leaving the decision of which method to adopt for
each general permit up to the permitting authority. In providing full
discretion to the permitting authority to choose which approach to use,
EPA agreed with commenters that recommended against adopting conditions
or constraints on the selection of either of the two options. EPA also
expects that the decision as to which approach to adopt for any given
small MS4 general permit may change from one permit term to the next.
Therefore, if the permitting authority elects to issue its next general
permit by implementing the ``Comprehensive General Permit Approach''
there is nothing preventing the permitting authority from switching
approaches to the ``Two-Step General Permit Approach'' in subsequent
permit terms, or vice versa.
EPA requested comment on whether the agency should constrain the
permitting authority's discretion under Option 3 by requiring the use
of the ``Traditional General Permit Approach'' (now the ``Comprehensive
General Permit'') for some types of permit terms and conditions, while
allowing the ``Procedural Approach (now the ``Two-Step General
Permit'') to be used for other requirements. Several commenters
recommended that EPA require permitting authorities to use the proposed
``Traditional General Permit Approach'' to establish permit
requirements for the minimum control measures in Sec. 122.34(b) and to
allow the use of the proposed ``Procedural Approach'' for the
establishment of water quality-based effluent limits, such as those
implementing total maximum daily loads (TMDLs). EPA refers to this
approach below as a ``fixed hybrid approach.'' Other commenters were
opposed to a fixed hybrid approach and urged EPA to provide permitting
authorities with maximum discretion to choose which option works best
without stipulating which option must be used for specific types of
permit requirements.
After consideration of these comments, EPA has determined that it
is unnecessary to mandate which permitting approach is used for
specific types of requirements. Primarily, EPA does not wish to
prejudge what approach permitting authorities use to arrive at clear,
specific, and measurable requirements that result in achieving the MS4
permit standard. As an overall matter, EPA views both of the approaches
in the final rule as equally valid ways of establishing the required
permit terms and conditions and meeting the remand requirements.
Having said this, however, EPA recognizes that some types of
requirements are more easily established through the general permit
than others. For instance, clear, specific, and measurable permit
requirements that address the minimum control measures, due to their
broad applicability to all MS4s, may be easier to develop and include
within the general permit, than requirements addressing TMDLs. EPA's
MS4 Permit Improvement Guide (EPA, 2010) and the MS4 permit compendia
\1\ provide a number of ready examples for how permits may establish
clear, specific, and measurable requirements that implement the six
minimum control measures. On the other hand, the necessarily site- and
watershed-specific nature of TMDLs, combined with the fact that
effective implementation of TMDLs is enhanced through involvement of
the public at the local level, makes these types of requirements more
amenable to being developed through the procedural requirements of the
second permitting step within the Two-Step General Permit. To
illustrate this point, a number of states have already adopted
approaches that enable the MS4s to first develop and propose something
like a TMDL implementation plan, followed by a step where the state
permitting authority reviews and approves the plan to make it an
enforceable part of the permit. See related examples in EPA's
Compendium of MS4 Permitting Approaches--Part 3: Water Quality-Based
Requirements (EPA, 2016).\2\ In this situation, under the final rule,
the permitting authority would establish the MS4's TMDL implementation
requirements as part of the second step of the general permit and
follow the procedures applicable to the Two-Step General Permit in
Sec. 122.28(d)(2).
---------------------------------------------------------------------------
\1\ These documents can be found on EPA's Web site at https://www.epa.gov/npdes/stormwater-discharges-municipal-sources#resources.
\2\ This document will be made available on EPA's Web site at
https://www.epa.gov/npdes/stormwater-discharges-municipal-sources#resources.
---------------------------------------------------------------------------
EPA anticipates that some permitting authorities may over time
appreciate the benefits of not having to go through a second process
step for individual review and individualized public notices for each
MS4, and may as an alternative choose to establish the required permit
terms and conditions necessary to meet the MS4 permit standard in the
general permit. Under the Two-Step General Permit, the permitting
authority must provide public notice for each MS4's NOI and the
proposed additional permit terms and conditions to be applied to the
MS4, and review and process comments and any requests for a public
hearing before finalizing the permit terms and conditions. By
comparison, there is only one public notice for an opportunity to
comment and request a hearing for a Comprehensive General Permit. Even
if deciding that a Comprehensive General Permit is not the best fit,
some permitting authorities may find it easier over time to move more
requirements into the base general permit so that the number of
permitting provisions subject to the additional individualized review
and public notice is reduced.
G. Why EPA Did Not Choose Proposed Option 1 or 2 as Stand-Alone Options
By adopting the proposed State Choice Approach (Option 3) (now
called the ``Permit Authority Choice Approach'') for the final rule,
EPA is making a decision to not adopt Option 1 (the ``Traditional
General Permit Approach'') or Option 2 (the ``Procedural Approach'')
from the proposal as the sole approach by which permitting authorities
issue and administer their small MS4 general permits. As stated in
Section V.B., the public comments were heavily in favor of adopting
Option 3, although there were also proponents for finalizing
[[Page 89329]]
proposed Option 1 and for finalizing an approach that would require use
of proposed Option 1 for the minimum control measures and proposed
Option 2 for water quality-based requirements. EPA ultimately found
most persuasive the comments arguing in favor of choosing Option 3 to
give permitting authorities flexibility and discretion to determine how
it would develop different permit requirements.
A major theme among comments favoring Option 3 was the emphasis on
the flexibility it would provide permitting authorities to choose which
approach works best in their state. This flexibility will be important,
according to a number of commenters, to continue to be able to
administer a program that includes local governments with divergent
geography, land resources and uses, and financial and resource
capacities. According to a number of commenters, Option 3 would also
give permitting authorities a range of options for crafting permit
conditions for non-traditional MS4s (e.g., universities, hospitals,
military bases, road and highway systems), which in many cases require
different types of permit provisions than traditional MS4s due to their
lack of regulatory, land use, and/or police powers and more limited
audiences. Other comments focused on the significant burden that would
be placed on states and regulated MS4s if required to adopt one uniform
approach, especially in cases where the permitting authority is already
implementing approaches that are similar to either proposed Option 1 or
2. In some cases, the way in which permitting authorities write and
administer their small MS4 general permits is a direct result of state
case law or concern about the risk of state litigation, and these
states argue forcefully in their comments about the importance of
retaining their approach in light of this history. According to these
comments, those permitting authorities that have chosen one or the
other of Option 1 or 2 should be able to continue implementing that
approach.
Another related common theme among the comments was an argument
against adopting either proposed Option 1 or Option 2 as a national,
one size fits all approach. These comments emphasized the difficulties
associated with forcing all permit terms and conditions into one
general permit for all MS4 types and all water quality considerations
using the proposed Option 1 approach, and underscored the resource
demands associated with implementing an Option 2 approach. Many of
these commenters concluded that Option 3 would be the best way of
preserving the permitting authority's flexibility to tailor their
approach based on what would work best for each state's circumstances.
Based on these comments, EPA chose Option 3, the Permitting
Authority Choice option, because both options are valid ways of
addressing the court's remand and there is no reason to compel
permitting authorities to adopt one or the other of the approaches in
proposed Option 1 or Option 2. EPA also appreciates that those state
permitting authorities that are already moving their small MS4
permitting approaches in the direction of either Option 1 or 2 are
doing so for a number of legitimate reasons that relate to these
states' individual circumstances. By enabling permitting authorities to
choose which option works best, EPA is avoiding disrupting already
established state preferences. This is not to say that permitting
authorities will not have to make changes to conform their procedures
to the requirements of the final rule.
EPA also received comments urging the Agency not to adopt Option 2
as the only permitting choice available to permitting authorities
because of the resource burdens associated with the Option 2 approach,
especially the requirement to individually review and approve terms and
conditions for their small MS4s. EPA does not dispute the fact that
Option 2, which has been finalized as the ``Two-Step General Permit'',
is resource intensive; this approach requires significant
administrative oversight by design. The process of conducting an
individual review of each MS4 operator's NOI, developing a proposal for
comment of unique terms and conditions based on the NOI, and processing
any public comments or requests for public hearings will require
additional resources of the permitting authority if it is not already
implementing this type of approach. Any permitting authority choosing
this approach will need to carefully consider whether it has the
resource capacity to handle the large amount of administrative
oversight and review responsibilities that the Two-Step General Permit
requires. EPA expects that the resource requirements alone will provide
sufficient enough reason for a number of permitting authorities to
choose the Comprehensive General Permit, or to minimize the number of
terms and conditions it develops for individual MS4 to lessen the
administrative burden associated with the Two-Step General Permit.
EPA understands that a permitting authority's decision to adopt the
Two-Step General Permit will mean that members of the public interested
in commenting on small MS4 permit conditions may end up needing to
review not only the draft general permit but also the public notice
that proposes the additional terms and conditions for each MS4 that
seeks coverage under the general permit. Some commenters considered
this a disadvantage because it would be burdensome for the public as
well. EPA does not see this as sufficient reason for EPA to choose
Option 1 as the only option and deprive permitting authorities of the
flexibility to use a two-step procedure. The Two-Step General Permit
closely resembles, after all, the approach suggested in the EDC remand
decision, which emphasized the need for permitting authority review and
public participation procedures prior to the establishment of
enforceable permit requirements. EPA appreciates the level of interest
and concern there is among the public for ensuring that MS4 discharges
are being adequately controlled and are making improvements in water
quality. EPA notes that any permitting authority that takes on the Two-
Step permitting process will need to be prepared to review and respond
to any comments that it receives in response to the individual public
notices it publishes, and will need to provide a rationale for any
final permit terms and conditions established through the process.
While states currently using a two-step type of procedure report that
they receive few, if any public comments about requirements for
individual MS4s, this will not necessarily hold true for the future.
With this in mind, EPA found it important to clarify in the final rule
that permitting authorities may switch to a Comprehensive General
Permit for the next permit term simply by explaining which option they
will use to provide coverage under the general permit.
V. How the Two General Permit Options Work
A. Comprehensive General Permit Approach
Permitting authorities opting to issue Comprehensive General
Permits must establish the full set of requirements that are deemed
necessary to meet the MS4 permit standard in Sec. 122.34. (See Sec.
122.28(d)(1), which requires that ``the Director includes all required
permit terms and conditions in the general permit.'') The permit must
therefore include terms and conditions that define what is required to
meet the MS4 permit standard for the minimum control measures (Sec.
122.34(b)),
[[Page 89330]]
additional permit terms and conditions based on an approved total
maximum daily load (TMDL) or other appropriate requirements to protect
water quality (Sec. 122.34(c)), and requirements to evaluate and
report on compliance with the permit (Sec. 122.34(d)). As a result,
the Comprehensive General Permit is no different than other general
permits in that all applicable effluent limitations and other
conditions are included within the permit itself, and the NOI is used
primarily to determine whether a specific MS4 is eligible and to secure
coverage for that MS4 under the permit subject to its limits and
conditions.
While a number of comments expressed support for the proposed
Option 1 approach (now called the ``Comprehensive General Permit'' in
the final rule), there were also comments expressing concern about the
difficulty of putting together a permit that would comprehensively
establish terms and conditions that would be suitable for and
achievable by all eligible MS4s, including both traditional and non-
traditional MS4s. Others questioned the ability of permitting
authorities to write a single permit that would establish uniform
requirements that would contain appropriate requirements for MS4s that
have been regulated since the beginning of the Phase II program as well
as for MS4s brought into the Phase II program by the latest Census, not
to mention a permit that would be able to establish watershed-specific
requirements addressing TMDLs. EPA acknowledges the challenge that
permitting authorities will face in developing and issuing a
Comprehensive General Permit. Synthesizing the collective understanding
of MS4 capabilities across an entire state, and translating this into
effective and achievable permit requirements, will require a greater
effort up front in developing one of these permits. However, as
described in further detail below, there are ways of addressing
challenges such as these, for example, by subcategorizing MS4s by
experience, size, or other factors, and creating different requirements
for each subcategory.
To assist permitting authorities in developing permit conditions
for a Comprehensive General Permit, EPA has compiled examples of permit
provisions from existing permits that implement the minimum control
measures, which are written in a ``clear, specific, and measurable''
manner. These examples are included in a document entitled Compendium
of MS4 Permitting Approaches--Part 1: Six Minimum Control Measure
Provisions (EPA, 2016). EPA has also included in a separate compendium
examples of permit provisions to consider when addressing approved
TMDLs.\3\ A number of commenters requested that EPA continue to provide
these types of examples to help permitting authorities implement the
final rule. EPA agrees with these comments, and plans to regularly
update these compendia and provide other similar types of technical
assistance.
---------------------------------------------------------------------------
\3\ See EPA's Compendium of MS4 Permitting Approaches--Part 3:
Water Quality-Based Requirements (EPA, 2016).
---------------------------------------------------------------------------
There are a variety of permitting approaches that should be
considered to address the concerns raised about developing a
Comprehensive General Permit for the large number and variety of
regulated MS4s, and which address the array of localized or watershed-
based issues. One approach that may work is to issue two different
comprehensive general permits or to subdivide the permitted universe,
establish in the main body of the permit requirements that apply to all
MS4s, and to provide a separate appendix that establishes MS4-specific
terms and conditions, which apply uniquely to different categories of
MS4s. For instance, the state of Washington has issued two MS4 general
permits, one for the eastern part of the state and the other for the
western part of the state. Further, the Western Washington Small MS4
General Permit includes a TMDL appendix, which establishes additional
permit requirements for specific MS4s based on the watershed in which
they are located and the waterbody to which they discharge. These
additional requirements are each translated from the approved TMDL for
that watershed and the specific waterbody. Another approach that
permitting authorities can consider is to establish different
requirements for each minimum control measure for separate sub-
categories of MS4s based on type of MS4 or other factors.\4\ Permits
could also include separate sections for traditional versus non-
traditional MS4s,\5\ or alternatively separate permits may be issued
for these different categories of MS4s, as several states are doing for
departments of transportation MS4s. The main benefit of these different
approaches is that they provide the permitting authority with a way of
dividing up the universe of small MS4s into smaller categories, which
are composed of municipalities with a greater degree of similarity
among them.
---------------------------------------------------------------------------
\4\ For example, Colorado's 2016 Small MS4 General Permit
includes a different set of actions and corresponding deadlines for
``new permittees'' and ``renewal permittees.'' See Section H,
https://www.colorado.gov/pacific/sites/default/files/COR090000-PermitCertification.PDF.
\5\ See California's 2013 Small MS4 General Permit, https://www.waterboards.ca.gov/water_issues/programs/stormwater/docs/phsii2012_5th/order_final.pdf.
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B. Two-Step General Permit Approach
Inherent in the Two-Step General Permit approach is the fact that
the general permit requirements are not on their own adequate to meet
the MS4 permit standard in Sec. 122.34. In order to fill in the gaps,
the permitting authority must individually review information submitted
with each eligible MS4 operator's NOI, and propose additional permit
requirements to apply to the MS4 individually that, together with the
base general permit requirements, meet the MS4 permit standard for that
MS4. These proposed additional permit requirements and the information
on which it is based is then subject to public notice and comment, and
the opportunity to request a hearing.
The first step of the Two-Step General Permit is to develop and
issue the final small MS4 general permit, or ``base general permit.''
The need for the second step arises because the base general permit
does not include all of the terms and conditions necessary to meet the
MS4 permit standard, and therefore has left the development of the
additional requirements to a second process. NOIs for general permits
using this approach must include more information than NOIs for typical
general permits.
The proposed rule described the steps that would be involved in the
second step of the permitting process in Section VI.B of the preamble
(81 FR 427, January 6, 2016). EPA requested comment on modifying the
applicable parts of the NPDES regulations to enable permitting
authorities to incorporate additional, enforceable elements of the Two-
Step General Permit for individual MS4s following a process that would
require public notice, the opportunity to request a public hearing, and
a final permitting determination. The model that EPA proposed for this
procedure was based on several of the key components of the permitting
framework adopted for Concentrated Animal Feeding Operations (CAFOs) in
Sec. 122.23(h). EPA proposed that the new ``Option 2'' process would
be contained in Sec. 122.33(b)(1), where the NOI requirements for
small MS4 general permits are located. The proposal described the rule
provisions as follows:
At a minimum, the operator must include in the NOI the
BMPs that it proposes to implement to comply with the permit, the
measurable goals for each BMP, the person or persons responsible for
implementing the SWMP, and any additional information
[[Page 89331]]
required in the NOI by the general permit. The Director must review the
NOI to ensure that it includes adequate information to determine if the
proposed BMPs, timelines, and any other actions are adequate to reduce
the discharge of pollutants from the MS4 to the maximum extent
practicable, to protect water quality, and to satisfy the appropriate
water quality requirements of the Clean Water Act. When the Director
finds that additional information is necessary to complete the NOI or
clarify, modify, or supplement previously submitted material, the
Director may request such additional information from the MS4 operator.
If the Director makes a preliminary determination that the
NOI contains the required information and that the proposed BMPs,
schedules, and any other actions necessary to reduce the discharge of
pollutants from the MS4 to the maximum extent practicable, to protect
water quality, and to satisfy the appropriate water quality
requirements of the Clean Water Act, the permitting authority must
notify the public of its proposal to authorize the MS4 to discharge
under the general permit and, consistent with Sec. 124.10, make
available for public review and comment and opportunity for public
hearing the NOI, and the specific BMPs, milestones, and schedules from
the NOI that the Director proposes to be incorporated into the permit
as enforceable requirements. The process for submitting public comments
and hearing requests, and the hearing process if a hearing is granted,
must follow the procedures applicable to draft permits in Sec. Sec.
124.11 through 124.13. The permitting authority must respond to
significant comments received during the comment period, as provided in
Sec. 124.17, and, if necessary revise the proposed BMPs and/or
timelines to be included as terms of the permit.
When the Director authorizes coverage for the MS4 to
discharge under the general permit, the specific elements identified in
the NOI are incorporated as terms and conditions of the general permit
for that MS4. The permitting authority must, consistent with Sec.
124.15, notify the MS4 operator and inform the public that coverage has
been authorized and of the elements from the NOI that are incorporated
as terms and conditions of the general permit applicable to the MS4 (81
FR at 427-420, January 6, 2016).
The final rule matches closely with what was proposed as the steps
necessary to implement Option 2. These steps, which are part of what
was finalized as the ``Two-Step General Permit,'' are described as
follows in Sec. 122.28(d)(2):
(1) The MS4 operator submits the NOI with the information about its
activities as specified in the general permit.
(2) The permitting authority reviews the NOI to determine if the
information is complete and to develop proposed additional permit
requirements necessary to meet the MS4 permit standard;
(3) If the permitting authority makes a preliminary determination
to authorize the small MS4 operator to discharge it must give the
public notice of and opportunity to comment and request a public
hearing on the proposed additional permit terms and conditions, and the
basis for these additional requirements, including the NOI and other
relevant information submitted by the MS4. These procedures must be
carried out in accordance with 40 CFR part 124.
(4) Upon completion of the procedures in step (3), the permitting
authority may authorize the discharge from the MS4 subject to the
requirements of the base general permit and the final requirements
established in the second step. Using this approach, the permitting
authority may choose to rely fully on the completion of this process to
establish most of required permit terms and conditions for a particular
MS4, or it may rely on a hybrid approach wherein some of the necessary
requirements are established within the base general permit at permit
issuance while the remaining set of requirements are developed during
the process of authorizing individual MS4 discharges in the second
step.
Where EPA has modified the Two-Step General Permit from the
proposed rule, it is to clarify a point made in the proposed rule. For
instance, EPA makes a clarification in the final rule regarding the
requirements for NOI review in the Two-Step approach. The proposed rule
explained that the purpose of the permitting authority's review is to
determine whether the NOI is complete and whether the operator's
proposed set of BMPs and measurable goals are adequate to meet the MS4
permit standard. The final rule places emphasis on the fact that the
information submitted by the MS4 operator with its NOI is for the
purpose of informing the permitting authority's determination as to
what ``additional terms and conditions necessary to meet the
requirements of Sec. 122.34.'' See Sec. 122.28(d)(2)(ii). What the
operator submits in the NOI is determined by the permitting authority
when establishing the base general permit. The permitting authority may
request descriptions of BMPs to be implemented and measurable goals as
the MS4's proposal for what it considers to be adequate to ``reduce
pollutants to the maximum extent practicable, protect water quality and
satisfy the appropriate water quality requirements of the Clean Water
Act.'' Under the Two-Part General Permit in the final rule, the
permitting authority reviews this information to craft what it
determines are the necessary permit terms and conditions to meet this
MS4 permit standard; these terms and conditions are then subject to the
permitting procedures for public comment and the opportunity to request
a hearing. The specific requirements developed out of this process may
bear a substantial similarity to the operator's proposed BMPs and
measurable goals, but they also may be modified or further refined
based on the permitting authority's own determination as to the
specific requirements that it deems necessary to meet the MS4 permit
standard. For instance, instead of proposing to adopt all of the BMP
details that are submitted by the MS4 operator with the NOI as
enforceable permit requirements, the permitting authority may instead
develop proposed requirements that focus in on the specific actions and
milestones that it believes would represent significant progress during
the permit term. This is a clarification from the proposed rule
description of the NOI review process, which did not clearly articulate
the permitting authority's role in reviewing the operator's BMP and
measurable goal information, or other information requested in the base
general permit (or fact sheet).
Another clarification made to the proposed Two-Step process relates
to the 40 CFR part 124 procedures to follow during the second step. The
final rule incorporates by reference several specific sections of part
124. These specific references are consistent with the proposed rule's
reference generally to part 124, however, in the final rule EPA focused
in on the specific procedural requirements that ensure that the public
participation aspects of the Two-Step General Permit are consistent
with the NPDES regulations. These part 124 requirements are necessary
because the permitting authority is proposing to add additional terms
and conditions to the general permit applicable to individual MS4
permittees. EPA likens these additional terms and conditions to the
development of a ``draft permit'' under Sec. 124.6, and, as such,
these draft requirements must undergo minimum permitting procedures for
public notice,
[[Page 89332]]
comments, and hearings before they are established in final form. The
following procedural requirements are referenced directly:
Public Notice of Permit Actions and Public Comment Period (Sec.
124.10, Excluding (c)(2))
--By incorporating these provisions of Sec. 124.10 for the Two-Part
General Permit, this means that the permitting authority's notice must
adhere to the following minimum public notice requirements for the
draft permit conditions:
The notice must provide a minimum of 30 days for the
public to provide comment on the draft permit terms and conditions. The
permitting authority must provide notice to the public at least 30 days
prior to holding a public hearing on these draft requirements. See
Sec. 124.10(b).
The permitting authority must provide public notice to the
MS4 operator who submitted the NOI, to any relevant agencies or other
entities referenced in Sec. 124.10(c)(1), and members of the public on
the permitting authority's mailing list pursuant to Sec.
124.10(c)(1)(ix). The public notice must also be sent in a manner
constituting legal notice to the public under state law (if the permit
program is administered by an approved state), and by using ``any other
method reasonably calculated to give actual notice'' of the draft terms
and conditions being added to the permit. See Sec. 124.10(c)(3) and
(4).
The public notice must consist of: (1) The name and
address of the office processing the NOI and draft terms and conditions
for the MS4 operator; (2) name, address, and telephone number of a
person from whom interested persons may obtain further information,
including copies of the draft terms and conditions, statement of basis
or fact sheet, and the NOI; (3) a brief description of the comment
procedures required by Sec. Sec. 124.11 and 124.12 and the time and
place of any hearing that will be held, including a statement of
procedures to request a hearing, and any other procedures by which the
public may participate in the final authorization decision; (4) for
EPA-issued permits, the location of the administrative record required
by Sec. 124.9, the times when the record will be open for public
inspection, and a statement that all data submitted by the operator is
available as part of the administrative record; (5) a general
description of the location of each discharge point and the name of the
receiving water; and (6) any additional information considered
``necessary or proper.'' The public notice of a hearing under Sec.
124.12 must include: (1) Reference to the date of previous public
notices relating to the same MS4; (2) date, time, and place of the
hearing; and (3) a brief description of the nature and purpose of the
hearing, including the applicable rules and procedures. See Sec.
124.10(d).
In addition to the public notice, the permitting authority
must mail a copy of the fact sheet or statement of basis, the NOI, and
the draft terms and conditions to the operator and other agencies and
entities listed in Sec. 124.10(c)(1)(ii) and (iii). See Sec.
124.10(e).
A cross-reference to Sec. 124.10(c)(2) is not included in the
final rule. Although these requirements apply to general permits, EPA
distinguishes in the Two-Step General Permit between the base general
permit and the terms and conditions that are added through the second
permitting step for individual MS4 permittees. The permitting authority
is required to comply with Sec. 124.10(c)(2) when issuing the general
permit (i.e., the base general permit). However, because the additional
MS4-specific terms and conditions are developed in a manner that is
similar to the way in which terms in an individual permit would be
developed, EPA concluded that the public notice requirements that apply
to individual permits are more appropriate for the second step in the
process of authorizing an MS4 to discharge under a Two-Step General
Permit. For this reason, EPA does not apply the specific requirements
of Sec. 124.10(c)(2) to the proposed additional terms and conditions,
but does apply the other applicable public notice requirements of Sec.
124.10.
Public Comments and Public Hearings (Sec. Sec. 124.11 and 124.17)
Consistent with Sec. 124.11, during the public comment period for
the draft permit conditions, any member of the public may submit
comments and may request a hearing, if none has already been scheduled.
The permitting authority is required to consider comments received
during the comment period in making the decision to authorize the
discharge. When the permitting authority has made a final determination
to authorize an individual small MS4 to discharge under the general
permit, subject to the additional incorporated requirements, it must
also make available to the public its responses to comments received,
subject to the applicable requirements of Sec. 124.17.
Public Hearings (Sec. 124.12)
If the permitting authority holds a public hearing on the draft
permit conditions, public notice of the hearing must be provided as
specified in Sec. 124.10 and the hearing must be conducted in
accordance with the requirements of Sec. 124.12.
Obligation To Raise Issues During the Public Comment Period (Sec.
124.13)
During the public comment period for the draft permit conditions,
commenters are obligated to raise ``all reasonably ascertainable issues
and submit all reasonably available arguments supporting their
position'' as required in Sec. 124.13.
Upon completion of these procedures, in which permitting authority
review, public notice and comment, and any public hearings take place
in accordance with the appropriate sections of part 124, the permitting
authority may authorize the MS4 to discharge under the terms of the
permit. When authorization occurs, the final terms and conditions that
were the subject of the public comment and hearing process described
above become enforceable permit terms and conditions for that MS4
permittee. No significant changes were made to this step from the
proposed rule. EPA clarifies that the permitting authority may choose
the method by which the permittee is notified of the final decision to
authorize the discharge and the final permit conditions, and by which
the public is informed of the same. EPA oversight of state-issued NPDES
permits must also be taken into account. Under the Two-Step General
Permit, EPA has authority to review all terms and conditions of the
permit, whether established in a base general permit or in the second
step that establishes terms and conditions for individual MS4s. See
Sec. 123.44.
C. Permittee Publication of Public Notice
A question arose during the development of the proposed rule as to
whether the MS4 could carry out public notice requirements for the
Procedural Approach (now referred to as the ``Two-Step General
Permit''). Several states currently require MS4 permittees to provide
public notice of individual MS4 NOIs (and their proposed SWMPs in many
states), including information on how the public can submit comments to
the state and to request a public hearing. EPA requested comment on
whether permitting authorities that have relied on the MS4 to place
public notices in the past should be able to use this
[[Page 89333]]
approach to satisfy their public notice requirements for individual
NOIs under the Two-Part General Permit. EPA did not propose this
approach to be adopted as part of the rulemaking effort, and is not
including in the final rule any specific requirements related to this
practice.
EPA received several comments in response to this question. State
permitting authorities and one statewide MS4 association voiced their
support for allowing permitting authorities to require MS4 permittees
to publish public notices, and to establish procedures within the final
rule to accommodate this practice. One state suggested that if a
permitting authority is allowed to rely on the MS4 to publish the
public notice of the NOI, such public notice must follow all of the
minimum requirements related to the contents and methods of providing
notice, and any public comments received should be acknowledged and
considered by the state and documented in the final permit decision.
Another commenter recommended that the permitting authority be the only
entity authorized to conduct public notice and comment procedures given
the differences of opinion that may arise during the process, but
suggested that as an alternative EPA could allow states to establish
their own process for these procedures as long as they are consistent
with the regulations.
Other commenters were opposed to allowing permitting authorities to
rely on the MS4 permittee to carry out applicable public participation
requirements. These commenters emphasized the clear requirement in the
regulations for the permitting authority to conduct these activities,
pointing to the fact that the NOI should be treated no differently than
any permit application. These comments noted that members of the public
wishing to review and potentially submit comments and request a hearing
on NOIs should have a centralized place to refer to for reviewing
public notices of NOIs, and feared that allowing a decentralized
approach where the MS4 handles the public notice would be unlikely to
reach the intended audience. Another point made was that in keeping
with the permitting authority's responsibility to review and determine
the adequacy of each MS4's NOI, the public notice and comment
proceedings that are associated with the NOIs should be managed by the
same entity. These commenters also questioned whether delegating these
responsibilities to the MS4 made sense given the fact that it is the
state that is most familiar with how to meet its own administrative
rules and protocols, and that is best equipped from a technical and
physical capacity standpoint to receive and process comments, many of
which will be submitted electronically, and potentially hold hearings.
Additionally, some commenters worried about the effect of placing more
burden on the municipalities.
The final rule does not address the issue of whether the permitting
authority may rely on its MS4 permittees to carry out public notice
responsibilities on its behalf in the final rule, but instead
incorporates by reference the existing set of requirements that apply
to all draft permits in Sec. 124.10. As to whether permitting
authorities may rely on the permittee to publish the public notice, it
is EPA's view that they may do so as long as the public notice meets
all of the applicable requirements in Sec. 124.10. The public notice
responsibilities in the NPDES regulations apply to the permitting
authority, therefore these are requirements that it must ensure are
met. The state must conduct any public hearing, consider the comments
received, respond to them, and make decisions as to what changes are
necessary as a result of the comments.
VI. Requirements for Permit Terms and Conditions
EPA proposed several clarifying changes to the regulatory language
in Sec. 122.34 regarding the expression of permit limits for small
MS4s. First, EPA proposed to clarify that the permitting authority is
responsible for establishing permit requirements that meet the MS4
permit standard. Second, proposed changes would address issues of
clarity in permit terms and the different ways in which permit
requirements can be expressed. Third, the proposal would reinforce the
expectation that the MS4 standard must be independently met for each 5-
year permit term. Each of these categories of regulatory changes is
discussed below. The final rule incorporates these proposed changes,
with some modification to the proposed rule language in response to
comments and for additional clarity.
A. Permitting Authority as the Ultimate Decision-Maker
To directly address the clear message from the Ninth Circuit remand
that the regulations need to preclude the small MS4 from determining on
its own what actions are sufficient to meet the MS4 standard ``to
reduce pollutants to the maximum extent practicable, protect water
quality and satisfy the appropriate water quality requirements of the
CWA,'' EPA proposed revisions throughout Sec. 122.34 to make it clear
that the permitting authority is responsible for establishing permit
requirements that meet the standard. For this reason, EPA proposed to
shift the focus of the requirements in Sec. 122.34 to the ``NPDES
permitting authority'' rather than the regulated small MS4. Similarly,
the proposed rule modified the guidance provisions to focus on
permitting authorities as well as MS4s. In most cases, this meant
substituting the term ``NPDES permitting authority'' for ``you'' or
``your'' (referring to the regulated small MS4) and referring to the
regulated small MS4 as the ``operator.'' A related change tied to the
remand was the proposed deletion of the sentence ``Implementation of
best management practices consistent with the provisions of the storm
water management program required pursuant to this section and the
provisions of the permit required pursuant to Sec. 122.33 constitutes
compliance with the standard of reducing pollutants to the `maximum
extent practicable.' '' The Ninth Circuit court specifically raised
this sentence as a demonstration that ``nothing in the Phase II
regulations requires that NPDES permitting authorities review these
Minimum Measures to ensure that the measures that any given operator of
a small MS4 has decided to undertake will in fact reduce discharges to
the maximum extent practicable.'' See EDC, 344 F.3d at 832, 854. The
proposal to remove this sentence, combined with the other changes,
would reinforce the fact that the permitting authority is the entity
responsible for establishing the terms and conditions of the permit
necessary to meet the MS4 permit standard. These changes also would
shift the focus of Sec. 122.34 to the development of permit
requirements and away from the identification of what the MS4 should
include in its SWMP.
EPA received a relatively small number of comments responding to
these proposed changes. Some commenters expressed a preference to
continue to have the MS4 in charge of defining the MS4 standard for
itself or requested that the deleted sentence (``Implementation of best
management practices consistent with the provisions of the stormwater
management plan. . . .'') be retained. Other commenters pointed out
that the proposed changes should apply to all regulated small MS4
permits, regardless of the type of permit (e.g., Traditional General
Permit, Procedural General Permit, or individual), and requested that
EPA clarify this in the final rule.
The final rule retains the proposed rule changes that emphasize
that it is
[[Page 89334]]
the permitting authority with the ultimate authority to determine what
small MS4s must do to meet the MS4 permit standard. These changes
respond to the Ninth Circuit's finding in the EDC decision that the
Phase II rule did not, contrary to the CWA, require the permitting
authority to determine whether the MS4 permittee's proposed program
would in fact meet the MS4 permit standard. Indeed, while the EDC
decision specifically addressed the general permit process, the
underlying rationale for the court's rejection of the general
permitting process--the failure of the rule to ensure that the
permitting authority, not the permittee, determine what is needed to
meet the standard applicable to MS4 permits under the CWA--applies
whether the MS4 permit is a general permit or an individual permit.
Therefore, EPA is amending Sec. 122.34 to apply to any permit issued
to regulated small MS4s (except those small MS4s applying for an
individual permit under Sec. 122.33(b)(2)(ii)).
These changes, including the deletion of the sentence
``Implementation of best management practices consistent with the
provisions of the storm water management program required pursuant to
this section and the provisions of the permit required pursuant to
Sec. 122.33 constitutes compliance with the standard of reducing
pollutants to the maximum extent practicable,'' more clearly establish
the permit as the enforceable document, not the stormwater management
program or what has been described in the SWMP. (See VI.E of this
preamble for a discussion of the function of the ``SWMP'' under EPA's
small MS4 regulation.)
B. ``Clear, Specific, and Measurable'' Permit Requirements
EPA also proposed rule revisions related to the expression of
permit terms. Consistent with current EPA guidance, the proposed rule
specified that permit requirements be expressed in ``clear, specific,
and measurable'' terms. The preamble to the proposed rule contained a
detailed discussion about what ``clear, specific, and measurable''
meant and EPA put in the rulemaking docket a draft compendium of
example language from actual permits to further illustrate the meaning
of ``clear specific, and measurable.'' See updated permit compendium in
the final rule docket, MS4 Compendium of Permitting Approaches: Part 1:
Six Minimum Control Measures (EPA, 2016). EPA also included in the
preamble to the proposed rule, examples of permit language that do not
appear to have the type of detail that would be needed.
In addition to specifying that permit terms and conditions must be
``clear, specific, and measurable,'' the proposed rule text clarified
that effluent limitations may be in the form of BMPs, and provided non-
exclusive examples of how these BMP requirements may appear in the
permit, such as in the form of specific tasks, BMP design requirements,
performance requirements or benchmarks, schedules for implementation
and maintenance, and the frequency of actions. This language was
proposed to substitute for existing language that states: ``Narrative
effluent limitations requiring implementation of best management
practices (BMPs) are generally the most appropriate form of effluent
limitations when designed to satisfy technology requirements . . . and
to protect water quality.''
EPA also proposed to delete a related guidance paragraph in Sec.
123.34(e)(2). As explained in the proposed rule preamble, the guidance
no longer reflects current practice.\6\ The deletion of this paragraph
is also consistent with EPA guidance developed since 1999 regarding the
types of requirements that are recommended for MS4 permits.\7\
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\6\ See EPA's Compendium of MS4 Permitting Approaches--Part 3:
Water Quality-Based Requirements (EPA, 2016).
\7\ See EPA memorandum entitled Revisions to the November 22,
2002 Memorandum ``Establishing Total Maximum Daily Load (TMDL)
Wasteload Allocations (WLAs) for Storm Water Sources and NPDES
Permit Requirements Based on Those WLAs,'' November 26, 2014.
---------------------------------------------------------------------------
EPA received numerous comments on these proposed changes. For the
most part, commenters from all stakeholder groups expressed approval
for the ``clear, specific, and measurable'' language. However, a
variety of commenters read the deletion of ``narrative'' to mean that
numeric effluent limitations (e.g., end-of-pipe pollutant concentration
limitations) would be required in small MS4 permits or that
``narrative'' limits would no longer be acceptable. As stated in the
preamble, EPA did not intend to make substantive changes to Sec.
122.34 beyond what would be required to address the court remand. The
term ``narrative'' was proposed to be deleted to recognize that other
expressions of effluent limitations may be appropriate, not to preclude
the use of narrative effluent limitations. To avoid misinterpretation
of the regulation, however, the final rule instead describes
appropriate requirements as being ``narrative, numeric, or other
requirements.'' EPA intends for the final rule text to more broadly
encompass the various types of controls for stormwater discharges that
could be required of small MS4s.
Regarding the insertion of ``clear, specific, and measurable'' to
describe permit requirements, most commenters perceived benefits for
permittees, permitting authorities, and the public, particularly
because it will be more clearly stated in the permit what is expected
for compliance. Some commenters observed that ``clear, specific, and
measurable'' terms would enable better enforcement of the MS4 permit
requirements, and would provide a more effective path to improved water
quality. Some small MS4s themselves pointed out that greater certainty
in permit terms could put them into a better position to plan and to
garner local political support and critical funding for their programs.
Other MS4s, however, voiced uncertainty as to how the terms ``clear,
specific, and measurable'' would be implemented and what would actually
be required of them by their permits and concern that their flexibility
would be unduly restricted. Some commenters also suggested that
regulatory provisions associated with the expression of permit limits,
while discussed in the preamble to the proposed rule in the context of
Option 1, should apply regardless of the option chosen. Several groups
requested that ``clear, specific, and measurable'' be changed instead
to ``focused, flexible, and effective.'' Other commenters requested
that ``enforceable'' be added to this phrase. Some groups representing
MS4 permittees and industry expressed concern that ``measurable'' meant
that permits would now contain water quality monitoring requirements or
that ``measurable,'' together with the deletion of ``narrative'' to
describe effluent limitations, meant that EPA was opening the door for
small MS4 permits to now be required to contain numeric effluent
limitations, e.g., end-of-pipe pollutant concentration limits for each
outfall in the system. A concern that ``clear, specific, and
measurable'' would preclude or reduce MS4 flexibility to change program
elements as a program encountered successes or failures (i.e.,
adaptations made during the permit term or to meet MS4-specific
circumstances) was also stated as a disadvantage associated with this
language. In a related vein, several commenters warned against permit
terms that were too specific and left very little discretion to the
MS4. Some commenters requested that the regulatory text indicate that
the expectation that permit requirements be ``clear, specific, and
measurable'' apply
[[Page 89335]]
to each BMP and other requirements in the permit, and accompanied by
reporting requirements that related to measurable requirements, rather
than measureable goals as in the current regulation.
The final rule retains the proposed rule requirement for ``clear,
specific, and measurable'' permit terms and conditions. Accompanying
the promulgation of this requirement, EPA is also publishing an updated
version of its compendium of permit examples from the proposed rule
(i.e., MS4 Compendium of Permitting Approaches: Part 1: Six Minimum
Control Measures (EPA, 2016)), which includes provisions from EPA and
state MS4 general permits that provide examples of clear, specific, and
measurable requirements. EPA also retains the examples provided in the
proposed rule preamble of permit language that would generally not
qualify as clear, specific, and measurable, which is included here,
with minor edits:
Permit provisions that simply copy the language of the
Phase II regulations verbatim without providing further detail on the
level of effort required or that do not include the minimum actions
that must be carried out during the permit term. For instance, where a
permit includes the language in Sec. 122.34(b)(4)(ii)(B) (i.e.,
requiring ``. . . construction site operators to implement appropriate
erosion and sediment control best management practices'') and does not
provide further details on the minimum set of accepted practices, the
requirement would not provide clear, specific, and measurable
requirements within the intended meaning of the proposed Traditional
General Permit Approach. The same would also be true if the permit just
copies the language from the other minimum control measure provisions
in Sec. 122.34(b) without further detailing the particular actions and
schedules that must be achieved during the permit term.
Permit requirements that include ``caveat'' language, such
as ``if feasible,'' ``if practicable,'' ``to the maximum extent
practicable,'' and ``as necessary'' or ``as appropriate'' unless
defined. Without defining parameters for such terms (for example,
``infeasible'' means ``not technologically possible or not economically
practicable and achievable in light of best industry practices''), this
type of language creates uncertainty as to what specific actions the
permittee is expected to take, and is therefore difficult to comply
with and assess compliance.
Permit provisions that preface the requirement with non-
mandatory words, such as ``should'' or ``the permittee is encouraged to
. . . .'' This type of permit language makes it difficult to assess
compliance since it is ultimately left to the judgment of the permittee
as to whether it will comply. EPA notes that the Phase II regulations
include ``guidance'' in places (e.g., Sec. 122.34(b)(1)(ii),
(b)(2)(ii), and (b)(3)(iv)) that suggest practices for adoption by MS4s
and within permits, but does not mandate that they be adopted. This
guidance language is intended for permitting authorities to consider in
establishing their permit requirements. Permitting authorities may find
it helpful to their permittees to include guidance language within
their permits in order to provide suggestions to their permittees, and
it may be included. However, guidance language phrased as suggested
guidelines would not qualify as an enforceable permit requirement under
the final rule.
Permit requirements that lack a measurable component. For
instance, permit language implementing the construction minimum control
measure that requires inspections ``at a frequency determined by the
permittee'' based on a number of factors. This type of provision
includes no minimum frequency that can be used to measure adequacy and,
therefore, would not constitute a measurable requirement for the
purposes of the rule.
Provisions that require the development of a plan to
implement one of the minimum control measures, but does not include
details on the minimum contents or requirements for the plan, or the
required outcomes, deadlines, and corresponding milestones. For
example, permit language requiring the MS4 to develop a plan to
implement the public education minimum control measure, which informs
the public about steps they can take to reduce stormwater pollution.
The requirement leaves all of the decisions on what specific actions
will be taken during the permit term to comply with this provision to
the MS4 permittee, thus enabling almost any type of activity, no matter
how minor or insubstantial, to be considered in compliance with the
permit.
Regarding the suggestion to add ``enforceable,'' in EPA's view,
clear, specific and measurable terms and conditions together define
what makes a permit requirement enforceable. Therefore, adding
``enforceable'' to this list of attributes would not add to the
enforceability of permit terms and conditions. With respect to the
suggestion to replace ``clear, specific, and measurable'' with
``focused, flexible, and effective,'' EPA clarifies that nothing in the
final rule prevents a permitting authority from developing permit
requirements that are focused, flexible, and effective, as long as
those requirements are articulated in clear, specific, and measurable
terms.
The word ``specific'' also generated a number of comments. EPA
proposed ``specific'' to indicate what activities an MS4 would be
required to undertake to implement the various required elements of the
minimum control measures described in Sec. 122.34(b) or to achieve a
specified level of performance that would constitute compliance with
the permit. Some commenters advocated for more specificity in permits,
while others cautioned against too much specificity. Still others
simply asked for more guidance about how ``specific'' a general permit
would need to be. EPA intends for ``specific'' to mean that a
permitting authority describes in enough in detail that an MS4 can
determine from permit terms and conditions what activity they need to
undertake, when or how often they must undertake it, and whether they
must undertake it in a particular way. It must be clear what does and
does not constitute compliance. As noted in the preamble to the
proposed regulation, a verbatim repetition of the minimum control
measures described in Sec. 122.34(b) does not provide a sufficient
level of specificity.
At the same time, EPA intends for the permitting authority to
retain discretion in determining how much specificity is needed for
different permit requirements. The level of specificity may change over
time, for example, to reflect a more robust understanding of more
effective stormwater management controls or to meet specific state
needs. There is a wide range of ways to implement a stormwater
management program and the permitting authority will need to determine
how to craft permit terms and conditions that establish clear
expectations that implement the various requirements in Sec. 122.34 in
specific terms, and this can be done while also providing flexibility
to MS4s to choose how they will comply with permit terms. For example,
a requirement to ``Develop a public education program about the effect
of stormwater on water quality'' is not a sufficiently specific permit
requirement. To provide greater specificity, some permitting
authorities have provided a menu of specific public education
activities in the permit, and the MS4 must choose from among them
indicating how they will comply with the permit. For a hypothetical
example, the permit might require that the MS4
[[Page 89336]]
undertake four public education activities each year from a list of
activities specified in the permit and include at least one each year
that is directed at students in all public schools within the MS4 area,
using an existing or new curriculum, to explain ways in which
stormwater can harm water quality. In this hypothetical example, the
MS4 has the flexibility to choose from a list of activities the
permitting authority has determined are acceptable and, for the
required activity involving public schools, and to choose a curriculum
that already exists or develop a new one that is tailored to specific
stormwater problems in the community. The specific (clear and
measurable) permit terms are:
(1) To undertake four education activities per year from a
specified list of allowable activities; and (2) to ensure that at least
one of the activities involves education about stormwater at all public
schools. Compliance would be completion of four activities each year.
One type of activity is specified in the permit, but the MS4 can choose
the audience, the medium, and the specific message for the other three
required activities. Even within the more specific requirement related
to public schools, the permittee would have discretion in determining
the form and content of the curriculum. In this hypothetical example,
the permit contained requirements of varying specificity, but the
boundaries of what constitutes compliance is readily apparent and it is
clear what the MS4 must do and the timeframe for compliance.
What is not specified in a permit implicitly defines the level of
discretion the MS4 has to meet the terms and conditions of the permit.
EPA recognizes that it can be useful for MS4s to retain the ability to
change specific stormwater control activities during the term of the
permit without the need to seek a permit modification for every change.
In the above hypothetical example, if the MS4 finds that, after the
second year of the permit term that the curriculum it chose was not
effective, it could develop a different one or choose another
curriculum, e.g., one that involves field work rather than just
classroom instruction. The change in curriculum would not require a
permit modification because the permit did not specify the particular
curriculum that must be used. The permit terms in this case also
provide the public with sufficient information to offer comments on the
activities available, their number and frequency, and the degree of
discretion left to the MS4. EPA emphasizes that it is not necessary
that every detail be spelled out in a permit as an enforceable
requirement under the CWA. See further discussion of the considerations
related to permit modifications in Section VI.E.
In the above hypothetical example, the permitting authority could
have chosen more specific terms. For example, it could have required
that the MS4s undertake activities A and B in the first year,
activities C and D in the second year, and so on. It could have
specified the medium to be used, e.g., television or social media and
each of the audiences that must be addressed in the outreach plan
(e.g., businesses, commercial establishments, developers). EPA notes
that increased specificity does not necessarily mean that the permit is
more stringent. It does, however, decrease the flexibility left to the
MS4 to determine how to meet the permit requirement. Conversely, the
permitting authority in the above hypothetical example could have been
less specific, for instance, by not requiring one activity each year to
be carried out in public schools. Permitting authorities need to
consider what level of specificity is appropriate based on the
particular factors at play in their permit area. The level of
specificity may change over time, and should be evaluated in each
successive permit. There may be differences of opinion about the degree
of specificity needed, but that call would be open for public comment
on the general permit or, if the Two-Part General Permit is used, on
the public notice for the additional terms and conditions applicable to
individual MS4s.
Another example of how the permit can provide greater specificity
is to include distinct requirements based on type of MS4. For example,
Section 3.2.1.3 of the Arkansas general permit states: ``The stormwater
public education and outreach program shall include more than one
mechanism and target at least five different stormwater themes or
messages over the permit term. At a minimum, at least one theme or
message shall be targeted to the land development community. For non-
traditional MS4s, the land development community refers to landscaping
and construction contractors working within its boundaries (emphasis
added). The stormwater public education and outreach program shall
reach at least 50 percent of the population over the permit term.''
Here, the permitting authority further specifies the target audience as
applied to non-traditional MS4s.
Alternatively, specific permit terms could be established uniformly
for all eligible small MS4s, which would have the benefit of leveling
the playing field among small MS4s. The final rule gives permitting
authorities some discretion to decide how much specificity to include
in the permit and how much flexibility to leave to the MS4 when working
out the details of how it will comply with permit terms. The public
would have an opportunity to provide comments on such preliminary
decisions about the level of specificity in permit terms and conditions
needed during the public comment period on the general permit or on the
second step of a Two-Step General Permit, or in some cases on both.
EPA also received comments on the term ``measurable.'' In response
to comments, EPA clarifies that ``measurable'' does not necessarily
mean that water quality monitoring must be required in every instance
to assess compliance. Likewise, it does not mean that numeric, end-of-
pipe pollutant concentrations or loadings must be included in permits.
While these examples do represent a type of measurable requirement,
they are not required to be in every MS4 permit. Rather, the term
``measurable'' means that the permit requirement has been articulated
in such a way that compliance with it can be assessed in a
straightforward manner. For example, a permit provision that requires
inspections at construction sites to be conducted once per week until
final stabilization has been verified is a measurable requirement. To
help assess compliance, the permit should also contain a way to track
whether the requirement has been met, such as requiring the permittee
to keep a log of each inspection, including the date and any relevant
findings. On the other hand, a requirement that construction sites be
inspected ``after storms as needed'' would not be a measurable
requirement. For this requirement, the permittee would have to
determine whether a ``storm'' occurred and, if so, whether an
inspection was called for, both of which are determinations that are
left completely up to the permittee to determine. A permitting
authority could not easily assess that this requirement was or was not
met.
Like the term ``measurable,'' ``numeric'' is another term that is
often misunderstood to require numeric end-of-pipe concentration and/or
mass pollutant limitations similar to those that commonly appear in
permits issued to other types of point source dischargers (e.g.,
industrial process discharges and discharges from sewage treatment
plants). EPA intends numeric to be read more broadly to include an
objective, quantifiable value related to the performance of different
[[Page 89337]]
requirements for small MS4 programs. For example, ``numeric'' can refer
to the number or frequency of required actions to be taken such as a
requirement to ``clean 25% of the catch basins in your service area on
a yearly basis'' or ``complete 6 of 10 public education events
specified in the following table on an annual basis.'' ``Numeric'' can
also refer to a specified numeric performance levels, such as a
retention standard for post-construction discharges from new
development and re-development sites, e.g., ``The first inch of any
precipitation must be retained on-site.'' Another example of a numeric
performance requirement is exemplified by the following provision from
the 2016 Vermont Small MS4 general permit: ``The control measure(s) is
designed to treat at a minimum the 80th percentile storm event. The
control measure(s) shall be designed to treat stormwater runoff in a
manner expected to reduce the event mean concentration of total
suspended solids (TSS) to a median value of 30 mg/L or less.'' See
Section E.4.a.iv.B.
A commenter requested that EPA require measurable conditions for
each BMP. EPA interprets this comment as recommending that permit terms
implementing the minimum control measures, which are often articulated
as narrative requirements, each be expressed in a measurable manner.
EPA agrees that permit terms and conditions that are established to
satisfy a minimum control measure need to have measurable (as well as
clear and specific) requirements associated with them that assist the
MS4 and permitting authority in determining whether required elements
of the minimum control measures or other permit terms and conditions
have been achieved.
In the final rule, EPA has decided to substitute the term ``terms
and conditions'' for ``effluent limitations'' because stakeholders
asserted the term effluent limitations connotes end-of-pipe numeric
limits even though EPA is not insisting that these types of limitations
be used. In sum, EPA intends that terms and conditions are a type of
effluent limitations and that they are interchangeable and both mean
permit requirements. As defined in the Clean Water Act, ``effluent
limitation'' means ``any restriction established by a State or the
Administrator on quantities, rates, and concentrations of chemical,
physical, biological, and other constituents which are discharged from
point sources into navigable waters, the waters of the contiguous zone,
or the ocean, including schedules of compliance.'' See CWA section
502(11). The Clean Water Act also authorizes inclusion of permit
conditions. See CWA section 402(a)(1) and (2). Both ``effluent
limitations or other limitations'' under section 301 of the Act and
``any permit or condition thereof'' are an enforceable ``effluent
standard or limitation'' under the citizen suit provision, section
505(f) of the Clean Water Act, and the general enforcement provisions,
section 309 of the Act. EPA uses these terms interchangeably when
referring to actions designed to reduce pollutant discharges. For the
purposes of this final rule, changing the small MS4 regulations to
refer instead to ``terms and conditions'' is intended to be read as
consistent with the meaning of ``effluent limitations'' in the
regulations and CWA.
C. Narrative, Numeric, and Other Forms of Permit Requirements
As explained in the previous section of this preamble, EPA has
clarified that permit limits need not be expressed only as
``narrative'' limits but can consist of ``narrative, numeric, and other
types'' of permit requirements. The final rule provides a non-exclusive
list of the types of narrative, numeric, and other types of terms and
conditions that would be appropriate for small MS4 permits by stating
that allowable terms and conditions could include, among other things
``implementation of specific tasks or best management practices (BMPs),
BMP design requirements, performance requirements, adaptive management
requirements, schedules for implementation and maintenance, and
frequency of actions.'' These examples are the same as those proposed,
with the exception of removing the term ``benchmarks'' and adding in
its place, ``adaptive management requirements.'' Several commenters
noted that the term ``benchmarks'' is used in EPA's and many states'
Multi-Sector General Permit for Stormwater Discharges Associated with
Industrial Activity, or ``MSGP,'' to mean numeric pollutant
concentration levels that must be measured, and if exceeded, trigger
further monitoring or corrective action requirements. To eliminate any
confusion, the commenters requested that a different term be used. EPA
did not intend ``benchmarks'' to be precisely defined, but instead to
generally refer to various types of identified measurements of
performance and to undertake different actions or controls if
performance is not at the measured level. To avoid confusion, EPA is
replacing ``benchmarks'' with the phrase ``adaptive management
requirements,'' since adaptive management approaches are used widely in
the MS4 communities. Adaptive management enables MS4 permittees to
iteratively improve their stormwater control strategies and practices
as they implement their programs and learn from experience to better
control pollutant discharges.
With respect to establishing permit terms and conditions, use of
the term ``BMP'' in Sec. 122.34(a) is intended to take on a broad
meaning and could encompass both the enforceable terms and conditions
of the permit as well as particular activities and practices selected
by the permittee that will be undertaken to meet the permit
requirements but that are not themselves enforceable. BMPs are defined
in Sec. 122.2. The term is defined to include schedules of activities,
prohibitions of practices, maintenance procedures, and other management
practices to prevent or reduce water pollution. The regulatory
definition also includes treatment requirements, operating procedures,
and practices to control runoff, spillage or leads, sludge, or waste
disposal, or drainage from raw material storages as BMPs. The defined
regulatory term was developed to describe requirements to undertake
certain activities to reduce the amount of pollutants discharged that
are not described as numeric pollutant effluent discharge limitations
or represent specific performance levels. See Sec. 122.44(k). EPA
intends, in Sec. 122.34(a) of the final rule, to use BMP in its
broadest sense to refer to any type of structural or non-structural
practice or activity undertaken by the MS4 in the course of
implementing its SWMP. Whether a BMP is an enforceable requirement
depends on whether the permitting authority has established it as a
term and condition of the permit. The term BMP in Sec. 122.34(a) is
not intended to be used interchangeably with enforceable requirements
necessary to demonstrate compliance with the permit. Instead, it refers
to any type of activity that is used to reduce pollutants in the MS4's
discharge. This distinction is important because, as discussed
elsewhere in the preamble, some BMPs may be changed without first
requiring a permit modification, but only if they are not included as
enforceable requirements of the permit.
D. Considerations in Developing Requirements for Successive Permits
A final change to Sec. 122.34(a) that EPA proposed was to reflect
the iterative nature of the MS4 permit standard and require that what
is considered adequate to meet the MS4 permit standard, including what
constitutes ``maximum
[[Page 89338]]
extent practicable,'' needs to be determined for each new permit term.
The final rule provision is retained from the proposed rule, which
requires that for each successive permit, the permitting authority must
include terms and conditions that meet the requirements of Sec. 122.34
based on its evaluation of the current permit requirements, record of
permittee compliance and program implementation progress, current water
quality conditions, and other relevant information. The preamble to the
proposed rule explained: ``A foundational principle of MS4 permits is
that from permit term to permit term iterative progress will be made
towards meeting water quality objectives, and that adjustments in the
form of modified permit requirements will be made where necessary to
reflect current water quality conditions, BMP effectiveness, and other
current relevant information.'' (81 FR 422, Jan. 6, 2015). The preamble
further listed possible sources to inform the evaluation such as past
annual reports, current SWMP documents, audit reports, receiving water
monitoring results, existing permit requirements, and applicable TMDLs.
EPA received numerous comments on the language regarding the
development of each successive permit. One commenter asked EPA to
include additional factors in the rule text that would need to be
considered when developing a new small MS4 permit, including impairment
status of the waterbody and applicable TMDLs, and permits developed by
other states. Other factors requested to be included in the text were
discussed in the preamble to the proposed rule include: how long the
MS4 has been permitted, the degree of progress made by the small MS4
permittees as a whole and by individual MS4s, the reasons for any lack
of progress, and the capability of these MS4s to achieve more focused
requirements. Another commenter stated that while it is appropriate to
re-examine the permit requirements for continued applicability and
effectiveness, EPA should not presume that successive permits would
always require more stringent requirements. Instead, the commenter
continues, the permit could only require adjustments of existing BMPs.
EPA also received general comments about the nature of ``maximum extent
practicable'' that were reflected in comments concerning the new
language about successive permits.
EPA has retained substantially the same text as it proposed. In
Sec. 122.34(a)(2), permitting authorities are required to revisit
permit terms and conditions during the permit issuance process, and to
make any necessary changes in order to ensure that the subsequent
permit continues to meet the MS4 permit standard. Thus, in advance of
issuing any new small MS4 general permit, the permitting authority will
need to review, among other things, available information on the
relative progress made by permittees to meet any applicable milestones
under the expiring permit, compliance problems that may have arisen,
the effectiveness of the required activities and selected BMPs under
the existing permit, and any improvements or degradation in water
quality. This requirement applies regardless of the type of permit
(individual or general) or the specific general permitting approach
that is chosen by the permitting authority.
As commenters pointed out, there are other factors that the
permitting authority can consider in establishing the permit
requirements in successive permits that meet the MS4 permit standard.
This provision, however, is intended to state a general requirement to
update each permit and therefore uses broader, more general terms
rather than trying to name all of the factors and considerations that
may bear on the development of specific permit terms and conditions in
successive permits. The crux of this requirement is that permitting
authorities cannot simply reissue the same permit term after term
without considering whether more progress can or should be made to meet
water quality objectives or that other changes to the permit are in
order. As is the case with NPDES permits generally, the permitting
authority considers anew what is appropriate each time it issues a
permit. For example, new stormwater management techniques may have
arisen or become affordable during the expiring permit term that should
be taken into consideration. The factors identified by commenters and
discussed in the proposed rule preamble are all relevant
considerations. First and foremost, as noted by one commenter, ``the
understanding of which pollution control measures and standards are the
most effective and practicable can evolve, requiring corresponding
changes in permit conditions to meet the `MEP' standard.'' Likewise,
the stressors affecting water quality can change over time. The water
quality of the receiving water and any applicable TMDLs are factors
that should be considered, but additional rule language is unnecessary
since these factors are already encompassed within the final rule's
reference to ``current water quality conditions.'' (Also see, Sec.
122.34(c) which requires permit conditions based on applicable TMDLs.)
How long an MS4 has been permitted also could point to establishing
different or ``tiered'' requirements based on whether the MS4 is on its
third or fourth permit with a mature program or is a newly regulated
MS4 that must build its program ``from scratch.'' Using broad, general
terms to describe considerations that may change over time provides
critical flexibility, while ensuring that the assessment of current
circumstances and information is done.
Contrary to the assumption that EPA presumes that each successive
permit will contain more stringent conditions for each permit
requirement, EPA recognizes that this is not the case. It is possible
that some permit conditions remain relatively static in a successive
permit. If a permit, however, contained a less stringent requirement or
less specific language than had been included in the previous permit
this would require an explanation, backed by empirical evidence or
other objective rationale that the requirement was no longer
practicable or that another approach is more effective, and that making
this requirement less stringent would not result in greater levels of
pollutant discharges. This would be especially true where the MS4 is
discharging pollutants to an impaired water due to an excess of those
pollutants. How quickly pollutants must be reduced and which elements
of a program need greater or less emphasis are certainly considerations
that an MS4 (or others) can raise during the comment period. Likewise,
an MS4 that is seeking an individual permit or coverage under a Two-
Step General Permit, can propose BMPs or other management measures to
the permitting authority that reflect its judgment about how and to
what extent permit terms and conditions should change or stay the same.
One commenter asserted that EPA should require consideration of
other states' permits in determining permit conditions. The commenter
reasoned that if one state adopts a requirement that achieves greater
pollutant reduction than another state, the other state should have to
adopt the more effective permit condition or explain why it is not
practicable for MS4s in its state. The commenter also noted that EPA
has taken similar positions with respect to technology-based
requirements for other types of discharges. Finally, the commenter
urged EPA to continue to provide and update examples of permit
conditions developed by various states. EPA does not find it necessary
to expressly require the rule to compel
[[Page 89339]]
permitting authorities to consider the terms and conditions of permits
in other jurisdictions in determining the need to modify their own
permits. Each permitting authority is required to issue permits that
independently meet the MS4 permit standard based on an evaluation of,
among other things, how well the past permit conditions worked and what
more can be reasonably achieved in the next permit term. This
evaluation involves factors that are necessarily unique to the
permitting jurisdiction. Furthermore, the factors that led to one state
permit's adoption of stricter requirements than another state makes a
straightforward analysis between the two difficult, and potentially
misleading. While EPA does not agree that permitting authorities should
be required to consider other state permits, EPA agrees that much can
be learned from other states' permitting approaches and it may be a
relevant factor to consider in a particular permitting proceeding.
Commenters suggest that EPA's publication of its MS4 permit
compendia (EPA, 2016), as well as EPA's MS4 Permit Improvement Guide
(EPA, 2010), providing examples of permit provisions that are written
in a ``clear, specific, and measurable'' manner, makes it easier for
permitting authorities to write better permits. EPA agrees with
commenters that sharing examples among states is an effective tool for
developing permit conditions and has updated the compendium of state
practices to accompany the final rule for this very reason. See
Compendium of MS4 Permitting Approaches--Part 1: Six Minimum Control
Measures (EPA, 2016) in the final rule docket.\8\ EPA plans to
facilitate information transfer on a continuing basis.
---------------------------------------------------------------------------
\8\ This document, and two additional compendia, Compendium of
MS4 Permitting Approaches--Part 2: Post Construction Standards (EPA,
2016) and Compendium of MS4 Permitting Approaches--Part 3: Water
Quality-Based Requirements (EPA, 2016), will be available at EPA's
Web site at https://www.epa.gov/npdes/stormwater-discharges-municipal-sources#resources.
---------------------------------------------------------------------------
E. Relationship Between the SWMP and Required Permit Terms and
Conditions
a. Enforceability of SWMP Documents
In the proposed rule, EPA clarified that the SWMP document does not
include enforceable effluent limitations or any other term or condition
of the permit. EPA also proposed to delete the language in the Phase II
regulations stating that implementation of the SWMP would constitute
compliance with the MS4 permit standard. This clarification is retained
in the final rule. EPA is revising Sec. 122.34(a) to clarify that the
permit, not the stormwater management program, contains the
requirements, including requirements for each of the six minimum
measures, for reducing pollutants to the maximum extent practicable,
protecting water quality and satisfying the appropriate water quality
requirements of the CWA. See also Section VIII.A for further discussion
of the deleted provision in Sec. 122.34(a). The final rule at Sec.
122.34(b) requires each permit to require the permittee to develop a
``written storm water management program document or documents that, at
a minimum, describes in detail how the permittee intends to comply with
the permit's requirements for each minimum control measure.'' Requiring
that portions of the SWMP be in the form of written documentation is
not a new requirement, but rather a clarification. The minimum control
measure requirements have always required that certain aspects of the
permittee's SWMP be documented in writing, e.g., the storm sewer system
map, ordinances or other regulatory mechanisms to regulate illicit non-
stormwater discharges into the MS4 and to require erosion and sediment
controls. The written SWMP provides the permitting authority something
concrete to review to understand how the MS4 will comply with permit
requirements and implement its stormwater management program. EPA
included a specific requirement for written documentation to clarify,
as requested by some commenters, the difference between a MS4's
stormwater management program itself from the written description of
the program.
EPA received several comments regarding the role of the SWMP
document under the different permitting options. Among these comments
were several focusing on whether the implementation details described
in the SWMP document itself, including the BMPs to be implemented and
measurable goals to be achieved, would be enforceable as permit
requirements. One commenter noted that some states consider a SWMP
document to be an integral part of the permit and recommended that EPA
do nothing in the rule to limit a permitting authority's ability to
enforce against an MS4 for failure to implement any particular aspect
of the SWMP and to require an accurate, up-to-date SWMP document that
contains the provisions required by the permit. Other commenters,
representing the regulated MS4 point of view, emphasized the role of
the SWMP document as a planning tool for the permittee, one that is
intended to be continually updated to reflect their adaptive management
approach to permit compliance. These commenters cautioned against
implying directly or indirectly that the SWMP document is an ``effluent
limitation'' that is part of the permit, and felt that under Option 1
of the proposed rule, provisions in SWMP documents could be interpreted
by the public to be effluent limitations, thereby opening all details
described in the SWMP document to enforcement. These commenters
recommended that EPA more narrowly define ``effluent limitation'' and
clarify that SWMPs are for planning purposes only and not subject to
challenge by outside parties.
In response to these comments, EPA clarifies that, under EPA's
small MS4 regulations, the details included in the permittee's SWMP
document are not directly enforceable as effluent limitations of the
permit. The SWMP document is intended to be a tool that describes the
means by which the MS4 establishes its stormwater controls and engages
in the adaptive management process during the term of the permit. While
the requirement to develop a SWMP document is an enforceable condition
of the permit (see Sec. 122.34(b) of the final rule), the contents of
the SWMP document and the SWMP document itself are not enforceable as
effluent limitations of the permit, unless the document or the specific
details within the SMWP are specifically incorporated by the permitting
authority into the permit. In accordance with the final rule,
therefore, if an MS4 permittee fails to develop a SWMP document that
meets the requirements of its permit, this failure constitutes a permit
violation. By contrast, the details of any part of the permittee's
program that are described in the SWMP, unless specifically
incorporated into the permit, are not enforceable under the permit, and
because they are not terms of the permit, the MS4 may revise those
parts of the SWMP if necessary to meet any permit requirements or to
make improvements to stormwater controls during the permit term. As
discussed in more detail below, the permitting authority has discretion
to determine what elements, if any, of the SWMP are to be made
enforceable, but in order to do so it must follow the procedural
requirements for the second step under Sec. 122.28(d)(2).
The regulations envision that the MS4 permittee will develop a
written SWMP document that provides a road map for how the permittee
will comply with the permit. The SWMP document(s) can be changed based
on adaptations made during the course of the permit, which
[[Page 89340]]
enable the permittee to react to circumstances and experiences on the
ground and to make adjustments to its program to better comply with the
permit. The fact that the SWMP is an external tool and not required to
be part of the permit is intended to enable the MS4 permittee to be
able to modify and retool its approach during the course of the permit
term in order to continually improve how it complies with the permit
and to do this without requiring the permitting authority to review and
approve each change as a permit modification. The fact that the
regulations do not require the implementation details of the SWMP
document to be made enforceable under the permit does not mean that a
permitting authority cannot decide to directly incorporate portions of
the SWMP or the entire SWMP as enforceable terms and conditions of the
permit. However, in order to adopt any part of the SWMP document as an
enforceable term or condition it must go through the proper permitting
steps to do so. If a permitting authority chooses to directly
incorporate elements of the SWMP document as enforceable permit
requirements, once completing the minimum permitting steps to propose
and finalize NPDES permit conditions, those elements of the SWMP are no
longer external to the permit, but instead become enforceable terms and
conditions of the permit.
Lastly, EPA understands that some state permitting authorities
already incorporate elements of their permittees' SWMP document using a
process that is similar to the Two-Step General Permit process in the
final rule. EPA emphasizes that under the final rule if a permitting
authority chooses to adopt portions of their permittees' SWMPs using
the Two-Step General Permit process this would be a valid way to
formally incorporate these as permit terms and conditions; this is
because in order to make these requirements enforceable under the
permit the permitting authority provided the necessary review and
public notice and comment procedures. By contrast, EPA generally would
not consider general permits that state that the SWMP documents
developed by the MS4 are enforceable under the permit, without first
formally adopting the details of these documents to the individual
permitting authority review and public participation required by the
second step of the Two-Step General Permit, to be an adequate way in
which to incorporate the details of the SWMP as enforceable
requirements of the permit.
b. Permit Modification Considerations
EPA raised the issue in the proposed rule of whether under the
Procedural Approach (now in the final rule as the ``Two-Step General
Permit'' approach) a permit modification would be necessary during the
permit term if BMPs or measurable goals were changed by the permittee
from that which was submitted to the permitting authority. EPA
specifically sought comment on what criteria should apply for
distinguishing between when a change to BMPs is ``substantial''
requiring a full public participation process or ``not substantial''
that would be subject to public notice but not public comment under a
permit modification process similar to the process in Sec.
122.42(e)(6).
A number of commenters expressed support for treating some types of
changes as non-substantial modifications to the permit. Commenters
emphasized the fact that the types of plans, strategies, and practices
implemented under MS4 SWMP are subject to considerable change, and that
requiring these changes to undergo a review for a permit modification
would stifle the process as well as innovation. Some commenters offered
suggestions for what types of changes to the SWMP should constitute a
substantial modification and should be reviewable by the permitting
authority, and which types of changes should be considered non-
substantial. Some thought that a complete change to a BMP should be
reviewed by the permitting authority for a modification, while others
felt that such changes should not be submitted for review if the
replacement BMP would be considered to provide equal or better
pollutant removal. Another commenter suggested that EPA incorporate
applicable requirements from the CAFO regulations whereby the permittee
submits proposed changes to the permitting authority and the permitting
authority must determine whether such changes comply with applicable,
substantive legal requirements, and if the changes are substantial,
then the permitting authority must require public notice, and an
opportunity to provide comments or request a hearing before the
determination is made on the modification.
The Two-Step approach requires the MS4 operator to provide
information about what it intends to do during the permit term to
satisfy some or even all of the permit requirements for meeting the MS4
permit standard. The rule then requires the permitting authority,
through a review and public comment process, to establish MS4-specific
permit terms and conditions that the permitting authority deems
necessary to meet the MS4 permit standard. Once issued, these
additional permit requirements are set for the permit term, and
compliance is measured based on the permittee's ability to meet these
enforceable terms and conditions. When the final permit terms and
conditions are established, changes to those requirements can only be
made through a formal modification process, which is subject to the
requirements of Sec. 122.62, or Sec. 122.63 if the proposed change
constitutes a minor modification.
A distinction between what constitutes a potential change in permit
terms and what amounts to merely a change in implementation of the SWMP
is important to consider in the context of the Two-Step General Permit.
Where a permittee proposes to change a BMP that it is implementing, and
the change does not require the enforceable permit conditions to be
changed in any way, but rather offers an alternative means of complying
with the same permit conditions, EPA would not consider this to be a
permit modification. For instance, if the MS4's permit requires that it
conduct field tests of 20 percent of its priority outfalls on an annual
basis for illicit discharges, and the permittee changes its method of
conducting such tests that is described in its SWMP document, even
though a revision to the SWMP document maintained by the permittee may
be necessary, no permit modification would be necessary because the 20
percent requirement is still in effect. By contrast, where a permittee
proposes to substitute one of its BMPs for another one, and that change
would alter the compliance expectations defined in the permit, the
permittee will need to notify the permitting authority before
proceeding to determine if a permit modification is necessary. For
example, if the permittee's requirements specify in precise detail the
field screening methodology that the MS4 will utilize for its priority
outfalls, and the permittee has indicated it no longer intends to use
this approach, then this proposed change will need to be evaluated by
the permitting authority for whether a formal permit modification is
needed. The important test here is to compare the permittee's proposed
change with the terms and conditions of the permit.
EPA shares the views of commenters who emphasized the problems that
would be created by any permitting scheme that would require permit
modifications to be formally reviewed and approved for every SWMP
change. Changes and adjustments made to the
[[Page 89341]]
SWMP document during its implementation are a fundamental part of the
Phase II program, which has always emphasized the need for adaptive
management to make iterative progress towards water quality goals.
Requiring every adaptive management change to undergo review and
approval by the permitting authority would constrain implementation and
innovation, as commenters suggested, and could greatly increase the
burden on permitting authorities. Having said this, however, EPA
recognizes that in some circumstances, as illustrated in the example
above, the wording of a permit provision may require that a
modification be made before a permittee may proceed with a proposed
change to its SWMP document. If the permitting authority wants to
minimize the instances when a permit modification would be needed, it
could incorporate with specificity only those elements in the SWMP
document that it deems essential for meeting the MS4 permit standard.
For example, a permitting authority could decide that as an alternative
to incorporating all of the details of the permittee's proposed outfall
screening plan in its ``illicit discharge detection and elimination''
portion of its SWMP document into the permit, it might instead consider
selecting the specific aspects of the screening plan that in its
judgment would meet the MS4 permit standard, such as that the permittee
will screen all ``high priority'' outfalls by a specific date and that
all illicit discharges will be eliminated within a specified amount of
time. By not incorporating every aspect of the specific plans and
procedures described by the permittee in its SWMP document, the
permittee can modify its implementation approach during the permit term
without needing to check with the permitting authority before making
any such changes and having that change approved under the permit.
Apart from the issue of whether or not proposed SWMP document
changes require a permit modification is the need for permitting
authorities to specify what procedures it will follow to review and
process any permit modifications. EPA agrees with the commenter that
suggested that such procedures are needed. Rather than establishing a
unique set of procedures, however, it is EPA's view that the existing
regulatory procedures in Sec. Sec. 122.62 and 122.63, which apply to
all NPDES permit modifications, are sufficient for modifications to a
Two-Step General Permit. EPA advises permitting authorities to include
in their permits a clear description of what types of proposed SWMP
document changes will need to be reviewed as potential permit
modifications, and the procedures for submitting and reviewing these
changes.
F. Explaining How the Permit Terms and Conditions Meet the MS4 Permit
Standard
Several commenters recommended that the final rule clarify, both in
the preamble and in the rule language itself, that permitting
authorities are required to include an explanation in the permit's
administrative record as to why the adopted permit provisions meet the
MS4 permit standard. The commenters specified that this requirement
should apply regardless of the option EPA chooses to include in the
final rule.
EPA agrees that the permitting authority's rationale for adopting
specific small MS4 permit requirements should be documented consistent
with the requirements for any NPDES permit requirements under Sec.
124.8 and, if EPA is the permitting authority, Sec. 124.9. This
rationale should describe the basis for the draft permit terms and
conditions, including support for why the permitting authority has
determined that the requirements meet the required MS4 permit standard.
EPA agrees with the commenters' suggestion that this rationale should
be provided under both permitting approaches in the final rule. This
position is consistent with the Ninth Circuit's remand decision, which
emphasized the need for permitting authorities to determine that
requirements satisfy the MS4 permit standard and that the public be
given an opportunity to provide comments and to request a hearing on
this determination.
For clarification purposes, EPA includes additional language in the
final rule for the Two-Step General Permit approach to emphasize that
the permitting authority's public notice for the second step (pursuant
to Sec. 122.28(d)(2)(ii)) must include, apart from the NOI and the
proposed additional permit terms and conditions, ``the basis for these
additional requirements.'' This requirement is consistent with the
requirements of Sec. 124.8(b) for what must be included in a permit
fact sheet. EPA does not find it necessary for the permitting authority
to produce a full fact sheet for each individual MS4 permittee under a
Two-Step General Permit, nor do the regulations require this for the
type of permit requirements that are being established under the second
step. A fact sheet is required for the issuance of the general permit,
regardless of whether the general permit is a Comprehensive General
Permit or the base general permit in a Two-Step General Permit. See
Sec. 124.8(a), which requires fact sheets to be prepared for general
permits. However, the NPDES regulations do not require a separate fact
sheet to be developed for the additional terms and conditions that are
established for individual MS4s in the second step of the Two-Step
General Permit, since these requirements are not themselves part of the
base general permit, nor do they necessarily fall under any of the
other types of permits listed in Sec. 124.8(a) as requiring a fact
sheet (e.g., a ``major'' NPDES facility or site). Short of requiring a
separate fact sheet for the draft additional permit conditions, EPA
finds it reasonable to expect the proposed additional permit terms and
conditions to be accompanied by the supporting rationale for why these
requirements satisfy the MS4 permit standard.
One commenter also suggested that permitting authorities be
required to explain in the administrative record why any alternative
standards recommended in public comments or included in any of EPA's
MS4 permit compendia were not adopted. Permitting authorities are
required to respond to significant comments received in response to the
public notice for the Comprehensive General Permit and the base general
permit of a Two-Step General Permit, and, in addition, to respond to
the comments on the second step public notice under a Two-Step General
Permit. Such comments could include alternative standards suggested for
inclusion in the permit. EPA does not agree that permitting authorities
should be required to explain in the administrative record why a
provision included in any of the agency's MS4 permit compendia was not
used in any particular permit. Again, the example permit provisions
that are highlighted in the permit compendia are provided as guidance
and are not intended to provide a floor for what types of provisions
must be used in MS4 permits.
G. Minimum Federal Permit Requirements
Several commenters requested clarification or raised concerns about
the extent to which the Phase II regulations establish minimum permit
requirements. This question is often raised in the context of state
laws that prohibit the permitting authority from including terms and
conditions in a permit that are more stringent than the federal minimum
requirements or include more than the federal minimum requirements.
Some comments confuse
[[Page 89342]]
``minimum permit requirements'' with the specified elements of the
minimum control measures described in Sec. 122.34(b). In a related
manner, a number of permitting authorities have shared with EPA their
experiences in encountering resistance to a proposed permit requirement
on the basis that it is not explicitly required in the federal
regulations. In addition, some commenters asked EPA to clarify that
suggestions made in the ``guidance'' paragraphs that are unique to the
small MS4 regulations are not mandatory permit terms.
The regulations specify the elements that must be addressed in a
permit. It is up to the permitting authority to establish the specific
terms and conditions to meet the MS4 permit standard for each of these
elements. The minimum control measures set forth in Sec. 122.34(b),
for instance, are not intended as minimum permit requirements, but
rather areas of municipal stormwater management that must be addressed
in permits through terms and conditions that are determined adequate to
meet the MS4 permit standard. For that matter, if a permitting
authority were to merely use the minimum control measure language from
Sec. 122.34(b) word-for-word and include no further enforceable permit
terms and conditions, this permit would not satisfactorily meet the
requirement to establish clear, specific, and measurable requirements
that together ensure permittees will comply with the MS4 permit
standard. EPA emphasizes that what constitutes compliance with the MS4
permit standard continues to evolve. The need to reevaluate what is
meant by ``maximum extent practicable'' for each permit term, as well
as the need to determine what is necessary to protect water quality and
satisfy the appropriate water quality requirements of the CWA, means
that what constitutes compliance will by necessity change over time.
Therefore, in EPA's view, those that argue that the minimum federal
requirements are what is included in the wording of the minimum control
measures, are misconstruing the intent of the regulations, and are
handicapping permits by artificially tying the MS4 permit standard to
the minimum control measures.
EPA emphasizes that the minimum control measures do not restrict
the permitting authority from regulating additional sources of
stormwater pollutant discharges, not specifically mentioned in the
minimum control measure language. For example, some states require
small MS4s with very large populations to implement a program that
addresses industrial sites due to the concentration of industrial sites
in many of their larger urban areas. (Consider that some small MS4s can
be the same size as ``medium'' MS4s, which are required to have a
program for addressing stormwater discharges from industrial sites.)
Such a requirement represents what is necessary, for those small MS4s,
to reduce pollutants as necessary to meet the MS4 permit standard. This
does not mean that the requirement is more stringent than the minimum
control measures, but rather it constitutes what is needed in the
permitting authority's view to satisfy the MS4 permit standard.
In response to the comments relating to the guidance language in
Sec. 122.34(b), EPA verifies that this ``guidance'' is intended to act
as suggested methods of implementation, not mandatory permit terms.
Having said this, EPA points out that these guidelines could form the
basis of permit terms that meet the Sec. 122.34(a) requirement to
articulate requirements in a clear, specific, and measurable manner.
EPA's interest in having more specific requirements in permits is to
provide clarity of expectations and to hold MS4s accountable for
implementing a program that continues to make progress toward
achievement of water quality objectives. For a permitting authority to
include requirements in a permit based on these ``guidance
requirements,'' because in its view they are necessary to ensure MS4s
meet the MS4 permit standard, does not mean that the permit has
established requirements beyond the federal minimum or that the
permitting authority impermissibly used guidance to develop enforceable
requirements.
H. Comments Beyond the Scope of This Rulemaking
EPA received numerous public comments suggesting revisions to the
substantive requirements in Sec. 122.34. EPA clearly stated its intent
in the preamble to the proposed rule that it was not proposing to
change any substantive requirement and therefore the many comments
suggesting the addition of specific requirements (e.g., establish or do
not establish a numeric retention standard for post-construction
stormwater controls) are outside the scope of this rulemaking.
VII. Revisions to Other Parts of Sec. 122.34
A. Compliance Timeline for New MS4 Permittees
EPA proposed a minor revision to Sec. 122.34(a) to include the
word ``new'' before ``permittees'' to indicate that the five-year
period allowed to develop and implement their stormwater management
program applies to the initial permit for new permittees. New
permittees could include small MS4s that are in urbanized areas for the
first time because of demographic changes reflected in the latest
decennial census, or they could be specifically designated by a
permitting authority as needing an NPDES permit to protect water
quality. This change is intended to preserve the flexibility included
in Phase II regulations in place prior to this final rule, and to more
clearly indicate that the extended time period for compliance is
intended to apply to MS4s that must put a stormwater management program
in place for the first time. This revision does not change the status
quo; it merely recognizes that first-time small MS4 permittees have up
to five years to develop and implement their SWMPs, while small MS4s
that have already been permitted will have developed and implemented
their SWMPs when they reapply for permit coverage under an individual
permit or submit an NOI under the next small MS4 general permit. This
is not to say that all actions necessary to achieve pollutant
reductions must be completed in the first five years. EPA recognizes
that MS4s may need more time, for example, to complete the various
steps needed to get structural controls into place and operational
(e.g., design project(s), secure funding, follow procurement
procedures, etc. before installing structural BMPs). Therefore, EPA is
retaining in the final rule the proposed clarification that permitting
authorities may provide up to 5 years for small MS4s being permitted
for the first time to come into compliance with the terms and
conditions of the permit and to implement necessary BMPs.
B. Revisions to Evaluation and Assessment Provisions
EPA proposed to renumber existing Sec. 122.34(g) as Sec.
122.34(d) and to incorporate the stylistic changes described in Section
VII.E of this preamble. Several commenters suggested that the
terminology in this paragraph be changed to conform to the text changes
made elsewhere. EPA agrees that changes to reflect the remand changes
similar to the ones made elsewhere in the section are appropriate for
the newly designated Sec. 122.34(d)(1) concerning requirements for
evaluation and assessment. The new Sec. 122.34(d)(1) now states that
the permit must require the permittee to evaluate compliance with the
terms and conditions of the permit, the effectiveness of the components
of its stormwater management program, and of achieving
[[Page 89343]]
the measurable requirements in the permit. Rather than evaluate the
appropriateness of self-identified BMPs and measurable goals as
previously required, the final rule requires permits to include terms
and conditions to evaluate compliance with permit requirements,
including achievement of measurable requirements established as permit
requirements. This language more closely aligns the required evaluation
and assessment requirements with the newly articulated requirements for
developing permit conditions that are clear, specific, and measurable.
It also more accurately describes the objectives of the evaluation and
assessment requirements, given other revisions made in response to the
remand to clarify that permitting authorities determine what is
constitutes compliance, not the regulated MS4s.
The proposed rule inadvertently omitted a recent amendment to Sec.
122.34(g) (Sec. 122.34(d) in the final rule) that was added by the
eReporting rule (80 FR 64064, Oct. 22, 2015). This omission is
corrected in the rule text that appears in this Federal Register
document. The relevant provision in Sec. 122.34(d)(3) states that,
among other things, starting on December 21, 2020 all reports submitted
in compliance with this section must be submitted electronically by the
owner, operator, or the duly authorized representative of the small MS4
to the permitting authority or initial recipient, as defined in 40 CFR
127.2(b), in compliance with this section and 40 CFR part 3 (including,
in all cases, subpart D to part 3), Sec. 122.22, and 40 CFR part 127,
and that prior to this date, and independent of part 127, the owner,
operator, or the duly authorized representative of the small MS4 may be
required to report electronically if specified by a particular permit
or if required to do so by state law. Section IX addresses in more
detail the relationship between this final rule and the eReporting
rule.
EPA received a request to revise proposed Sec. 122.34(d)(2)
regarding recordkeeping requirements to mandate that MS4s post on-line
the SWMP documents required under Sec. 122.34(b). Currently, MS4s are
only required to make summaries of their SWMP available to the public
upon request. EPA is of the view that on-line posting of information is
an effective way to communicate stormwater program information, and
encourages MS4s to post on-line documents that describe their
stormwater management plans, as well as provide other information about
managing stormwater for various audiences. EPA, however, declines to
adopt a regulatory requirement for MS4s to post documents on-line. EPA
did not propose any changes to the recordkeeping requirements, and
accordingly, the request is outside the scope of the proposal. EPA
notes that some permitting authorities have required on-line posting of
SWMP information and educational materials to implement minimum
controls measures for public education and involvement, as well as
elements of other minimum control measures such as the illicit
discharge detection and elimination, construction and post-construction
program minimum controls, and other permit requirements.
C. Establishing Water Quality-Based Requirements
EPA made minor changes to the provisions for establishing ``other
applicable requirements.'' See Sec. 122.34(c). The following
discussion explains these changes and describes how the section has
been rearranged. It then discusses issues raised about how water
quality-based requirements can be established under the two general
permit options.
EPA proposed to consolidate existing paragraphs (e)(1) and (f) into
one paragraph and to move this consolidated provision to Sec.
122.34(c). EPA also proposed to delete guidance paragraph (e)(2).
Existing Sec. 122.34(e)(1) addresses the need to comply with permit
requirements that are in addition to the minimum control measures based
on a TMDL or equivalent analysis. Existing Sec. 122.34(f) requires
compliance with permit requirements that have been developed consistent
with provisions in Sec. Sec. 122.41 through 122.49, as appropriate.
EPA is promulgating the proposed revisions, with minor editorial
changes, as discussed below.
The new Sec. 122.34(c)(1) states that the permit will include, as
appropriate, more stringent terms and conditions, including permit
requirements that modify, or are in addition to, the minimum control
measures, based on an approved total maximum daily load (TMDL) or
equivalent analysis, or where the NPDES permitting authority determines
such terms and conditions are needed to protect water quality. EPA
replaced the term ``effluent limitations'' with ``terms and
conditions'' to be consistent with changes made to Sec. 122.34(a). In
a minor change from the proposal, the paragraph now more clearly
indicates that the permitting authority has the discretion to require
additional measures to protect water quality, not limited to
requirements based on a TMDL or equivalent analysis. This change
reflects the authority granted by the statute to protect water quality
in section 402(p)(6) of the CWA. It also responds to a comment that due
to the time it takes for TMDL development, permitting authorities
should not be limited to consideration of only TMDL or equivalent
analyses before imposing water quality based requirements. As a general
matter, EPA agrees that other types of watershed plans that identify
sources that should be controlled can provide a valid basis for
establishing additional permit terms and conditions. Additionally, EPA
recognizes that there may be instances where other information about
the water quality impacts of the MS4 discharges may be sufficient to
indicate the need for additional controls. (Of course, permitting
authorities must have a rational basis and record support for
determining that additional requirements serve a water quality
objective.)
The final rule deletes existing Sec. 122.34(e)(2), as was
proposed. As explained in the preamble to the proposed rule, the
guidance in existing Sec. 122.34(e)(2) reflects EPA's recommendation
for the initial round of permit issuance, which has already occurred
for all permitting authorities. The phrasing of the guidance language
no longer represents EPA policy with respect to including additional
requirements. EPA has found that an increasing number of permitting
authorities are already including specific requirements in their small
MS4 permits that address not only wasteload allocations in TMDLs, but
also other requirements that are in addition to permit provisions
implementing the six minimum control measures irrespective of the
status of EPA's Sec. 122.37 evaluation. See EPA's Compendium of MS4
Permitting Approaches--Part 3: Water Quality-Based Requirements (EPA,
2016).\9\ Based on the advancements made by specific permitting
programs, and information that points to stormwater discharges
continuing to cause waterbody impairments around the country, prior to
the promulgation of this final rule, EPA has advised in guidance that
permitting authorities write MS4 permits with provisions that are
``clear, specific, measurable, and enforceable,'' incorporating such
requirements as clear performance standards, and including measurable
goals or quantifiable targets for
[[Page 89344]]
implementation.\10\ This guidance is a more accurate reflection of the
agency's current views on how the Phase II regulations should be
implemented than the guidance currently in Sec. 122.34(e)(2).
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\9\ This document will be made available at on EPA's Web site at
https://www.epa.gov/npdes/stormwater-discharges-municipal-sources#resources.
\10\ See EPA's MS4 Permit Improvement Guide (EPA, 2010).
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EPA received few comments about the proposed removal of Sec.
122.34(e)(2). Several commenters strongly supported the deletion of
Sec. 122.34(e)(2), while others expressed concern that MS4s may not be
in a position to implement additional controls. The MS4 permit standard
embodies a great deal of flexibility and gives the permitting authority
discretion to address particular water quality impairments. Where a
waterbody is impaired in part due to discharges from small MS4s,
especially where an approved TMDL allocates wasteload reduction
responsibilities to those MS4s, additional controls to achieve
reasonable progress towards attainment of water quality standards will
need to be considered. The permitting authority has the ability under
the final rule to develop requirements tailored to a particular MS4,
either by issuing an individual permit or by employing the Two-Step
General Permit process in Sec. 122.28(d)(2). Some permitting
authorities have successfully created requirements for specific MS4s in
a more comprehensive general permit. For example, the 2013 California
Small MS4 general permit establishes additional requirements for small
MS4s discharging to waters with an approved TMDL. Each set of
``deliverables'' or ``actions required'' is tailored to the individual
MS4, or groupings of MS4s, based on the pollutant of concern and the
particular wasteload allocation. See Appendix G of the 2013 California
Small MS4 general permit.
D. Establishing Water Quality-Based Requirements Under the Two General
Permit Options
EPA received a number of questions and suggestions concerning how
requirements to implement applicable TMDLs should be incorporated into
general permits under any of the proposed options. Some comments
asserted that there is incompatibility between the proposed Option 1
approach and the need to establish permit terms and conditions that
address TMDLs, which require watershed- and MS4-specific provisions.
One commenter questioned whether a general permit can incorporate
different water quality-based effluent limitations for different MS4s
asserting that the NPDES regulations require that general permits
include the same water quality-based effluent limits for sources within
the same category. Several commenters also suggested that requirements
addressing TMDLs are ones that are amenable to using the Option 2
approach given their inherently watershed-specific nature and the fact
that TMDL implementation plans often need to be developed with the
involvement of the community so that issues such as implementation
schedules and BMP approaches reflect the interests of the affected
public and are attainable.
EPA clarifies that in order to comply fully with the Comprehensive
General Permit approach, all terms and conditions established based on
approved TMDLs must be included within the permit itself. Use of the
Comprehensive General Permit approach means that the permit needs to
spell out the requirements necessary for permittees ``to achieve
reasonable further progress toward attainment of water quality
standards.'' (64 FR 68753, December 8, 1999) Therefore, where a TMDL
establishes wasteload allocations specifically or categorically for MS4
discharges to the impaired water, the permittee should expect to find
``clear, specific, and measurable'' requirements within the permit that
delineate their responsibilities during the permit term relative to
that TMDL and associated wasteload allocation(s). There are a variety
of approaches for incorporating these TMDL-related requirements into
general permits for specific MS4s. One noteworthy approach places all
applicable water quality-based effluent limitations in an appendix to
the general permit (e.g., Appendix 2 of the 2012 Western Washington
Small MS4 General Permit). For this particular permit, the state
evaluated all relevant TMDLs addressing discharges from small MS4s
eligible for coverage under the permit and assigned additional
requirements focused on reducing the discharge of the impairment
pollutant. See EPA's Compendium of MS4 Permitting Approaches--Part 3:
Water Quality-Based Requirements (EPA, 2016), which will be posted on
EPA's Web site at https://www.epa.gov/npdes/stormwater-discharges-municipal-sources#resources, for additional examples.
EPA does not view any of these approaches as inconsistent with the
NPDES regulatory requirement that ``where sources within a specific
category or subcategory of dischargers are subject to water quality-
based limits . . . the sources in that specific category or subcategory
shall be subject to the same water quality-based effluent
limitations.'' See Sec. 122.28(a)(3). It is certainly true that, due
to the watershed-specific nature of TMDLs, requirements in general
permit based on TMDLs can vary for individual MS4s based on the
impaired water to which they discharge and the specific details of the
applicable TMDL. EPA, however, does not view these differing water
quality-based limit requirements within the same general permit as
running afoul of the Sec. 122.28(a)(3) requirement. EPA considers the
different water quality-based requirements that are unique to a TMDL
and/or to MS4s that are subject to the TMDL to be the equivalent of
dividing the MS4 permittee universe into subcategories based on these
requirements. This categorization is not dissimilar to the way in which
EPA and many states issue their Multi-Sector General Permits for
Stormwater Discharges Associated with Industrial Activity, in which
there are requirements common to all facilities and a separate set of
requirements that apply to different industrial sectors or subsectors.
By establishing different permittee subcategories based on TMDLs, the
permit remains consistent with the requirement in Sec. 122.28(a)(3).
Use of a Two-Step General Permit similarly requires that where
requirements are necessary under Sec. 122.34(c) to address TMDLs that
they be expressed in a clear, specific, and measurable manner. These
requirements can be included in the base general permit or they can be
developed through the second permitting step of the Two-Step General
Permit approach where additional terms and conditions are established
for individual MS4s. EPA agrees with the commenters that, given the
watershed-specific nature of TMDLs and the strategies needed to address
them, in many cases it may be that a Two-Step General Permit is the
approach that provides the greatest amount of flexibility to account
for these differences. The advantage of this approach is that it allows
each MS4 to develop and propose stormwater control strategies that are
supported by the community and that can then be reviewed by the
permitting authority for adequacy. EPA notes that there are several
states that have already set up permit approaches that require MS4s to
first develop TMDL implementation plans that are then reviewed and
approved by the permitting authority. These approaches may provide
useful models to draw from especially for those permitting authorities
that choose to establish water quality-based requirements through a
Two-Step
[[Page 89345]]
General Permit. See examples in EPA's compendium document, Compendium
of MS4 Permitting Approaches--Part 3: Water Quality-Based Requirements
(EPA, 2016), which will be posted on EPA's Web site at https://www.epa.gov/npdes/stormwater-discharges-municipal-sources#resources.
E. Restructuring, Consolidating, Conforming, and Other Editorial
Revisions
EPA proposed a restructuring of certain provisions in Sec.
122.34(c) through (e) and making a number of minor editorial revisions
to reflect the changes made elsewhere to meet remand requirements and
to change the style of regulatory text, as discussed earlier in this
preamble. EPA proposed to update the cross-references in Sec. 122.35
to conform to the rearrangement of provisions in Sec. 122.34. The
preamble at Section VIII.B addresses changes to address water quality-
based permit provisions currently in Sec. 122.34(e) and to consolidate
existing paragraphs (e) and (f) into new paragraph (c). This section
explains other revisions. For the most part, EPA is promulgating these
proposed revisions and has added similar revisions to additional
provisions that were identified in comments. The following discussion
briefly explains those changes.
First, the current Sec. 122.34(c) of the regulations concerning
``qualifying local programs'' has been moved to Sec. 122.34(e) as
proposed. The only changes to the text of the existing language are to
remove the words ``you'' and replace it with ``the permittee.'' EPA
received no comments on this proposed revision.
Second, the current Sec. 122.34(d) that addresses information
requirements for obtaining NPDES permit coverage under a general or
individual permit has been moved to Sec. 122.33(b)(2). All basic
information requirements necessary to obtain permit coverage under the
two types of individual permits and two types of general permits are
now consolidated in Sec. 122.33. EPA clarifies that these information
requirements apply to individual permits, while the information
required to be included in NOIs for general permits is to be determined
by the permitting authority based on what it needs in order to
establish the permit terms and conditions necessary to meet the MS4
permit standard. See further discussion in Sections IV.C and E.
Third, EPA also proposed to delete paragraphs (d)(2) and (3) in
Sec. 122.34 that required the permitting authority to provide a menu
of BMPs for each minimum control measure, and, where such a menu of
BMPS had not been provided, stated that a small MS4 need not be held to
any ``measurable goal'' for that BMP. The final rule deletes these
paragraphs as no longer necessary. EPA provided a menu of BMPs that has
been available on its Web site for a number of years. EPA expects that
this menu and any similar state menus will continue to be available. In
addition, the function of ``measurable goals'' in the permitting
process is clarified under the final rule. In order to address the EDC
court's concerns about the lack of permitting authority review of the
NOI, which contains information such as the MS4 operator's proposed
measurable goals, the final rule clarifies that measurable goals are
submitted in proposed form and must be reviewed and approved, and
modified where necessary, by the permitting authority prior to becoming
effective as enforceable requirements. Therefore, in the final rule,
``measurable goals'' are now ``proposed measurable goals'' that are
submitted by an MS4 seeking an individual permit to implement the
requirements in Sec. 122.34, and at the discretion of the permitting
authority, if included as required to be submitted in an NOI for
coverage under a Two-Step General Permit under Sec. 122.28(d)(2) as
information necessary to establish permit conditions.
Some commenters favored keeping the requirements for a menu of BMPs
as a way to promote equitable treatment among MS4s that have similar
circumstances. While EPA has deleted the proviso that MS4s will not be
held accountable for their selected measurable goals if a menu of BMPs
has not been developed by the permitting authority, EPA does not expect
permitting authorities to eliminate existing and future BMPs menus.
Under Sec. 123.35(g), an approved state is still obligated to
establish BMP menus for the minimum control measures to facilitate
effective program implementation. Not making information about BMPs
available would be counter to effective program implementation. EPA
anticipates that equity amongst MS4s will be further enhanced by the
requirement for clear, specific, and measurable permit terms and
conditions. It should be clear from any proposed general permit if
similar MS4s are not being treated equitably and the public will have
an opportunity to voice (through comments or a public hearing, if one
is held) support or objections to different permit terms and conditions
among MS4s. MS4s include a broad range of entities that, as noted by
several commenters, are likely to need different terms and conditions
for their particular situations, e.g., state departments of
transportation that generally do not have the same police powers as
local governments and who serve a largely transient audience. EPA also
expects that dissimilar requirements for similar MS4s would be
explained in the fact sheet or other document that provides the
rationale for permit terms and conditions.
Finally, in the proposed rule, EPA used the term ``Director'' in
place of ``NPDES Permitting Authority'' in Sec. Sec. 122.33-122.35.
This proposed revision was intended to use terminology in the Phase II
regulations that is used in other sections of part 122. ``Director''
and ``NPDES Permitting Authority'' mean the same thing, i.e., the
Regional Administrator or the Director of an authorized State NPDES
program, depending on which entity issues the NPDES permits in a
particular area. EPA uses these terms interchangeably. However, for
purposes of minimizing the number of changes not directly related to
the remand, EPA has decided to retain the status quo with respect to
how these terms are used currently. In the sections that address the
small MS4 program (Sec. Sec. 122.32--122.35), the final rule uses the
term ``NPDES permitting authority.'' This is different than the
terminology that was proposed. The other sections of part 122, for
example, Sec. Sec. 122.26 and 122.28, will continue to use the term
``Director.''
VIII. Final Rule Implementation
A. When the Final Rule Must Be Implemented
EPA received comments from state permitting authorities requesting
clarification on the implementation timeframe for the new rule. EPA
also received comments from environmental organizations indicating that
given the length of time since the Ninth Circuit found the procedural
aspects of the Phase II regulations to be invalid, that permitting
authorities should be required to modify their general permit
procedures now to comport their program with the CWA requirements for
permitting authority review and public participation, and also
recommended that EPA should require current permits to be reopened for
this purposes.
To clarify, this final rule becomes effective on January 9, 2017.
It is not EPA's expectation that permitting authorities be required to
reopen permits currently in effect to comply with the requirements of
this final rule. However, EPA does expect that permitting authorities
comply with the final rule when the next permit is being
[[Page 89346]]
issued following the expiration of the current permit. Having said
this, EPA acknowledges that there are a small number of states whose
permits are expiring within a few months of the final rule's effective
date, and for these states it is likely too late in their process for
them to make the necessary changes to fully comply with the final rule.
Therefore, a permitting authority that has proposed a permit, is in the
final stages of issuing a new permit (e.g., after the close of the
public comment period), or has issued a final permit before this rule
becomes effective will not be expected to re-open those permits. Where
the permitting authority has not yet proposed a permit, EPA expects
that these permits will be issued consistent with the final rule's
requirements.
EPA recognizes that development of a new small MS4 general permit
starts well in advance of the expiration of existing permits. Still,
EPA anticipates that most states can develop clear, specific, and
measurable permit terms and conditions without the need for a change to
their legal authorities to implement the type(s) of general permits it
plans to use. The substantive standard has not changed (i.e., the MS4
permit standard); the final rule merely clarifies the way in which
permit terms and conditions that comply with the standard must be
expressed and how they are established. Even where a state determines
that it needs to change its regulations to establish new procedural
requirements to implement the final rule, such as where a state
establishes the general permit through a rulemaking process, it may be
able to develop necessary permit terms and conditions consistent with
the final rule based on its existing statutory authorities. In the
event that states must change their legal authorities before they can
act, the existing regulations at Sec. 123.62 provides states up to one
year to make the necessary changes and up to two years if a statutory
change is needed.
B. Status of the 2004 Interim Guidance
This final rule, upon its effective date on January 9, 2017,
establishes the requirements for issuing general permits for small MS4
discharges in response to the U.S. Court of Appeals for the Ninth
Circuit's decision in Environmental Defense Center v. EPA. The 2004
Interim Guidance (Implementing the Partial Remand of the Stormwater
Phase II Regulations Regarding Notices of Intent & NPDES General
Permitting for Phase II MS4s, EPA (2004)), by its own terms, ``provides
interim guidance to EPA and State NPDES permitting authorities pending
a rulemaking to conform the Phase II rule to the court's order.'' With
the promulgation of this final rule, the ``interim guidance'' is no
longer needed.
IX. Consistency With the NPDES Electronic Reporting Rule
EPA issued a final NPDES Electronic Reporting Rule (referred to as
the ``eReporting Rule'') requiring that permitting authorities and
regulated entities electronically submit permit and reporting
information instead of submitting paper forms. (80 FR 64064, Oct. 22,
2015) The promulgation of the eReporting Rule includes ``data
elements'' (in appendix A of the rule) that must be reported on by both
Phase II small MS4s and permitting authorities related to individual
NOIs submitted for general permit coverage and required program
reports. The data elements included in the eReporting Rule for Phase II
MS4s are based on the regulatory requirements in existence at the time
that rule was promulgated. These data elements, therefore, do not
reflect changes that are being made to the corresponding requirements
as part of this MS4 remand rule.
EPA received two public comments, which were similarly focused on
the need to ensure consistency between the final MS4 remand rule and
the eReporting Rule. One commenter recommended that EPA be prepared
once the MS4 remand rule is finalized to make conforming regulatory
changes to the eReporting Rule so that programs are again aligned. The
other commenter also gave examples of how the wording of the eReporting
data elements would be inconsistent with the rule language under
consideration for Option 1 of the proposed MS4 remand rule. More
specifically, the commenter questioned how permitting authorities would
be able to populate the required data elements for the NOI for a
general permit implemented under proposed Option 1 considering that
information on the MS4 operator's BMPs and measurable goals would no
longer be required as part of the NOI.
EPA agrees with the commenters on the importance of consistency
between this final rule and the eReporting Rule. Because the appendix A
data elements are no more than a reflection of what the NPDES
regulations require for NOIs and compliance reports, where the
underlying regulations change, as they are under the final MS4 remand
rule, it is necessary to make conforming changes to appendix A. Now
that the final MS4 remand rule language is set, there are some data
elements that will need to be updated to conform to the new
expectations for NOIs and program reports. EPA is aware of the
following types of inconsistencies between the final MS4 remand rule
and the appendix A data elements related to small MS4s:
References to ``measurable goals'' in data name and data
descriptions associated with minimum control measures--Under the final
MS4 remand rule, the MS4 operator's measurable goals no longer take on
the same role that they did under the previous regulations. See related
discussion in Section VII.E. Under the new regulations, the final terms
and conditions in the general permit and any additional requirements
developed through the Two-Step process, are what is relevant.
References in appendix A to the permittee's measurable goals will need
to be substituted with appropriate references to the final terms and
conditions of the permit. Additional updates are also needed in some
places in appendix A to change the reference from ``measurable goals''
to the applicable schedule or deadline for compliance with the specific
permit requirement.
References to the permittee's intended actions during the
permit term--The data elements in appendix A, Table 2 describe a number
of the minimum control measure elements as reflecting what the
permittee intends to accomplish during the permit term. Under the final
MS4 remand rule, the MS4's intended actions are not what the permittee
is held to, but rather the final permit terms and conditions.
Therefore, EPA will need to update any references to intended actions
to reflect the fact that the terms and conditions of the permit are
what is necessary to report as a data element.
Regulatory citations--Updates are also necessary to the
citations in appendix A to reflect changes made to the Phase II
regulations by the final MS4 remand rule.
NPDES Data Group Number (appendix A, Table 2)--This number
corresponds to the entity that is required to provide information on
the data element under the eReporting Rule. Table 1 of appendix A
assigns a ``Data Provider'' number to various entities, which is
reflected in Table 2. In the portion of appendix A related to
information from the NOIs, the ``Data Provider'' for most of the
minimum control measure data elements is indicated as the ``Authorized
NPDES Program'' (or permitting authority) and/or the ``NPDES
Permittee.'' Because the permitting authority under the final MS4
remand rule is solely responsible for establishing final permit terms
and conditions, EPA will need to update the
[[Page 89347]]
Data Provider to remove references to the NPDES Permittee, where
applicable.
EPA has also discovered in reviewing this issue that it
inadvertently omitted two data elements from the final eReporting Rule.
These data elements correspond to the schedules, deadlines, and
milestones that are specified in the permit for the pollution
prevention and good housekeeping for municipal operations requirements
established under Sec. 122.34(b)(6), and any additional requirements
that may be established under Sec. 122.34(c).
EPA is interested in taking the time needed to ensure that the
edits required to appendix A are made precisely. Due to the time
constraints associated with finalizing the MS4 remand rule, EPA has
determined that the updates needed in appendix A require a separate
regulatory action outside of this rulemaking. In addition, EPA notes
that the deadline for implementation of the affected eReporting rule
provisions is December 21, 2020, therefore there should be sufficient
time to make the necessary changes before electronic reporting is
required under the regulations. EPA will initiate the rulemaking
process immediately and will complete it as soon as possible. In the
meantime, EPA will continue to work with its state counterparts to
provide appropriate guidance on applying the data elements in the near
term.
X. Statutory and Executive Orders Reviews
Additional information about these statutes and Executive Orders
can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket for this action. In addition, EPA prepared an analysis of the
potential costs associated with this action. This analysis, ``Economic
Analysis for the Municipal Separate Storm Sewer System (MS4) General
Permit Remand Rule,'' is summarized in Section I.D and is available in
the docket.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations and has assigned OMB
control number 2040-0004.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA.
Although small MS4s are regulated under the Phase II regulations, this
rule does not change the underlying requirements to which these
entities are subject. Instead, the focus of this rule is on ensuring
that the process by which NPDES permitting authorities authorize
discharges from small MS4s using general permits comports with the
legal requirements of the Clean Water Act and the applicable NPDES
regulations.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538. This action does not
significantly or uniquely affect small governments because this
rulemaking focuses on the way in which state permitting authorities
administer general permit coverage to small MS4s, and does not modify
the underlying permit requirements to which they are subject.
Nonetheless, EPA consulted with small governments concerning the
regulatory requirements that might indirectly affect them, as described
in Section I.E.
E. Executive Order 13132: Federalism
This rule will not have substantial direct effects on the states,
the relationship between the national government and the states, or on
the distribution of power and responsibilities among the various levels
of government. The rule makes changes to the way in which NPDES
permitting authorities, including authorized state government agencies,
provide general permit coverage to small MS4s. The impact to states
which are NPDES permitting authorities may range from $558,025 and
$604,770 annually, depending upon the rule option that is finalized.
Details of this analysis are presented in ``Economic Analysis for the
Final Municipal Separate Storm Sewer System General Permit Remand
Rule,'' which is available in the docket for the rule at https://www.regulations.gov under Docket ID No. EPA-HQ-OW-2015-0671.
Keeping with the spirit of E.O. 13132 and consistent with EPA's
policy to promote communications between EPA and state and local
governments, EPA met with state and local officials throughout the
process of developing the proposed rule and received feedback on how
proposed options would affect them. EPA engaged in extensive outreach
via conference calls to authorized states (e.g., individual state
permitting authorities, and the Association of Clean Water
Administrators) and regulated MS4s (e.g., the National Association of
Clean Water Agencies, Water Environment Federation, National
Association of Flood & Stormwater Management Agencies, National
Municipal Stormwater Alliance) to gather input on how EPA's current
regulations are affecting them, and to enable officials of affected
state and local governments to have meaningful and timely input into
the development of the options presented in this rule. EPA also reached
out to a number of environmental organizations (e.g., American Rivers,
Chesapeake Bay Foundation, Cahaba River Society, Natural Resources
Defense Council, PennFuture, River Network) and regulated industry
(e.g., National Association of Home Builders).
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175 since it does not have a direct substantial
impact on one or more federally recognized tribes. The rule affects the
way in which small MS4s are covered under a general permit for
stormwater discharges and primarily affects the NPDES permitting
authorities. No tribal governments are authorized NPDES permitting
authorities at this time. The rule could have an indirect impact on an
Indian tribe that is a regulated MS4 in that the NOI required for
coverage under a general permit may be changed as a result of the rule
(if finalized) or may be subject to closer scrutiny by the permitting
authority and more of the requirements could be established as
enforceable permit conditions. However, the substance of what an MS4
must do will not change significantly as a result of this rule. Thus,
Executive Order 13175 does not apply to this action.
Consistent with the EPA Policy on Consultation and Coordination
with Indian Tribes, EPA conducted outreach to tribal officials during
the development of this action. EPA spoke with tribal members during a
conference call with the National Tribal Water Council to gather input
on how tribal governments are currently affected by MS4 regulations and
may be affected by
[[Page 89348]]
the options in this rule. Based on this outreach and additional,
internal analysis, EPA confirmed that this action would have little
tribal impact.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it
does not significantly affect energy supply, distribution, or use.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA determined that the human health or environmental risk
addressed by this action will not have potential disproportionately
high and adverse human health or environmental effects on minority,
low-income, or indigenous populations. This action affects the
procedures by which NPDES permitting authorities provide general permit
coverage for small MS4s, to help ensure that small MS4s ``reduce the
discharge of pollutants to the maximum extent practicable (MEP), to
protect water quality and to satisfy the water quality requirements of
the Clean Water Act.'' It does not change any current human health or
environmental risk standards.
K. Congressional Review Act
This action is subject to the CRA, and EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 122
Environmental protection, Storm water, Water pollution.
Dated: November 17, 2016.
Gina McCarthy,
Administrator.
For the reasons stated in the preamble, EPA amends 40 CFR part 122
as set forth below:
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
0
1. The authority citation for part 122 continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
0
2. Amend Sec. 122.28 by adding paragraph (d) to read as follows:
Sec. 122.28 General permits (applicable to State NPDES programs, see
Sec. 123.25).
* * * * *
(d) Small municipal separate storm sewer systems (MS4s) (Applicable
to State programs). For general permits issued under paragraph (b) of
this section for small MS4s, the Director must establish the terms and
conditions necessary to meet the requirements of Sec. 122.34 using one
of the two permitting approaches in paragraph (d)(1) or (2) of this
section. The Director must indicate in the permit or fact sheet which
approach is being used.
(1) Comprehensive general permit. The Director includes all
required permit terms and conditions in the general permit; or
(2) Two-step general permit. The Director includes required permit
terms and conditions in the general permit applicable to all eligible
small MS4s and, during the process of authorizing small MS4s to
discharge, establishes additional terms and conditions not included in
the general permit to satisfy one or more of the permit requirements in
Sec. 122.34 for individual small MS4 operators.
(i) The general permit must require that any small MS4 operator
seeking authorization to discharge under the general permit submit a
Notice of Intent (NOI) consistent with Sec. 122.33(b)(1)(ii).
(ii) The Director must review the NOI submitted by the small MS4
operator to determine whether the information in the NOI is complete
and to establish the additional terms and conditions necessary to meet
the requirements of Sec. 122.34. The Director may require the small
MS4 operator to submit additional information. If the Director makes a
preliminary decision to authorize the small MS4 operator to discharge
under the general permit, the Director must give the public notice of
and opportunity to comment and request a public hearing on its proposed
authorization and the NOI, the proposed additional terms and
conditions, and the basis for these additional requirements. The public
notice, the process for submitting public comments and hearing
requests, and the hearing process if a request for a hearing is
granted, must follow the procedures applicable to draft permits set
forth in Sec. Sec. 124.10 through 124.13 (excluding Sec.
124.10(c)(2)). The Director must respond to significant comments
received during the comment period as provided in Sec. 124.17.
(iii) Upon authorization for the MS4 to discharge under the general
permit, the final additional terms and conditions applicable to the MS4
operator become effective. The Director must notify the permittee and
inform the public of the decision to authorize the MS4 to discharge
under the general permit and of the final additional terms and
conditions specific to the MS4.
0
3. Revise Sec. 122.33 to read as follows:
Sec. 122.33 Requirements for obtaining permit coverage for regulated
small MS4s.
(a) The operator of any regulated small MS4 under Sec. 122.32 must
seek coverage under an NPDES permit issued by the applicable NPDES
permitting authority. If the small MS4 is located in an NPDES
authorized State, Tribe, or Territory, then that State, Tribe, or
Territory is the NPDES permitting authority. Otherwise, the NPDES
permitting authority is the EPA Regional Office for the Region where
the small MS4 is located.
(b) The operator of any regulated small MS4 must seek authorization
to discharge under a general or individual NPDES permit, as follows:
(1) General permit. (i) If seeking coverage under a general permit
issued by the NPDES permitting authority in accordance with Sec.
122.28(d)(1), the small MS4 operator must submit a Notice of Intent
(NOI) to the NPDES permitting authority consistent with Sec.
122.28(b)(2). The small MS4 operator may file its own NOI, or the small
MS4 operator and other municipalities or governmental entities may
jointly submit an NOI. If the small MS4 operator wants to share
responsibilities for meeting the minimum measures with other
municipalities or governmental entities, the small MS4 operator must
submit an NOI that describes which minimum measures it will implement
and identify the entities that will implement the other minimum
measures within the area served by the MS4. The general permit will
explain any other steps necessary to obtain permit authorization.
[[Page 89349]]
(ii) If seeking coverage under a general permit issued by the NPDES
permitting authority in accordance with Sec. 122.28(d)(2), the small
MS4 operator must submit an NOI to the Director consisting of the
minimum required information in Sec. 122.28(b)(2)(ii), and any other
information the Director identifies as necessary to establish
additional terms and conditions that satisfy the permit requirements of
Sec. 122.34, such as the information required under Sec.
122.33(b)(2)(i). The general permit will explain any other steps
necessary to obtain permit authorization.
(2) Individual permit. (i) If seeking authorization to discharge
under an individual permit to implement a program under Sec. 122.34,
the small MS4 operator must submit an application to the appropriate
NPDES permitting authority that includes the information required under
Sec. 122.21(f) and the following:
(A) The best management practices (BMPs) that the small MS4
operator or another entity proposes to implement for each of the storm
water minimum control measures described in Sec. 122.34(b)(1) through
(6);
(B) The proposed measurable goals for each of the BMPs including,
as appropriate, the months and years in which the small MS4 operator
proposes to undertake required actions, including interim milestones
and the frequency of the action;
(C) The person or persons responsible for implementing or
coordinating the storm water management program;
(D) An estimate of square mileage served by the small MS4;
(E) Any additional information that the NPDES permitting authority
requests; and
(F) A storm sewer map that satisfies the requirement of Sec.
122.34(b)(3)(i) satisfies the map requirement in Sec. 122.21(f)(7).
(ii) If seeking authorization to discharge under an individual
permit to implement a program that is different from the program under
Sec. 122.34, the small MS4 operator must comply with the permit
application requirements in Sec. 122.26(d). The small MS4 operator
must submit both parts of the application requirements in Sec.
122.26(d)(1) and (2). The small MS4 operator must submit the
application at least 180 days before the expiration of the small MS4
operator's existing permit. Information required by Sec.
122.26(d)(1)(ii) and (d)(2) regarding its legal authority is not
required, unless the small MS4 operator intends for the permit writer
to take such information into account when developing other permit
conditions.
(iii) If allowed by your NPDES permitting authority, the small MS4
operator and another regulated entity may jointly apply under either
paragraph (b)(2)(i) or (ii) of this section to be co-permittees under
an individual permit.
(3) Co-permittee alternative. If the regulated small MS4 is in the
same urbanized area as a medium or large MS4 with an NPDES storm water
permit and that other MS4 is willing to have the small MS4 operator
participate in its storm water program, the parties may jointly seek a
modification of the other MS4 permit to include the small MS4 operator
as a limited co-permittee. As a limited co-permittee, the small MS4
operator will be responsible for compliance with the permit's
conditions applicable to its jurisdiction. If the small MS4 operator
chooses this option it must comply with the permit application
requirements of Sec. 122.26, rather than the requirements of Sec.
122.33(b)(2)(i). The small MS4 operator does not need to comply with
the specific application requirements of Sec. 122.26(d)(1)(iii) and
(iv) and (d)(2)(iii) (discharge characterization). The small MS4
operator may satisfy the requirements in Sec. 122.26 (d)(1)(v) and
(d)(2)(iv) (identification of a management program) by referring to the
other MS4's storm water management program.
(4) Guidance for paragraph (b)(3) of this section. In referencing
the other MS4 operator's storm water management program, the small MS4
operator should briefly describe how the existing program will address
discharges from the small MS4 or would need to be supplemented in order
to adequately address the discharges. The small MS4 operator should
also explain its role in coordinating storm water pollutant control
activities in the MS4, and detail the resources available to the small
MS4 operator to accomplish the program.
(c) If the regulated small MS4 is designated under Sec.
122.32(a)(2), the small MS4 operator must apply for coverage under an
NPDES permit, or apply for a modification of an existing NPDES permit
under paragraph (b)(3) of this section, within 180 days of notice of
such designation, unless the NPDES permitting authority grants a later
date.
0
4. Revise Sec. 122.34 to read as follows:
Sec. 122.34 Permit requirements for regulated small MS4 permits.
(a) General requirements. For any permit issued to a regulated
small MS4, the NPDES permitting authority must include permit terms and
conditions to reduce the discharge of pollutants from the MS4 to the
maximum extent practicable (MEP), to protect water quality, and to
satisfy the appropriate water quality requirements of the Clean Water
Act. Terms and conditions that satisfy the requirements of this section
must be expressed in clear, specific, and measurable terms. Such terms
and conditions may include narrative, numeric, or other types of
requirements (e.g., implementation of specific tasks or best management
practices (BMPs), BMP design requirements, performance requirements,
adaptive management requirements, schedules for implementation and
maintenance, and frequency of actions).
(1) For permits providing coverage to any small MS4s for the first
time, the NPDES permitting authority may specify a time period of up to
5 years from the date of permit issuance for the permittee to fully
comply with the conditions of the permit and to implement necessary
BMPs.
(2) For each successive permit, the NPDES permitting authority must
include terms and conditions that meet the requirements of this section
based on its evaluation of the current permit requirements, record of
permittee compliance and program implementation progress, current water
quality conditions, and other relevant information.
(b) Minimum control measures. The permit must include requirements
that ensure the permittee implements, or continues to implement, the
minimum control measures in paragraphs (b)(1) through (6) of this
section during the permit term. The permit must also require a written
storm water management program document or documents that, at a
minimum, describes in detail how the permittee intends to comply with
the permit's requirements for each minimum control measure.
(1) Public education and outreach on storm water impacts. (i) The
permit must identify the minimum elements and require implementation of
a public education program to distribute educational materials to the
community or conduct equivalent outreach activities about the impacts
of storm water discharges on water bodies and the steps that the public
can take to reduce pollutants in storm water runoff.
(ii) Guidance for NPDES permitting authorities and regulated small
MS4s: The permittee may use storm water educational materials provided
by the State, Tribe, EPA, environmental, public interest or trade
organizations, or other MS4s. The public education program
[[Page 89350]]
should inform individuals and households about the steps they can take
to reduce storm water pollution, such as ensuring proper septic system
maintenance, ensuring the proper use and disposal of landscape and
garden chemicals including fertilizers and pesticides, protecting and
restoring riparian vegetation, and properly disposing of used motor oil
or household hazardous wastes. EPA recommends that the program inform
individuals and groups how to become involved in local stream and beach
restoration activities as well as activities that are coordinated by
youth service and conservation corps or other citizen groups. EPA
recommends that the permit require the permittee to tailor the public
education program, using a mix of locally appropriate strategies, to
target specific audiences and communities. Examples of strategies
include distributing brochures or fact sheets, sponsoring speaking
engagements before community groups, providing public service
announcements, implementing educational programs targeted at school age
children, and conducting community-based projects such as storm drain
stenciling, and watershed and beach cleanups. In addition, EPA
recommends that the permit require that some of the materials or
outreach programs be directed toward targeted groups of commercial,
industrial, and institutional entities likely to have significant storm
water impacts. For example, providing information to restaurants on the
impact of grease clogging storm drains and to garages on the impact of
oil discharges. The permit should encourage the permittee to tailor the
outreach program to address the viewpoints and concerns of all
communities, particularly minority and disadvantaged communities, as
well as any special concerns relating to children.
(2) Public involvement/participation. (i) The permit must identify
the minimum elements and require implementation of a public
involvement/participation program that complies with State, Tribal, and
local public notice requirements.
(ii) Guidance for NPDES permitting authorities and regulated small
MS4s: EPA recommends that the permit include provisions addressing the
need for the public to be included in developing, implementing, and
reviewing the storm water management program and that the public
participation process should make efforts to reach out and engage all
economic and ethnic groups. Opportunities for members of the public to
participate in program development and implementation include serving
as citizen representatives on a local storm water management panel,
attending public hearings, working as citizen volunteers to educate
other individuals about the program, assisting in program coordination
with other pre-existing programs, or participating in volunteer
monitoring efforts. (Citizens should obtain approval where necessary
for lawful access to monitoring sites.)
(3) Illicit discharge detection and elimination. (i) The permit
must identify the minimum elements and require the development,
implementation, and enforcement of a program to detect and eliminate
illicit discharges (as defined at Sec. 122.26(b)(2)) into the small
MS4. At a minimum, the permit must require the permittee to:
(A) Develop, if not already completed, a storm sewer system map,
showing the location of all outfalls and the names and location of all
waters of the United States that receive discharges from those
outfalls;
(B) To the extent allowable under State, Tribal or local law,
effectively prohibit, through ordinance, or other regulatory mechanism,
non-storm water discharges into the storm sewer system and implement
appropriate enforcement procedures and actions;
(C) Develop and implement a plan to detect and address non-storm
water discharges, including illegal dumping, to the system; and
(D) Inform public employees, businesses, and the general public of
hazards associated with illegal discharges and improper disposal of
waste.
(ii) The permit must also require the permittee to address the
following categories of non-storm water discharges or flows (i.e.,
illicit discharges) only if the permittee identifies them as a
significant contributor of pollutants to the small MS4: Water line
flushing, landscape irrigation, diverted stream flows, rising ground
waters, uncontaminated ground water infiltration (as defined at 40 CFR
35.2005(b)(20)), uncontaminated pumped ground water, discharges from
potable water sources, foundation drains, air conditioning
condensation, irrigation water, springs, water from crawl space pumps,
footing drains, lawn watering, individual residential car washing,
flows from riparian habitats and wetlands, dechlorinated swimming pool
discharges, and street wash water (discharges or flows from
firefighting activities are excluded from the effective prohibition
against non-storm water and need only be addressed where they are
identified as significant sources of pollutants to waters of the United
States).
(iii) Guidance for NPDES permitting authorities and regulated small
MS4s: EPA recommends that the permit require the plan to detect and
address illicit discharges include the following four components:
Procedures for locating priority areas likely to have illicit
discharges; procedures for tracing the source of an illicit discharge;
procedures for removing the source of the discharge; and procedures for
program evaluation and assessment. EPA recommends that the permit
require the permittee to visually screen outfalls during dry weather
and conduct field tests of selected pollutants as part of the
procedures for locating priority areas. Illicit discharge education
actions may include storm drain stenciling, a program to promote,
publicize, and facilitate public reporting of illicit connections or
discharges, and distribution of outreach materials.
(4) Construction site storm water runoff control. (i) The permit
must identify the minimum elements and require the development,
implementation, and enforcement of a program to reduce pollutants in
any storm water runoff to the small MS4 from construction activities
that result in a land disturbance of greater than or equal to one acre.
Reduction of storm water discharges from construction activity
disturbing less than one acre must be included in the program if that
construction activity is part of a larger common plan of development or
sale that would disturb one acre or more. If the Director waives
requirements for storm water discharges associated with small
construction activity in accordance with Sec. 122.26(b)(15)(i), the
permittee is not required to develop, implement, and/or enforce a
program to reduce pollutant discharges from such sites. At a minimum,
the permit must require the permittee to develop and implement:
(A) An ordinance or other regulatory mechanism to require erosion
and sediment controls, as well as sanctions to ensure compliance, to
the extent allowable under State, Tribal, or local law;
(B) Requirements for construction site operators to implement
appropriate erosion and sediment control best management practices;
(C) Requirements for construction site operators to control waste
such as discarded building materials, concrete truck washout,
chemicals, litter, and sanitary waste at the construction site that may
cause adverse impacts to water quality;
[[Page 89351]]
(D) Procedures for site plan review which incorporate consideration
of potential water quality impacts;
(E) Procedures for receipt and consideration of information
submitted by the public, and
(F) Procedures for site inspection and enforcement of control
measures.
(ii) Guidance for NPDES permitting authorities and regulated small
MS4s: Examples of sanctions to ensure compliance include non-monetary
penalties, fines, bonding requirements and/or permit denials for non-
compliance. EPA recommends that the procedures for site plan review
include the review of individual pre-construction site plans to ensure
consistency with local sediment and erosion control requirements.
Procedures for site inspections and enforcement of control measures
could include steps to identify priority sites for inspection and
enforcement based on the nature of the construction activity,
topography, and the characteristics of soils and receiving water
quality. EPA also recommends that the permit require the permittee to
provide appropriate educational and training measures for construction
site operators, and require storm water pollution prevention plans for
construction sites within the MS4's jurisdiction that discharge into
the system. See Sec. 122.44(s) (NPDES permitting authorities' option
to incorporate qualifying State, Tribal and local erosion and sediment
control programs into NPDES permits for storm water discharges from
construction sites). Also see Sec. 122.35(b) (The NPDES permitting
authority may recognize that another government entity, including the
NPDES permitting authority, may be responsible for implementing one or
more of the minimum measures on the permittee's behalf).
(5) Post-construction storm water management in new development and
redevelopment. (i) The permit must identify the minimum elements and
require the development, implementation, and enforcement of a program
to address storm water runoff from new development and redevelopment
projects that disturb greater than or equal to one acre, including
projects less than one acre that are part of a larger common plan of
development or sale, that discharge into the small MS4. The permit must
ensure that controls are in place that would prevent or minimize water
quality impacts. At a minimum, the permit must require the permittee
to:
(A) Develop and implement strategies which include a combination of
structural and/or non-structural best management practices (BMPs)
appropriate for the community;
(B) Use an ordinance or other regulatory mechanism to address post-
construction runoff from new development and redevelopment projects to
the extent allowable under State, Tribal or local law; and
(C) Ensure adequate long-term operation and maintenance of BMPs.
(ii) Guidance for NPDES permitting authorities and regulated small
MS4s: If water quality impacts are considered from the beginning stages
of a project, new development and potentially redevelopment provide
more opportunities for water quality protection. EPA recommends that
the permit ensure that BMPs included in the program: Be appropriate for
the local community; minimize water quality impacts; and attempt to
maintain pre-development runoff conditions. EPA encourages the
permittee to participate in locally-based watershed planning efforts
which attempt to involve a diverse group of stakeholders including
interested citizens. When developing a program that is consistent with
this measure's intent, EPA recommends that the permit require the
permittee to adopt a planning process that identifies the
municipality's program goals (e.g., minimize water quality impacts
resulting from post-construction runoff from new development and
redevelopment), implementation strategies (e.g., adopt a combination of
structural and/or non-structural BMPs), operation and maintenance
policies and procedures, and enforcement procedures. In developing the
program, the permit should also require the permittee to assess
existing ordinances, policies, programs and studies that address storm
water runoff quality. In addition to assessing these existing documents
and programs, the permit should require the permittee to provide
opportunities to the public to participate in the development of the
program. Non-structural BMPs are preventative actions that involve
management and source controls such as: Policies and ordinances that
provide requirements and standards to direct growth to identified
areas, protect sensitive areas such as wetlands and riparian areas,
maintain and/or increase open space (including a dedicated funding
source for open space acquisition), provide buffers along sensitive
water bodies, minimize impervious surfaces, and minimize disturbance of
soils and vegetation; policies or ordinances that encourage infill
development in higher density urban areas, and areas with existing
infrastructure; education programs for developers and the public about
project designs that minimize water quality impacts; and measures such
as minimization of percent impervious area after development and
minimization of directly connected impervious areas. Structural BMPs
include: Storage practices such as wet ponds and extended-detention
outlet structures; filtration practices such as grassed swales, sand
filters and filter strips; and infiltration practices such as
infiltration basins and infiltration trenches. EPA recommends that the
permit ensure the appropriate implementation of the structural BMPs by
considering some or all of the following: Pre-construction review of
BMP designs; inspections during construction to verify BMPs are built
as designed; post-construction inspection and maintenance of BMPs; and
penalty provisions for the noncompliance with design, construction or
operation and maintenance. Storm water technologies are constantly
being improved, and EPA recommends that the permit requirements be
responsive to these changes, developments or improvements in control
technologies.
(6) Pollution prevention/good housekeeping for municipal
operations. (i) The permit must identify the minimum elements and
require the development and implementation of an operation and
maintenance program that includes a training component and has the
ultimate goal of preventing or reducing pollutant runoff from municipal
operations. Using training materials that are available from EPA, the
State, Tribe, or other organizations, the program must include employee
training to prevent and reduce storm water pollution from activities
such as park and open space maintenance, fleet and building
maintenance, new construction and land disturbances, and storm water
system maintenance.
(ii) Guidance for NPDES permitting authorities and regulated small
MS4s: EPA recommends that the permit address the following: Maintenance
activities, maintenance schedules, and long-term inspection procedures
for structural and non-structural storm water controls to reduce
floatables and other pollutants discharged from the separate storm
sewers; controls for reducing or eliminating the discharge of
pollutants from streets, roads, highways, municipal parking lots,
maintenance and storage yards, fleet or maintenance shops with outdoor
storage areas, salt/sand storage locations and snow disposal areas
operated by the permittee, and waste transfer stations; procedures for
properly disposing of waste removed from the separate storm
[[Page 89352]]
sewers and areas listed above (such as dredge spoil, accumulated
sediments, floatables, and other debris); and ways to ensure that new
flood management projects assess the impacts on water quality and
examine existing projects for incorporating additional water quality
protection devices or practices. Operation and maintenance should be an
integral component of all storm water management programs. This measure
is intended to improve the efficiency of these programs and require new
programs where necessary. Properly developed and implemented operation
and maintenance programs reduce the risk of water quality problems.
(c) Other applicable requirements. As appropriate, the permit will
include:
(1) More stringent terms and conditions, including permit
requirements that modify, or are in addition to, the minimum control
measures based on an approved total maximum daily load (TMDL) or
equivalent analysis, or where the Director determines such terms and
conditions are needed to protect water quality.
(2) Other applicable NPDES permit requirements, standards and
conditions established in the individual or general permit, developed
consistent with the provisions of Sec. Sec. 122.41 through 122.49.
(d) Evaluation and assessment requirements--(1) Evaluation. The
permit must require the permittee to evaluate compliance with the terms
and conditions of the permit, including the effectiveness of the
components of its storm water management program, and the status of
achieving the measurable requirements in the permit.
Note to paragraph (d)(1): The NPDES permitting authority may
determine monitoring requirements for the permittee in accordance
with State/Tribal monitoring plans appropriate to the watershed.
Participation in a group monitoring program is encouraged.
(2) Recordkeeping. The permit must require that the permittee keep
records required by the NPDES permit for at least 3 years and submit
such records to the NPDES permitting authority when specifically asked
to do so. The permit must require the permittee to make records,
including a written description of the storm water management program,
available to the public at reasonable times during regular business
hours (see Sec. 122.7 for confidentiality provision). (The permittee
may assess a reasonable charge for copying. The permit may allow the
permittee to require a member of the public to provide advance notice.)
(3) Reporting. Unless the permittee is relying on another entity to
satisfy its NPDES permit obligations under Sec. 122.35(a), the
permittee must submit annual reports to the NPDES permitting authority
for its first permit term. For subsequent permit terms, the permittee
must submit reports in year two and four unless the NPDES permitting
authority requires more frequent reports. As of December 21, 2020 all
reports submitted in compliance with this section must be submitted
electronically by the owner, operator, or the duly authorized
representative of the small MS4 to the NPDES permitting authority or
initial recipient, as defined in 40 CFR 127.2(b), in compliance with
this section and 40 CFR part 3 (including, in all cases, subpart D to
part 3), Sec. 122.22, and 40 CFR part 127. Part 127 is not intended to
undo existing requirements for electronic reporting. Prior to this
date, and independent of part 127, the owner, operator, or the duly
authorized representative of the small MS4 may be required to report
electronically if specified by a particular permit or if required to do
so by state law. The report must include:
(i) The status of compliance with permit terms and conditions;
(ii) Results of information collected and analyzed, including
monitoring data, if any, during the reporting period;
(iii) A summary of the storm water activities the permittee
proposes to undertake to comply with the permit during the next
reporting cycle;
(iv) Any changes made during the reporting period to the
permittee's storm water management program; and
(v) Notice that the permittee is relying on another governmental
entity to satisfy some of the permit obligations (if applicable),
consistent with Sec. 122.35(a).
(e) Qualifying local program. If an existing qualifying local
program requires the permittee to implement one or more of the minimum
control measures of paragraph (b) of this section, the NPDES permitting
authority may include conditions in the NPDES permit that direct the
permittee to follow that qualifying program's requirements rather than
the requirements of paragraph (b). A qualifying local program is a
local, State or Tribal municipal storm water management program that
imposes, at a minimum, the relevant requirements of paragraph (b).
0
5. Amend Sec. 122.35 by revising the section heading and paragraph (a)
to read as follows:
Sec. 122.35 May the operator of a regulated small MS4 share the
responsibility to implement the minimum control measures with other
entities?
(a) The permittee may rely on another entity to satisfy its NPDES
permit obligations to implement a minimum control measure if:
(1) The other entity, in fact, implements the control measure;
(2) The particular control measure, or component thereof, is at
least as stringent as the corresponding NPDES permit requirement; and
(3) The other entity agrees to implement the control measure on the
permittee's behalf. In the reports, the permittee must submit under
Sec. 122.34(d)(3), the permittee must also specify that it is relying
on another entity to satisfy some of the permit obligations. If the
permittee is relying on another governmental entity regulated under
section 122 to satisfy all of the permit obligations, including the
obligation to file periodic reports required by Sec. 122.34(d)(3), the
permittee must note that fact in its NOI, but the permittee is not
required to file the periodic reports. The permittee remains
responsible for compliance with the permit obligations if the other
entity fails to implement the control measure (or component thereof).
Therefore, EPA encourages the permittee to enter into a legally binding
agreement with that entity if the permittee wants to minimize any
uncertainty about compliance with the permit.
* * * * *
[FR Doc. 2016-28426 Filed 12-8-16; 8:45 am]
BILLING CODE 6560-50-P
