NPDES Small MS4 Urbanized Area Clarification, 74066-74072 [2022-26227]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 87, Number 231 (Friday, December 2, 2022)]
[Proposed Rules]
[Pages 74066-74072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26227]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122 and 123

[EPA-HQ-OW-2022-0834; FRL-10123-01-OW]
RIN 2040-AG27


NPDES Small MS4 Urbanized Area Clarification

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
clarify its National Pollutant Discharge Elimination System (NPDES) 
Stormwater Phase II regulations due to recent changes made by the 
Census Bureau. The changes to EPA's regulations would be limited to 
clarifying that the designation criteria for small municipal separate 
storm sewer systems (MS4s), which have been used since the promulgation 
of the regulations in 1999, would remain the same. These clarifications 
are necessary due to the Census Bureau's recent decision to discontinue 
its practice of publishing the location of ``urbanized areas'' along 
with the 2020 Census and future censuses. The clarification in this 
proposed rulemaking would replace the term ``urbanized area'' in the 
Phase II regulations with the phrase ``urban areas with a population of 
at least 50,000,'' which is the Census Bureau's longstanding definition 
of the term urbanized areas. This change would allow NPDES permitting 
authorities to use 2020 Census and future Census data in a manner that 
is consistent with existing longstanding regulatory practice. Because 
this clarification would maintain the current scope of which entities 
are regulated as small MS4s, and is not expected to generate 
opposition, EPA is also publishing the same clarification in the 
Federal Register as a direct final rule. As is EPA's practice for 
direct final rules, if the Agency receives adverse comments in response 
to either the direct final rule or this proposed rulemaking, EPA will 
publish a timely withdrawal of the direct final rule in the Federal 
Register informing the public that the rule will not take effect and 
will address public comments received in any final rule action.

DATES: Comments on this proposed rule must be received on or before 
January 3, 2023.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2022-0834 to https://www.regulations.gov/. Follow the online 
instructions for submitting comments.
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Written Comments'' 
heading of the Public Participation section of this document.

FOR FURTHER INFORMATION CONTACT: Heather Huddle, Water Permits Division 
(MC4203), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, 
Washington DC 20004; telephone number: (202) 564-7932; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: This proposed rulemaking to clarify the 
NPDES small MS4 urbanized area definition is being published in tandem 
with a direct final rule published in the ``Rules'' section of the 
Federal Register under the same title. Both this proposed rulemaking 
and the separate direct final rule would make the same clarification to 
the Phase II regulations. Both actions are limited to clarifying that 
EPA will retain the existing threshold for automatic designation of 
small MS4s for regulation under the Phase II stormwater permitting 
regulations. The threshold for automatic designation was used following 
the 2000 and 2010 Censuses and is based on the MS4 being in an 
urbanized area of 50,000 or more people. Both this proposed rulemaking 
and the direct final rule actions would maintain the threshold for 
automatic designations of small MS4s and would ensure that the 
designation of new MS4s will continue as originally required under the 
Phase II regulations. EPA explains that the Agency views this as a 
noncontroversial action and anticipates no adverse comment. However, if 
EPA receives adverse comment in response to either publication, the 
Agency will publish a timely withdrawal of the direct final rule in the 
Federal Register informing the public that the direct final rule will

[[Page 74067]]

not take effect. EPA would then address public comments as required as 
part of any subsequent final rule based on the proposed rulemaking.

Table of Contents

I. Public Participation
    A. Written Comments
    B. Tips for Preparing Your Comments
II. General Information
    A. Does this action apply to me?
    B. What action is EPA taking?
    C. What is the Agency's authority for taking this action?
    D. Background
III. Rationale and Summary of Proposed Rule
    A. Why a Change to the Phase II Regulations Is Appropriate
    B. Rationale for Proposed Clarification to Phase II Regulations
    C. Summary of Proposed Changes to Phase II Regulations
    D. Costs of This Proposed Action
    E. Implementation and Technical Assistance
IV. 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 (NTTAA)
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act (CRA)

I. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OW-2022-
0834, at https://www.regulations.gov. Once submitted, comments cannot 
be edited or removed from the docket. EPA may publish any comment 
received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential 
Business Information (CBI), Proprietary Business Information (PBI), or 
other information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA public comment 
policy; information about CBI, PBI, or multimedia submissions; and 
general guidance on making effective comments.

B. Tips for Preparing Your Comments

    When submitting comments, remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date, and 
page number).
     Follow directions--The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate concerns and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. General Information

A. Does this action apply to me?

    Entities potentially regulated by this proposed action include:

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                                                          North American
                                                             industry
            Category              Examples of regulated   classification
                                         entities         system (NAICS)
                                                               code
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Federal and state government...  EPA or state NPDES               924110
                                  stormwater permitting
                                  authorities.
Local governments..............  Operators of small               924110
                                  municipal separate
                                  storm sewer systems.
State government...............  State departments of             926120
                                  transportation.
Military.......................  Federal military bases.          928110
Public academic institutions...  Publicly-administered            611310
                                  colleges,
                                  universities, and
                                  professional schools.
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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 includes the types of entities that the EPA is now 
aware could potentially be regulated by this action. Other types of 
entities not included 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 122.28, 122.32, and 122.35, 
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 EPA taking?

    EPA is proposing to clarify its NPDES Phase II regulations due to 
recent changes made by the Census Bureau. The proposed changes to EPA's 
regulations are limited to clarifying that the designation criteria for 
small MS4s, which have been used since the promulgation of the 
regulations in 1999, will remain the same. The clarification would be 
effectuated by replacing the term previously used by the Census Bureau, 
``urbanized area,'' with the phrase ``urban areas with a population of 
at least 50,000,'' which is the Census Bureau's longstanding criteria 
for defining urbanized areas.

[[Page 74068]]

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

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

D. Background

1. Statutory and Regulatory Overview
    Stormwater discharges are subject to regulation under section 
402(p) of the Clean Water Act (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 discharges needed additional 
controls.
    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 United States and are designed or used for 
collecting or conveying stormwater, are not combined sewers, and are 
not part of a publicly-owned treatment works. 40 CFR 122.26(b)(8).
    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 designate for regulation 
additional categories of stormwater discharges not regulated in Phase I 
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. 40 CFR 122.32(a)(1) (``you are regulated if you operate a small 
MS4, including but not limited to systems operated by Federal, State, 
Tribal, and local governments, including State departments of 
transportation; and . . . [y]our small MS4 is located in an urbanized 
area as determined by the latest Decennial Census by the Bureau of the 
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.'' 40 CFR 122.26(b)(16). 
In addition, the Phase II rule includes authority for EPA (or states 
authorized to administer the NPDES program) to require NPDES permits 
for currently unregulated stormwater discharges through a designation 
process. 40 CFR 122.26(a)(9)(i)(C) and (D). Other small MS4s located 
outside of an urbanized area may be designated as a regulated small MS4 
if the NPDES permitting authority determines that its discharges cause, 
or have the potential to cause, an adverse impact on water quality. 40 
CFR 122.32(a)(2), 123.35(b)(3).
2. History of Using Urbanized Area Population Threshold for Small MS4 
Designations
    Since the 1950 Census, the Census Bureau has defined ``urbanized 
area'' as ``one or more cities of 50,000 or more and all the nearby 
closely settled suburban territory, or urban fringes. '' \1\ This 
definition was in effect when EPA promulgated the Phase II Rule in 
1999, and for the two censuses (2000 and 2010 Census) that have been 
published since then.\2\ The Census Bureau's use of this population 
threshold is significant for the Phase II permit program because where 
an MS4 is located within an area identified in the latest decennial 
Census as having a minimum population of 50,000 or more people (i.e., 
in an ``urbanized area''), the MS4 is automatically designated as 
regulated under the Phase II regulations.
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    \1\ 1950 Census of Population--Preliminary Counts, Population of 
Urbanized Areas: April 1, 1950, U.S. Department of Commerce, Bureau 
of the Census. Series PC-3 No. 9. February 1, 1951. See https://www2.census.gov/library/publications/decennial/1950/pc-03/pc-3-09.pdf.
    \2\ Urbanized areas have been defined by the Census Bureau as 
``urban areas that contain 50,000 or more people . . .''. See 76 FR 
53030, 53039 (August 24, 2011); and 67 FR 11663, 116667 (March 15, 
2002).
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    The Phase II regulations have referred to the term ``urbanized 
area'' since the small MS4 program's inception and this term has always 
been used synonymously with the 50,000 population threshold. When EPA 
initially promulgated the Phase II regulations, EPA explained that it 
was adopting the Census Bureau's definition of ``urbanized area'' as 
one of the designation criteria for small MS4s and provided a 
definition of ``urbanized area'' that was identical to the Census 
Bureau's definition. EPA stated in the preamble to the Phase II rule 
that ``[u]nder the Bureau of the Census definition of `urbanized area,' 
adopted by EPA for the purposes of this final rule, `an urbanized area 
(UA) comprises a place and the adjacent densely settled surrounding 
territory that together have a minimum population of 50,000 people.''' 
64 FR 68722, 68751 (December 8, 1999).
    EPA acknowledged that the Census Bureau could in the future change 
the criteria by which it defines ``urbanized area,'' which would then 
in turn affect the way in which new small MS4s would be automatically 
designated. It is for this reason that EPA explained in the Phase II 
rule preamble that new MS4 designations ``will be governed by the 
Bureau of the Census' definition of an urbanized area in effect for 
that year.'' 64 FR 68722, 68751 (December 8, 1999). However, the Census 
Bureau has not changed the 50,000 population threshold since they 
adopted it 70 years ago. From the small MS4 permit program's inception 
in 1999, therefore, EPA and state permitting authorities have always 
relied on the 50,000 population threshold to automatically designate 
and regulate MS4s. It is only now with the 2020 Census that the Census 
Bureau has announced its decision to no longer separately identify 
``urbanized areas.'' 87 FR 16706, 16707 (March 24, 2022).

III. Rationale and Summary of Proposed Rule

A. Why a Change to the Phase II Regulations Is Appropriate

    This section explains how the Census Bureau's elimination of the 
term ``urbanized area'' relates to which MS4s are automatically 
designated for regulation under the Phase II regulations based on the 
2020 Census and subsequent censuses.
    The Census Bureau's elimination of the term ``urbanized area'' does 
not

[[Page 74069]]

impact small MS4s that are already regulated under the Phase II rule. 
For those small MS4s already regulated because of their location in an 
``urbanized area'' designated by a previous census, the Phase II 
regulatory history indicates that a subsequent Census Bureau change to 
the designation criteria for urbanized areas does not affect their 
regulatory status. EPA stated in the Phase II rule preamble that even 
if the Census Bureau were to change its ``urbanized area'' definition, 
``a small MS4 that is automatically designated into the NPDES program 
for storm water under an urbanized area calculation for any given 
Census year will remain regulated regardless of the results of 
subsequent urbanized area calculations.'' 64 FR 68722, 68751 (December 
8, 1999).\3\ EPA's regulations, therefore, require continued regulation 
of previously designated small MS4s despite the Census Bureau's change. 
EPA notes that this does not prevent the operator of a qualifying MS4 
so designated from requesting consideration of an NPDES waiver under 40 
CFR 122.32(c).
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    \3\ EPA's statement in its entirety: ``Based on historical 
trends, EPA expects that any area determined by the Bureau of the 
Census to be included within an urbanized area as of the 1990 Census 
will not later be excluded from the urbanized area as of the 2000 
Census. However, it is important to note that even if this situation 
were to occur, for example, due to a possible change in the Bureau 
of the Census' urbanized area definition, a small MS4 that is 
automatically designated into the NPDES program for storm water 
under an urbanized area calculation for any given Census year will 
remain regulated regardless of the results of subsequent urbanized 
area calculations.''
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    The existing Phase II regulatory text does not explicitly instruct 
EPA how to treat the designation of new MS4s due to the fact that the 
Census Bureau's decennial censuses will no longer separately identify 
``urbanized areas.'' For the 1999 Phase II rule, EPA always intended 
the universe of regulated small MS4s to grow in a manner commensurate 
with the growth of ``urbanized areas'' as identified by the latest 
decennial census. However, while the Phase II rule preamble explained 
that new MS4s would be designated in accordance with the latest census 
definition of ``urbanized area,'' it did not provide instruction on 
what to do if a decennial census no longer identifies the location of 
such urbanized areas. EPA is proposing this action to address the 
Census Bureau's changes and clarify for permitting authorities and the 
public that it intends the scope of which small MS4s are regulated to 
not change, and that it would rely on what that term has always meant 
rather than having the regulations reference an out-of-date term.

B. Rationale for Proposed Clarification to Phase II Regulations

    The most straightforward way for EPA to clarify its regulations in 
a manner that maintains program continuity and consistency is to 
replace the reference to ``urbanized area'' in the Phase II regulations 
with text that replicates the 50,000 population threshold on which the 
Census Bureau and NPDES authorities have historically relied. As 
discussed in Section II.D.2 of this preamble, from the inception of the 
small MS4 permitting program, the 50,000 population threshold has been 
used synonymously with the term ``urbanized area'' by both the Census 
Bureau and NPDES permitting authorities. Replacing the term ``urbanized 
area'' with text that incorporates this same 50,000 population 
threshold would mean that the existing method for designating small 
MS4s following the latest decennial census would be identical to how it 
has always been implemented. This proposed change would thus ensure 
that there is no disruption in the designation of new MS4s and that the 
program would be implemented in a historically consistent manner.
    Substituting the obsolete references to ``urbanized areas'' with 
the 50,000 population threshold would also ensure that new Census 2020 
mapping data and subsequent census mapping data can be used seamlessly 
to identify newly regulated MS4s. Prior to the recent Census Bureau 
changes, the location of any ``urbanized areas'' would have been 
automatically identified with any decennial census. Moving forward, 
however, each decennial census will be limited to identifying ``urban 
areas'' without identifying ``urbanized areas'' within those areas. 
Even though ``urbanized area'' locations will no longer be provided as 
part of the 2020 Census and future censuses, the Census Bureau will 
continue to provide population data for each identified urban area.\4\ 
The availability of these population data will enable EPA and state 
permitting authorities to easily identify which urban areas have 
populations of 50,000 or more people and, therefore, to provide the 
necessary information to designate new MS4s.
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    \4\ In its 2020 Urban Areas Frequent Asked Questions, the Census 
Bureau provided the following answer in response to the question 
``Is it true that the Census Bureau is no longer defining urbanized 
areas?'': ``No. The Census Bureau will no longer identify an 
individual urban area as either an urbanized area or an urban 
cluster. We will refer to all areas as ``urban areas'' regardless of 
population size. We will publish population and housing counts for 
each urban area when we announce results of the 2020 Census urban 
area delineation. Data users and program will be able to use those 
counts and subsequent American Community Survey estimates to 
categorize urban areas according to population size.'' (emphasis 
added) See https://www2.census.gov/geo/pdfs/reference/ua/2020_Urban_Areas_FAQs.pdf.
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C. Summary of Proposed Changes to Phase II Regulations

    The proposed changes to the Phase II regulations are limited to 
replacing the existing references to ``urbanized area'' as a criterion 
for designating small MS4s for regulation with text that incorporates 
the underlying population threshold associated with that term, or more 
specifically ``urban areas with a population of 50,000 or more 
people.'' This change would be made in the following specific sections:
     40 CFR 122.28(a)(1)(vi): This provision describes the 
requirement that general permits can only be used to provide coverage 
to discharges in a specific geographic area. The change here would be 
to the existing list of examples of geographic or political boundary 
areas that meet this requirement, which currently refer to ``urbanized 
areas'' as one of the examples. The reference to ``urbanized areas'' 
here would be replaced by the described 50,000 population threshold.
     40 CFR 122.32(a)(1): This provision currently specifies 
that small MS4s located in ``urbanized areas'' are regulated as small 
MS4s. The reference to ``urbanized areas'' here would be replaced by 
the described 50,000 population threshold.
     40 CFR 122.32(d): This provision indicates that small MS4s 
regulated under 40 CFR 122.32(a)(1) for ``urbanized areas'' may be 
eligible for an NPDES waiver if they meet the applicable criteria. The 
reference to ``urbanized areas'' here would be substituted with a 
reference to the revised text in 40 CFR 122.32(a)(1).
     40 CFR 122.33(b)(3): This provision references the ability 
of regulated small MS4s located in the same ``urbanized area'' as a 
medium or large MS4 to be included as a limited co-permittee in the 
same NPDES permit as the medium or large MS4. The reference to 
``urbanized area'' would be modified to read ``urban area'' instead.
     40 CFR 123.35(b)(1)(ii): This provision includes a 
reference to an ``urbanized area'' in the context of regulatory 
guidance on criteria that state permitting authorities may use to 
designate other small MS4s for regulation, including ``contiguity to an 
urbanized area.'' The reference to

[[Page 74070]]

``urbanized area'' would be replaced by the described 50,000 population 
threshold.
     40 CFR 123.35(b)(2): This provision includes a reference 
to an ``urbanized area'' in the context of applying state permitting 
authority criteria for designating additional small MS4s for 
regulation, including MS4s located outside of an ``urbanized area'' 
serving a jurisdiction with a population density of at least 1,000 
people per square mile and a population of at least 10,000. The 
reference to ``urbanized area'' would be replaced by the described 
50,000 population threshold.
     40 CFR 123.35(d)(1): This provision indicates that small 
MS4s regulated under 40 CFR 122.32(a)(1) for ``urbanized areas'' may be 
eligible for an NPDES waiver if they meet the applicable criteria. The 
reference to ``urbanized areas'' here would be substituted with the 
described 50,000 population threshold.

D. Costs of This Proposed Action

    The regulatory clarifications in this proposed rulemaking would 
ensure that the population basis for regulating small MS4s remain the 
same. As a result, these clarifications would not result in increased 
costs to small MS4 permittees or to state and EPA permitting programs, 
nor would it regulate additional MS4s beyond what was required by the 
1999 Phase II regulations.

E. Implementation and Technical Assistance

    If no adverse comments are received in response to the direct final 
rule or this proposed rulemaking, the changes made by the direct final 
rule will become effective on March 2, 2023.
    EPA plans to continue to provide technical assistance to permitting 
authorities in a number of different ways to help with the 
implementation of the MS4 program following publication of the new 
census data. The following is a summary of EPA's planned technical 
assistance activities:
     Publish new MS4 mapping information: Following the 
publication of the 2020 Census urban area information, EPA will be able 
to determine which urban areas have a population of 50,000 or more 
people and thereby identify which areas meet the revised rule's 
criteria for small MS4s. EPA plans to use the 2020 Census data to 
publish mapping information that will show where urban areas with a 
population of 50,000 or more people are located in the United States 
and where these areas are located with respect to municipal boundaries. 
This information will enable permitting authorities to determine which 
jurisdictions are likely operating MS4s within urban areas that meet 
the 50,000 population threshold. EPA also plans to provide mapping 
information that compares the 2010 Census and 2020 Census location of 
these urban areas. Permitting authorities will be able to use this 
information to pinpoint the location of new MS4s and compare how the 
urban area boundaries have changed since the 2010 Census for existing 
MS4s.
     Provide permitting authorities with a draft list of new 
MS4s: To assist NPDES permitting authorities, EPA plans to use the 
mapping information described under the previous bullet point to 
preliminarily identify new MS4s that are located within the urban areas 
meeting the population threshold. EPA provided a similar list of new 
MS4s following the 2010 Census. Permitting authorities are then free to 
evaluate the MS4s identified on this list to determine if they are 
accurate and whether any changes are needed.
     Provide guidance materials: EPA will provide additional 
guidance related to the process of permitting newly designated MS4s 
that NPDES authorities may choose to use. EPA provided similar guidance 
following the publication of the 2010 Census, which included tips on 
the suggested steps to follow from initial contact with the new MS4 
operators to including them in the applicable NPDES permit. EPA also 
provided a letter template that permitting authorities could use to 
inform new MS4 operators of their designation and what to expect from 
the permitting process moving forward. The Agency plans to update these 
materials for the 2020 Census, and to explore what additional technical 
assistance may be needed. EPA will engage with its Federal and State 
permitting authority partners to determine which type of assistance may 
be the most beneficial.
     Rescind interim guidance: Earlier this year, EPA published 
on its website Interim Guidance on Census Elimination of ``Urbanized 
Areas'' (see https://www.epa.gov/npdes/interim-guidance-census-elimination-urbanized-area-definition). The guidance was intended to 
provide interim recommendations to permitting authorities regarding the 
implementation of their small MS4 permitting programs following the 
finalization of the Census Bureau's designation criteria changes while 
EPA evaluated how best to clarify its regulations. If the direct final 
rule becomes effective on March 2, 2023 due to the lack of adverse 
comments, the interim guidance will no longer be necessary and will be 
rescinded.

VI. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.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 not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an 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. This rule contains no new requirements for 
reporting and recordkeeping.

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. In 
making this determination, EPA concludes that the impact of concern for 
this rule is any significant adverse economic impact on small entities 
and that the Agency is certifying that this rule will not have a 
significant economic impact on a substantial number of small entities 
because the rule has no net burden on the small entities subject to the 
rule. EPA is limiting its proposed changes to substituting use of the 
term ``urbanized area'' in the four subsections of the Phase II 
regulations with the underlying population criteria that has been used 
synonymously with this term since the 1999 promulgation of the 
regulations. See discussion in Sections III.B and C of this preamble. 
Although making this proposed clarification is important to ensure 
program continuity and consistency, EPA views this change as akin to a 
clerical correction to remove an obsolete term and ensure that program 
applicability remains unchanged. The Agency has therefore concluded 
that this proposed action will have no net regulatory burden for all 
directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in

[[Page 74071]]

UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments, or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

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

    This action does not have tribal implications as specified in 
Executive Order 13175. It will not have substantial direct effects on 
tribal governments, on the relationship between the Federal government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes, as specified in 
Executive Order 13175. Thus, Executive Order 13175 does not apply to 
this action.

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

    The 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 is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    Executive Order 12898 (59 FR 7629, February 16, 1994) directs 
Federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies, and 
activities on minority populations (people of color and/or indigenous 
peoples) and low-income populations.
    The EPA believes that the human health and environmental conditions 
that exist prior to this action do not result in disproportionate and 
adverse effects on people of color, low-income populations, and/or 
indigenous peoples. This action makes a technical clarification to a 
previously promulgated regulatory action, and will not change the human 
health and environmental conditions that currently exist with the 
implementation of the Phase II regulations.
    The EPA believes that this action is not likely to result in new 
disproportionate and adverse effects on people of color, low-income 
populations and/or indigenous peoples. This regulatory action is a 
technical clarification to a previously promulgated regulatory action 
and does not have any disproportionate and adverse impact on people of 
color, low-income populations and/or indigenous peoples.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the 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

40 CFR Part 122

    Environmental protection, Stormwater, Water pollution.

40 CFR Part 123

    Environmental protection, Stormwater, Water pollution.

Michael S. Regan,
Administrator.
    For the reasons stated in the preamble, EPA proposes to amend 40 
CFR parts 122 and 123 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 revising paragraph (a)(1)(vi) to read as 
follows:


Sec.  122.28  General permits (applicable to State NPDES programs, see 
Sec.  123.25).

    (a) * * *
    (1) * * *
    (vi) Urban areas with a population of 50,000 or more people as 
determined by the latest Decennial Census by the Bureau of the Census; 
or
* * * * *
0
3. Amend Sec.  122.32 by revising paragraph (a)(1) and paragraph (d) 
introductory text to read as follows:


Sec.  122.32  As an operator of a small MS4, am I regulated under the 
NPDES storm water program?

    (a) * * *
    (1) Your small MS4 is located in an urban area with a population of 
50,000 or more people as determined by the latest Decennial Census by 
the Bureau of the Census. (If your small MS4 is not located entirely 
within an urban area with a population of 50,000 or more people, only 
the portion that is within this urban area is regulated); or
* * * * *
    (d) The NPDES permitting authority may waive permit coverage if 
your MS4 serves a population of less than 1,000 within the urban area 
identified in paragraph (a)(1) of this section and you meet the 
following criteria:
* * * * *
0
4. Amend Sec.  122.33 by revising paragraph (b)(3) to read as follows:


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

* * * * *
    (b) * * *
    (3) Co-permittee alternative. If the regulated small MS4 is in the 
same urban 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

[[Page 74072]]

(d)(2)(iv) (identification of a management program) by referring to the 
other MS4's storm water management program.
* * * * *

PART 123--STATE PROGRAM REQUIREMENTS

0
5. The authority citation for part 123 continues to read as follows:

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

0
6. Amend Sec.  123.35 by revising paragraphs (b)(1)(ii), (b)(2), and 
(d)(1) introductory text to read as follows:


Sec.  123.35  As the NPDES Permitting Authority for regulated small 
MS4s, what is my role?

* * * * *
    (b) * * *
    (1) * * *
    (ii) Guidance: For determining other significant water quality 
impacts, EPA recommends a balanced consideration of the following 
designation criteria on a watershed or other local basis: discharge to 
sensitive waters, high growth or growth potential, high population 
density, contiguity to an urban area with a population of 50,000 people 
or more as determined by the latest Decennial Census by the Bureau of 
the Census, significant contributor of pollutants to waters of the 
United States, and ineffective protection of water quality by other 
programs;
    (2) Apply such criteria, at a minimum, to any small MS4 located 
outside of an urban area with a population of 50,000 people or more as 
determined by the latest Decennial Census by the Bureau of the Census 
serving a jurisdiction with a population density of at least 1,000 
people per square mile and a population of at least 10,000;
* * * * *
    (d) * * *
    (1) You may waive permit coverage for each small MS4s in 
jurisdictions with a population under 1,000 within the urban area with 
a population of 50,000 people or more as determined by the latest 
Decennial Census by the Bureau of the Census where all the following 
criteria have been met:
* * * * *
[FR Doc. 2022-26227 Filed 12-1-22; 8:45 am]
BILLING CODE 6560-50-P