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National Pollutant Discharge Elimination System--Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: December 8, 1999 (Volume 64, Number 235)]
[Rules and Regulations]
[Page 68721-68770]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08de99-11]
[[Page 68721]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 9, 122, 123, and 124
National Pollutant Discharge Elimination System--Regulations for
Revision of the Water Pollution Control Program Addressing Storm Water
Discharges; Final Rule
Report to Congress on the Phase II Storm Water Regulations; Notice
[[Page 68722]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 122 , 123, and 124
[FRL--6470-8]
RIN 2040-AC82
National Pollutant Discharge Elimination System--Regulations for
Revision of the Water Pollution Control Program Addressing Storm Water
Discharges
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Today's regulations (Phase II) expand the existing National
Pollutant Discharge Elimination System (NPDES) storm water program
(Phase I) to address storm water discharges from small municipal
separate storm sewer systems (MS4s) (those serving less than 100,000
persons) and construction sites that disturb one to five acres.
Although these sources are automatically designated by today's rule,
the rule allows for the exclusion of certain sources from the national
program based on a demonstration of the lack of impact on water
quality, as well as the inclusion of others based on a higher
likelihood of localized adverse impact on water quality. Today's
regulations also exclude from the NPDES program storm water discharges
from industrial facilities that have ``no exposure'' of industrial
activities or materials to storm water. Finally, today's rule extends
from August 7, 2001 until March 10, 2003 the deadline by which certain
industrial facilities owned by small MS4s must obtain coverage under an
NPDES permit. This rule establishes a cost-effective, flexible approach
for reducing environmental harm by storm water discharges from many
point sources of storm water that are currently unregulated.
EPA believes that the implementation of the six minimum measures
identified for small MS4s should significantly reduce pollutants in
urban storm water compared to existing levels in a cost-effective
manner. Similarly, EPA believes that implementation of Best Management
Practices (BMP) controls at small construction sites will also result
in a significant reduction in pollutant discharges and an improvement
in surface water quality. EPA believes this rule will result in
monetized financial, recreational and health benefits, as well as
benefits that EPA has been unable to monetize. Expected benefits
include reduced scouring and erosion of streambeds, improved aesthetic
quality of waters, reduced eutrophication of aquatic systems, benefit
to wildlife and endangered and threatened species, tourism benefits,
biodiversity benefits and reduced costs for siting reservoirs. In
addition, the costs of industrial storm water controls will decrease
due to the exclusion of storm water discharges from facilities where
there is ``no exposure'' of storm water to industrial activities and
materials.
DATES: This regulation is effective on February 7, 2000. The
incorporation by reference of the rainfall erosivity factor publication
listed in the rule is approved by the Director of the Federal Register
as of February 7, 2000. For judicial review purposes, this final rule
is promulgated as of 1:00 p.m. Eastern Standard Time, on December 22,
1999 as provided in 40 CFR 23.2.
ADDRESSES: The complete administrative record for the final rule and
the ICR have been established under docket numbers W-97-12 (rule) and
W-97-15 (ICR), and includes supporting documentation as well as
printed, paper versions of electronic comments. Copies of information
in the record are available upon request. A reasonable fee may be
charged for copying. The record is available for inspection and copying
from 9 a.m. to 4 p.m., Monday through Friday, excluding legal holidays,
at the Water Docket, EPA, East Tower Basement, 401 M Street, SW,
Washington, DC. For access to docket materials, please call 202/260-
3027 to schedule an appointment.
FOR FURTHER INFORMATION CONTACT: George Utting, Office of Wastewater
Management, Environmental Protection Agency, Mail Code 4203, 401 M
Street, SW, Washington, DC 20460; (202) 260-5816; sw2@epa.gov.
SUPPLEMENTARY INFORMATION: Entities potentially regulated by this
action include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Federal, State, Tribal, and Local Operators of small separate
Governments. storm sewer systems,
industrial facilities that
discharge storm water
associated with industrial
activity or construction
activity disturbing 1 to 5
acres.
Industry............................... Operators of industrial
facilities that discharge
storm water associated with
industrial activity.
Construction Activity.................. Operators of construction
activity disturbing 1 to 5
acres.
------------------------------------------------------------------------
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 by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility or company is regulated by this action, you should
carefully examine the applicability criteria in Secs. 122.26(b),
122.31, 122.32, and 123.35 of the final rule. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
Table of Contents:
I. Background
A. Proposed Rule and Pre-proposal Outreach
B. Water Quality Concerns/Environmental Impact Studies and
Assessments
1. Urban Development
a. Large-Scale Studies and Assessments
b. Local and Watershed-Based Studies
c. Beach Closings/Advisories
2. Non-storm Water Discharges Through Municipal Storm Sewers
3. Construction Site Runoff
C. Statutory Background
D. EPA's Reports to Congress
E. Industrial Facilities Owned or Operated by Small
Municipalities
F. Related Nonpoint Source Programs
II. Description of Program
A. Overview
1. Objectives EPA Seeks to Achieve in Today's Rule
2. General Requirements for Regulated Entities Under Today's
Rule
3. Integration of Today's Rule With the Existing Storm Water
Program
4. General Permits
5. Tool Box
6. Deadlines Established in Today's Action
B. Readable Regulations
C. Program Framework: NPDES Approach
D. Federal Role
1. Develop Overall Framework of the Program
2. Encourage Consideration of ``Smart Growth'' Approaches
3. Provide Financial Assistance
4. Implement the Program in Jurisdictions not Authorized to
Administer the NPDES Program
5. Oversee State and Tribal Programs
6. Comply with Applicable Requirements as a Discharger
E. State Role
1. Develop the Program
2. Comply With Applicable Requirements as a Discharger
3. Communicate with EPA
F. Tribal Role
G. NPDES Permitting Authority's Role for the NPDES Storm Water
Small MS4 Program
1. Comply With Implementation Requirements
2. Designate Sources
a. Develop Designation Criteria
b. Apply Designation Criteria
[[Page 68723]]
c. Designate Physically Interconnected Small MS4s
d. Respond to Public Petitions for Designation
3. Provide Waivers
4. Issue Permits
5. Support and Oversee the Local Programs
H. Municipal Role
1. Scope of Today's Rule
2. Municipal Definitions
a. Municipal Separate Storm Sewer Systems (MS4s)
b. Small Municipal Separate Storm Sewer Systems
i. Combined Sewer Systems (CSS)
ii. Owners/Operators
c. Regulated Small MS4s
i. Urbanized Area Description
ii. Rationale for Using Urbanized Areas
d. Municipal Designation by the Permitting Authority
e. Waiving the Requirements for Small MS4s
3. Municipal Permit Requirements
a. Overview
i. Summary of Permitting Options
ii. Water Quality-Based Requirements
iii. Maximum Extent Practicable
b. Program Requirements--Minimum Control Measures
i. Public Education and Outreach on Storm Water Impacts
ii. Public Involvement/Participation
iii. Illicit Discharge Detection and Elimination
iv. Construction Site Storm Water Runoff Control
v. Post-Construction Storm Water Management in New Development
and Redevelopment
vi. Pollution Prevention/Good Housekeeping for Municipal
Operations
c. Application Requirements
i. Best Management Practices and Measurable Goals
ii. Individual Permit Application for a Sec. 122.34(b) Program
iii. Alternative Permit Option/ Tenth Amendment
iv. Satisfaction of Minimum Measure Obligations by Another
Entity
v. Joint Permit Programs
d. Evaluation and Assessment
i. Recordkeeping
ii. Reporting
iii. Permit-As-A-Shield
e. Other Applicable NPDES Requirements
f. Enforceability
g. Deadlines
h. Reevaluation of Rule
I. Other Designated Storm Water Discharges
1. Discharges Associated with Small Construction Activity
a. Scope
b. Waivers
i. Rainfall-Erosivity Waiver
ii. Water Quality Waiver
c. Permit Process and Administration
d. Cross-Referencing State, Tribal, or Local Erosion and
Sediment Control Programs
e. Alternative Approaches
2. Other Sources
3. ISTEA Sources
4. Residual Designation Authority
J. Conditional Exclusion for ``No Exposure'' of Industrial
Activities and Materials to Storm Water
1. Background
2. Today's Rule
3. Definition of ``No Exposure''
K. Public Involvement/Public Role
L. Water Quality Issues
1. Water Quality Based Effluent Limits
2. Total Maximum Daily Loads and Analysis to Determine the Need
for Water Quality-Based Limitations
3. Anti-Backsliding
4. Water Quality-Based Waivers and Designations
III. Cost-Benefit Analysis
A. Costs
1. Municipal Costs
2. Construction Costs
B. Quantitative Benefits
1. National Water Quality Model
2. National Water Quality Assessment
a. Municipal Measures
i. Fresh Waters Benefits
ii. Marine Waters Benefits
b. Construction Benefits
c. Summary of Benefits From the National Water Quality
Assessment
C. Qualitative Benefits
D. National Economic Impact
IV. Regulatory Requirements
A. Paperwork Reduction Act
B. Executive Order 12866
C. Unfunded Mandates Reform Act
1. Summary of UMRA Section 202 Written Statement
2. Selection of the Least Costly, Most Cost-Effective or Least
Burdensome Alternative That Achieves the Objectives of the Statute
3. Effects on Small Governments
D. Executive Order 13132
E. Regulatory Flexibility Act
F. National Technology Transfer And Advancement Act
G. Executive Order 13045
H. Executive Order 13084
I. Congressional Review Act
I. Background
A. Proposed Rule and Pre-Proposal Outreach
On January 9, 1998 (63 FR 1536), EPA proposed to expand the
National Pollutant Discharge Elimination System (NPDES) storm water
program to include storm water discharges from municipal separate storm
sewer systems (MS4s) and construction sites that were smaller than
those previously included in the program. The proposal also addressed
industrial sources that have ``no exposure'' of industrial activities
and materials to storm water. Today, EPA is promulgating a final rule
to implement most of the proposed revisions with minor changes based on
public comments received on the proposal. Today's final rule also
extends the deadline by which certain industrial facilities operated by
municipalities of less than 100,000 population must be covered by a
NPDES permit; the deadline is changed from August 7, 2001 until March
10, 2003.
In 1972, Congress amended the Federal Water Pollution Control Act
(commonly referred to as the Clean Water Act (CWA)) to prohibit the
discharge of any pollutant to waters of the United States from a point
source unless the discharge is authorized by an NPDES permit. The NPDES
program is a program designed to track point sources and require the
implementation of the controls necessary to minimize the discharge of
pollutants. Initial efforts to improve water quality under the NPDES
program primarily focused on reducing pollutants in industrial process
wastewater and municipal sewage. These discharge sources were easily
identified as responsible for poor, often drastically degraded, water
quality conditions.
As pollution control measures for industrial process wastewater and
municipal sewage were implemented and refined, it became increasingly
evident that more diffuse sources of water pollution were also
significant causes of water quality impairment. Specifically, storm
water runoff draining large surface areas, such as agricultural and
urban land, was found to be a major cause of water quality impairment,
including the nonattainment of designated beneficial uses.
In 1987, Congress amended the CWA to require implementation, in two
phases, of a comprehensive national program for addressing storm water
discharges. The first phase of the program, commonly referred to as
``Phase I,'' was promulgated on November 16, 1990 (55 FR 47990). Phase
I requires NPDES permits for storm water discharge from a large number
of priority sources including municipal separate storm sewer systems
(``MS4s'') generally serving populations of 100,000 or more and several
categories of industrial activity, including construction sites that
disturb five or more acres of land.
Today's rule, which is the second phase of the storm water program,
expands the existing program to include discharges of storm water from
smaller municipalities in urbanized areas and from construction sites
that disturb between one and five acres of land. Today's rule allows
certain sources to be excluded from the national program based on a
demonstrable lack of impact on water quality. The rule also allows
other sources not automatically regulated on a national basis to be
designated for inclusion based on increased likelihood for localized
adverse impact on water quality.
[[Page 68724]]
Today's rule also conditionally excludes storm water discharges from
industrial facilities that have ``no exposure'' of industrial
activities or materials to storm water. Today's rule and the effort
that led to its development are commonly referred to as ``Phase II.''
On August 7, 1995, EPA promulgated a final rule that required
facilities to be regulated under Phase II to apply for a NPDES permit
by August 7, 2001, unless the NPDES permitting authority designates
them as requiring a permit by an earlier date. (60 FR 40230). That rule
is referred to as ``the Interim Phase II Rule.'' Today's rule replaces
the Interim Phase II rule.
EPA performed extensive outreach and worked with a variety of
stakeholders prior to proposing today's rule. On September 9, 1992, EPA
published a notice requesting information and public comment on how to
prepare regulations under CWA section 402(p)(6) (see 57 FR 41344). The
notice identified three sets of issues associated with developing new
NPDES storm water regulations: (1) How should EPA identify unregulated
sources of storm water to protect water quality, (2) what types of
control strategies should EPA develop for these sources, and (3) what
are appropriate deadlines for implementing new requirements. The notice
recognized that potential sources for coverage under the section
402(p)(6) regulations would fall into two main categories: municipal
separate storm sewer systems and individual (commercial and
residential) sources. EPA received more than 130 comments on the
September 9, 1992, notice. For further discussion of the comments
received, see Storm Water Discharges Potentially Addressed by Phase II
of the National Pollutant Discharge Elimination System: Report to
Congress (EPA, 1995a), pp. 1-21 to 1-22, and Appendix J (which provides
a detailed summary of the comments received as they relate to the
specific issues raised in the notice).
In early 1993, the Rensselaerville Institute and EPA held public
and expert meetings to assist in developing and analyzing options for
identifying unregulated sources and possible controls. The report on
the 1993 meetings identified two options that were favored by the
various groups that participated. One option was a program that allowed
States to select sources to be controlled in a manner consistent with
criteria developed by EPA. A second option was a tiered approach under
which EPA would select high priority sources for control by NPDES
permits and States would select other sources for control under a State
water quality program other than the NPDES program. For additional
details see the ``Report on the EPA Storm Water Management Program
(Rensselaerville Study),'' Appendix I of Storm Water Discharges
Potentially Addressed by Phase II of the National Pollutant Discharge
Elimination System: Report to Congress (EPA, 1995a).
EPA also conducted outreach with representatives of small entities
in conjunction with the convening of a Small Business Advocacy Review
Panel under the Small Business Regulatory Enforcement Fairness Act
(SBREFA). This process is discussed in section IV.E of today's
preamble. For additional background see the discussion in the preamble
to the proposal for today's rule.
To assist EPA by providing advice and recommendations regarding the
urban municipal wet weather water pollution control program, EPA
established the Urban Wet Weather Flows Federal Advisory Committee
(hereinafter, ``FACA Committee'') under the Federal Advisory Committee
Act (FACA). The Office of Management and Budget approved the charter
for the FACA Committee on March 10, 1995. The FACA Committee provided a
forum for identifying and addressing issues associated with water
quality impacts from storm water sources.
The FACA Committee established two subcommittees: the Storm Water
Phase II FACA Subcommittee and the Sanitary Sewer Overflows (SSOs) FACA
Subcommittee. Consistent with the requirements of FACA, the membership
of both the FACA Committee and the subcommittees was balanced among
EPA's various outside stakeholder interests, including representatives
from municipalities, States, Indian Tribes, EPA, industrial and
commercial sectors, agriculture, and environmental and public interest
groups.
The Storm Water Phase II FACA Subcommittee (``Subcommittee'') met
fourteen times between September 1995 and June 1998. The 32
Subcommittee members discussed possible regulatory frameworks at these
meetings as well as during numerous other meetings and conference
calls. Members of the FACA Committee provided views regarding the
development of the ``no exposure'' provision and other provisions in
drafts of the Phase II rule. EPA provided Subcommittee members with
four successive drafts of the proposed rule and preamble, outlines of
the rule, summaries of the written comments received on each draft, and
documents identifying the changes made to each draft. In the course of
providing input to the Committee, individual Subcommittee members
provided significant input and advice that EPA considered in the
context of public comments received. Ultimately, the Subcommittee did
not provide a written report back to the FACA Committee, and the FACA
Committee did not provide written advice and recommendations to EPA.
The Agency, therefore, did not rely on group recommendations in
developing today's rule, but does consider the process to have resulted
in important public outreach.
B. Water Quality Concerns/Environmental Impact Studies and Assessments
Storm water runoff from lands modified by human activities can harm
surface water resources and, in turn, cause or contribute to an
exceedance of water quality standards by changing natural hydrologic
patterns, accelerating stream flows, destroying aquatic habitat, and
elevating pollutant concentrations and loadings. Such runoff may
contain or mobilize high levels of contaminants, such as sediment,
suspended solids, nutrients (phosphorous and nitrogen), heavy metals
and other toxic pollutants, pathogens, toxins, oxygen-demanding
substances (organic material), and floatables (U.S. EPA. 1992.
Environmental Impacts of Storm Water Discharges: A National Profile.
EPA 841-R-92-001. Office of Water. Washington, DC). After a rain, storm
water runoff carries these pollutants into nearby streams, rivers,
lakes, estuaries, wetlands, and oceans. The highest concentrations of
these contaminants often are contained in ``first flush'' discharges,
which occur during the first major storm after an extended dry period
(Schueler, T.R. 1994. ``First Flush of Stormwater Pollutants
Investigated in Texas.'' Note 28. Watershed Protection Techniques
1(2)). Individually and combined, these pollutants impair water
quality, threatening designated beneficial uses and causing habitat
alteration or destruction.
Uncontrolled storm water discharges from areas of urban development
and construction activity negatively impact receiving waters by
changing the physical, biological, and chemical composition of the
water, resulting in an unhealthy environment for aquatic organisms,
wildlife, and humans. The following sections discuss the studies and
data that address and support this finding.
Although water quality problems also can occur from agricultural
storm water discharges and return flows from irrigated agriculture,
this area of
[[Page 68725]]
concern is statutorily exempted from regulation as a point source under
the Clean Water Act and is not discussed here. (See CWA section
502(14)). Other storm water sources not specifically identified in the
regulations may be of concern in certain areas and can be addressed on
a case-by-case (or category-by-category) basis through the NPDES
designation authority preserved by CWA section 402(p)(2)(6), as well as
today's rule.
1. Urban Development
Urbanization alters the natural infiltration capability of the land
and generates a host of pollutants that are associated with the
activities of dense populations, thus causing an increase in storm
water runoff volumes and pollutant loadings in storm water discharged
to receiving waterbodies (U.S. EPA, 1992). Urban development increases
the amount of impervious surface in a watershed as farmland, forests,
and meadowlands with natural infiltration characteristics are converted
into buildings with rooftops, driveways, sidewalks, roads, and parking
lots with virtually no ability to absorb storm water. Storm water and
snow-melt runoff wash over these impervious areas, picking up
pollutants along the way while gaining speed and volume because of
their inability to disperse and filter into the ground. What results
are storm water flows that are higher in volume, pollutants, and
temperature than the flows in less impervious areas, which have more
natural vegetation and soil to filter the runoff (U.S. EPA, 1997.
Urbanization and Streams: Studies of Hydrologic Impacts. EPA 841-R-97-
009. Office of Water. Washington, DC).
Studies reveal that the level of imperviousness in an area strongly
correlates with the quality of the nearby receiving waters. For
example, a study in the Puget Sound lowland ecoregion found that when
the level of basin development exceeded 5 percent of the total
impervious area, the biological integrity and physical habitat
conditions that are necessary to support natural biological diversity
and complexity declined precipitously (May, C.W., E.B. Welch, R.R.
Horner, J.R. Karr, and B.W. May. 1997. Quality Indices for Urbanization
Effects in Puget Sound Lowland Streams, Technical Report No. 154.
University of Washington Water Resources Series). Research conducted in
numerous geographical areas, concentrating on various variables and
employing widely different methods, has revealed a similar conclusion:
stream degradation occurs at relatively low levels of imperviousness,
such as 10 to 20 percent (even as low as 5 to 10 percent according to
the findings of the Washington study referenced above) (Schueler, T.R.
1994. ``The Importance of Imperviousness.'' Watershed Protection
Techniques 1(3); May, C., R.R. Horner, J.R. Karr, B.W. Mar, and E.B.
Welch. 1997. ``Effects Of Urbanization On Small Streams In The Puget
Sound Lowland Ecoregion.'' Watershed Protection Techniques 2(4); Yoder,
C.O., R.J. Miltner, and D. White. 1999. ``Assessing the Status of
Aquatic Life Designated Uses in Urban and Suburban Watersheds.'' In
Proceedings: National Conference on Retrofits Opportunities in Urban
Environments. EPA 625-R-99-002, Washington, DC; Yoder, C.O and R.J.
Miltner. 1999. ``Assessing Biological Quality and Limitations to
Biological Potential in Urban and Suburban Watersheds in Ohio.'' In
Comprehensive Stormwater & Aquatic Ecosystem Management Conference
Papers, Auckland, New Zealand). Furthermore, research has indicated
that few, if any, urban streams can support diverse benthic communities
at imperviousness levels of 25 percent or more. An area of medium
density single family homes can be anywhere from 25 percent to nearly
60 percent impervious, depending on the design of the streets and
parking (Schueler, 1994).
In addition to impervious areas, urban development creates new
pollution sources as population density increases and brings with it
proportionately higher levels of car emissions, car maintenance wastes,
pet waste, litter, pesticides, and household hazardous wastes, which
may be washed into receiving waters by storm water or dumped directly
into storm drains designed to discharge to receiving waters. More
people in less space results in a greater concentration of pollutants
that can be mobilized by, or disposed into, storm water discharges from
municipal separate storm sewer systems. A modeling system developed for
the Chesapeake Bay indicated that contamination of the Bay and its
tributaries from runoff is comparable to, if not greater than,
contamination from industrial and sewage sources (Cohn-Lee, R. and D.
Cameron. 1992. ``Urban Stormwater Runoff Contamination of the
Chesapeake Bay: Sources and Mitigation.'' The Environmental
Professional, Vol. 14).
a. Large-Scale Studies and Assessments
In support of today's regulatory designation of MS4s in urbanized
areas, the Agency relied on broad-based assessments of urban storm
water runoff and related water quality impacts, as well as more site-
specific studies. The first national assessment of urban runoff
characteristics was completed for the Nationwide Urban Runoff Program
(NURP) study (U.S. EPA. 1983. Results of the Nationwide Urban Runoff
Program, Volume 1--Final Report. Office of Water. Washington, D.C.).
The NURP study is the largest nationwide evaluation of storm water
discharges, which includes adverse impacts and sources, undertaken to
date.
EPA conducted the NURP study to facilitate understanding of the
nature of urban runoff from residential, commercial, and industrial
areas. One objective of the study was to characterize the water quality
of discharges from separate storm sewer systems that drain residential,
commercial, and light industrial (industrial parks) sites. Storm water
samples from 81 residential and commercial properties in 22 urban/
suburban areas nationwide were collected and analyzed during the 5-year
period between 1978 and 1983. The majority of samples collected in the
study were analyzed for eight conventional pollutants and three heavy
metals.
Data collected under the NURP study indicated that discharges from
separate storm sewer systems draining runoff from residential,
commercial, and light industrial areas carried more than 10 times the
annual loadings of total suspended solids (TSS) than discharges from
municipal sewage treatment plants that provide secondary treatment. The
NURP study also indicated that runoff from residential and commercial
areas carried somewhat higher annual loadings of chemical oxygen demand
(COD), total lead, and total copper than effluent from secondary
treatment plants. Study findings showed that fecal coliform counts in
urban runoff typically range from tens to hundreds of thousands per
hundred milliliters of runoff during warm weather conditions, with the
median for all sites being around 21,000/100 ml. This is generally
consistent with studies that found that fecal coliform mean values
range from 1,600 coliform fecal units (CFU)/100 ml to 250,000 cfu/100
ml (Makepeace, D.K., D.W. Smith, and S.J. Stanley. 1995. ``Urban Storm
Water Quality: Summary of Contaminant Data.'' Critical Reviews in
Environmental Science and Technology 25(2):93-139). Makepeace, et al.,
summarized ranges of contaminants from storm water, including physical
contaminants such as total solids (76--36,200 mg/L) and copper (up to
1.41 mg/L); organic chemicals; organic compounds, such as oil and
grease (up to 110 mg/L); and microorganisms.
[[Page 68726]]
Monitoring data summarized in the NURP study provided important
information about urban runoff from residential, commercial, and light
industrial areas. The study concluded that the quality of urban runoff
can be affected adversely by several sources of pollution that were not
directly evaluated in the study, including illicit discharges,
construction site runoff, and illegal dumping. Data from the NURP study
were analyzed further in the U.S. Geological Survey (USGS) Urban Storm
Water Data Base for 22 Metropolitan Areas Throughout the United States
study (Driver, N.E., M.H. Mustard, R.B. Rhinesmith, and R.F.
Middleburg. 1985. U.S. Geological Survey Urban Storm Water Data Base
for 22 Metropolitan Areas Throughout the United States. Report No. 85-
337 USGS. Lakewood, CO). The USGS report summarized additional
monitoring data compiled during the mid-1980s, covering 717 storm
events at 99 sites in 22 metropolitan areas and documented problems
associated with metals and sediment concentrations in urban storm water
runoff. More recent reports have confirmed the pollutant concentration
data collected in the NURP study (Marsalek, J. 1990. ``Evaluation of
Pollutant Loads from Urban Nonpoint Sources.'' Wat. Sci. Tech. 22(10/
11):23-30; Makepeace, et al., 1995).
Commenters argued that the NURP study does not support EPA's
contention that urban activities significantly jeopardize attainment of
water quality standards. One commenter argued that the NURP study and
the 1985 USGS study are seriously out of date. Because they were issued
10 years or more before the implementation of the current storm water
permit program, the data in those reports do not reflect conditions
that exist after implementation of permits issued by authorized States
and EPA for storm water from construction sites, large municipalities,
and industrial activities.
In response, EPA notes that it is not relying solely on the NURP
study to describe current water quality impairment. Rather, EPA is
citing NURP as a source of data on typical pollutant concentrations in
urban runoff. Recent studies have not found significantly different
pollutant concentrations in urban runoff when compared to the original
NURP data (see Makepeace, et al., 1995; Marsalek, 1990; and Pitt, et
al., 1995).
America's Clean Water--the States' Nonpoint Source Assessment
(Association of State and Interstate Water Pollution Control
Administrators (ASIWPCA). 1985. America's Clean Water--The States'
Nonpoint Source Assessment. Prepared in cooperation with the U.S. EPA,
Office of Water, Washington, DC), a comprehensive study of diffuse
pollution sources conducted under the sponsorship of the Association of
State and Interstate Water Pollution Control Administrators (ASIWPCA)
and EPA revealed that 38 States reported urban runoff as a major cause
of designated beneficial use impairment and 21 States reported storm
water runoff from construction sites as a major cause of beneficial use
impairment. In addition, the 1996 305(b) Report (U.S. EPA. 1998. The
National Water Quality Inventory, 1996 Report to Congress. EPA 841-R-
97-008. Office of Water. Washington, DC), provides a national
assessment of water quality based on biennial reports submitted by the
States as required under CWA section 305(b) of the CWA. In the CWA
305(b) reports, States, Tribes, and Territories assess their individual
water quality control programs by examining the attainment or
nonattainment of the designated uses assigned to their rivers, lakes,
estuaries, wetlands, and ocean shores. A designated use is the legally
applicable use specified in a water quality standard for a watershed,
waterbody, or segment of a waterbody. The designated use is the
desirable use that the water quality should support. Examples of
designated uses include drinking water supply, primary contact
recreation (swimming), and aquatic life support. Each CWA 305(b) report
indicates the assessed fraction of a State's waters that are fully
supporting, partially supporting, or not supporting designated
beneficial uses.
In their reports, States, Tribes, and Territories first identified
and then assigned the sources of water quality impairment for each
impaired waterbody using the following categories: industrial,
municipal sewage, combined sewer overflows, urban runoff/storm sewers,
agricultural, silvicultural, construction, resource extraction, land
disposal, hydrologic modification, and habitat modification. The 1996
Inventory, based on a compilation of 60 individual 305(b) reports
submitted by States, Tribes, and Territories, assessed the following
percentages of total waters nationwide: 19 percent of river and stream
miles; 40 percent of lake, pond, and reservoir acres; 72 percent of
estuary square miles; and 6 percent of ocean shoreline waters. The 1996
Inventory indicated that approximately 40 percent of the Nation's
assessed rivers, lakes, and estuaries are impaired. Waterbodies deemed
as ``impaired'' are either partially supporting designated uses or not
supporting designated uses.
The 1996 Inventory also found urban runoff/discharges from storm
sewers to be a major source of water quality impairment nationwide.
Urban runoff/storm sewers were found to be a source of pollution in 13
percent of impaired rivers; 21 percent of impaired lakes, ponds, and
reservoirs; and 45 percent of impaired estuaries (second only to
industrial discharges). In addition, urban runoff was found to be the
leading cause of ocean impairment for those ocean miles surveyed.
In addition, a recent USGS study of urban watersheds across the
United States has revealed a link between urban development and
contamination of local waterbodies. The study found the highest levels
of organic contaminants, known as polycyclic aromatic hydrocarbons
(PAHs) (products of combustion of wood, grass, and fossil fuels), in
the reservoirs of urbanized watersheds (U.S. Geological Survey (USGS).
1998. Research Reveals Link Between Development and Contamination in
Urban Watersheds. USGS news release. USGS National Water-Quality
Assessment Program).
Urban storm water also can contribute significant amounts of
toxicants to receiving waters. Pitt, et. al. (1993), found heavy metal
concentrations in the majority of samples analyzed. Industrial or
commercial areas were likely to be the most significant pollutant
source areas (Pitt, R., R. Field, M. Lalor, M. Brown 1993. ``Urban
stormwater toxic pollutants: assessment, sources, and treatability''
Water Environment Research, 67(3):260-75).
b. Local and Watershed-Based Studies
In addition to the large-scale nationwide studies and assessments,
a number of local and watershed-based studies from across the country
have documented the detrimental effects of urban storm water runoff on
water quality. A study of urban streams in Milwaukee County, Wisconsin,
found local streams to be highly degraded due primarily to urban
runoff, while three studies in the Atlanta, Georgia, region were
characterized as being ``the first documentation in the Southeast of
the strong negative relationship between urbanization and stream
quality that has been observed in other ecoregions'' (Masterson, J. and
R. Bannerman. 1994. ``Impacts of Storm Water Runoff on Urban Streams in
Milwaukee County, Wisconsin.'' Paper presented at National Symposium on
Water Quality: American Water Resources Association; Schueler, T.R.
1997. ``Fish Dynamics in Urban Streams Near Atlanta, Georgia.''
[[Page 68727]]
Technical Note 94. Watershed Protection Techniques 2(4)). Several other
studies, including those performed in Arizona (Maricopa County),
California (San Jose's Coyote Creek), Massachusetts (Green River),
Virginia (Tuckahoe Creek), and Washington (Puget Sound lowland
ecoregion), all had the same finding: runoff from urban areas greatly
impair stream ecology and the health of aquatic life; the more heavily
developed the area, the more detrimental the effects (Lopes, T. and K.
Fossum. 1995. ``Selected Chemical Characteristics and Acute Toxicity of
Urban Stormwater, Streamflow, and Bed Material, Maricopa County,
Arizona.'' Water Resources Investigations Report 95-4074. USGS; Pitt,
R. 1995. ``Effects of Urban Runoff on Aquatic Biota.'' In Handbook of
Ecotoxicology; Pratt, J. and R. Coler. 1979. ``Ecological Effects of
Urban Stormwater Runoff on Benthic Macroinvertebrates Inhabiting the
Green River, Massachusetts.'' Completion Report Project No. A-094.
Water Resources Research Center. University of Massachusetts at
Amherst.; Schueler, T.R. 1997. ``Historical Change in a Warmwater Fish
Community in an Urbanizing Watershed.'' Technical Note 93. Watershed
Protection Techniques 2(4); May, C., R. Horner, J. Karr, B. Mar, and E.
Welch. 1997. ``Effects Of Urbanization On Small Streams In The Puget
Sound Lowland Ecoregion.'' Watershed Protection Techniques 2(4)).
Pitt and others also described the receiving water effects on
aquatic organisms associated with urban runoff (Pitt, R.E. 1995.
``Biological Effects of Urban Runoff Discharges'' In Stormwater Runoff
and Receiving Systems: Impact, Monitoring, and Assessment, ed. E.E
Herricks, Lewis Publishers; Crunkilton, R., J. Kleist, D. Bierman, J.
Ramcheck, and W. DeVita. 1999. ``Importance of Toxicity as a Factor
Controlling the Distribution of Aquatic Organisms in an Urban Stream.''
In Comprehensive Stormwater & Aquatic Ecosystem Management Conference
Papers. Auckland, New Zealand).
In Wisconsin, runoff samples were collected from streets, parking
lots, roofs, driveways, and lawns. Source areas were broken up into
residential, commercial, and industrial. Geometric mean concentration
data for residential areas included total solids of about 500-800 mg/L
from streets and 600 mg/L from lawns. Fecal coliform data from
residential areas ranged from 34,000 to 92,000 cfu/100 mL for streets
and driveways. Contaminant concentration data from commercial and
industrial source areas were lower for total solids and fecal coliform,
but higher for total zinc (Bannerman, R.T., D.W. Owens, R.B. Dods, and
N.J. Hornewer. 1993. ``Sources of Pollutants in Wisconsin Stormwater.''
Wat. Sci. Tech. 28(3-5):241-59).
Bannerman, et al. also found that streets contribute higher loads
of pollutants to urban storm water than any other residential
development source. Two small urban residential watersheds were
evaluated to determine that lawns and streets are the largest sources
of total and dissolved phosphorus in the basins (Waschbusch, R.J., W.R.
Selbig, and R.T. Bannerman. 1999. ``Sources of Phosphorus in Stormwater
and Street Dirt from Two Urban Residential Basins In Madison,
Wisconsin, 1994-95.'' Water Resources Investigations Report 99-4021.
U.S. Geological Survey). A number of other studies have indicated that
urban roadways often contain significant quantities of metal elements
and solids (Sansalone, J.J. and S.G. Buchberger. 1997. ``Partitioning
and First Flush of Metals in Urban Roadway Storm Water.'' ASCE Journal
of Environmental Engineering 123(2); Sansalone, J.J., J.M. Koran, J.A.
Smithson, and S.G. Buchberger. 1998. ``Physical Characteristics of
Urban Roadway Solids Transported During Rain Events'' ASCE Journal of
Environmental Engineering 124(5); Klein, L.A., M. Lang, N. Nash, and
S.L. Kirschner. 1974. ``Sources of Metals in New York City Wastewater''
J. Water Pollution Control Federation 46(12):2653-62; Barrett, M.E,
R.D. Zuber, E.R. Collins, J.F. Malina, R.J. Charbeneau, and G.H Ward.,
1993. ``A Review and Evaluation of Literature Pertaining to the
Quantity and Control of Pollution from Highway Runoff and
Construction.'' Research Report 1943-1. Center for Transportation
Research, University of Texas, Austin).
c. Beach Closings/Advisories
Urban wet weather flows have been recognized as the primary sources
of estuarine pollution in coastal communities. Urban storm water
runoff, sanitary sewer overflows, and combined sewer overflows have
become the largest causes of beach closings in the United States in the
past three years. Storm water discharges from urban areas not only pose
a threat to the ecological environment, they also can substantially
affect human health. A survey of coastal and Great Lakes communities
reports that in 1998, more than 1,500 beach closings and advisories
were associated with storm water runoff (Natural Resources Defense
Council. 1999. ``A Guide to Water Quality at Vacation Beaches'' New
York, NY). Other reports also document public health, shellfish bed,
and habitat impacts from storm water runoff, including more than 823
beach closings/advisories issued in 1995 and more than 407 beach
closing/advisories issued in 1996 due to urban runoff (Natural
Resources Defense Council. 1996. Testing the Waters Volume VI: Who
Knows What You're Getting Into. New York, NY; NRDC. 1997. Testing the
Waters Volume VII: How Does Your Vacation Beach Rate. New York, NY;
Morton, T. 1997. Draining to the Ocean: The Effects of Stormwater
Pollution on Coastal Waters. American Oceans Campaign, Santa Monica,
CA). The Epidemiological Study of Possible Adverse Health Effects of
Swimming in Santa Monica Bay (Haile, R.W., et. al. 1996. ``An
Epidemiological Study of Possible Adverse Health Effects of Swimming in
Santa Monica Bay.'' Final Report prepared for the Santa Monica Bay
Restoration Project) concluded that there is a 57 percent higher rate
of illness in swimmers who swim adjacent to storm drains than in
swimmers who swim more than 400 yards away from storm drains. This and
other studies document a relationship between gastrointestinal illness
in swimmers and water quality, the latter of which can be heavily
compromised by polluted storm water discharges.
2. Non-Storm Water Discharges Through Municipal Storm Sewers
Studies have shown that discharges from MS4s often include wastes
and wastewater from non-storm water sources. Federal regulations
(Sec. 122.26(b)(2)) define an illicit discharge as ``* * * any
discharge to an MS4 that is not composed entirely of storm water * *
*,'' with some exceptions. These discharges are ``illicit'' because
municipal storm sewer systems are not designed to accept, process, or
discharge such wastes. Sources of illicit discharges include, but are
not limited to: sanitary wastewater; effluent from septic tanks; car
wash, laundry, and other industrial wastewaters; improper disposal of
auto and household toxics, such as used motor oil and pesticides; and
spills from roadway and other accidents.
Illicit discharges enter the system through either direct
connections (e.g., wastewater piping either mistakenly or deliberately
connected to the storm drains) or indirect connections (e.g.,
infiltration into the MS4 from cracked sanitary systems, spills
collected by drain outlets, and paint or used oil dumped directly into
a drain). The result is untreated discharges that contribute high
levels of pollutants,
[[Page 68728]]
including heavy metals, toxics, oil and grease, solvents, nutrients,
viruses and bacteria into receiving waterbodies. The NURP study,
discussed earlier, found that pollutant levels from illicit discharges
were high enough to significantly degrade receiving water quality and
threaten aquatic, wildlife, and human health. The study noted
particular problems with illicit discharges of sanitary wastes, which
can be directly linked to high bacterial counts in receiving waters and
can be dangerous to public health.
Because illicit discharges to MS4s can create severe widespread
contamination and water quality problems, several municipalities and
urban counties performed studies to identify and eliminate such
discharges. In Michigan, the Ann Arbor and Ypsilanti water quality
projects inspected 660 businesses, homes, and other buildings and
identified 14 percent of the buildings as having improper storm sewer
drain connections. The program assessment revealed that, on average, 60
percent of automobile-related businesses, including service stations,
automobile dealerships, car washes, body shops, and light industrial
facilities, had illicit connections to storm sewer drains. The program
assessment also showed that a majority of the illicit discharges to the
storm sewer system resulted from improper plumbing and connections,
which had been approved by the municipality when installed (Washtenaw
County Statutory Drainage Board. 1987. Huron River Pollution Abatement
Program).
In addition, an inspection of urban storm water outfalls draining
into Inner Grays, Washington, indicated that 32 percent of these
outfalls had dry weather flows. Of these flows, 21 percent were
determined to have pollutant levels higher than the pollutant levels
expected in typical urban storm water runoff characterized in the NURP
study (U.S. EPA. 1993. Investigation of Inappropriate Pollutant Entries
Into Storm Drainage Systems--A User's Guide. EPA 600/R-92/238. Office
of Research and Development. Washington, DC). That same document
reports a study in Toronto, Canada, that found that 59 percent of
outfalls from the MS4 had dry-weather flows. Chemical tests revealed
that 14 percent of these dry-weather flows were determined to be
grossly polluted.
Inflows from aging sanitary sewer collection systems are one of the
most serious illicit discharge-related problems. Sanitary sewer systems
frequently develop leaks and cracks, resulting in discharges of
pollutants to receiving waters through separate storm sewers. These
pollutants include sanitary waste and materials from sewer main
construction (e.g., asbestos cement, brick, cast iron, vitrified clay).
Municipalities have long recognized the reverse problem of storm water
infiltration into sanitary sewer collection systems; this type of
infiltration often disrupts the operation of the municipal sewage
treatment plant.
The improper disposal of materials is another illicit discharge-
related problem that can result in contaminated discharges from
separate storm sewer systems in two ways. First, materials may be
disposed of directly in a catch basin or other storm water conveyance.
Second, materials disposed of on the ground may either drain directly
to a storm sewer or be washed into a storm sewer during a storm event.
Improper disposal of materials to street catch basins and other storm
sewer inlets often occurs when people mistakenly believe that disposal
to such areas is an environmentally sound practice. Part of the
confusion may occur because some areas are served by combined sewer
systems, which are part of the sanitary sewer collection system, and
people assume that materials discharged to a catch basin will reach a
municipal sewage treatment plant. Materials that are commonly disposed
of improperly include used motor oil; household toxic materials;
radiator fluids; and litter, such as disposable cups, cans, and fast-
food packages. EPA believes that there has been increasing success in
addressing these problems through initiatives such as storm drain
stenciling and recycling programs, including household hazardous waste
special collection days.
Programs that reduce illicit discharges to separate storm sewers
have improved water quality in several municipalities. For example,
Michigan's Huron River Pollution Abatement Program found the
elimination of illicit connections caused a measurable improvement in
the water quality of the Washtenaw County storm sewers and the Huron
River (Washtenaw County Statutory Drainage Board, 1987). In addition,
an illicit detection and remediation program in Houston, Texas, has
significantly improved the water quality of Buffalo Bayou. Houston
estimated that illicit flows from 132 sources had a flow rate as high
as 500 gal/min. Sources of the illicit discharges included broken and
plugged sanitary sewer lines, illicit connections from sanitary lines
to storm sewer lines, and floor drain connections (Glanton, T., M.T.
Garrett, and B. Goloby. 1992. The Illicit Connection: Is It the
Problem? Wat. Env. Tech. 4(9):63-8).
3. Construction Site Runoff
Storm water discharges generated during construction activities can
cause an array of physical, chemical, and biological water quality
impacts. Specifically, the biological, chemical, and physical integrity
of the waters may become severely compromised. Water quality impairment
results, in part, because a number of pollutants are preferentially
absorbed onto mineral or organic particles found in fine sediment. The
interconnected process of erosion (detachment of the soil particles),
sediment transport, and delivery is the primary pathway for introducing
key pollutants, such as nutrients (particularly phosphorus), metals,
and organic compounds into aquatic systems (Novotny, V. and G.
Chesters. 1989. ``Delivery of Sediment and Pollutants from Nonpoint
Sources: A Water Quality Perspective.'' Journal of Soil and Water
Conservation, 44(6):568-76). Estimates indicate that 80 percent of the
phosphorus and 73 percent of the Kjeldahl nitrogen in streams is
associated with eroded sediment (U.S. Department of Agriculture. 1989.
``The Second RCA Appraisal, Soil, Water and Related Resources on
Nonfederal Land in the United States, Analysis of Condition and
Trends.'' Cited in Fennessey, L.A.J., and A.R. Jarrett. 1994. ``The
Dirt in a Hole: a Review of Sedimentation Basins for Urban Areas and
Construction Sites.'' Journal of Soil and Water Conservation,
49(4):317-23).
In watersheds experiencing intensive construction activity, the
localized impacts of water quality may be severe because of high
pollutant loads, primarily sediments. Siltation is the largest cause of
impaired water quality in rivers and the third largest cause of
impaired water quality in lakes (U.S. EPA, 1998). The 1996 305(b)
report also found that construction site discharges were a source of
pollution in: 6 percent of impaired rivers; 11 percent of impaired
lakes, ponds, and reservoirs; and 11 percent of impaired estuaries.
Introduction of coarse sediment (coarse sand or larger) or a large
amount of fine sediment is also a concern because of the potential of
filling lakes and reservoirs (along with the associated remediation
costs for dredging), as well as clogging stream channels (e.g.,
Paterson, R.G., M.I. Luger, E.J. Burby, E.J. Kaiser, H.R. Malcolm, and
A.C. Beard. 1993. ``Costs and Benefits of Urban Erosion and Sediment
Control: North Carolina Experience.'' Environmental Management
17(2):167-78). Large inputs of coarse sediment into
[[Page 68729]]
stream channels initially will reduce stream depth and minimize habitat
complexity by filling in pools (U.S. EPA. 1991. Monitoring Guidelines
to Evaluate Effects of Forestry Activities on Streams in the Pacific
Northwest and Alaska. EPA 910/9-91-001. Seattle, WA). In addition,
studies have shown that stream reaches affected by construction
activities often extend well downstream of the construction site. For
example, between 4.8 and 5.6 kilometers of stream below construction
sites in the Patuxent River watershed were observed to be impacted by
sediment inputs (Fox, H.L. 1974. ``Effects of Urbanization on the
Patuxent River, with Special Emphasis on Sediment Transport, Storage,
and Migration.'' Ph.D. dissertation. Johns Hopkins University,
Baltimore, MD. As Cited in Klein, R.D. 1979. ``Urbanization and Stream
Quality Impairment.'' Water Resources Bulletin 15(4): 948-63).
A primary concern at most construction sites is the erosion and
transport process related to fine sediment because rain splash, rills
(i.e., a channel small enough to be removed by normal agricultural
practices and typically less than 1-foot deep), and sheetwash encourage
the detachment and transport of this material to waterbodies (Storm
Water Quality Task Force. 1993. California Storm Water Best Management
Practice Handbooks--Construction Activity. Oakland, CA: Blue Print
Service). Construction sites also can generate other pollutants
associated with onsite wastes, such as sanitary wastes or concrete
truck washout.
Although streams and rivers naturally carry sediment loads, erosion
from construction sites and runoff from developed areas can elevate
these loads to levels well above those in undisturbed watersheds. It is
generally acknowledged that erosion rates from construction sites are
much greater than from almost any other land use (Novotny, V. and H.
Olem. 1994. Water Quality: Prevention, Identification, and Management
of Diffuse Pollution. New York: Van Nostrand Reinhold). Results from
both field studies and erosion models indicate that erosion rates from
construction sites are typically an order of magnitude larger than row
crops and several orders of magnitude greater than rates from well-
vegetated areas, such as forests or pastures (USDA. 1970. ``Controlling
Erosion on Construction Sites.'' Agriculture Information Bulletin,
Washington, DC; Meyer, L.D., W.H. Wischmeier, and W.H. Daniel. 1971.
``Erosion, Runoff and Revegetation of Denuded Construction Sites.''
Transactions of the ASAE 14(1):138-41; Owen, O.S. 1975. Natural
Resource Conservation. New York: MacMillan. As cited in Paterson, et
al., 1993).
A recent review of the efficiency of sediment basins indicated that
inflows from 12 construction sites had a mean TSS concentration of
about 4,500 mg/L (Brown, W.E. 1997. ``The Limits of Settling.''
Technical Note No. 83. Watershed Protection Techniques 2(3)). In
Virginia, suspended sediment concentrations from housing construction
sites were measured at 500-3,000 mg/L, or about 40 times larger than
the concentrations from already-developed urban areas (Kuo, C.Y. 1976.
``Evaluation of Sediment Yields Due to Urban Development.'' Bulletin
No. 98. Virginia Water Resources Research Center, Virginia Polytechnic
Institute and State University, Blacksburg, VA).
Similar impacts from storm water runoff have been reported in a
number of other studies. For example, Daniel, et al., monitored three
residential construction sites in southeastern Wisconsin and determined
that annual sediment yields were more than 19 times the yields from
agricultural areas (Daniel, T.C., D. McGuire, D. Stoffel, and B.
Miller. 1979. ``Sediment and Nutrient Yield from Residential
Construction Sites'' Journal of Environmental Quality 8(3):304-08).
Daniel, et al., identified total storm runoff, followed by peak storm
runoff, as the most influential factors controlling the sediment
loadings from residential construction sites. Daniel, et al., also
found that suspended sediment concentrations were 15,000-20,000 mg/L in
moderate events and up to 60,000 mg/L in larger events.
Wolman and Schick (Wolman, M.G. and A.P. Schick. 1967. ``Effects of
Construction on Fluvial Sediment, Urban and Suburban Areas of
Maryland.'' Water Resources Research 3(2): 451-64) studied the impacts
of development on fluvial systems in Maryland and determined that
sediment yields in areas undergoing construction were 1.5 to 75 times
greater than detected in natural or agricultural catchments. The
authors summarize the potential impacts of construction on sediment
yields by stating that ``the equivalent of many decades of natural or
even agricultural erosion may take place during a single year from
areas cleared for construction'' (Wolman and Schick, 1967).
A number of studies have examined the effects of road construction
on erosion rates and sediment yields. A highway construction project in
West Virginia disturbed only 4.2 percent of a 4.72-square-mile basin,
but resulted in a three-fold increase in suspended sediment yields
(Downs, S.C. and D.H. Appel. 1986. Progress Report on the Effects of
Highway Construction on Suspended-Sediment Discharge in the Coal River
and Trace Fork, West Virginia, 1975-81. USGS Water Resources
Investigations Report 84-4275. Charlestown, WV). During the largest
storm event, it was estimated that 80 percent of the sediment in the
stream originated from the construction site. As is often the case, the
increase in suspended sediment load could not be detected further
downstream, where the drainage area was more than 50 times larger (269
square miles).
Another study evaluated the effect of 290 acres of highway
construction on watersheds ranging in size from 5 to 38 square miles.
Suspended sediment loads in the smallest watershed increased by 250
percent, and the estimated sediment yield from the construction area
was 37 tons/acre during a 2-year period (Hainly, R.A. 1980. The Effects
of Highway Construction on Sediment Discharge into Blockhouse Creek and
Stream Valley Run, Pennsylvania. USGS Water Resources Investigations
Report 80-68. Harrisburg, PA). A more recent study in Hawaii showed
that highway construction increased suspended sediment loads by 56 to
76 percent in three small (1 to 4 square mile) basins (Hill, B.R. 1996.
Streamflow and Suspended-Sediment Loads Before and During Highway
Construction, North Halawa, Haiku, and Kamooalii Drainage Basins, Oahu,
Hawaii, 1983-91. USGS Water Resources Investigations Report 96-4259.
Honolulu, HI). A 1970 study determined that sediment yields from
construction areas can be as much as 500 times the levels detected in
rural areas (National Association of Counties Research Foundation.
1970. Urban Soil Erosion and Sediment Control. Water Pollution Control
Research Series, Program #15030 DTL. Federal Water Quality
Administration, U.S. Department of Interior. Washington, DC)
Yorke and Herb (Yorke, T.H., and W.J. Herb. 1978. Effects of
Urbanization on Streamflow and Sediment Transport in the Rock Creek and
Anacostia River Basins, Montgomery County, Maryland, 1962-74. USGS
Professional Paper 1003, Washington, DC) evaluated nine subbasins in
the Maryland portion of the Anacostia watershed for more than a decade
in an effort to define the impacts of changing land use/land cover on
sediment in runoff. Average annual suspended sediment yields for
construction sites ranged from 7 to 100 tons/acre. Storm water
discharges from construction sites that occur when the land area is
disturbed (and prior to
[[Page 68730]]
surface stabilization) can significantly impact designated uses.
Examples of designated uses include public water supply, recreation,
and propagation of fish and wildlife. The siltation process described
previously can threaten all three designated uses by (1) depositing
high concentrations of pollutants in public water supplies; (2)
decreasing the depth of a waterbody, which can reduce the volume of a
reservoir or result in limited use of a water body by boaters,
swimmers, and other recreational enthusiasts; and (3) directly
impairing the habitat of fish and other aquatic species, which can
limit their ability to reproduce.
Excess sediment can cause a number of other problems for
waterbodies. It is associated with increased turbidity and reduced
light penetration in the water column, as well as more long-term
effects associated with habitat destruction and increased difficulty in
filtering drinking water. Numerous studies have examined the effect
that excess sediment has on aquatic ecosystems. For example, sediment
from road construction activity in Northern Virginia reduced aquatic
insect and fish communities by up to 85 percent and 40 percent,
respectively (Reed, J.R. 1997. ``Stream Community Responses to Road
Construction Sediments.'' Bulletin No. 97. Virginia Water Resources
Research Center, Virginia Polytechnic Institute, Blacksburg, VA. As
cited in Klein, R.D. 1990. A Survey of Quality of Erosion and Sediment
Control and Storm Water Management in the Chesapeake Bay Watershed.
Annapolis, MD: Chesapeake Bay Foundation). Other studies have shown
that fine sediment (fine sand or smaller) adversely affects aquatic
ecosystems by reducing light penetration, impeding sight-feeding,
smothering benthic organisms, abrading gills and other sensitive
structures, reducing habitat by clogging interstitial spaces within a
streambed, and reducing the intergravel dissolved oxygen by reducing
the permeability of the bed material (Everest, F.H., J.C. Beschta, K.V.
Scrivener, J.R. Koski, J.R. Sedell, and C.J. Cederholm. 1987. ``Fine
Sediment and Salmonid Production: A Paradox.'' Streamside Management:
Forestry and Fishery Interactions, Contract No. 57, Institute of Forest
Resources, University of Washington, Seattle, WA). For example, 4.8 and
5.6 kilometers of stream below construction sites in the Patuxent River
watershed in Maryland were found to have fine sediment amounts 15 times
greater than normal (Fox, 1974. As cited in Klein, 1979). Benthic
organisms in the streambed can be smothered by sediment deposits,
causing changes in aquatic flora and fauna, such as fish species
composition (Wolman and Schick, 1967). In addition, the primary cause
of coral reef degradation in coastal areas is attributed to land
disturbances and dredging activities due to urban development (Rogers,
C.S. 1990. ``Responses of Coral Reefs and Reef Organizations to
Sedimentation.'' Marine Ecology Progress Series, 62:185-202).
EPA believes that the water quality impact from small construction
sites is as high as or higher than the impact from larger sites on a
per acre basis. The concentration of pollutants in the runoff from
smaller sites is similar to the concentrations in the runoff from
larger sites. The proportion of sediment that makes it from the
construction site to surface waters is likely the same for larger and
smaller construction sites in urban areas because the runoff from
either site is usually delivered directly to the storm drain network
where there is no opportunity for the sediment to be filtered out.
The expected contribution of total sediment yields from small sites
depends, in part, on the extent to which erosion and sedimentation
controls are being applied. Because current storm water regulations are
more likely to require erosion and sedimentation controls on larger
sites in urban areas, smaller construction sites that lack such
programs are likely to contribute a disproportionate amount of the
total sediment from construction activities (MacDonald, L.H. 1997.
Technical Justification for Regulating Construction Sites 1-5 Acres in
Size. Unpublished report submitted to U.S. EPA, Washington, DC).
Smaller construction sites are less likely to have an effective plan to
control erosion and sedimentation, are less likely to properly
implement and maintain their plans, and are less likely to be inspected
(Brown, W. and D. Caraco. 1997. Controlling Storm Water Runoff
Discharges from Small Construction Sites: A National Review. Submitted
to Office of Wastewater Management, U.S. EPA, Washington, DC., by the
Center for Watershed Protection, Silver Spring, MD). The proportion of
sediment that makes it from the construction site to surface waters is
likely the same for larger and smaller construction sites in urban
areas because the runoff from either site is usually delivered directly
to the storm drain network, where there is no opportunity for the
sediment to be filtered out.
To confirm its belief that sediment yields from small sites are as
high as or higher than the 20 to 150 tons/acre/year measured from
larger sites, EPA gave a grant to the Dane County, Wisconsin Land
Conservation Department, in cooperation with the USGS, to evaluate
sediment runoff from two small construction sites. The first was a 0.34
acre residential lot and the second was a 1.72 acre commercial office
development. Runoff from the sites was channeled to a single discharge
point for monitoring. Each site was monitored before, during, and after
construction.
The Dane County study found that total solids concentrations from
these small sites are similar to total solids concentrations from
larger construction sites. Results show that for both of the study
sites, total solids and suspended solids concentrations were
significantly higher during construction than either before or after
construction. For example, preconstruction total solids concentrations
averaged 642 mg/L during the period when ryegrass was established,
active construction total solids concentrations averaged 2,788 mg/L,
and post-construction total solids concentrations averaged 132 mg/L (on
a pollutant load basis, this equaled 7.4 lbs preconstruction, 35 lbs
during construction, and 0.6 lbs post-construction for total solids).
While this site was not properly stabilized before construction, after
construction was complete and the site was stabilized, post-
construction concentrations were more than 20 times less than during
construction. The results were even more dramatic for the commercial
site. The commercial site had one preconstruction event, which resulted
in total solids concentrations of 138 mg/L, while active construction
averaged more than 15,000 mg/L and post-construction averaged only 200
mg/L (on a pollutant load basis, this equaled 0.3 lbs preconstruction,
490 lbs during construction, and 13.4 lbs post-construction for total
solids). The active construction period resulted in more than 75 times
more sediment than either before or after construction (Owens, D.W., P.
Jopke, D.W. Hall, J. Balousek and A. Roa. 1999. ``Soil Erosion from
Small Construction Sites.'' Draft USGS Fact Sheet. USGS and Dane County
Land Conservation Department, WI). The total solids concentrations from
these small sites in Wisconsin are similar to total solids
concentrations from larger construction sites. For example, a study
evaluating the effects of highway construction in West Virginia found
that a small storm produced a sediment concentration of 7,520 mg/L
(Downs and Appel, 1986).
One important aspect of small construction sites is the number of
small sites relative to larger construction sites
[[Page 68731]]
and total land area within the watershed. Brown and Caraco surveyed 219
local jurisdictions to assess erosion and sediment control (ESC)
programs. Seventy respondents provided data on the number of ESC
permits for construction sites smaller than 5 acres. In 27 cases (38
percent of the respondents), more than three-quarters of the permits
were for sites smaller than 5 acres; in another 18 cases (26 percent),
more than half of the permits were for sites smaller than 5 acres.
In addition, data on the total acreage disturbed by smaller
construction sites have been collected recently in two States
(MacDonald, 1997). The most recent and complete data set is the listing
of the disturbed area for each of the 3,831 construction sites
permitted in North Carolina for 1994-1995 and 1995-1996. Nearly 61
percent of the sites that were 1 acre or larger were between 1.0 and
4.9 acres in size. This proportion was consistent between years. Data
showed that this range of sites accounted for 18 percent of the total
area disturbed by construction. The values showed very little variation
between the 2 years of data. The total disturbed area for all sites
over this 2-year period was nearly 33,000 acres, or about 0.1 percent
of the total area of North Carolina.
EPA estimates that construction sites disturbing greater than 5
acres disturb 2.1-million acres of land (78.1 percent of the total)
while sites disturbing between 1 and 5 acres of land disturb 0.5-
million acres of land (19.4 percent). The remaining sites on less than
1 acres of land disturb 0.07-million acres of land (only 2.5 percent of
the total). Given the high erosion rates associated with most
construction sites, small construction sites can be a significant
source of water quality impairment, particularly in small watersheds
that are undergoing rapid development. Exempting sites under 1 acre
will exclude only about 2.5 percent of acreage from program coverage,
but will exclude a far higher number of sites, approximately 25
percent.
Several studies have determined that the most effective
construction runoff control programs rely on local plan review and
field enforcement (Paterson, R. G. 1994. ``Construction Practices: the
Good, the Bad, and the Ugly.'' Watershed Protection Techniques 1(3)).
In his review, Paterson suggests that, given the critical importance of
field implementation of erosion and sediment control programs and the
apparent shortcomings that exist, much more focus should be given to
plan implementation.
Several commenters disputed the data presented in the proposed rule
for storm water discharges from smaller construction sites. One
commenter stated that EPA has not adequately explained the basis for
permitting construction activity down to 1 disturbed acre. Another
commenter stated that EPA did not present sufficient data on water
quality impacts from construction sites disturbing less than 5 acres.
EPA believes that the data presented above sufficiently support
nationwide designation of storm water discharges from construction
activity disturbing more than 1 acre. Based on total disturbed land
area within a watershed, the cumulative effects of numerous small
construction sites can have impacts similar to those of larger sites in
a particular area. In addition, waivers for storm water discharges from
smaller construction activity will exclude sites not expected to impair
water quality. EPA will continue to collect water quality data on
construction site storm water runoff.
C. Statutory Background
In 1972, Congress enacted the CWA to prohibit the discharge of any
pollutant to waters of the United States from a point source unless the
discharge is authorized by an NPDES permit. Congress added CWA section
402(p) in 1987 to require implementation of a comprehensive program for
addressing storm water discharges. Section 402(p)(1) required EPA or
NPDES-authorized States or Tribes to issue NPDES permits for the
following five classes of storm water discharges composed entirely of
storm water (``storm water discharges'') specifically listed under
section 402(p)(2):
(A) a discharge subject to an NPDES permit before February 4, 1987
(B) a discharge associated with industrial activity
(C) a discharge from a municipal separate storm sewer system
serving a population of 250,000 or more
(D) a discharge from a municipal separate storm sewer system
serving a population of 100,000 or more but less than 250,000
(E) a discharge that an NPDES permitting authority determines to be
contributing to a violation of a water quality standard or a
significant contributor of pollutants to the waters of the United
States.
Section 402(p)(3)(A) requires storm water discharges associated
with industrial activity to meet all applicable provisions of section
402 and section 301 of the CWA, including technology-based requirements
and any more stringent requirements necessary to meet water quality
standards. Section 402(p)(3)(B) establishes NPDES permit standards for
discharges from municipal separate storm sewer systems, or MS4s. NPDES
permits for discharges from MS4s (1) may be issued on a system or
jurisdiction-wide basis, (2) must include a requirement to effectively
prohibit non-storm water discharges into the storm sewers, and (3) must
require controls to reduce pollutant discharges to the maximum extent
practicable, including best management practices, and other provisions
as the Administrator or the States determine to be appropriate for the
control of such pollutants. At this time, EPA determines that water
quality-based controls, implemented through the iterative processes
described today are appropriate for the control of such pollutants and
will result in reasonable further progress towards attainment of water
quality standards. See sections II.L and II.H.3 of the preamble.
In CWA section 402(p)(4), Congress established statutory deadlines
for the initial steps in implementing the NPDES program for storm water
discharges. This section required development of NPDES permit
application regulations, submission of NPDES permit applications,
issuance of NPDES permits for sources identified in section 402(p)(2),
and compliance with NPDES permit conditions. In addition, this section
required industrial facilities and large MS4s to submit NPDES permit
applications for storm water discharges by February 4, 1990. Medium
MS4s were to submit NPDES permit applications by February 4, 1992. EPA
and authorized NPDES States were prohibited from requiring an NPDES
permit for any other storm water discharges until October 1, 1994.
Section 402(p)(5) required EPA to conduct certain studies and
submit a report to Congress. This requirement is discussed in the
following section.
Section 402(p)(6) requires EPA, in consultation with States and
local officials, to issue regulations for the designation of additional
storm water discharges to be regulated to protect water quality. It
also requires EPA to extend the existing storm water program to
regulate newly designated sources. At a minimum, the extension must
establish (1) priorities, (2) requirements for State storm water
management programs, and (3) expeditious deadlines. Section 402(p)(6)
specifies that the program may include performance standards,
guidelines, guidance, and management practices and treatment
requirements, as
[[Page 68732]]
appropriate. Today's rule implements this section.
D. EPA's Reports to Congress
Under CWA section 402(p)(5), EPA, in consultation with the States,
was required to conduct a study. The study was to identify unregulated
sources of storm water discharges, determine the nature and extent of
pollutants in such discharges, and establish procedures and methods to
mitigate the impacts of such discharges on water quality. Section
402(p)(5) also required EPA to report the results of the first two
components of that study to Congress by October 1, 1988, and the final
report by October 1, 1989.
In March 1995, EPA submitted to Congress a report that reviewed and
analyzed the nature of storm water discharges from municipal and
industrialacilities that were not already regulated under the initial
NPDES regulations for storm water (U.S. Environmental Protection
Agency, Office of Water. 1995. Storm Water Discharges Potentially
Addressed by Phase II of the National Pollutant Discharge Elimination
System Storm Water Program: Report to Congress. Washington, D.C. EPA
833-K-94-002) (``Report''). The Report also analyzed associated
pollutant loadings and water quality impacts from these unregulated
sources. Based on identification of unregulated municipal sources and
analysis of information on impacts of storm water discharges from
municipal sources, the Report recommended that the NPDES program for
storm water focus on the 405 ``urbanized areas'' identified by the
Bureau of the Census. The Report further found that a number of
discharges from unregulated industrial facilities warranted further
investigation to determine the need for regulation. It classified these
unregulated industrial discharges in two groups: Group A and Group B.
Group A comprised sources that may be considered a high priority for
inclusion in the NPDES program for storm water because discharges from
these sources are similar or identical to already regulated sources.
These ``look alike'' storm water discharge sources were not covered in
the initial NPDES regulations for storm water due to the language used
to define ``associated with industrial activity.'' In the initial
regulations for storm water, ``industrial activity'' is identified
using Standard Industrial Classification (SIC) codes. The use of SIC
codes led to incomplete categorization of industrial activities with
discharges that needed to be regulated to protect water quality. Group
B consisted of 18 industrial sectors, which included sources that EPA
expected to contribute to storm water contamination due to the
activities conducted and pollutants anticipated onsite (e.g., vehicle
maintenance, machinery and electrical repair, and intensive
agricultural activities).
EPA reported on the latter component of the section 402(p)(5) study
via President Clinton's Clean Water Initiative, which was released on
February 1, 1994 (U.S. Environmental Protection Agency, Office of
Water. 1994. President Clinton's Clean Water Initiative. Washington,
D.C. EPA 800-R-94-001) (``Initiative''). The Initiative addressed a
number of issues associated with NPDES requirements for storm water
discharges and proposed (1) establishing a phased compliance with a
water quality standards approach for discharges from municipal separate
storm sewer systems with priority on controlling discharges from
municipal growth and development areas, (2) clarifying that the maximum
extent practicable standard should be applied in a site-specific,
flexible manner, taking into account cost considerations as well as
water quality effects, (3) providing an exemption from the NPDES
program for storm water discharges from industrial facilities with no
activities or significant materials exposed to storm water, (4)
providing extensions to the statutory deadlines to complete
implementation of the NPDES program for the storm water program, (5)
targeting urbanized areas for the requirements in the NPDES program for
storm water, and (6) providing control of discharges from inactive and
abandoned mines located on Federal lands in a more targeted, flexible
manner. Additionally, prior to promulgation of today's rule, section
431 of the Agency's Appropriation Act for FY 2000 (Departments of
Veterans Affairs and Housing and Urban Development and Independent
Agencies Appropriations Act of 2000, Public Law 106-74, section 432
(1999)) directed EPA to report on certain matters to be covered in
today's rule. That report supplements the study required by CWA Section
402(p)(5). EPA is publishing the availability of that report elsewhere
in this issue of the Federal Register.
Several commenters asserted that the Report to Congress is an
inadequate basis for the designation and regulation of sources covered
under today's final rule, specifically the nationwide designation of
small municipal separate storm sewer systems within urbanized areas and
construction activities disturbing between one and five acres.
EPA believes that it has developed an adequate record for today's
regulation both through the Report to Congress and the Clean Water
Initiative and through more recent activities, including the FACA
Subcommittee process, regulatory notices and evaluation of comments,
and recent research and analysis. EPA does not interpret the
congressional reporting requirements of CWA section 402(p)(5) to be the
sole basis for determining sources to be regulated under today's final
rule.
EPA's decision to designate on a national basis small MS4s in
urbanized areas is supported by studies that clearly show a direct
correlation between urbanization and adverse water quality impacts from
storm water discharges. (Schueler, T. 1987. Controlling Urban Runoff: A
Practical Manual for Planning & Designing Urban BMPs. Metropolitan
Washington Council of Governments). ``Urbanized areas''--within which
all small MS4s would be covered--represent the most intensely developed
and dense areas of the Nation. They constitute only two percent of the
land area but 63 percent of the total population. See section I.B.1,
Urban Development, above, for studies and assessments of the link
between urban development and storm water impacts on water resources.
Commenters argued that the Report to Congress does not address
storm water discharges from construction sites. They further argued
that the designation of small construction sites per today's final rule
goes beyond the President's 1994 Initiative because the Initiative only
recommends requiring municipalities to implement a storm water
management program to control unregulated storm water sources,
``including discharges from construction of less than 5 acres, which
are part of growth, development and significant redevelopment
activities.'' They point out that the Initiative provides that
unregulated storm water discharges not addressed through a municipal
program would not be covered by the NPDES program. Commenters assert
that EPA has not developed a record independent of its section
402(p)(5) studies that demonstrates the necessity of regulating under a
separate NPDES permit storm water discharges from smaller construction
sites ``to protect water quality.'' EPA disagrees.
EPA evaluated the nature and extent of pollutants from construction
site sources in a process that was separate and distinct from the
development of the Report to Congress. Today's decision to regulate
certain storm water discharges from construction sites disturbing less
than 5 acres arose in part
[[Page 68733]]
out of the 9th Circuit remand in NRDC v. EPA, 966 F.2d 1292 (9th Cir.
1992). In that case, the court remanded portions of the Phase I storm
water regulations related to discharges from construction sites. Those
regulations define ``storm water discharges associated with industrial
activity'' to include only those storm water discharges from
construction sites disturbing 5 acres or more of total land area (see
40 CFR 122.26(b)(14)(x)). In its decision, the court concluded that the
5-acre threshold was improper because the Agency had failed to identify
information ``to support its perception that construction activities on
less than 5 acres are non-industrial in nature'' (966 F.2d at 1306).
The court remanded the below 5 acre exemption to EPA for further
proceedings (966 F.2d at 1310).
In a Federal Register notice issued on December 18, 1992, EPA noted
that it did not believe that the Court's decision had the effect of
automatically subjecting small construction sites to the existing
application requirements and deadlines. EPA believed that additional
notice and comment were necessary to clarify the status of these sites.
The information received during the notice and comment process and
additional research, as discussed in section I.B.3 Construction Site
Runoff, formed the basis for the designation of construction activity
disturbing between one and five acres on a nationwide basis. EPA's
objectives in today's proposal include an effort to (1) address the 9th
Circuit remand, (2) address water quality concerns associated with
construction activities that disturb less than 5 acres of land, and (3)
balance conflicting recommendations and concerns of stakeholders.
One commenter noted that EPA's proposal would fail to regulate
industrial facilities identified as Group A and Group B in the March
1995 Report to Congress. EPA is relying on the analysis in the Report,
which provided that the recommendation for coverage was meant as
guidance and was not intended to be an identification of specific
categories that must be regulated under Section 402(p)(6). Report to
Congress, p. 4-1. The Report recognized the existence of limited data
on which to base loadings estimates to support the nationwide
designation of individual or categories of sources. Report to Congress,
p. 4-44. Furthermore, during FACA Subcommittee discussion, EPA
continued to urge stakeholders to provide further data relating to
industrial and commercial storm water sources, which EPA did not
receive. EPA concluded that, due to insufficient data, these sources
were not appropriate for nationwide designation at this time.
E. Industrial Facilities Owned or Operated by Small Municipalities
Congress granted extensions to the NPDES permit application process
for selected classes of storm water discharges associated with
industrial activity. On December 18, 1991, Congress enacted the
Intermodal Surface Transportation Efficiency Act (ISTEA), which
postponed NPDES permit application deadlines for most storm water
discharges associated with industrial activity at facilities that are
owned or operated by small municipalities. EPA and States authorized to
administer the NPDES program could not require any municipality with a
population of less than 100,000 to apply for or obtain an NPDES permit
for any storm water discharge associated with industrial activity prior
to October 1, 1992, except for storm water discharges from airports,
power plants, or uncontrolled sanitary landfills. See 40 CFR
122.26(e)(1); 57 FR 11524, April 2, 1992 (reservation of NPDES
application deadlines for ISTEA facilities).
The facilities exempted by ISTEA discharge storm water in the same
manner (and are expected to use identical processes and materials) as
the industrial facilities regulated under the 1990 Phase I regulations.
Accordingly, these facilities pose similar water quality problems. The
extended moratorium for these facilities was necessary to allow
municipalities additional time to comply with NPDES requirements. The
proposal for today's rule would have maintained the existing deadline
for seeking coverage under an NPDES permit (August 7, 2001).
Today's rule changes the permit application deadline for such
municipally owned or operated facilities discharging industrial storm
water to make it consistent with the application date for small
regulated MS4s. Because EPA missed its March 1999 deadline for
promulgating today's rule, and the deadline for MS4s to submit permit
applications has been extended to three years and 90 days from the date
of this notice, the deadline for permitting ISTEA sources has been
similarly extended. The permitting of these sources is discussed below
in section ``II.I.3. ISTEA Sources.''
F. Related Nonpoint Source Programs
Today's rule addresses point source discharges of storm water
runoff and non-storm water discharges into MS4s. Many of these sources
have been addressed by nonpoint source control programs, which are
described briefly below.
In 1987, section 319 was added to the CWA to provide a framework
for funding State and local efforts to address pollutants from nonpoint
sources not addressed by the NPDES program. To obtain funding, States
are required to submit Nonpoint Source Assessment Reports identifying
State waters that, without additional control of nonpoint sources of
pollution, could not reasonably be expected to attain or maintain
applicable water quality standards or other goals and requirements of
the CWA. States are also required to prepare and submit for EPA
approval a statewide Nonpoint Source Management Program for controlling
nonpoint source water pollution to navigable waters within the State
and improving the quality of such waters. State program submittals must
identify specific best management practices (BMPs) and measures that
the State proposes to implement in the first four years after program
submission to reduce pollutant loadings from identified nonpoint
sources to levels required to achieve the stated water quality
objectives.
State nonpoint source programs funded under section 319 can include
both regulatory and nonregulatory State and local approaches. Section
319(b)(2)(B) specifies that a combination of ``nonregulatory or
regulatory programs for enforcement, technical assistance, financial
assistance, education, training, technology transfer, and demonstration
projects' may be used, as necessary, to achieve implementation of the
BMPs or measures identified in the section 319 submittals.
Section 6217 of the Coastal Zone Act Reauthorization Amendments
(CZARA) of 1990 provides that States with approved coastal zone
management programs must develop coastal nonpoint pollution control
programs and submit them to EPA and the National Oceanic and
Atmospheric Administration (NOAA) for approval. Failure to submit an
approvable program will result in a reduction of Federal grants under
both the Coastal Zone Management Act and section 319 of the CWA.
State coastal nonpoint pollution control programs under CZARA must
include enforceable policies and mechanisms that ensure implementation
of the management measures throughout the coastal management area. EPA
issued Guidance Specifying Management Measures for Sources of Nonpoint
Pollution in Coastal Waters under section 6217(g) in
[[Page 68734]]
January 1993. The guidance identifies management measures for five
major categories of nonpoint source pollution. The management measures
reflect the greatest degree of pollutant reduction that is economically
achievable for each of the listed sources. These management measures
provide reference standards for the States to use in developing or
refining their coastal nonpoint programs. A few management measures,
however, contain quantitative standards that specify pollutant loading
reductions. For example, the New Development Management Measure, which
is applicable to construction in urban areas, requires (1) that by
design or performance the average annual total suspended solid loadings
be reduced by 80 percent and (2) to the extent practicable, that the
pre-development peak runoff rate and average volume be maintained.
EPA and NOAA published Coastal Nonpoint Pollution Control Program:
Program Development and Approval Guidance (1993). The document
clarifies that States generally must implement management measures for
each source category identified in the EPA guidance developed under
section 6217(g). Coastal Nonpoint Pollution Control Programs are not
required to address sources that are clearly regulated under the NPDES
program as point source discharges. Specifically, such programs would
not need to address small MS4s and construction sites covered under
NPDES storm water permits (both general and individual).
II. Description of Program
A. Overview
1. Objectives EPA Seeks To Achieve in Today's Rule
EPA seeks to achieve several objectives in today's final rule.
First, EPA is implementing the requirement under CWA section 402(p)(6)
to provide a comprehensive storm water program that designates and
controls additional sources of storm water discharges to protect water
quality. Second, EPA is addressing storm water discharges from the
activities exempted under the 1990 storm water permit application
regulations that were remanded by the Ninth Circuit Court of Appeals in
NRDC v. EPA, 966 F.2d 1292 (9th Circuit, 1992). These are construction
activities disturbing less than 5 acres and so-called ``light''
industrial activities not exposed to storm water (see discussion of
``no exposure'' below). Third, EPA is providing coverage for the so-
called ``donut holes'' created by the existing NPDES storm water
program. Donut holes are geographic gaps in the NPDES storm water
program's regulatory scheme. They are MS4s located within areas covered
by the existing NPDES storm water program, but not currently addressed
by the storm water program because it is based on political
jurisdictions. Finally, EPA also is trying to promote watershed
planning as a framework for implementing water quality programs where
possible.
Although EPA had options for different approaches (see alternatives
discussed in the January 9, 1998, proposed regulation), EPA believes it
can best achieve its objectives through flexible innovations within the
framework of the NPDES program. Unlike the interim section 402(p)(6)
storm water regulations EPA promulgated in 1995, EPA no longer
designates all of the unregulated storm water discharges for nationwide
coverage under the NPDES program for storm water. The framework for
today's final rule is one that balances automatic designation on a
nationwide basis and locally-based designation and waivers. Nationwide
designation applies to those classes or categories of storm water
discharges that EPA believes present a high likelihood of having
adverse water quality impacts, regardless of location. Specifically,
today's rule designates discharges from small MS4s located in urbanized
areas and storm water discharges from construction activities that
result in land disturbance equal to or greater than one and less than
five acres. As noted under Section I.B., Water Quality Concerns/
Environmental Impact Studies and Assessments, these two categories of
storm water sources, when unregulated, tend to cause significant
adverse water quality impacts. Additional sources are not covered on a
nationwide basis either because EPA currently lacks information
indicating a consistent potential for adverse water quality impact or
because EPA believes that the likelihood of adverse impacts on water
quality is low, with some localized exceptions. Additional individual
sources or categories of storm water discharges could, however, be
covered under the program through a local designation process. A
permitting authority may designate additional small MS4s after
developing designation criteria and applying those criteria to small
MS4s located outside of an urbanized area, in particular those with a
population of 10,000 or more and a population density of at least
1,000. Exhibit 1 illustrates the designation framework for today's
final rule.
BILLING CODE 6560-50-P
[[Page 68735]]
[GRAPHIC] [TIFF OMITTED] TR08DE99.000
BILLING CODE 6560-50-C
[[Page 68736]]
The designation framework for today's final rule provides a
significant degree of flexibility. The proposed provisions for
nationwide designation of storm water discharges from construction and
from small MS4s in urbanized areas allowed for a waiver of applicable
requirements based on appropriate water quality conditions. Today's
final rule expands and simplifies those waivers.
The permitting authority may waive the requirement for a permit for
any small MS4 serving a jurisdiction with a population of less than
1,000 unless storm water controls are needed because the MS4 is
contributing to a water quality impairment. The permitting authority
may also waive permit coverage for MS4s serving a jurisdiction with a
population of less than 10,000 if all waters that receive a discharge
from the MS4 have been evaluated and discharges from the MS4 do not
significantly contribute to a water quality impairment or have the
potential to cause an impairment. Today's rule also allows States with
a watershed permitting approach to phase in coverage for MS4s in
jurisdictions with populations under 10,000.
Water quality conditions are also the basis for a waiver of
requirements for storm water discharges from construction activities
disturbing between one and five acres. For these small construction
sources, the rule provides significant flexibility for waiving
otherwise applicable regulatory requirements where a permitting
authority determines, based on water quality and watershed
considerations, that storm water discharge controls are not needed.
Coverage can be extended to municipal and construction sources
outside the nationwide designated classes or categories based on
watershed and case-by-case assessments. For the municipal storm water
program, today's rule provides broad discretion to NPDES permitting
authorities to develop and implement criteria for designating storm
water discharges from small MS4s outside of urbanized areas. Other
storm water discharges from unregulated industrial, commercial, and
residential sources will not be subject to the NPDES permit
requirements unless a permitting authority determines on a case-by-case
basis (or on a categorical basis within identified geographic areas
such as a State or watershed) that regulatory controls are needed to
protect water quality. EPA believes that the flexibility provided in
today's rule facilitates watershed planning.
2. General Requirements for Regulated Entities Under Today's Rule
As previously noted, today's final rule defines additional classes
and categories of storm water discharges for coverage under the NPDES
program. These designated dischargers are required to seek coverage
under an NPDES permit. Furthermore, all NPDES-authorized States and
Tribes are required to implement these provisions and make any
necessary amendments to current State and Tribal NPDES regulations to
ensure consistency with today's final rule. EPA remains the NPDES
permitting authority for jurisdictions without NPDES authorization.
Today's final rule includes some new requirements for NPDES
permitting authorities implementing the CWA section 402(p)(6) program.
EPA has made a significant effort to build flexibility into the program
while attempting to maintain an appropriate level of national
consistency. Permitting authorities must ensure that NPDES permits
issued to MS4s include the minimum control measures established under
the program. Permitting authorities also have the ability to make
numerous decisions including who is regulated under the program, i.e.,
case-by-case designations and waivers, and how responsibilities should
be allocated between regulated entities.
Today's final rule extends the NPDES program to include discharges
from the following: small MS4s within urbanized areas (with the
exception of systems waived from the requirements by the NPDES
permitting authority); other small MS4s meeting designation criteria to
be established by the permitting authority; and any remaining MS4 that
contributes substantially to the storm water pollutant loadings of a
physically interconnected MS4 already subject to regulation under the
NPDES program. Small MS4s include urban storm sewer systems owned by
Tribes, States, political subdivisions of States, as well as the United
States, and other systems located within an urbanized area that fall
within the definition of an MS4. These include, for example, State
departments of transportation (DOTs), public universities, and federal
military bases.
Today's final rule requires all regulated small MS4s to develop and
implement a storm water management program. Program components include,
at a minimum, 6 minimum measures to address: public education and
outreach; public involvement; illicit discharge detection and
elimination; construction site runoff control; post-construction storm
water management in new development and redevelopment; and pollution
prevention and good housekeeping of municipal operations. These program
components will be implemented through NPDES permits. A regulated small
MS4 is required to submit to the NPDES permitting authority, either in
its notice of intent (NOI) or individual permit application, the BMPs
to be implemented and the measurable goals for each of the minimum
control measures listed above.
The rule addresses all storm water discharges from construction
site activities involving clearing, grading and excavating land equal
to or greater than 1 acre and less than 5 acres, unless requirements
are otherwise waived by the NPDES permitting authority. Discharges from
such sites, as well as construction sites disturbing less than 1 acre
of land that are designated by the permitting authority, are required
to implement requirements set forth in the NPDES permit, which may
reference the requirements of a qualifying local program issued to
cover such discharges.
The rule also addresses certain other sources regulated under the
existing NPDES program for storm water. For municipally-owned
industrial sources required to be regulated under the existing NPDES
storm water program but exempted from immediate compliance by the
Intermodal Surface Transportation Act of 1991 (ISTEA), the rule revises
the existing deadline for seeking coverage under an NPDES permit
(August 7, 2001) to make it consistent with the application date for
small regulated MS4s. (See section I.3. below.) The rule also provides
relief from NPDES storm water permitting requirements for industrial
sources with no exposure of industrial materials and activities to
storm water.
3. Integration of Today's Rule With the Existing Storm Water Program
In developing an approach for today's final rule, numerous early
interested stakeholders encouraged EPA to seek opportunities to
integrate, where possible, the proposed Phase II requirements with
existing Phase I requirements, thus facilitating a unified storm water
discharge control program. EPA believes that this objective is met by
using the NPDES framework. This framework is already applied to
regulated storm water discharge sources and is extended to those
sources designated under today's rule. This approach facilitates
program consistency, public access to information, and program
oversight.
[[Page 68737]]
EPA believes that today's final rule provides consistency in terms
of program coverage and requirements for existing and newly designated
sources. For example, the rule includes most of the municipal donut
holes, those MS4s located in incorporated places, townships or towns
with a population under 100,000 that are within Phase I counties. These
MS4s are not addressed by the existing NPDES storm water program while
MS4s in the surrounding county are currently addressed. In addition,
the minimum control measures required in today's rule for regulated
small MS4s are very similar to a number of the permit requirements for
medium and large MS4s under the existing storm water program. Following
today's rule, permit requirements for all regulated MS4s (both those
under the existing program and those under today's rule) will require
implementation of BMPs. Furthermore, with regard to the development of
NPDES permits to protect water quality, EPA intends to apply the August
1, 1996, Interim Permitting Approach for Water Quality-Based Effluent
Limitations in Storm Water Permits (hereinafter, ``Interim Permitting
Approach'') (see Section II.L.1. for further description) to all MS4s
covered by the NPDES program.
EPA is applying NPDES permit requirements to construction sites
below 5 acres that are similar to the existing requirements for those
above 5 acres and above. In addition, today's rule allows compliance
with qualifying local, Tribal, or State erosion and sediment controls
to meet the erosion and sediment control requirements of the general
permits for storm water discharges associated with construction, both
above and below 5 acres.
4. General Permits
EPA recommends using general permits for all newly regulated storm
water sources under today's rule. The use of general permits, instead
of individual permits, reduces the administrative burden on permitting
authorities, while also limiting the paperwork burden on regulated
parties seeking permit authorization. Permitting authorities may, of
course, require individual permits in some cases to address specific
concerns, including permit non-compliance.
EPA recommends that general permits for MS4s, in particular, be
issued on a watershed basis, but recognizes that each permitting
authority must decide how to develop its general permit(s). Permit
conditions developed to address concerns and conditions of a specific
watershed could reflect a watershed plan; such permit conditions must
provide for attainment of applicable water quality standards (including
designated uses), allocations of pollutant loads established by a TMDL,
and timing requirements for implementation of a TMDL. If the permitting
authority issues a State-wide general permit, the permitting authority
may include separate conditions tailored to individual watersheds or
urbanized areas. Of course, for a newly regulated MS4, modification of
an existing individual MS4 permit to include the newly regulated MS4 as
a ``limited co-permittee'' also remains an option.
5. Tool Box
During the FACA process, many Storm Water Phase II FACA
Subcommittee representatives expressed an interest, which was endorsed
by the full Committee, in having EPA develop a ``tool box'' to assist
States, Tribes, municipalities, and other parties involved in the Phase
II program. EPA made a commitment to work with Storm Water Phase II
FACA Subcommittee representatives in developing such a tool box, with
the expectation that a tool box would facilitate implementation of the
storm water program in an effective and cost-efficient manner. EPA has
developed a preliminary working tool box (available on EPA's web page
at www.epa.gov/owm/sw/toolbox). EPA intends to have the tool box fully
developed by the time of the first general permits. EPA also intends to
update the tool box as resources and data become available. The tool
box will include the following eight main components: fact sheets;
guidances; a menu of BMPs for the six MS4 minimum measures; an
information clearinghouse; training and outreach efforts; technical
research; support for demonstration projects; and compliance
monitoring/assistance tools. EPA intends to issue the menu of BMPs,
both structural and non-structural, by October 2000. In addition, EPA
will issue by October 2000 a ``model'' permit and will issue by October
2001 guidance materials on the development of measurable goals for
municipal programs.
In an attempt to avoid duplication, the Agency has undertaken an
effort to identify and coordinate sources of information that relate to
the storm water discharge control program from both inside and outside
the Agency. Such information includes research and demonstration
projects, grants, storm water management-related programs, and
compendiums of available documents, including guidances, related
directly or indirectly to the comprehensive NPDES storm water program.
Based on this effort, EPA is developing a tool box containing fact
sheets and guidance documents pertaining to the overall program and
rule requirements (e.g., guidance on municipal and construction
programs, and permitting authority guidance on designation and waiver
criteria); models of current programs aimed at assisting States,
Tribes, municipalities, and others in establishing programs; a
comprehensive list of reference documents organized according to
subject area (e.g., illicit discharges, watersheds, water quality
standards attainment, funding sources, and similar types of
references); educational materials; technical research data; and
demonstration project results. The information collected by EPA will
not only provide the background for tool box materials, but will also
be made available through an information clearinghouse on the world
wide web.
With assistance from EPA, the American Public Works Association
(APWA) developed a workbook and series of workshops on the proposed
Phase II rule. Ten workshops were held from September 1998 through May
1999. Depending on available funding, these workshops may continue
after publication of today's final rule. EPA also intends to provide
training to enable regional offices to educate States, Tribes, and
municipalities about the storm water program and the availability of
the tool box materials.
The CWA currently provides funding mechanisms to support activities
related to storm water. These mechanisms will be described in the tool
box. Activities funded under grant and loan programs, which could be
used to assist in storm water program development, include programs in
the nonpoint source area, storm water demonstration projects, source
water protection and wastewater construction projects. EPA has already
provided funding for numerous research efforts in these areas,
including a database of BMP effectiveness studies (described below), an
assessment of technologies for storm water management, a study of the
effectiveness of storm water BMPs for controlling the impacts of
watershed imperviousness, protocols for wet weather monitoring,
development of a dynamic model for wet weather flows, and numerous
outreach projects.
EPA has entered into a cooperative agreement with the Urban Water
Resources Research Council of the American Society of Civil Engineers
(ASCE) to develop a scientifically-based management tool for the
information
[[Page 68738]]
needed to evaluate the effectiveness of urban storm water runoff BMPs
nationwide. The long-term goal of the National Stormwater BMP Database
project is to promote technical design improvements for BMPs and to
better match their selection and design to the local storm water
problems being addressed. The project team has collected and evaluated
hundreds of existing published BMP performance studies and created a
database covering about 75 test sites. The database includes detailed
information on the design of each BMP and its watershed
characteristics, as well as its performance. Eventually the database
will include the nationwide collection of information on the
characteristics of structural and non-structural BMPs, data collection
efforts (e.g., sampling and flow gaging equipment), climatological
characteristics, watershed characteristics, hydrologic data, and
constituent data. The database will continue to grow as new BMP data
become available. The initial release of the database, which includes
data entry and retrieval software, is available on CD-ROM and operates
on Windows-compatible personal computers. The ASCE project
team envisions that periodic updates to the database will be
distributed through the Internet. The team is currently developing a
system for Internet retrieval of selected database records, and this
system is expected to be available in early 2000.
EPA and ASCE invite BMP designers, owners and operators to
participate in the continuing database development effort. To make this
effort successful, a large database is essential. Interested persons
are encouraged to submit their BMP performance evaluation data and
associated BMP watershed characteristics for potential entry into the
database. The software included in the CD-ROM allows data providers to
enter their BMP data locally, retain and edit the data as needed, and
submit them to the ASCE Database Clearinghouse when ready.
To obtain a copy of the database, please contact Jane Clary,
Database Clearinghouse Manager, Wright Water Engineers, Inc., 2490 W.
26th Ave., Suite 100A, Denver, CO 80211; Phone 303-480-1700; E-mail
clary@wrightwater.com.
In addition, EPA requests that researchers planning to conduct BMP
performance evaluations compile and collect BMP reporting information
according to the standard format developed by ASCE. The format is
provided with the database software and is also available on the ASCE
website at www.asce.org/peta/tech/nsbd01.html.
6. Deadlines Established in Today's Action
Exhibit 2 outlines the various deadlines established under today's
final rule. EPA believes that the dates allow sufficient time for
completion of both the NPDES permitting authority's and the permittee's
program responsibilities.
Exhibit 2-Storm Water Phase II Actions Deadlines
------------------------------------------------------------------------
Activity Deadline date
------------------------------------------------------------------------
NPDES-authorized States modify NPDES 1 year from date of publication
program if no statutory change is of today's rule in the Federal
required. Register.
NPDES-authorized States modify NPDES 2 years from date of
program if statutory change is publication of today's rule in
required. the Federal Register.
EPA issues a menu of BMPs for regulated October 27, 2000
small MS4s.
ISTEA sources submit permit application 3 years and 90 days from date
of publication of today's rule
in the Federal Register.
Permitting authority issues general 3 years from date of
permit(s) (if this type of permit publication of today's rule in
coverage is selected). the Federal Register.
Regulated small MS4s submit permit
application:
a. If designated under Sec. a. 3 years and 90 days from
122.32(a)(1) unless the permitting date of publication of today's
authority has established a rule in the Federal Register.
phasing schedule under Sec.
123.35(d)(3).
b. If designated under Sec. b. Within 180 days of notice.
122.32(a)(2) or Secs.
122.26(a)(9)(i) (C) or (D).
Storm water discharges associated with
small construction activity submit
permit application:
a. If designated under Sec. a. 3 years and 90 days from
122.26(b)(15)(i). date of publication of today's
rule in the Federal Register
b. If designated under Sec. b. Within 180 days of notice.
122.26(b)(15)(ii).
Permitting authority designates small 3 years from date of
MS4s under Sec. 123.35(b)(2). publication of today's rule in
the Federal Register or 5
years from date of publication
of today's rule in the Federal
Register if a watershed plan
is in place
Regulated small MS4s' program fully Up to 5 years from date of
developed and implemented. permit issuance.
Reevaluation of the municipal storm 13 years from date of
water rules by EPA. publication of today's rule in
the Federal Register
Permitting authority determination on a Within 180 days of receipt.
petition.
Non-municipal sources designated under Within 180 days of notice.
Sec. 122.26(a)(9)(i) (C) or (D)
submit permit application.
Submission of No Exposure Certification Every 5 years.
------------------------------------------------------------------------
B. Readable Regulations
Today, EPA is finalizing new regulations in a ``readable
regulation'' format. This reader-friendly, plain language approach is a
departure from traditional regulatory language and should enhance the
rule's readability. These plain language regulations use questions and
answers, ``you'' to identify the person who must comply, and terms like
``must'' rather than ``shall'' to identify a mandate. This new format,
which minimizes layers of subparagraphs, should also allow the reader
to easily locate specific provisions of the regulation.
Some sections of today's final rule are presented in the
traditional language and format because these sections amend existing
regulations. The readable regulation format was not used in these
existing provisions in an attempt to avoid confusion or disruption
[[Page 68739]]
of the readability of the existing regulations.
Most commenters supported EPA's use of plain language and agreed
with EPA that the question and answer format makes the rule easier to
understand. Three commenters thought that EPA should retain the
traditional rule format. The June 1, 1998, Presidential memorandum
directs all government agencies to write documents in plain language.
Based on the majority of the comments, EPA has retained the plain
language format used in the January 9, 1998, proposal in today's final
rule.
The proposal to today's final rule included guidance as well as
legal requirements. The word ``must'' indicates a requirement. Words
like ``should,'' ``could,'' or ``encourage'' indicate a recommendation
or guidance. In addition, the guidance was set off in parentheses to
distinguish it from requirements.
EPA received numerous comments supporting the inclusion of guidance
in the text of the Code of Federal Regulations (CFR), as well as
comments opposing inclusion of guidance. Supporters stated that
preambles and guidance documents are often not accessible when rules
are implemented. Any language not included in the CFR is therefore not
available when it may be most needed. Commenters that opposed including
guidance in the CFR expressed the concern that any language in the rule
might be interpreted as a requirement, in spite of any clarifying
language. They suggested that guidance be presented in the preamble and
additional guidance documents.
The majority of commenters on this issue thought that the guidance
should be retained but the distinction between requirements and
guidance should be better clarified. Suggestions included clarifying
text, symbols, and a change from use of the word ``should'' to ``EPA
recommends'' or ``EPA suggests''. EPA believes that it is important to
include the guidance in the rule and agrees that the distinction
between requirements and EPA recommendations must be very clear. In
today's final rule, EPA has put the guidance in paragraphs entitled
``Guidance'' and replaced the word ``should'' with ``EPA recommends.''
This is intended to clarify that the recommendations contained in the
guidance paragraphs are not legally binding.
C. Program Framework: NPDES Approach
Today's rule regulates Phase II sources using the NPDES permit
program. EPA interprets Clean Water Act section 402(p)(6) as
authorizing the Agency to develop a storm water program for Phase II
sources either as part of the existing NPDES permit program or as a
stand alone non-NPDES program such as a self-implementing rule. Under
either approach, EPA interprets section 402(p)(6) as directing EPA to
publish regulations that ``regulate'' the remaining unregulated
sources, specifically to establish requirements that are federally
enforceable under the CWA. Although EPA believes that it has the
discretion to not require sources regulated under CWA section 402(p)(6)
to be covered by NPDES permits, the Agency has determined, for the
reasons discussed below, that it is most appropriate to use NPDES
permits in implementing the program to address the sources designated
for regulation in today's rule.
As discussed in Section II.A, Overview, EPA sought to achieve
certain goals in today's final rule. EPA believes that the NPDES
program best achieves EPA's goals for today's final rule for the
reasons discussed below.
Requiring Phase II sources to be covered by NPDES permits helps
address the consistency problems currently caused by municipal ``donut
holes.'' Donut holes are gaps in program coverage where a small
unregulated MS4 is located next to or within a regulated larger MS4
that is subject to an NPDES permit under the Phase I NPDES storm water
program. The existence of such ``donut holes'' creates an equity
problem because similar discharges may remain unregulated even though
they cause or contribute to the same adverse water quality impacts.
Using NPDES permits to regulate the unregulated discharges in these
areas is intended to facilitate the development of a seamless
regulatory program for the mitigation and control of contaminated storm
water discharges in an urbanized area. For example, today's rule allows
a newly regulated MS4 to join as a ``limited'' co-permittee with a
regulated MS4 by referencing a common storm water management program.
Such cooperation should be further encouraged by the fact that the
minimum control measures required in today's rule for regulated small
MS4s are very similar to a number of the permit requirements for medium
and large MS4s under the Phase I storm water program. The minimum
control measures applicable to discharges from smaller MS4s are
described with slightly more generality than under the Phase I permit
application regulations for larger MS4s, thus enabling maximum
flexibility for operators of smaller MS4s to optimize efforts to
protect water quality.
Today's rule also applies NPDES permit requirements to construction
sites below 5 acres that are similar to the existing requirements for
those 5 acres and above. In addition, the rule would allow compliance
with qualifying local, Tribal, or State erosion and sediment controls
to meet the erosion and sediment control requirements of the general
permits for storm water discharges associated with construction, both
above and below 5 acres.
Incorporating the CWA section 402(p)(6) program into the NPDES
program capitalizes upon the existing governmental infrastructure for
administration of the NPDES program. Moreover, much of the regulated
community already understands the NPDES program and the way it works.
Another goal of the NPDES program approach is to provide
flexibility in order to facilitate and promote watershed planning and
sensitivity to local conditions. NPDES permits promote those goals in
several ways. NPDES general permits may be used to cover a category of
regulated sources on a watershed basis or within political boundaries.
The NPDES permitting process provides a mechanism for storm water
controls tailored on a case-by-case basis, where necessary. In
addition, the NPDES permit requirements of a permittee may be satisfied
by another cooperating entity. Finally, NPDES permits may incorporate
the requirements of existing State, Tribal and local programs, thereby
accommodating State and Tribes seeking to coordinate the storm water
program with other programs, including those that focus on watershed-
based nonpoint source regulation.
In promoting the watershed approach to program administration, EPA
believes NPDES general permits can cover a category of dischargers
within a defined geographic area. Areas can be defined very broadly to
include political boundaries (e.g., county), watershed boundaries, or
State or Tribal land.
NPDES permits generally require an application or a notice of
intent(NOI) to trigger coverage. This information exchange assures
communication between the permitting authority and the regulated
community. This communication is critical in ensuring that the
regulated community is aware of the requirements and the permitting
authority is aware of the potential for adverse impacts to water
quality from identifiable locations. The NPDES permitting process
includes the public as a valuable stakeholder and ensures
[[Page 68740]]
that the public is included and information is made publicly available.
Another concern for EPA and several stakeholders was that the
program ensure citizen participation. The NPDES approach ensures
opportunities for citizen participation throughout the permit issuance
process, as well as in enforcement actions. NPDES permits are also
federally enforceable under the CWA.
EPA believes that the use of NPDES permits makes a significant
difference in the degree of compliance with regulations in the storm
water program. The NPDES program provides for public participation in
the development, enforcement and revision of storm water management
programs. Citizen suit enforcement has assisted in focusing attention
on adverse water quality impacts on a localized, public priority basis.
Citizens frequently rely on the NPDES permitting process and the
availability of NOIs to track program implementation and help them
enforce regulatory requirements.
NPDES permits are also advantageous to the permittee. The NPDES
permit informs the permittee about the scope of what it is expected do
to be in compliance with the Clean Water Act. As explained more fully
in EPA's April 1995 guidance, Policy Statement on Scope of Discharge
Authorization and Shield Associated with NPDES Permits, compliance with
an NPDES permit constitutes compliance with the Clean Water Act (see
CWA section 402(k)). In addition, NPDES permittees are excluded from
duplicative regulatory regimes under the Resource Conservation and
Recovery Act and the Comprehensive Emergency Response, Compensation and
Liability Act under RCRA's exclusions to the definition of ``solid
waste'' and CERCLA's exemption for ``federally permitted releases.''
EPA considered suggestions that the Agency authorize today's rule
to be implemented as a self-implementing rule. This would be a
regulation promulgated at the Federal, State, or Tribal level to
control some or all of the storm water dischargers regulated under
today's rule. Under this approach, a rule would spell out the specific
requirements for dischargers and impose the restrictions and conditions
that would otherwise be contained in an NPDES permit. It would be
effective until modified by EPA, a State, or a Tribe, unlike an NPDES
permit which cannot exceed a duration of five years. Some stakeholders
believed that this approach would reduce the burden on the regulated
community (e.g., by not requiring permit applications), and
considerably reduce the amount of additional paperwork, staff time and
accounting required to administer the proposed permit requirements.
EPA is sensitive to the interest of some stakeholders in having a
streamlined program that minimizes the burden associated with permit
administration and maximizes opportunities for field time spent by
regulatory authorities. Key provisions in today's rule address some of
these concerns by promoting a streamlined approach to permit issuance
by, for example, using general permits and allowing the incorporation
of existing programs. By adopting the NPDES approach rather than a
self-implementing rule, today's rule also allows for consistent
regulation between larger MS4s and construction sites regulated under
the existing storm water management rule and smaller sources regulated
under today's rule.
EPA believes that it is most appropriate to use NPDES permits to
implement a program to address the sources regulated by today's rule.
In addition to the reasons discussed above, NPDES permits provide a
better mechanism than would a self-implementing rule for tailoring
storm water controls on a case-by-case basis, where necessary. One
commenter reasoned this concern could be addressed by including
provisions in the regulation that allow site-specific BMPs (i.e., case-
by-case permits), suggesting storm water discharges that might require
site-specific BMPs can be identified during the designation process of
the regulatory authority. EPA believes that, in addition to its
complexity, the commenter's approach lacks the other advantages of the
NPDES permitting process.
A self-implementing rule would not ensure the degree of public
participation that the NPDES permit process provides for the
development, enforcement and revision of the storm water management
program. A self-implementing rule also might not have provided the
regulated community the ``permit shield'' under CWA section 402(k) that
is provided by an NPDES permit. Based on all these considerations, EPA
declined to adopt a self-implementing rule approach and adopted the
NPDES approach.
Some State representatives sought alternative approaches for State
implementation of the storm water program for Phase II sources. These
State representatives asserted that a non-NPDES alternative approach
best facilitated watershed management and avoided duplication and
overlapping regulations. These representatives believed the NPDES
approach would undercut State programs that had developed storm water
controls tailored to local watershed concerns. Finally, a number of
commenters expressed the view that States implement a variety of
programs not based on the CWA that are effective in controlling storm
water, and that EPA should provide incentives for their implementation
and improvement in performance.
Throughout the development of the rule, State representatives
sought alternatives to the NPDES approach for State implementation of
the storm water program for Phase II sources. Discussions focused on an
approach whereby States could develop an alternative program that EPA
would approve or disapprove based on identified criteria, including
that the alternative non-NPDES program would result in ``equivalent or
better protection of water quality.'' The State representatives,
however, were unable to propose or recommend criteria for gauging
whether a program would provide equivalent protection. EPA also did not
receive any suggestions for objective, workable criteria in response to
the Agency's explicit request for specific criteria (by which EPA could
objectively judge such programs) in the preamble to the proposed rule.
EPA evaluated several existing State initiatives to address storm
water and found many cases where standards under State programs may be
coordinated with the Federal storm water program. Where the NPDES
permit is developed in coordination with State standards, there are
opportunities to avoid duplication and overlapping requirements. Under
today's rule, an NPDES permitting authority may include conditions in
the NPDES permit that direct an MS4 to follow the requirements imposed
under State standards, rather than the requirements of Sec. 122.34(b).
This is allowed as long as the State program at a minimum imposes the
relevant requirements of Sec. 122.34(b). Additional opportunities
follow from other provisions in today's rule.
Seeking to further explore the feasibility of a non-NPDES approach,
the Agency, after the proposal, had extensive discussions with
representatives of a number of States. Discussions related specifically
to possible alternatives for regulations of urban storm water
discharges and MS4s specifically. The Agency also sought input on these
issues from other stakeholders.
As a result of these discussions, many of the commenters provided
input on issues such as: whether or not the Agency should require NPDES
permits; whether location of MS4s in urbanized
[[Page 68741]]
areas should be the basis for designation or whether designation should
be based on other determinations relating to water quality; whether
States should be allowed to satisfy the conditions of the rule through
the use of existing State programs; and issues concerning timing and
resources for program implementation.
In response, today's rule still follows the regulatory scheme of
the proposed rule, but incorporates additional flexibility to address
some of the concerns raised by commenters.
In order to facilitate implementation by States that utilize a
watershed permitting approach or similar approach (i.e., based on a
State's unified watershed assessments), today's rule allows States to
phase in coverage for MS4s in jurisdictions with a population less than
10,000. Under such an approach, States could focus their resources on a
rolling basis to assist smaller MS4s in developing storm water
programs.
In addition, in response to concerns that the rule should not
require permit coverage for MS4s that do not significantly contribute
to water quality impairments, today's rule provides options for two
waivers for small MS4s. The rule allows permitting authorities to
exempt from the requirement for a permit any MS4 serving a jurisdiction
with a population less than 1,000, unless the State determines that the
MS4 must implement storm water controls because it is significantly
contributing to a water quality impairment. A second waiver option
applies to MS4s serving a jurisdiction with a population less than
10,000. For those MS4s, the State must determine that discharges from
the MS4 do not significantly contribute to a water quality impairment,
or have the potential for such an impairment, in order to provide the
exemption. The State must review this waiver on a periodic basis no
less frequently than once every five years.
Throughout the development of today's rule, commenters questioned
whether the Clean Water Act authorized the use of the NPDES permit
program, pointing out that the text of CWA 402(p)(6) does not use the
word ``permit.'' Based on the absence of the word ``permit'' and the
express mention of State storm water management programs, the
commenters asserted that Congress did not intend for Phase II sources
to be regulated using NPDES permits.
EPA disagrees with the commenters' interpretation of section
402(p)(6). Section 402(p)(6) does not preclude use of permits as part
of the ``comprehensive program'' to regulate designated sources. The
language provides EPA with broad discretion in the establishment of the
``comprehensive program.'' Absence of the word ``permit'' (a term that
the statute does not otherwise define) does not preclude use of a
permit, which is a familiar and reasonably well understood regulatory
implementation vehicle. First, section 402(p)(6) says that EPA must
establish a comprehensive program that ``shall, at a minimum, establish
priorities, establish requirements for State stormwater management
programs, and establish expeditious deadlines.'' The ``at a minimum''
language suggests that the Agency may, and perhaps should, develop a
comprehensive program that does more than merely attend to these
minimum criteria. Use of the term ``at a minimum'' preserves for the
Agency broad discretion to establish a comprehensive program that
includes use of NPDES permits.
Further, in the final sentence of the section, Congress included
additional language to affirm the Agency's discretion. The final
sentence clarifies that the Phase II program ``may include performance
standards, guidelines, guidance, and management practices and treatment
requirements, as appropriate.'' Under existing CWA programs,
performance standards, (effluent limitations) guidelines, management
practices, and treatment requirements are typically implemented through
NPDES or dredge and fill permits.
Although EPA believes that it had the discretion to not require
permits, the Agency has determined that it is reasonable to interpret
section 402(p)(6) to authorize permits. Moreover, for the reasons
discussed above, the Agency believes that it is appropriate to use
NPDES permits in implementing today's rule.
D. Federal Role
Today's final rule describes EPA's approach to expand the existing
storm water program under CWA section 402(p)(6). As in all other
Federal programs, the Federal government plays an integral role in
complying with, developing, implementing, overseeing, and enforcing the
program. This section describes EPA's role in the revised storm water
program.
1. Develop Overall Framework of the Program
The storm water discharge control program under CWA section
402(p)(6) consists of the rule, tool box, and permits. EPA's primary
role is to ensure timely development and implementation of all
components. Today's rule is a refinement of the first step in
developing the program. EPA is fully committed to continuing to work
with involved stakeholders on developing the tool box and issuing
permits. As noted in today's rule, EPA will assess the municipal storm
water program based on (1) evaluations of data from the NPDES municipal
storm water program, (2) research concerning water quality impacts on
receiving waters from storm water, and (3) research on BMP
effectiveness. (Section II.H, Municipal Role, provides a more detailed
discussion of this provision.)
EPA is planning to standardize minimum requirements for
construction and post-construction BMPs in a new rulemaking under Title
III of the CWA. While larger construction sites are already subject to
NPDES permits (and smaller sites will be subject to permits pursuant to
today's rule), the permits generally do not contain specific
requirements for BMP design or performance. The permits require the
preparation of storm water pollution prevention plans, but actual BMP
selection and design is at the discretion of permittees, in conformance
with applicable State and local requirements. Where there are existing
State and local requirements specific to BMPs, they vary widely, and
many jurisdictions do not have such requirements.
In developing these regulations, EPA intends to evaluate the
inclusion of design and maintenance criteria as minimum requirements
for a variety of BMPs used for erosion and sediment control at
construction sites, as well as for permanent BMPs used to manage post-
construction storm water discharges. The Agency plans to consider the
merits and performance of all appropriate management practices (both
structural and non-structural) that can be used to reduce adverse water
quality impacts. EPA does not intend to require the use of particular
BMPs at specific sites, but plans to assist builders and developers in
BMP selection by publishing data on the performance to be expected by
various BMP types. EPA would like to build upon the successes of some
of the effective State and local storm water programs currently in
place around the country, and to establish nation-wide criteria to
support builders and local jurisdictions in appropriate BMP selection.
2. Encourage Consideration of Smart Growth Approaches
In the proposal, EPA invited comment on possible approaches for
providing
[[Page 68742]]
incentives for local decision making that would limit the adverse
impacts of growth and development on water quality. EPA asked for
comments on this ``smart growth'' approach.
EPA received comments on all sides of this issue. A number of
commenters supported the idea of ``smart growth'' incentives but did
not present concrete ideas. Several commenters suggested ``smart
growth'' criteria. States that have adopted ``smart growth'' laws were
worried that EPA's focus on urbanized areas for municipal requirements
could encourage development outside of designated growth areas. Today's
final rule clearly allows States to expand coverage of their municipal
storm water program outside of urbanized areas. In addition, the
flexibility of the six municipal minimum measures should avoid
encouragement of development into rural rather than urban areas. For
example, as part of the post-construction minimum measure, EPA
recommends that municipalities consider policies and ordinances that
encourage infill development in higher density urban areas, and areas
with existing infrastructure, in order to meet the measure's intent.
EPA also received several comments expressing concern that
incorporating ``smart growth'' incentives threatened the autonomy of
local governments. One commenter was worried that ``incentives'' could
become more onerous than the minimum measures. EPA is very aware of
municipal concerns about possible federal interference with local land
use planning. EPA is also cognizant of the difficulty surrounding
incentives for ``smart growth'' activities due to these concerns.
However, the Agency believes it has addressed these concerns by
proposing a flexible approach and will continue to support the concept
of ``smart growth'' by encouraging policies that limit the adverse
impacts of growth and development on water quality.
3. Provide Financial Assistance
Although Congress has not established a fund to fully finance
implementation of the proposed extension of the existing NPDES storm
water program under CWA section 402(p)(6), numerous federal financing
programs (administered by EPA and other federal agencies) can provide
some financial assistance. The primary funding mechanism is the Clean
Water State Revolving Fund (SRF) program, which provides sources of
low-cost financing for a range of water quality infrastructure
projects, including storm water. In addition to the SRF, federal
financial assistance programs include the Water Quality Cooperative
Agreements under CWA section 104(b)(3), Water Pollution Control Program
grants to States under CWA section 106, and the Transportation Equity
Act for the 21st Century (TEA-21) among others. In addition, Section
319 funds may be used to fund any urban storm water activities that are
not specifically required by a draft or final NPDES permit. EPA will
develop a list of potential funding sources as part of the tool box
implementation effort. EPA anticipates that some of these programs will
provide funds to help develop and, in limited circumstances, implement
the CWA section 402(p)(6) storm water discharge control program.
EPA received numerous comments that requested additional funding.
Congress provided one substantial new source of potential funding for
transportation related storm water projects--TEA-21. The Department of
Transportation has included a number of water-related provisions in its
TEA-21 planning. These include Transportation Enhancements,
Environmental Restoration and Pollution Abatement, and Environmental
Streamlining. More information on TEA-21 is available at the following
internet sites: www.fhwa.dot.gov/tea21/outreach.htm and www.tea21.org.
4. Implement the Program in Jurisdictions Not Authorized To Administer
the NPDES Program
Because today's final rule uses the NPDES framework, EPA will be
the NPDES permitting authority in several States, Tribal jurisdictions,
and Territories. As such, EPA will have the same responsibilities as
any other NPDES permitting authority--issuing permits, designating
additional sources, and taking appropriate enforcement actions--and
will seek to tailor the storm water discharge control program to the
specific needs in that State, Tribal jurisdiction, or Territory. EPA
also plans to provide support and oversight, including outreach,
training, and technical assistance to the regulated communities.
Section II.G. of today's preamble provides a separate discussion
related to the NPDES permitting authority's responsibilities for
today's final rule.
5. Oversee State and Tribal Programs
Under the NPDES program, EPA plays an oversight role for NPDES-
approved States and Tribes. In this role, EPA and the State or Tribe
work together to implement, enforce, and improve the NPDES program.
Part of this oversight role includes working with States and Tribes to
modify their programs where programmatic or implementation concerns
impede program effectiveness. This role will be vitally important when
States and Tribes make adjustments to develop, implement, and enforce
today's extension of the existing NPDES storm water discharge control
program. In addition, States maintain a continuing planning process
(CPP) under CWA section 303(e), which EPA periodically reviews to
assess the program's achievements.
In its oversight role, EPA takes action to address States and
Tribes who have obtained NPDES authorization but are not fulfilling
their obligations under the NPDES program. If an NPDES-authorized State
or Tribe fails to implement an adequate NPDES storm water program, for
example, EPA typically enters into extensive discussions to resolve
outstanding issues. EPA has the authority to withdraw the entire NPDES
program when resolution cannot be reached. Partial program withdrawal
is not provided for under the CWA except for partial approvals.
EPA is also working with the States and Tribes to improve nonpoint
source management programs and assessments to incorporate key program
elements. Key nonpoint source program elements include setting short
and long term goals and objectives; establishing public and private
partnerships; using a balanced approach incorporating Statewide and
watershed-wide abatement of existing impairments; preventing future
impairments; developing processes to address both impaired and
threatened waters; reviewing and upgrading all program components,
including program revisions on a 5-year cycle; addressing federal land
management and activities inconsistent with State programs; and
managing State nonpoint source management programs effectively.
In particular, EPA works with the States and Tribes to strengthen
their nonpoint source pollution programs to address all significant
nonpoint sources, including agricultural sources, through the CWA
section 319 program. EPA is working with other government agencies, as
well as with community groups, to effect voluntary changes regarding
watershed protection and reduced nonpoint source pollution.
In addition, EPA and NOAA have published programmatic and technical
guidance to address coastal nonpoint source pollution. Under Section
6217 of the CZARA, States are developing and implementing coastal
nonpoint pollution control programs approved by EPA and NOAA.
[[Page 68743]]
6. Comply With Applicable Requirements as a Discharger
Today's final rule covers federally operated facilities in a
variety of ways. These facilities are generally areas where people
reside, such as a federal prison, hospital, or military base. It also
includes federal parkways and road systems with separate storm sewer
systems. Today's rule requires federal MS4s to comply with the same
application deadlines that apply to regulated small MS4s generally. EPA
believes that all federal MS4s serve populations of less than 100,000.
EPA received several comments that asked if individual buildings
like post offices are considered to be small MS4s and thereby regulated
in today's rule if they are in an urbanized area. Most of these
buildings have at most a parking lot with runoff or a storm sewer that
connects with a municipality's MS4. EPA does not intend that individual
federal buildings be considered to be small MS4s. This is discussed in
section II.H.2.b. of today's preamble.
Federal facilities can also be included under requirements
addressing storm water discharges associated with small construction
activities. In any case, discharges from these facilities will need to
comply with all applicable NPDES requirements and any additional water
quality-related requirements imposed by a State, Tribal, or local
government. Failure to comply can result in enforcement actions.
Federal facilities can act as models for municipal and private sector
facilities and implement or test state-of-the-art management practices
and control measures.
E. State Role
Today's final rule sets forth an NPDES approach for implementing
the extension of the existing storm water discharge control program
under CWA section 402(p)(6). State assumption of the NPDES program is
voluntary, consistent with the principles of federalism. Because most
States are approved to implement the NPDES program, they will tailor
their storm water discharge control programs to address their water
quality needs and objectives. While today's rule establishes the basic
framework for the section 402(p)(6) program, States as well as Tribes
(see discussion in section II.F) have an important role in fine-tuning
the program to address the water quality issues within their
jurisdictions. The basic framework allows for adjustments based on
factors that vary geographically, including climate patterns and
terrain.
Where States do not have NPDES authority, they are not required to
implement the storm water discharge control program, but they may still
participate in water quality protection through participation in the
CWA section 401 certification process (for any permits) and through
development of water quality standards and TMDLs.
1. Develop the Program
In expanding the existing NPDES program for storm water discharges,
States must evaluate whether revisions to their NPDES programs are
necessary. If so, modifications must be made in accordance with
Sec. 123.62. Under Sec. 123.62, States must revise their NPDES programs
within 1 year, or within 2 years if statutory changes are necessary.
Some States and departments of transportation (DOTs) commented that
this timeframe is too short, anticipating that the State legislative
process and the modification of regulations combined would take beyond
2 years. The deadline language in Sec. 123.62 is not new language for
the storm water discharge control program; it applies to all NPDES
programs. EPA believes the vast majority of States will meet the
deadline and will work with States in those cases where there may be
difficulty meeting this deadline due to the timing of legislative
sessions and the regulatory development process.
An authorized State NPDES program must meet the requirements of CWA
section 402(b) and conform to the guidelines issued under CWA section
304(i)(2). Today's final rule under Sec. 123.25 adds specific cross
references to the storm water discharge control program components to
ensure that States adequately address these requirements.
2. Comply With Applicable Requirements as a Discharger
Today's final rule covers State operated separate storm sewer
systems in a variety of ways. These systems generally drain areas where
people reside, such as a prison, hospital, or other populated facility.
These systems are included under the definition of a regulated small
MS4, which specifically identifies systems operated by State
departments of transportation. Alternatively, storm water discharges
from State activities may be regulated under the section addressing
storm water discharges associated with small construction activities.
In any case, discharges from these facilities must comply with all
applicable NPDES requirements. Failure to comply can result in
enforcement actions. State facilities can act as models for municipal
and private sector facilities and implement or test state-of-the-art
management practices and control measures.
3. Communicate With EPA
Under approved NPDES programs, States have an ongoing obligation to
share information with EPA. This dialogue is particularly important in
the CWA section 402(p)(6) storm water program where these governments
continue to develop a great deal of the guidance and outreach related
to water quality.
F. Tribal Role
The proposal to today's final rule provides background information
on EPA's 1984 Indian Policy and the criteria for treatment of an Indian
Tribe in the same manner as a State. Today's final rule extends the
existing NPDES program for storm water discharges to two types of
dischargers located in Indian country. First, the final rule designates
storm water discharges from any regulated small MS4, including Tribal
systems. Second, the final rule regulates discharges associated with
construction activity disturbing between one and five acres of land,
including sites located in Indian country. Operators in each of these
categories of regulated activity must apply for coverage under an NPDES
permit by 3 years and 90 days from the date of publication of today's
final rule. Under existing regulations, however, EPA or an authorized
NPDES Tribe may require a specified storm water discharger to apply for
NPDES permit coverage before this deadline based on a determination
that the discharge is contributing to a violation of a water quality
standard (including designated uses) or is a significant contributor of
pollutants.
Under today's rule, a Tribal governmental entity may regulate storm
water discharges on its reservation in two ways--as either an NPDES-
authorized Tribe or as a regulated MS4. If a Tribe is authorized to
operate the NPDES program, the Tribe must implement today's final rule
for the NPDES program for storm water for covered dischargers located
within the EPA recognized boundaries. Otherwise, EPA is generally the
permitting/program authority within Indian country. Discussions about
the State Role in the preceding section also apply to NPDES authorized
Tribes. For additional information on the role and responsibilities of
the permitting authority in the NPDES storm water program, see
Sec. 123.35 (and Section II.G. of today's preamble) and Sec. 123.25(a).
[[Page 68744]]
Under today's final rule, if the Indian reservation is located
entirely or partially within an ``urbanized area,'' as defined in
Sec. 122.32(a)(1), the Tribe must obtain an NPDES permit if it operates
a small MS4 within the urbanized area portion. Tribal MS4s located
outside an urbanized area are not automatically covered, but may be
designated by EPA pursuant to Sec. 122.32(a)(2) of today's rule or may
request designation as a regulated small MS4 from EPA. A Tribe that is
a regulated MS4 for NPDES program purposes is required to implement the
six minimum control measures to the extent allowable under Federal law.
The Tribal representative on the Storm Water Phase II FACA
Subcommittee asked EPA to provide a list of the Tribes located in
urbanized areas that would fall within the NPDES storm water program
under today's final rule. In December 1996, EPA developed a list of
federally recognized American Indian Areas located wholly or partially
in Bureau of the Census-designated urbanized areas (see Appendix 1).
Appendix 1 not only provides a listing of reservations and individual
Tribes, but also the name of the particular urbanized area in which the
reservation is located and an indication of whether the urbanized area
contains a medium or large MS4 that is already covered by the existing
Phase I regulations.
Some of the Tribes listed in Appendix 1 are only partially located
in an urbanized area. If the Tribe's MS4 serves less than 1,000 people
within an urbanized area, the permitting authority may waive the
Tribe's MS4 storm water requirements if it meets the conditions of
Sec. 122.32(c). EPA does not have information on the Tribal populations
within the urbanized areas, so it can not identify the Tribes that are
eligible for a waiver. Therefore, a Tribe that believes it qualifies
for a waiver should contact its permitting authority.
G. NPDES Permitting Authority's Role for the NPDES Storm Water Small
MS4 Program
As noted previously, the NPDES permitting authority can be EPA or
an authorized State or an authorized Tribe. The following discussion
describes the role of the NPDES permitting authority under today's
final rule.
1. Comply With Implementation Requirements
NPDES permitting authorities must perform certain duties to
implement the NPDES storm water municipal program. Section 123.35(a) of
today's final rule emphasizes that permitting authorities have existing
obligations under the NPDES program. Section 123.35 focuses on specific
issues related to the role of the NPDES authority to support
administration and implementation of the municipal storm water program
under CWA section 402(p)(6).
2. Designate Sources
Section 123.35(b) of today's final rule addresses the requirements
for the NPDES permitting authority to designate sources of storm water
discharges to be regulated under Secs. 122.32 through 122.36. NPDES
permitting authorities must develop a process, as well as criteria, to
designate small MS4s. They must also have the authority to designate a
small MS4 if and when circumstances that support a waiver under
Sec. 122.32(c) change. EPA may make designations if an NPDES-approved
State or Tribe fails to do so.
NPDES permitting authorities must examine geographic jurisdictions
that they believe should be included in the storm water discharge
control program but are not located in an ``urbanized area''. Small
MS4s in these areas are not designated automatically. Discharges from
such areas should be brought into the program if found to have actual
or potential exceedances of water quality standards, including
impairment of designated uses, or other adverse impacts on water
quality, as determined by local conditions or watershed and TMDL
assessments. EPA's aim is to address discharges to impaired waters and
to protect waters with the potential for problems. EPA encourages NPDES
permitting authorities, local governments, and the interested public to
work together in the context of a watershed plan to address water
quality issues, including those associated with municipal storm water
runoff.
EPA received comments stating that the process of developing
criteria and applying it to all MS4s outside an urbanized area serving
a population of 10,000 or greater and with a density of 1,000 people
per square mile is too time-consuming and resource-intensive. These
commenters believe that the permitting authority should decide which
MS4s must be brought into the storm water discharge control program and
that population and density should not be an overriding criteria. One
suggested way of doing so was to only designate MS4s with demonstrated
contributions to the impairment of water quality uses as shown by a
TMDL. EPA disagrees with this suggestion. The TMDL process is time-
consuming. MS4s outside of urbanized areas may cause water quality
problems long before a TMDL is completed.
EPA believes that permitting authorities should consider the
potential water quality impacts of storm water from all jurisdictions
with a population of 10,000 or greater and a density of 1,000 people
per square mile. EPA is using data summarized in the NURP study and in
the CWA section 305(b) reports to support this approach for targeted
designation outside of urbanized areas. EPA is not mandating which
criteria are to be used, but has provided examples of criteria that may
be useful in evaluating potential water quality impacts. EPA believes
that the flexibility provided in this section of today's final rule
allows the permitting authority to develop criteria and a designation
process that is easy to use and protects water quality. Therefore, the
provisions of Sec. 123.35(b) remain as proposed.
a. Develop Designation Criteria
Under Sec. 123.35(b), the NPDES permitting authority must establish
designation criteria to evaluate whether a storm water discharge
results in or has the potential to result in exceedances of water
quality standards, including impairment of designated uses, or other
significant water quality impacts, including adverse habitat and
biological impacts.
EPA recommends that NPDES permitting authorities consider, in a
balanced manner, certain locally-focused criteria for designating any
MS4 located outside of an urbanized area on the basis of significant
water quality impacts. EPA recommends consideration of criteria such as
discharge to sensitive waters, high growth or growth potential, high
population density, contiguity to an urbanized area, significant
contribution of pollutants to waters of the United States, and
ineffective control of water quality concerns by other programs. These
suggested designation criteria are intended to help encourage the
permitting authority to use an objective method for identifying and
designating, on a local basis, sources that adversely impact water
quality. More information about these criteria and the reasons why they
are suggested by EPA is included in the January 9, 1998, proposal (63
FR 1561) for today's final rule.
The suggested criteria are meant to be taken in the aggregate, with
a great deal of flexibility as to how each should be weighed in order
to best account for watershed and other local conditions and to allow
for a more tailored case-by-case analysis. The application of criteria
is meant to be geographically specific. Furthermore, each criterion
does not have to be met in order for a small MS4
[[Page 68745]]
to qualify for designation, nor should an MS4 necessarily be designated
on the basis of one or two criteria alone.
EPA believes that the application of the recommended designation
criteria provides an objective indicator of real and potential water
quality impacts from urban runoff on both the local and watershed
levels. EPA encourages the application of the recommended criteria in a
watershed context, thereby allowing for the evaluation of the water
quality impacts of the portions of a watershed outside of an urbanized
area. For example, situations exist where the urbanized area represents
a small portion of a degraded watershed, and the adjacent nonurbanized
areas of the watershed have significant cumulative effects on the
quality of the receiving waters.
EPA received numerous suggestions of additional criteria that
should be added and reasons why some of the criteria in the proposal to
today's final rule were not appropriate. EPA developed its suggested
designation criteria based on findings of the NURP study and other
studies that indicate pollutants of concern, including total suspended
solids, chemical oxygen demand, and temperature. These criteria were
the subject of considerable discussion by the Storm Water Phase II FACA
Subcommittee. EPA developed them in response to recommendations from
the subcommittee during development of the proposed rule. The listed
criteria are only suggestions. Permitting authorities are required to
develop their own criteria. EPA has not found any reason to change its
suggested list of criteria and the suggestions remain as proposed.
b. Apply Designation Criteria
After customizing the designation criteria for local conditions,
the permitting authority must apply such criteria, at a minimum, to any
MS4 located outside of an urbanized area serving a jurisdiction with a
population of at least 10,000 and a population density of 1,000 people
per square mile or greater (see Sec. 123.35(b)(2)). If the NPDES
permitting authority determines that an MS4 meets the criteria, the
permitting authority must designate it as a regulated small MS4. This
designation must occur within 3 years of publication of today's final
rule. Alternatively, the NPDES authority can designate within 5 years
from the date of final regulation if the designation criteria are
applied on a watershed basis where a comprehensive watershed plan
exists (a comprehensive watershed plan is one that includes the
equivalents of TMDLs) (see Sec. 123.35(b)(3)). The extended 5 year
deadline is intended to provide incentives for watershed-based
designations. If an NPDES-authorized State or Tribe does not develop
and apply designation criteria within this timeframe, then EPA has the
opportunity to do so in lieu of the authorized State or Tribe.
NPDES permitting authorities can designate any small MS4, including
one below 10,000 in population and 1,000 in density. EPA established
the 10,000/1,000 threshold based on the likelihood of adverse water
quality impacts at these population and density levels. In addition,
the 1,000 persons per square mile threshold is consistent with both the
Bureau of the Census definition of an ``urbanized area'' (see Section
II.H.2. below) and stakeholder discussions concerning the definition of
a regulated small MS4.
One commenter requested that EPA develop interim deadlines for
development of designation criteria. EPA believes that the designation
deadline identified in today's final rule at Sec. 123.35(b)(3) provides
States and Tribes with a flexibility that allows them to develop and
apply the criteria locally in a timely fashion, while at the same time
establishing an expeditious deadline.
c. Designate Physically Interconnected Small MS4s
In addition to applying criteria on a local basis for potential
designation, the NPDES permitting authority must designate any MS4 that
contributes substantially to the pollutant loadings of a physically
interconnected municipal separate storm sewer that is regulated by the
NPDES program for storm water discharges (see Sec. 123.35(b)(4)). To be
``physically interconnected,'' the MS4 of one entity, including roads
with drainage systems and municipal streets, is physically connected
directly to the municipal separate storm sewer of another entity. This
provision applies to all MS4s located outside of an urbanized area. EPA
added this section in recognition of the concerns of local government
stakeholders that a local government should not have to shoulder total
responsibility for a storm water program when storm water discharges
from another MS4 are also contributing pollutants or adversely
affecting water quality. This provision also helps to provide some
consistency among MS4 programs and to facilitate watershed planning in
the implementation of the NPDES storm water program. EPA recommended
physical interconnectedness in the existing NPDES storm water
regulations as a factor for consideration in the designation of
additional sources.
Today's final rule does not include interim deadlines for
identifying physically interconnected MS4s. However, consistent with
the deadlines identified in Sec. 123.35(b)(3) of today's final rule,
EPA encourages the permitting authority to make these determinations
within 3 years from the date of publication of the final rule or within
5 years if the permitting authority is implementing a comprehensive
watershed plan. Alternatively, the affected jurisdiction could use the
petition process under 40 CFR 122.26(f) in seeking to have the
permitting authority designate the contributing jurisdiction.
Several commenters expressed concerns about who could be designated
under this provision (Sec. 123.35(b)(4)). One commenter requested that
the word ``substantially'' be deleted from the rule because they
believe any MS4 that contributes at all to a physically interconnected
municipal separate storm sewer should be regulated. EPA believes that
the word ``substantially'' provides necessary flexibility to the
permitting authorities. The permitting authority can decide if an MS4
is contributing discharges to another municipal separate storm sewer in
a manner that requires regulation. If the operator of a regulated
municipal separate storm sewer believes that some of its pollutant
loadings are coming from an unregulated MS4, it can petition the
permitting authority to designate the unregulated MS4 for regulation.
d. Respond to Public Petitions for Designation
Today's final rule reiterates the existing opportunity for the
public to petition the permitting authority for designation of a point
source to be regulated to protect water quality. The petition
opportunity also appears in existing NPDES regulations at 40 CFR
122.26(f). Any person may petition the permitting authority to require
an NPDES permit for a discharge composed entirely of storm water that
contributes to a violation of a water quality standard or is a
significant contributor of pollutants to the waters of the United
States (see Sec. 123.32(b)). The NPDES permitting authority must make a
final determination on any petition within 180 days after receiving the
petition (see Sec. 123.35(c)). EPA believes that a 180 day limit
balances the public's need for a timely final determination with the
NPDES permitting authority's need to prioritize its workload. If an
NPDES-approved State or Tribe fails to act
[[Page 68746]]
within the 180-day timeframe, EPA may make a determination on the
petition. EPA believes that public involvement is an important
component of the NPDES program for storm water and feels that this
provision encourages public participation. Section II.K, Public
Involvement/Public Role, further discusses this topic.
3. Provide Waivers
Today's rule provides two opportunities for the NPDES permitting
authority to exempt certain small MS4s from the need for a permit based
on water quality considerations. See Secs. 122.32(d) and (e). The two
waiver opportunities have different size thresholds and take different
approaches to considering the water quality impacts of discharges from
the MS4.
In the proposal, EPA requested comment on the option of waiving
coverage for all MS4s with less than 1,000 people unless the permitting
authority determined that the small MS4 should be regulated based on
significant adverse water quality impacts. A number of commenters
supported this option. They expressed concern that compliance with the
rule requirements and certification of one of the waiver provisions
were both costly for very small communities. They stated that the
permitting authority should identify a water quality problem before
requiring compliance. Today's rule essentially adopts this alternative
approach for MS4s serving a population under 1,000.
The final rule has expanded the waiver provision that EPA proposed
for small MS4s with a population less than 1,000. The proposed rule
would have required a small MS4 operator to certify that storm water
controls are not needed based on either wasteload allocations that are
part of TMDLs that address the pollutants of concern, or a
comprehensive watershed plan implemented for the waterbody that
includes the equivalents of TMDLs and addresses the pollutant(s) of
concern. Commenters noted that the proposed waivers would be
unattainable if a TMDL or equivalent analysis was required for every
pollutant that could possibly be present in any amount in discharges
from an MS4 regardless of whether the pollutant is causing water
quality impairment. Commenters asked that EPA identify what constitutes
the ``pollutant(s) of concern'' for which a TMDL or its equivalent must
be developed. For example, Sec. 122.30(c) indicates that the MS4
program is intended to control ``sediment, suspended solids, nutrients,
heavy metals, pathogens, toxins, oxygen-demanding substances, and
floatables.'' Commenters asked whether TMDLs or equivalent analyses
have to address all of these.
EPA has revised the proposed waiver in response to these concerns.
Under today's rule, NPDES permitting authorities may waive the
requirements of today's rule for any small MS4 with a population less
than 1,000 that does not contribute substantially to the pollutant
loadings of a physically interconnected MS4, unless the small MS4
discharges pollutants that have been identified as a cause of
impairment of the waters to which the small MS4 discharges. If the
small MS4 does discharge pollutants that have been identified as
impairing the water body into which the small MS4 discharges, the NPDES
permitting authority may grant a waiver only if it determines that
storm water controls are not needed based on an EPA approved or
established TMDL that addresses the pollutant(s) of concern.
Unlike the proposed rule, Sec. 122.32(d) does not allow the waiver
for MS4s serving a population under 1,000 to be based on ``the
equivalent of a TMDL.'' Because Sec. 122.32(d) requires a pollutant
specific analysis only for a pollutant that has been identified as a
cause of impairment, a TMDL is required for such pollutant before the
waiver may be granted. Once a pollutant has been identified as the
cause of impairment of a water body, the State should develop a TMDL
for that pollutant for that water body. Thus, Sec. 122.32(d) takes a
different approach than that taken for the waiver in Sec. 122.32(e) for
MS4s serving a population under 10,000, which can be based upon an
analysis that is ``the equivalent of a TMDL.'' This is because
Sec. 122.32(d) requires an analysis to support the waiver for MS4s
under 1,000 only if a waterbody to which the MS4 discharges has been
identified as impaired. The Sec. 122.32(e) waiver, on the other hand,
would be available for larger MS4s but only after the State
affirmatively establishes lack of impairment based upon a comprehensive
analysis of smaller urban waters that might not otherwise be evaluated
for the purposes of CWA section 303. Since Sec. 122.32(e) requires the
analysis of waters that have not been identified as impaired, an actual
TMDL is not required and an analysis that is the equivalent of a TMDL
can suffice to support the waiver.
Where a State is the NPDES permitting authority, the permitting
authority is responsible for the development of the TMDLs as well as
the assessment of the extent to which a small MS4's discharge
contributes pollutants to a neighboring regulated system. In States
where EPA is the permitting authority, EPA will use a State's TMDLs to
determine whether storm water controls are required for the small MS4s.
The proposed rule would have required the operator of the small MS4
serving a population under 1,000 to certify that its discharge was
covered under a TMDL that indicated that discharges from its particular
system were not having an adverse impact on water quality (i.e., it was
either not assigned wasteload allocations under TMDLs or its discharge
is within an assigned allocation). Many commenters expressed concerns
that MS4 operators serving less than 1,000 persons may lack the
technical capacity to certify that their discharges are not
contributing to adverse water quality impacts. These commenters thought
that the permitting authority should make such a certification. Today's
rule provides flexibility as to how the waiver is administered.
Permitting authorities are ultimately responsible for granting the
waiver, but are free to determine whether or not to require small MS4
operators that are seeking waivers to submit information or a written
certification.
Under Sec. 122.32(e) a State may grant a waiver to an MS4 serving a
population between 1,000 and 10,000 only if the State has made a
comprehensive effort to ensure that the MS4 will not cause or
contribute to water quality impairment. To grant a Sec. 122.32(e)
waiver, the NPDES permitting authority must evaluate all waters of the
U.S. that receive a discharge from the MS4 and determine that storm
water controls are not needed. The permitting authority's evaluation
must be based on wasteload allocations that are part of an EPA approved
or established TMDL or, if a TMDL has not been developed or approved,
an equivalent analysis that determines sources and allocations for the
pollutant(s) of concern. The pollutants of concern that the permitting
authority must evaluate include biochemical oxygen demand (BOD),
sediment or a parameter that addresses sediment (such as total
suspended solids, turbidity or siltation), pathogens, oil and grease,
and any other pollutant that has been identified as a cause of
impairment of any water body that will receive a discharge from the
MS4. Finally, the permitting authority must have determined that future
discharges from the MS4 do not have the potential to result in
exceedances of water quality standards, including impairment of
designated uses, or other significant
[[Page 68747]]
water quality impacts, including habitat and biological impacts.
Although EPA did not propose this specific approach, the Agency did
request comment on whether to increase the proposed 1,000 population
threshold for a waiver. The Sec. 122.32(e) waiver was developed in
response to comments, including States' concerns that they needed
greater flexibility to focus their efforts on MS4s that were causing
water quality impairment. Several commenters thought that the threshold
should be increased from 1,000 to 5,000 or 10,000. Others suggested
additional ways of qualifying for a waiver for MS4s that discharge to
waters that are not covered by a TMDL or watershed plan. EPA carefully
considered all the options for expanding the waiver provisions and has
decided to expand the waiver only in the very narrow circumstances
described above where a comprehensive analysis has been undertaken to
demonstrate that the MS4 is not causing water quality impairment.
The NPDES permitting authority can, at any time, mandate compliance
with program requirements from a previously waived small MS4 if
circumstances change. For example, a waiver can be withdrawn in
circumstances where the permitting authority later determines that a
waived small MS4's storm water discharge to a small stream will cause
adverse impacts to water quality or significantly interfere with
attainment of water quality standards. A ``change in circumstances''
could involve receipt of new information. Changed circumstances can
also allow a regulated small MS4 operator to request a waiver at any
time.
Some commenters expressed concerns about allowing any small MS4
waivers. One commenter stated that storm water pollution prevention
plans are necessary to control storm water pollution and should be
required from all regulated small MS4s. For the reasons stated in the
Background section above, EPA agrees that the discharges from most MS4s
in urbanized areas should be addressed by a storm water management
program outlined in today's rule. For MS4s serving very small areas,
however, the TMDL development process provides an opportunity to
determine whether an MS4 serving a population less than 1,000 is having
a negative impact on any receiving water that is impaired by a
pollutant that the MS4 discharges. MS4s serving populations up to
10,000 may receive a waiver only if a comprehensive analysis of its
impact on receiving water has been performed.
Other commenters said that waivers should not be allowed for small
MS4s that discharge into another regulated MS4. These commenters stated
that the word ``substantially'' should be removed from
Sec. 122.32(d)(i) so that a waiver would not be allowed for any system
``contributing to the storm water pollutant loadings of a physically
interconnected regulated MS4.'' As previously mentioned under the
designation discussion of section II.G.2.c, EPA believes that the word
``substantially'' provides needed flexibility to the permitting
authorities. It is important to note that this is only one aspect that
the permitting authority must consider when deciding on the
appropriateness of a waiver.
4. Issue Permits
NPDES permitting authorities have a number of responsibilities
regarding the permit process. Sections 123.35(d) through (g) ensure a
certain level of consistency for permits, yet provide numerous
opportunities for flexibility. NPDES permitting authorities must issue
NPDES permits to cover municipal sources to be regulated under
Sec. 122.32, unless waived under Sec. 122.32(c). EPA encourages
permitting authorities to use general permits as the vehicle for
permitting and regulating small MS4s. The Agency notes, however, that
some operators may wish to take advantage of the option to join as a
co-permittee with an MS4 regulated under the existing NPDES storm water
program.
Today's final rule includes a provision, Sec. 123.35(f), that
requires NPDES permitting authorities to either include the
requirements in Sec. 122.34 for NPDES permits issued for regulated
small MS4s or to develop permit limits based on a permit application
submitted by a small MS4. See Section II.H.3.a, Minimum Control
Measures, for more details on the actual Sec. 122.34 requirements. See
Section II.H.3.c for alternative and joint permitting options.
In an attempt to avoid duplication of effort, Sec. 122.34(c) allows
NPDES permitting authorities to include permit conditions that direct
an MS4 to meet the requirements of a qualifying local, Tribal, or State
municipal storm water management program. For a local, Tribal, or State
program to ``qualify,'' it must impose, at a minimum, the relevant
requirements of Sec. 122.34(b). A regulated small MS4 must still follow
the procedural requirements for an NPDES permit (i.e., submit an
application, either an individual application or an NOI under a general
permit) but will instead follow the substantive pollutant control
requirements of the qualifying local, Tribal, or State program.
Under Sec. 122.35(b), NPDES permitting authorities may also
recognize existing responsibilities among governmental entities for the
minimum control measures in an NPDES small MS4 storm water permit. For
example, the permit might acknowledge the existence of a State
administered program that addresses construction site runoff and
require that the municipalities only develop substantive controls for
the remaining minimum control measures. By acknowledging existing
programs, this provision is meant to reduce the duplication of efforts
and to increase the flexibility of the NPDES storm water program.
Section 123.35(e) of today's final rule requires permitting
authorities to specify a time period of up to 5 years from the issuance
date of an NPDES permit for regulated small MS4 operators to fully
develop and implement their storm water programs. As discussed more
fully below, permitting authorities should be providing extensive
support to the local governments to assist them in developing and
implementing their programs.
In the proposed rule, EPA stated that the permitting authority
would develop the menu of BMPs and if they failed to do so, EPA would
develop the menu. Commenters felt that EPA should develop a menu of
BMPs, rather than just providing guidance. In the settlement agreement
for seeking an extension to the deadline for issuing today's rule, EPA
committed to developing a menu of BMPs by October 27, 2000. Permitting
authorities can adopt EPA's menu or develop their own. The menu itself
is not intended to replace more comprehensive BMP guidance materials.
As part of the tool box efforts, EPA will provide separate guidance
documents that discuss the results from EPA-sponsored nationwide
studies on the design, operation and maintenance of BMPs. Additionally,
EPA expects that the new rulemaking on construction BMPs may provide
more specific design, operation and maintenance criteria.
5. Support and Oversee the Local Programs
NPDES permitting authorities are responsible for supporting and
overseeing the local municipal programs. Section 123.35(h) of today's
final rule highlights issues associated with these responsibilities.
To the extent possible, NPDES permitting authorities should provide
financial assistance to MS4s, which
[[Page 68748]]
often have limited resources, for the development and implementation of
local programs. EPA recognizes that funding for programs at the State
and Tribal levels may also be limited, but strongly encourages States
and Tribes to provide whatever assistance is possible. In lieu of
actual dollars, NPDES permitting authorities can provide cost-cutting
assistance in a number of ways. For example, NPDES permitting
authorities can develop outreach materials for MS4s to distribute or
the NPDES permitting authority can actually distribute the materials.
Another option is to implement an erosion and sediment control program
across an entire State (or Tribal land), thus alleviating the need for
the MS4 to implement its own program. The NPDES permitting authority
must balance the need for site-specific controls, which are best
handled by a local MS4, with its ability to offer financial assistance.
EPA, States, Tribes, and MS4s should work as a team in making these
kinds of decisions.
NPDES permitting authorities are responsible for overseeing the
local programs. Permitting authorities should work with the regulated
community and other stakeholders to assist in local program development
and implementation. This might include sharing information, analyzing
reports, and taking enforcement actions, as necessary. NPDES permitting
authorities play a vital role in supporting local programs by providing
technical and programmatic assistance, conducting research projects,
and monitoring watersheds. The NPDES permitting authority can also
assist the MS4 permittee in obtaining adequate legal authority at the
local level in order to implement the local component of the CWA
section 402(p)(6) program.
NPDES permitting authorities are encouraged to coordinate and
utilize the data collected under several programs. States and Tribes
address point and nonpoint source storm water discharges through a
variety of programs. In developing programs to carry out CWA section
402(p)(6), EPA recommends that States and Tribes coordinate all of
their water pollution evaluation and control programs, including the
continuing planning process under CWA section 303(e), the existing
NPDES program, the CZARA program, and nonpoint source pollution control
programs.
In addition, NPDES permitting authorities are encouraged to provide
a brief (e.g., two-page) reporting format to facilitate compilation and
analysis of data from reports submitted under Sec. 122.34(g)(3). EPA
intends to develop a model form for this purpose.
H. Municipal Role
1. Scope of Today's Rule
Today's final rule attempts to establish an equitable and
comprehensive four-pronged approach for the designation of municipal
sources. First, the approach defines for automatic coverage the
municipal systems believed to be of highest threat to water quality.
Second, the approach designates municipal systems that meet a set of
objective criteria used to measure the potential for water quality
impacts. Third, the approach designates on a case-by-case basis
municipal systems that ``contribute substantially to the pollutant
loadings of a physically-interconnected [regulated] MS4.'' Finally, the
approach designates on a case-by-case basis, upon petition, municipal
systems that ``contribute to a violation of a water quality standard or
are a significant contributor of pollutants.''
Today's final rule automatically designates for regulation small
MS4s located in urbanized areas, and requires that NPDES permitting
authorities examine for potential designation, at a minimum, a
particular subset of small MS4s located outside of urbanized areas.
Today's rule also includes provisions that allow for waivers from the
otherwise applicable requirements for the smallest MS4s that are not
causing impairment of a receiving water body. Qualifications for the
waivers vary depending on whether the MS4 serves a population under
1,000 or a population under 10,000. See Secs. 122.32(d) and (e). These
waivers are discussed further in section II.G.3. Any small MS4
automatically designated by the final rule or designated by the
permitting authority under today's final rule is defined as a
``regulated'' small MS4 unless it receives a waiver.
In today's final rule, all regulated small MS4s must establish a
storm water discharge control program that meets the requirements of
six minimum control measures. These minimum control measures are public
education and outreach on storm water impacts, public involvement
participation, illicit discharge detection and elimination,
construction site storm water runoff control, post-construction storm
water management in new development and redevelopment, and pollution
prevention/good housekeeping for municipal operations.
Today's rule allows for a great deal of flexibility in how an
operator of a regulated small MS4 is authorized to discharge under an
NPDES permit, by providing various options for obtaining permit
coverage and satisfying the required minimum control measures. For
example, the NPDES permitting authority can incorporate by reference
qualifying State, Tribal, or local programs in an NPDES general permit
and can recognize existing responsibilities among different
governmental entities for the implementation of minimum control
measures. In addition, a regulated small MS4 can participate in the
storm water management program of an adjoining regulated MS4 and can
arrange to have another governmental entity implement a minimum control
measure on their behalf.
2. Municipal Definitions
a. Municipal Separate Storm Sewer Systems (MS4s)
The CWA does not define the term ``municipal separate storm
sewer.'' EPA defined municipal separate storm sewer in the existing
storm water permit application regulations to mean, in part, a
conveyance or system of conveyances (including roads with drainage
systems and municipal streets) that is ``owned or operated by a State,
city, town borough, county, parish, district, association, or other
public body * * * designed or used for collecting or conveying storm
water which is not a combined sewer and which is not part of a Publicly
Owned Treatment Works as defined at 40 CFR 122.2'' (see
Sec. 122.26(b)(8)(i)). Section 122.26 contains definitions of medium
and large municipal separate storm sewer systems but no definition of a
municipal separate storm sewer system, even though the term MS4 is
commonly used. In today's rule, EPA is adding a definition of municipal
separate storm sewer system and small municipal separate storm sewer
system along with the abbreviations MS4 and small MS4.
The existing municipal permit application regulations define
``medium'' and ``large'' MS4s as those located in an incorporated place
or county with a population of at least 100,000 (medium) or 250,000
(large) as determined by the latest Decennial Census (see
Secs. 122.26(b)(4) and 122.26(b)(7)). In today's final rule, these
regulations have been revised to define all medium and large MS4s as
those meeting the above population thresholds according to the 1990
Decennial Census.
Today's rule also corrects the titles and contents of Appendices F,
G, H,& I to Part 122. EPA is adding those incorporated places and
counties whose 1990 population caused them to be defined as a
``medium'' or ``large'' MS4. All of these MS4s have applied for
[[Page 68749]]
permit coverage so the effect of this change to the appendices is
simply to make them more accurate. They will not need to be revised
again because today's rule ``freezes'' the definition of ``medium'' and
``large'' MS4s at those that qualify based on the 1990 census.
EPA received several comments supporting and opposing the proposal
to ``freeze'' the definitions based on the 1990 census. Commenters who
disagreed with EPA's position cited the unfairness of municipalities
that reach the medium or large threshold at a later date having fewer
permitting requirements compared to those that were already at the
population thresholds when the existing storm water regulations took
effect. EPA recognizes this disparity but does not believe it is
unfair, as explained in the proposed rule. The decision was based on
the fact that the deadlines from the existing regulations have lapsed,
and because the permitting authority can always require more from
operators of MS4s serving ``newly over 100,000'' populations.
b. Small Municipal Separate Storm Sewer Systems
The proposal to today's final rule added ``the United States'' as a
potential owner or operator of a municipal separate storm sewer. This
addition was intended to address an omission from existing regulations
and to clarify that federal facilities are, in fact, covered by the
NPDES program for municipal storm water discharges when the federal
facility is like other regulated MS4s. EPA received a comment that this
change would cause federal facilities located in Phase 1 areas to be
considered Phase 1 dischargers due to the definition of medium and
large MS4s. All MS4s located in Phase 1 cities or counties are defined
as Phase 1 medium or large MS4s. EPA believes that all federal
facilities serve a population of under 100,000 and should be regulated
as small MS4s. Therefore, in Sec. 122.26(a)(16) of today's final rule,
EPA is adding federal facilities to the NPDES storm water discharge
control program by changing the proposed definition of small municipal
separate storm sewer system. Paragraph (i) of this section restates the
definition of municipal separate storm sewer with the addition of ``the
United States'' as a owner or operator of a small municipal separate
storm sewer. Paragraph (ii) repeats the proposed language that states
that a small MS4 is a municipal separate storm sewer that is not medium
or large.
Most commenters agreed that federal facilities should be covered in
the same way as other similar MS4s. However, EPA received several
comments asking whether individual federal buildings such as post
offices or urban offices of the U.S. Park Service must apply for
coverage as regulated small MS4s. Most of these buildings have, at
most, a parking lot with runoff or a storm sewer that connects with a
municipality's MS4. In Sec. 122.26(a)(16)(iii), EPA clarifies that the
definition of small MS4 does not include individual buildings. These
buildings may have a municipal separate storm sewer but they do not
have a ``system'' of conveyances. The minimum measures for small MS4s
were written to apply to storm sewer ``systems'' providing storm water
drainage service to human populations and not to individual buildings.
This is true of municipal separate storm sewers from State buildings as
well as from federal buildings.
There will likely be situations where the permitting authority must
decide if a federal or State complex should be regulated as a small
MS4. A federal complex of two or three buildings could be treated as a
single building and not be required to apply for coverage. In these
situations, permitting authorities will have to use their best judgment
as to the nature of the complex and its storm water conveyance system.
Permitting authorities should also consider whether the federal or
State complex cooperates with its municipality's efforts to implement
their storm water management program.
Along with the questions about individual buildings, EPA received
many questions about how various provisions of the rule should be
interpreted for federal and State facilities. EPA acknowledges that
federal and State facilities are different from municipalities. EPA
believes, however, that the minimum measures are flexible enough that
they can be implemented by these facilities. As an example, DOD
commenters asked about how to interpret the term ``public'' for
military installations when implementing the public education measure.
EPA agrees with the suggested interpretation of ``public'' for DOD
facilities as ``the resident and employee population within the fence
line of the facility.''
EPA also received many comments from State departments of
transportation (DOTs) that suggested the ways in which they are
different from municipalities and should therefore be regulated
differently. Storm water discharges from State DOTs in Phase 1 areas
should already be regulated under Phase I. The preamble to Phase 1
clearly states that ``all systems within a geographical area including
highways and flood control districts will be covered.'' Many permitting
authorities regulated State DOTs as co-permittees with the Phase 1
municipality in which the highway is located. State DOTs that are
already regulated under Phase I are not required to comply with Phase
II. State DOTs that are not already regulated have various options for
meeting the requirements of today's rule. These options are discussed
in Section II.H.3.c.iv below. Several DOTs commented that some of the
minimum measures are outside the scope of their mission or that they do
not have the legal authority required for implementation. EPA believes
that the flexibility of the minimum measures allows them to be
implemented by most MS4s, including DOTs. When a DOT does not have the
necessary legal authority, EPA encourages the DOT to coordinate their
storm water management efforts with the surrounding municipalities and
other State agencies. Under today's rule, DOTs can use any of the
options of Sec. 122.35 to share their storm water management
responsibilities. DOTs may also want to work with their permitting
authority to develop a State-wide DOT storm water permit.
There are many storm water discharges from State DOTs and other
State MS4s located in Phase 1 areas that were not regulated under Phase
1. Today's rule adds many more State facilities as well as all federal
facilities located in urbanized areas. All of these State and federal
facilities that fit the definition of a small MS4 must be covered by a
storm water management program. The individual permitting authorities
must decide what type of permit is most applicable.
The existing NPDES storm water program already regulates storm
water from federally or State-operated industrial sources. Federal or
State facilities that are currently regulated due to their industrial
discharges may already be implementing some of today's rule
requirements.
EPA received comments that questioned the apparent inconsistency
between regulating a federal facility such as a hospital and not
regulating a similar private facility. Normally, this type of private
facility is regulated by the MS4. EPA believes that federal facilities
are subject to local water quality regulations, including storm water
requirements, by virtue of the waiver of sovereign immunity in CWA
section 313. However, there are special problems faced by MS4s in their
efforts to regulate federal facilities that have not been encountered
in regulating
[[Page 68750]]
similar private facilities. To ensure comprehensive coverage, today's
rule merely clarifies the need for permit coverage for these federal
facilities.
i. Combined Sewer Systems (CSS). The definition of small MS4s does
not include combined sewer systems. A combined sewer system is a
wastewater collection system that conveys sanitary wastewater and storm
water through a single set of pipes to a publicly-owned treatment works
(POTW) for treatment before discharging to a receiving waterbody.
During wet weather events when the capacity of the combined sewer
system is exceeded, the system is designed to discharge prior to the
POTW treatment plant directly into a receiving waterbody. Such an
overflow is a combined sewer overflow or CSO. Combined sewer systems
are not subject to existing regulations for municipal storm water
discharges, nor will they be subject to today's regulations. EPA
addresses combined sewer systems and CSOs in the National Combined
Sewer Overflow (CSO) Control Policy issued on April 19, 1994 (59 FR
18688). The CSO Control Policy contains provisions for developing
appropriate, site-specific NPDES permit requirements for combined sewer
systems. CSO discharges are subject to limitations based on the best
available technology economically achievable for toxic pollutants and
based on the best conventional pollutant control technology for
conventional pollutants. MS4s are subject to a different technology
standard for all pollutants, specifically to reduce pollutants to the
maximum extent practicable.
Some municipalities are served by both separate storm sewer systems
and combined sewer systems. If such a municipality is located within an
urbanized area, only the separate storm sewer systems within that
municipality is included in the NPDES storm water program and subject
to today's final rule. If the municipality is not located in an
urbanized area, then the NPDES permitting authority has discretion as
to whether the discharges from the separate storm sewer system is
subject to today's final rule. The NPDES permitting authority will use
the same process to designate discharges from portions of an MS4 for
permit coverage where the municipality is also served by a combined
sewer system.
EPA recognizes that municipalities that have both combined and
separate storm sewer systems may wish to find ways to develop a unified
program to meet all wet weather water pollution control requirements
more efficiently. In the proposal to today's final rule, EPA sought
comment on ways to achieve such a unified program. Many municipalities
that are served by CSSs and MS4s commented that it is inequitable to
force them to comply with Phase II at this time because implementation
of the CSO Control Policy through their NPDES permits already imposes a
significant financial burden. They requested an extension of the
implementation time frame. They did not provide ideas on how to unify
the two programs. EPA encourages permitting authorities to work with
these municipalities as they develop and begin implementation of their
CSO and storm water management programs. If both sets of requirements
are carefully coordinated early, a cost-effective wet weather program
can be developed that will address both CSO and storm water
requirements.
ii. Owners/Operators. Several commenters mentioned the difference
between the existing storm water application requirement for municipal
operators and the proposed municipal requirement for owners or
operators to apply. They felt that this inconsistency is confusing. The
preamble to the existing regulations makes numerous references to
owner/operator so there was no intent to make a clear distinction
between Phase I and Phase II. Section 122.21(b) states that when the
owner and operator are different, the operator must obtain the permit.
MS4s often have several operators. The owner may be responsible for one
part of the system and a regional authority may be responsible for
other aspects. EPA proposed the ``owner or operator'' language to
convey this dual responsibility. However, when the owner is responsible
for some part of a storm water management plan, it is also an operator.
EPA has revised the regulation language to clarify that ``an
operator'' must apply for a permit. When responsibilities for the MS4
are shared, all operators must apply.
c. Regulated Small MS4s
In today's final rule, all small MS4s located in an urbanized area
are automatically designated as ``regulated'' small MS4s provided that
they were not previously designated into the existing storm water
program. Unlike medium and large MS4s under the existing storm water
regulations, not all small MS4s are designated under today's final
rule. Therefore, today's rule distinguishes between ``small'' MS4s and
``regulated small'' MS4s.
EPA's definition of ``regulated small MS4s'' in the proposal to
today's rule included mention of incorporated places and counties.
Along with the definition, EPA included Appendices 6 and 7 to assist in
the identification of areas that would probably require coverage as
``automatically designated'' (Appendix 6) or ``potentially designated''
(Appendix 7). The definition and the appendices raised many questions
about exactly who was required to comply with the proposed
requirements. Commenters raised issues about the definition of
``incorporated place'' and the status of towns, townships, and other
places that are not considered incorporated by the Census Bureau. They
also asked about special districts, regional authorities, MS4s already
regulated, and other questions in order to clarify the rule's coverage.
EPA has revised Sec. 122.32(a) to clarify that discharges are
regulated under today's rule if they are from a small MS4 that is in an
urbanized area and has not received a waiver or they are designated by
the permitting authority. Today's rule does not regulate the county,
city, or town. Today's rule regulates the MS4. Therefore, even though a
county may be listed in Appendix 6, if that county does not own or
operate the municipal storm sewer systems, the county does not have to
submit an application or develop a storm water management program. If
another entity does own or operate an MS4 within the county, for
example, a regional utility district, that other entity needs to submit
the application and develop the program.
Some commenters suggested that EPA should change the rule language
to specifically allow regional authorities to be the permitted entity
and to allow small MS4s to apply as co-permittees. EPA believes that
the best way to clarify that regional authorities can be the primary
permitted entity is the change to Sec. 122.32(a) and the explanation
above. Because EPA assumes that today's regulation will be implemented
through general permits, MS4s will not be co-permittees under a general
permit in the same manner as under individual permits. EPA has added
Sec. 122.33(a)(4) and made a minor change to Sec. 122.35(a) to clarify
that small MS4s can work together to share the responsibilities of a
storm water management program. This is discussed further in Section
II.H.3.c.iv below.
The proposed rule stated that when a county or Federal Indian
reservation is only partially included in an urbanized area, only MS4s
in the urbanized portion of the county or Federal Indian reservation
would be regulated. In the rare cases when an incorporated place is
only partially included in the urbanized area, the entire incorporated
place would be regulated. EPA received comments asking about towns and
[[Page 68751]]
townships, because they were not considered to be incorporated areas
according to the Census Bureau's definition. Would the whole town/
township be covered or only the part of the town/township in the
urbanized area? States use many different types of systems in their
geographical divisions. Some towns are similar to incorporated cities
and others are large areas that are more similar to counties. Some
commenters thought that the urbanized area boundary was arbitrary, and
if part of a town or county was covered, it all should be covered.
Other commenters noted that some townships and counties encompass very
large areas of which only a small portion is urbanized. Due to the
great variety of situations, EPA has decided that for all geographical
entities, only MS4s in the urbanized area are automatically designated.
The population densities associated with the Census Bureau's
designation of urbanized areas provide the basis for designation of
these areas to protect water quality. This focused designation provides
for consistency and allows for flexibility on the part of the MS4 and
the permitting authority. In those situations where an incorporated
place or a town is not all in an ``urbanized area'', there is a good
possibility that it is served by more than one MS4. In those cases
where the area is served by the same MS4, it makes sense to develop a
storm water program for the whole area. Permitting authorities may also
decide to designate all MS4s within a county or township, if they
believe it is necessary to protect water quality.
Most operators of MS4s will not need to independently determine the
status of coverage under today's rule. EPA has revised the proposed
Appendices 6 and 7 to include towns and townships. Therefore, these
appendices will alert most MS4s as to whether they are likely to be
covered under today's rule. However, each permitting authority must
make the decision as to who requires coverage. Most likely, an
illustrative list of the regulated areas will be published with the
general permit. If not, the operator can contact its permitting
authority or the Bureau of the Census to find out if their separate
storm sewer systems are within an urbanized area.
i. Urbanized Area Description. Under the Bureau of the Census
definition of ``urbanized area,'' adopted by EPA for the purposes of
today's 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.'' The proposal to today's rule
provided the full definition and case studies to help explain the
census category of ``urbanized area.'' Appendix 2 is a simplified
urbanized area illustration to help demonstrate the concept of
urbanized areas in relation to today's final rule. The ``urbanized
area'' is the shaded area that includes within its boundaries
incorporated places, a portion of a Federal Indian reservation,
portions of two counties, an entire town, and portions of another town.
All small MS4s located in the shaded area are covered by the rule,
unless and until waived by the permitting authority. Any small MS4s
located outside of the shaded area are subject to potential designation
by the permitting authority.
There are 405 urbanized areas in the United States that cover 2
percent of total U.S. land area and contain approximately 63 percent of
the nation's population (see Appendix 3 for a listing of urbanized
areas of the United States and Puerto Rico). These numbers include U.S.
Territories, although Puerto Rico is the only territory to have Census-
designated urbanized areas. Urbanized areas constitute the largest and
most dense areas of settlement. The purpose of determining an
``urbanized area'' is to delineate the boundaries of development and
map the actual built-up urban area. The Bureau of the Census
geographers liken it to flying over an urban area and drawing a line
around the boundary of the built-up area as seen from the air.
Using data from the latest decennial census, the Census Bureau
applies the urbanized area definition nationwide (including U.S. Tribes
and Territories) and determines which places and counties are included
within each urbanized area. For each urbanized area, the Bureau
provides full listings of who is included, as well as detailed maps and
special CD-ROM files for use with computerized mapping systems (such as
GIS). Each State's data center receives a copy of the list, and some
maps, automatically. The States also have the CD-ROM files and a
variety of publications available to them for reference from the Bureau
of the Census. In addition, local or regional planning agencies may
have urbanized area files already. New listings for urbanized areas
based on the 2000 Census will be available by July/August 2001, but the
more comprehensive computer files will not be available until late
2001/early 2002.
Additional designations based on subsequent census years will be
governed by the Bureau of the Census' definition of an urbanized area
in effect for that year. 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.
ii. Rationale for Using Urbanized Areas. EPA is using urbanized
areas to automatically designate regulated small MS4s on a nationwide
basis for several reasons: (1) studies and data show a high correlation
between degree of development/ urbanization and adverse impacts on
receiving waters due to storm water (U.S. EPA, 1983; Driver et al.,
1985; Pitt, R.E. 1991. ``Biological Effects of Urban Runoff
Discharges.'' Presented at the Engineering Foundation Conference: Urban
Runoff and Receiving Systems; An Interdisciplinary Analysis of Impact,
Monitoring and Management, August 1991. Mt. Crested Butte, CO. American
Society of Civil Engineers, New York. 1992.; Pitt, R.E. 1995.
``Biological Effects of Urban Runoff Discharges,'' in Storm water
Runoff and Receiving Systems: Impact, Monitoring, and Assessment. Lewis
Publishers, New York.; Galli, J. 1990. Thermal Impacts Associated with
Urbanization and Storm water Management Best Management Practices.
Prepared for the Sediment and Storm water Administration of the
Maryland Department of the Environment.; Klein, 1979), (2) the blanket
coverage within the urbanized area encourages the watershed approach
and addresses the problem of ``donut-holes,'' where unregulated areas
are surrounded by areas currently regulated (storm water discharges
from donut hole areas present a problem due to their contributing
uncontrolled adverse impacts on local waters, as well as by frustrating
the attainment of water quality goals of neighboring regulated
communities), (3) this approach targets present and future growth areas
as a preventative measure to help ensure water quality protection, and
(4) the determination of urbanized areas by the Bureau of the Census
allows operators of small MS4s to quickly determine whether they are
included in the NPDES storm water program as a regulated small MS4.
Urbanized areas have experienced significant growth over the past
50 years. According to EPA calculations
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based on Census data from 1980 to 1990, the national average rate of
growth in the United States during that 10-year period was more than 4
percent. For the same period, the average growth within urbanized areas
was 15.7 percent and the average for outside of urbanized areas was
just more than 1 percent. The new development occurring in these
growing areas can provide some of the best opportunities for
implementing cost-effective storm water management controls.
EPA received many comments on the proposal to designate discharges
based on location within urbanized areas. EPA considered numerous other
approaches, several of which are discussed in the proposal to today's
final rule. Several commenters wanted designation to be based on proven
water quality problems rather than inclusion in an urbanized area. One
commenter proposed an approach based on the CWA 303(d) listing of
impaired waters and the wasteload allocation conducted under the TMDL
process. (See section II.L. on the section 303(d) and TMDL process).
The commenter's proposal would designate small MS4s on a case-by-case
basis, covering only those discharges where receiving streams are shown
to have water quality problems, particularly a failure to meet water
quality standards, including designated uses. The commenter further
described a non-NPDES approach where a State would require cost-
effective measures based on a proportionate share under a waste load
allocation, equitably allocated among all pollutant contributors. These
waste load allocations would be developed with input from all
stakeholders, and remedial measures would be implemented in a phased
manner based on the probability of results and/or economic feasibility.
The States would then periodically reassess the receiving streams to
determine whether the remedial measures are working, and if not,
require additional control measures using the same procedure used to
establish the initial measures. What the commenter describes is almost
a TMDL.
EPA considered a remedial approach based on water quality
impairment and rejected it for failure to prevent almost certain
degradation caused by urban storm water. EPA's main concern in opting
not to take a case-by-case approach to designation was that this
approach would not provide controls for storm water discharges in
receiving streams until after a site-specific demonstration of adverse
water quality impact. The commenter's suggestion would do nothing to
prevent pollution in waters that may be meeting water quality
standards, including supporting designated uses. The approach would
also rely on identifying storm water management programs following
comprehensive watershed plans and TMDL development. In most States,
water quality assessments have traditionally been conducted for
principal mainstream rivers and their major tributaries, not all
surface waters. The establishment of TMDLs nationwide will take many
years, and many States will conduct additional monitoring to determine
water quality conditions prior to establishing TMDLs. In addition, a
case-by-case approach would not address the problem of ``donut holes''
within urbanized areas and a lack of consistency among similarly
situated municipal systems would remain commonplace. After careful
consideration of all comments, EPA still believes that the approach in
today's rule is the most appropriate to protect water quality.
Protection includes prevention as well as remediation.
d. Municipal Designation by the Permitting Authority
Today's final rule also allows NPDES permitting authorities to
designate MS4s that should be included in the storm water program as
regulated small MS4s but are not located within urbanized areas. The
final rule requires, at a minimum, that a set of designation criteria
be applied to all small MS4s within a jurisdiction that serves a
population of at least 10,000 and has a population density of at least
1,000. Appendix 7 to this preamble provides an illustrative list of
places that the Agency anticipates meet this criteria. In addition, any
small MS4 may be the subject of a petition to the NPDES permitting
authority for designation. See Section II.G, NPDES Permitting
Authority's Role for more details on the designation and petition
processes. EPA believes that the approach of combining nationwide and
local designation to determine municipal coverage balances the
potential for significant adverse impacts on water quality with local
watershed protection and planning efforts.
e. Waiving the Requirements for Small MS4s
Today's final rule includes some flexibility in the nationwide
coverage of all small MS4s located in urbanized areas by providing the
NPDES permitting authority with the discretion to waive the otherwise
applicable requirements of the smallest MS4s that are not causing the
impairment of a receiving water body. Qualifications for the waiver
vary depending on whether the MS4 serves a population under 1,000 or a
population between 1,000 and 10,000. Note that even if a small MS4 has
requirements waived, it can subsequently be brought back into the
program if circumstances change. See Section II.G, NPDES Permitting
Authority's Role, for more details on this process.
3. Municipal Permit Requirements
a. Overview
i. Summary of Permitting Options. Today's rule outlines six minimum
control measures that constitute the framework for a storm water
discharge control program for regulated small MS4s that, when properly
implemented, will reduce pollutants to the maximum extent practicable
(MEP). These six minimum control measures are specified in
Sec. 122.34(b) and are discussed below in section ``II.H.3.b, Program
Requirements-Minimum Control Measures.'' All operators of regulated
small MS4s are required to obtain coverage under an NPDES permit,
unless the requirement is waived by the permitting authority in
accordance with today's rule. Implementation of Sec. 122.34(b) may be
required either through an individual permit or, if the State or EPA
makes one available to the facility, through a general permit. The
process for issuing and obtaining these permits is discussed below in
section ``II.H.3.c, Application Requirements.''
As an alternative to implementing a program that complies with the
requirements of Sec. 122.34, today's rule provides operators of
regulated small MS4s with the option of applying for an individual
permit under Sec. 122.26(d). The permit application requirements in
Sec. 122.26 were originally drafted to apply to medium and large MS4s.
Although EPA believes that the requirements of Sec. 122.34 provide a
regulatory option that is appropriate for most small MS4s, the
operators of some small MS4s may prefer more individualized
requirements. This alternative permitting option for regulated small
MS4s that wish to develop their own program is discussed below in
section ``II.H.3.c.iii. Alternative Permit Option.'' The second
alternative permitting option for regulated small MS4s is to become co-
permittees with a medium or large MS4 regulated under Sec. 122.26(d),
as discussed below in section ``II.H.3.c.v. Joint Permit Programs.''
ii. Water Quality-Based Requirements. Any NPDES permit issued under
today's rule must, at a minimum, require the operator to develop,
implement, and
[[Page 68753]]
enforce a storm water management program designed to reduce the
discharge of pollutants from a regulated system to the MEP, to protect
water quality, and satisfy the appropriate water quality requirements
of the Clean Water Act (see MEP discussion in the following section).
Absent evidence to the contrary, EPA presumes that a small MS4 program
that implements the six minimum measures in today's rule does not
require more stringent limitations to meet water quality standards.
Proper implementation of the measures will significantly improve water
quality. As discussed further below, however, small MS4 permittees
should modify their programs if and when available information
indicates that water quality considerations warrant greater attention
or prescriptiveness in specific components of the municipal program. If
the program is inadequate to protect water quality, including water
quality standards, then the permit will need to be modified to include
any more stringent limitations necessary to protect water quality.
Regardless of the basis for the development of the effluent
limitations (whether designed to implement the six minimum measures or
more stringent or prescriptive limitations to protect water quality),
EPA considers narrative effluent limitations requiring implementation
of BMPs to be the most appropriate form of effluent limitations for
MS4s. CWA section 402(p)(3)(b)(iii) expresses a preference for
narrative rather than numeric effluent limits, for example, by
reference to ``management practices, control techniques and system,
design and engineering methods, and such other provisions as the
Administrator or the State determines appropriate for the control of
such pollutants.'' 33 U.S.C. 1342(p)(3)(B)(iii). EPA determines that
pollutants from wet weather discharges are most appropriately
controlled through management measures rather than end-of-pipe numeric
effluent limitations. As explained in the Interim Permitting Policy for
Water Quality-Based Effluent Limitations in Storm Water Permits, issued
on August 1, 1996 [61 FR 43761 (November 26, 1996), EPA believes that
the currently available methodology for derivation of numeric water
quality-based effluent limitations is significantly complicated when
applied to wet weather discharges from MS4s (compared to continuous or
periodic batch discharges from most other types of discharge). Wet
weather discharges from MS4s introduce a high degree of variability in
the inputs to the models currently available for derivation of water
quality based effluent limitations, including assumptions about
instream and discharge flow rates, as well as effluent
characterization. In addition, EPA anticipates that determining
compliance with any such numeric limitations may be confounded by
practical limitations in sample collection.
In the first two to three rounds of permit issuance, EPA envisions
that a BMP-based storm water management program that implements the six
minimum measures will be the extent of the NPDES permit requirements
for the large majority of regulated small MS4s. Because the six
measures represent a significant level of control if properly
implemented, EPA anticipates that a permit for a regulated small MS4
operator implementing BMPs to satisfy the six minimum control measures
will 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.
If a small MS4 operator implements the six minimum control measures
in Sec. 122.34(b) and the discharges are determined to cause or
contribute to non-attainment of an applicable water quality standard,
the operator needs to expand or better tailor its BMPs within the scope
of the six minimum control measures. EPA envisions that this process
will occur during the first two to three permit terms. After that
period, EPA will revisit today's regulations for the municipal separate
storm sewer program.
If the permitting authority (rather than the regulated small MS4
operator) needs to impose additional or more specific measures to
protect water quality, then that action will most likely be the result
of an assessment based on a TMDL or equivalent analysis that determines
sources and allocations of pollutant(s) of concern. EPA believes that
the small MS4's additional requirements, if any, should be guided by
its equitable share based on a variety of considerations, such as cost
effectiveness, proportionate contribution of pollutants, and ability to
reasonably achieve wasteload reductions. Narrative effluent limitations
in the form of BMPs may still be the best means of achieving those
reductions.
See Section II.L, Water Quality Issues, for further discussion of
this approach to permitting, consistent with EPA's interim permitting
guidance. Pursuant to CWA section 510, States implementing their own
NPDES programs may develop more stringent or more prescriptive
requirements than those in today's rule.
EPA's interpretation of CWA section 402(p)(3)(B)(iii) was recently
reviewed by the Ninth Circuit in Defenders of Wildlife, et al v.
Browner, No. 98-71080 (September 15, 1999). The Court upheld the
Agency's action in issuing five MS4 permits that included water
quality-based effluent limitations. The Court did, however, disagree
with EPA's interpretation of the relationship between CWA sections 301
and 402(p). The Court reasoned that MS4s are not compelled by section
301(b)(1)(C) to meet all State water quality standards, but rather that
the Administrator or the State may rely on section 402(p)(3)(B)(iii) to
require such controls. Accordingly, the Defenders of Wildlife decision
is consistent with the Agency's 1996 ``Interim Permitting Policy for
Water Quality-Based Effluent Limitations in Storm Water Permits.''
As noted, the 1996 Policy describes how permits would implement an
iterative process using BMPs, assessment, and refocused BMPs, leading
toward attainment of water quality standards. The ultimate goal of the
iteration would be for water bodies to support their designated uses.
EPA believes this iterative approach is consistent with and implements
section 301(b)(1)(C), notwithstanding the Ninth Circuit's
interpretation. As an alternative to basing these water quality-based
requirements on section 301(b)(1)(C), however, EPA also believes the
iterative approach toward attainment of water quality standards
represents a reasonable interpretation of CWA section
402(p)(3)(B)(iii). For this reason, today's rule specifies that the
``compliance target'' for the design and implementation of municipal
storm water control programs is ``to reduce pollutants to the maximum
extent practicable (MEP), to protect water quality, and to satisfy the
appropriate water quality requirements of the CWA.'' The first
component, reductions to the MEP, would be realized through
implementation of the six minimum measures. The second component, to
protect water quality, reflects the overall design objective for
municipal programs based on CWA section 402(p)(6). The third component,
to implement other applicable water quality requirements of the CWA,
recognizes the Agency's specific determination under CWA section
402(p)(3)(B)(iii) of the need to achieve reasonable further progress
toward attainment of water quality standards according to the iterative
BMP process, as well as the determination that State or EPA officials
who establish TMDLs could allocate waste loads to
[[Page 68754]]
MS4s, as they would to other point sources.
EPA does not presume that water quality will be protected if a
small MS4 elects not to implement all of the six minimum measures and
instead applies for alternative permit limits under Sec. 122.26(d).
Operators of such small MS4s that apply for alternative permit limits
under Sec. 122.26(d) must supply additional information through
individual permit applications so that the permit writer can determine
whether the proposed program reduces pollutants to the MEP and whether
any other provisions are appropriate to protect water quality and
satisfy the appropriate water quality requirements of the Clean Water
Act.
iii. Maximum Extent Practicable. Maximum extent practicable (MEP)
is the statutory standard that establishes the level of pollutant
reductions that operators of regulated MS4s must achieve. The CWA
requires that NPDES permits for discharges from MS4s ``shall require
controls to reduce the discharge of pollutants to the maximum extent
practicable, including management practices, control techniques and
system, design and engineering methods.'' CWA Section
402(p)(3)(B)(iii). This section also calls for ``such other provisions
as the [EPA] Administrator or the State determines appropriate for the
control of such pollutants.'' EPA interprets this standard to apply to
all MS4s, including both existing regulated (large and medium) MS4s, as
well as the small MS4s regulated under today's rule.
For regulated small MS4s under today's rule, authorization to
discharge may be under either a general permit or individual permit,
but EPA anticipates and expects that general permits will be the most
common permit mechanism. The general permit will explain the steps
necessary to obtain permit authorization. Compliance with the
conditions of the general permit and the series of steps associated
with identification and implementation of the minimum control measures
will satisfy the MEP standard. Implementation of the MEP standard under
today's rule will typically require the permittee to develop and
implement appropriate BMPs to satisfy each of the required six minimum
control measures.
In issuing the general permit, the NPDES permitting authority will
establish requirements for each of the minimum control measures.
Permits typically will require small MS4 permittees to identify in
their NOI the BMPs to be performed and to develop the measurable goals
by which implementation of the BMPs can be assessed. Upon receipt of
the NOI from a small MS4 operator, the NPDES permitting authority will
have the opportunity to review the NOI to verify that the identified
BMPs and measurable goals are consistent with the requirement to reduce
pollutants under the MEP standard, to protect water quality, and to
satisfy the appropriate water quality requirements of the Clean Water
Act. If necessary, the NPDES permitting authority may ask the permittee
to revise their mix of BMPs, for example, to better reflect the MEP
pollution reduction requirement. Where the NPDES permit is not written
to implement the minimum control measures specified under
Sec. 122.34(b), for example in the case of an individual permit under
Sec. 122.33(b)(2)(ii), the MEP standard will be applied based on the
best professional judgment of the permit writer.
Commenters argued that MEP is, as yet, an undefined term and that
EPA needs to further clarify the MEP standards by providing a
regulatory definition that includes recognition of cost considerations
and technical feasibility. Commenters argued that, without a
definition, the regulatory community is not adequately on notice
regarding the standard with which they need to comply. EPA disagrees
that affected MS4 permittees will lack notice of the applicable
standard. The framework for the small MS4 permits described in this
notice provides EPA's interpretation of the standard and how it should
be applied.
EPA 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. EPA envisions that this evaluative process will
consider such factors as conditions of receiving waters, specific local
concerns, and other aspects included in a comprehensive watershed plan.
Other factors may include MS4 size, climate, implementation schedules,
current ability to finance the program, beneficial uses of receiving
water, hydrology, geology, and capacity to perform operation and
maintenance.
The pollutant reductions that represent MEP may be different for
each small MS4, given the unique local hydrologic and geologic concerns
that may exist and the differing possible pollutant control strategies.
Therefore, each permittee will determine appropriate BMPs to satisfy
each of the six minimum control measures through an evaluative process.
Permit writers may evaluate small MS4 operator's proposed storm water
management controls to determine whether reduction of pollutants to the
MEP can be achieved with the identified BMPs.
EPA envisions application of the MEP standard as an iterative
process. 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. EPA envisions that this
process may take two to three permit terms.
One commenter observed that MEP is not static and that if the six
minimum control measures are not achieving the necessary water quality
improvements, then an MS4 should be expected to revise and, if
necessary, expand its program. This concept, it is argued, must be
clearly part of the definition of MEP and thus incorporated into the
binding and operative aspects of the rule. As is explained above, EPA
believes that it is. The iterative process described above is intended
to be sensitive to water quality concerns. EPA believes that today's
rule contains provisions to implement an approach that is consistent
with this comment.
b. Program Requirements'Minimum Control Measures
A regulated small MS4 operator must develop and implement a storm
water management program designed to reduce the discharge of pollutants
from their MS4 to protect water quality. The storm water management
program must include the following six minimum measures.
i. Public Education and Outreach on Storm Water Impacts. Under
today's final rule, operators of small MS4s must implement 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 to reduce storm water
pollution. The public education program should inform individuals and
households about the problem and the steps they can take to reduce or
prevent storm water pollution.
EPA believes that as the public gains a greater understanding of
the storm water program, the MS4 is likely to gain
[[Page 68755]]
more support for the program (including funding initiatives). In
addition, compliance with the program will probably be greater if the
public understands the personal responsibilities expected of them.
Well-informed citizens can act as formal or informal educators to
further disseminate information and gather support for the program,
thus easing the burden on the municipalities to perform all educational
activities.
MS4s are encouraged to enter into partnerships with their States in
fulfilling the public education requirement. It may be more cost-
effective to utilize a State education program instead of numerous MS4s
developing their own programs. MS4 operators are also encouraged to
work with other organizations (e.g., environmental, nonprofit and
industry organizations) that might be able to assist in fulfilling this
requirement.
The public education program should be tailored, using a mix of
locally appropriate strategies, to target specific audiences and
communities (particularly minority and disadvantaged 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. Operators of MS4s may use storm water educational information
provided by the State, Tribe, EPA, or environmental, public interest,
trade organizations, or other MS4s. Examples of successful public
education efforts concerning polluted runoff can be found in many State
nonpoint source pollution control programs under CWA section 319.
The public education program should inform individuals and
households about steps they can take to reduce storm water pollution,
such as ensuring proper septic system maintenance, ensuring the 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.
Additionally, the program could inform individuals and groups on how to
become involved in local stream and beach restoration activities as
well as activities coordinated by youth service and conservation corps
and other citizen groups. Finally, materials or outreach programs
should be directed toward targeted groups of commercial, industrial,
and institutional entities likely to have significant storm water
impacts. For example, MS4 operators should provide information to
restaurants on the impact of grease clogging storm drains and to auto
garages on the impacts of used oil discharges.
EPA received comments from representatives of State DOTs and U.S.
Department of Defense (DOD) installations seeking exemption from the
public education requirement. While today's rule does not exempt DOTs
and military bases from the user education requirement, the Agency
believes the flexibility inherent in the Rule addresses many of the
concerns expressed by these commenters.
Certain DOT representatives commented that if their agencies were
not exempt from the user education measure's requirements, they should
at least be allowed to count DOT employee education as an adequate
substitute. EPA supports the use of existing materials and programs,
granted such materials and programs meet the rule's requirement that
the MS4 user community (i.e., the public) is also educated concerning
the impacts of storm water discharges on water bodies and the steps to
reduce storm water pollution.
Finally, certain DOD representatives requested that ``public,'' as
applied to their installations, be defined as the resident and employee
populations within the fence line of the facility. EPA agrees that the
education effort should be directed toward those individuals who
frequent the federally owned land (i.e., residents and individuals who
come there to work and use the MS4 facilities).
EPA also received a number of comments from municipalities stating
that education would be more thorough and cost effective if
accomplished by EPA on the national level. EPA believes that a
collaborative State and local approach, in conjunction with significant
EPA technical support, will best meet the goal of targeting, and
reaching, specific local audiences. EPA technical support will include
a tool box which will contain fact sheets, guidance documents, an
information clearinghouse, and training and outreach efforts.
Finally, EPA received comments expressing concern that the public
education program simply encourages the distribution of printed
material. EPA is sensitive to this concern. Upon evaluation, the Agency
made changes to the proposal's language for today's rule. The language
has been changed to reflect EPA's belief that a successful program is
one that includes a variety of strategies locally designed to reach
specific audiences.
ii. Public Involvement/Participation. Public involvement is an
integral part of the small MS4 storm water program. Accordingly,
today's final rule requires that the municipal storm water management
program must comply with applicable State and local public notice
requirements. Section 122.34(b)(2) recommends a public participation
process with efforts to reach out and engage all economic and ethnic
groups. EPA believes there are two important reasons why the public
should be allowed and encouraged to provide valuable input and
assistance to the MS4's program.
First, early and frequent public involvement can shorten
implementation schedules and broaden public support for a program.
Opportunities for members of the public to participate in program
development and implementation could 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. Moreover, members of the public may be less likely to raise
legal challenges to a MS4's storm water program if they have been
involved in the decision making process and program development and,
therefore, internalize personal responsibility for the program
themselves.
Second, public participation is likely to ensure a more successful
storm water program by providing valuable expertise and a conduit to
other programs and governments. This is particularly important if the
MS4's storm water program is to be implemented on a watershed basis.
Interested stakeholders may offer to volunteer in the implementation of
all aspects of the program, thus conserving limited municipal
resources.
EPA recognizes that there are a number of challenges associated
with public involvement. One challenge is in engaging people in the
public meeting and program design process. Another challenge is
addressing conflicting viewpoints. Nevertheless, EPA strongly believes
that these challenges can be addressed by use of an aggressive and
inclusive program. Section II.K. provides further discussion on public
involvement.
A number of municipalities sought clarification from EPA concerning
what the public participation program must
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actually include. In response, the actual requirements are minimal, but
the Agency's recommendations are more comprehensive. The public
participation program must only comply with applicable State and local
public notice requirements. The remainder of the preamble, as well as
the Explanatory Note accompanying the regulatory text, provide guidance
to the MS4s concerning what elements a successful and inclusive program
should include. EPA will provide technical support as part of the tool
box (i.e., providing model public involvement programs, conducting
public workshops, etc.) to assist MS4 operators meet the intent of this
measure.
Finally, the Agency encourages MS4s to seek public participation
prior to submitting an NOI. For example, public participation at this
stage will allow the MS4 to involve the public in developing the BMPs
and measurable goals for their NOI.
iii. Illicit Discharge Detection and Elimination. Discharges from
small MS4s often include wastes and wastewater from non-storm water
``illicit'' discharges. Illicit discharge is defined at 40 CFR
122.26(b)(2) as any discharge to a municipal separate storm sewer that
is not composed entirely of storm water, except discharges pursuant to
an NPDES permit and discharges resulting from fire fighting activities.
As detailed below, other sources of non-storm water, that would
otherwise be considered illicit discharges, do not need to be addressed
unless the operator of the MS4 identifies one or more of them as a
significant source of pollutants into the system. EPA's Nationwide
Urban Runoff Program (NURP) indicated that many storm water outfalls
still discharge during substantial dry periods. Pollutant levels in
these dry weather flows were shown to be high enough to significantly
degrade receiving water quality. Results from a 1987 study conducted in
Sacramento, California, revealed that slightly less than one-half of
the water discharged from a municipal separate storm sewer system was
not directly attributable to precipitation runoff (U.S. Environmental
Protection Agency, Office of Research and Development. 1993.
Investigation of Inappropriate Pollutant Entries Into Storm Drainage
Systems--A User's Guide. Washington, DC EPA 600/R-92/238.) A
significant portion of these dry weather flows results from illicit
and/or inappropriate discharges and connections to the municipal
separate storm sewer system. Illicit discharges enter the system
through either direct connections (e.g., wastewater piping either
mistakenly or deliberately connected to the storm drains) or indirect
connections (e.g., infiltration into the storm drain system or spills
collected by drain inlets).
Under the existing NPDES program for storm water, permit
applications for large and medium MS4s are to include a program
description for effective prohibition against non-storm water
discharges into their storm sewers (see 40 CFR 122.26 (d)(1)(v)(B) and
(d)(1)(iv)(B)). Further, EPA believes that in implementing municipal
storm water management plans under these permits, large and medium MS4
operators generally found their illicit discharge detection and
elimination programs to be cost-effective. Properly implemented
programs also significantly improved water quality.
In today's rule, any NPDES permit issued to an operator of a
regulated small MS4 must, at a minimum, require the operator to
develop, implement and enforce an illicit discharge detection and
elimination program. Inclusion of this measure for regulated small MS4s
is consistent with the ``effective prohibition'' requirement for large
and medium MS4s. Under today's rule, the NPDES permit will require the
operator of a regulated small MS4 to: (1) Develop (if not already
completed) a storm sewer system map showing the location of all
outfalls, and names and location of all waters of the United States
that receive discharges from those outfalls; (2) to the extent
allowable under State, Tribal, or local law, effectively prohibit
through ordinance, or other regulatory mechanism, illicit discharges
into the separate storm sewer system and implement appropriate
enforcement procedures and actions as needed; (3) develop and implement
a plan to detect and address illicit discharges, including illegal
dumping, to the system; and (4) inform public employees, businesses,
and the general public of hazards associated with illegal discharges
and improper disposal of waste.
The illicit discharge and elimination program need only address the
following categories of non-storm water discharges if the operator of
the small MS4 identifies them as significant contributors of pollutants
to its small MS4: water line flushing, landscape irrigation, diverted
stream flows, rising ground waters, uncontaminated ground water
infiltration (as defined at 40 CFR 35.2005(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 fire fighting activities are excluded from
the definition of illicit discharge and only need to be addressed where
they are identified as significant sources of pollutants to waters of
the United States). If the operator of the MS4 identifies one or more
of these categories of sources to be a significant contributor of
pollutants to the system, it could require specific controls for that
category of discharge or prohibit the discharges completely.
Several comments were received on the mapping requirements of the
proposal. Most comments said that more flexibility should be given to
the MS4s to determine their mapping needs, and that resources could be
better spent in addressing problems once the illicit discharges are
detected. EPA reviewed the mapping requirements in the proposed rule
and agrees that some of the information is not necessary in order to
begin an illicit discharge detection and elimination program. Today's
rule requires a map or set of maps that show the locations of all
outfalls and names and locations of receiving waters. Knowing the
locations of outfalls and receiving waters are necessary to be able to
conduct dry weather field screening for non-storm water flows and to
respond to illicit discharge reports from the public. EPA recommends
that the operator collect any existing information on outfall locations
(e.g., review city records, drainage maps, storm drain maps), and then
conduct field surveys to verify the locations. It will probably be
necessary to ``walk'' (i.e. wade small receiving waters or use a boat
for larger receiving waters) the streambanks and shorelines, and it may
take more than one trip to locate all outfalls. A coding system should
be used to mark and identify each outfall. MS4 operators have the
flexibility to determine the type (e.g. topographic, GIS, hand or
computer drafted) and size of maps which best meet their needs. The map
scale should be such that the outfalls can be accurately located. Once
an illicit discharge is detected at an outfall, it may be necessary to
map that portion of the storm sewer system leading to the outfall in
order to locate the source of the discharge.
Several comments requested clarification of the requirement to
develop and implement a plan to detect and eliminate illicit
discharges. EPA recommends that plans include procedures for the
following: locating priority areas; tracing the source of an illicit
discharge; removing the source of the discharge; and program evaluation
[[Page 68757]]
and assessment. EPA recommends that MS4 operators identify priority
areas (i.e., problems areas) for more detailed screening of their
system based on higher likelihood of illicit connections (e.g., areas
with older sanitary sewer lines), or by conducting ambient sampling to
locate impacted reaches. Once priority areas are identified, EPA
recommends visually screening outfalls during dry weather and
conducting field tests, where flow is occurring, of selected chemical
parameters as indicators of the discharge source. EPA's manual for
investigation of inappropriate pollutant entries into the storm
drainage system (EPA, 1993) suggests the following parameter list:
specific conductivity, fluoride and/or hardness concentration, ammonia
and/or potassium concentration, surfactant and/or fluorescence
concentration, chlorine concentration, pH and other chemicals
indicative of industrial sources. The manual explains why each
parameter is a good indicator and how the information can be used to
determine the type of source flow. The Agency is not recommending that
fluoride and chlorine, generally used to locate potable water
discharges, be addressed under this program, therefore a short list of
parameters may include conductivity, ammonia, surfactant and pH. Some
MS4s have found it useful to measure for fecal coliform or E. coli in
their testing program. Observations of physical characteristics of the
discharge are also helpful such as flow rate, temperature, odor, color,
turbidity, floatable matter, deposits and stains, and vegetation.
The implementation plan should also include procedures for tracing
the source of an illicit discharge. Once an illicit discharge is
detected and field tests provide source characteristics, the next step
is to determine the actual location of the source. Techniques for
tracing the discharge to its place of origin may include: following the
flow up the storm drainage system via observations and/or chemical
testing in manholes or in open channels; televising storm sewers; using
infrared and thermal photography; conducting smoke or dye tests.
The implementation plan should also include procedures for removing
the source of the illicit discharge. The first step may be to notify
the property owner and specify a length of time for eliminating the
discharge. Additional notifications and escalating legal actions should
also be described in this part of the plan.
Finally, the implementation plan should include procedures for
program evaluation and assessment. Procedures could include
documentation of actions taken to locate and eliminate illicit
discharges such as: number of outfalls screened, complaints received
and corrected, feet of storm sewers televised, numbers of discharges
and quantities of flow eliminated, number of dye or smoke tests
conducted. Appropriate records of such actions should be kept and
should be submitted as part of the annual reports for the first permit
term, as specified by the permitting authority (reports only need to be
submitted in years 2 and 4 in later permits). For more on reporting
requirements, see Sec. 122.34(g).
EPA received comments regarding an MS4's legal authority beyond its
jurisdictional boundaries to inspect or take enforcement against
illicit discharges. EPA recognizes that illicit flows may originate in
one jurisdiction and cross into one or more jurisdictions before being
discharged at an outfall. In such instances, EPA expects the MS4 that
detects the illicit flow to trace it to the point where it leaves their
jurisdiction and notify the adjoining MS4 of the flow, and any other
physical or chemical information. The adjoining MS4 should then trace
it to the source or to the location where it enters their jurisdiction.
The process of notifying the adjoining MS4 should continue until the
source is located and eliminated. In addition, because any non-storm
water discharge to waters of the U.S. through an MS4 is subject to the
prohibition against unpermitted discharges pursuant to CWA section 301
(a), remedies are available under the federal enforcement provisions of
CWA sections 309 and 505.
EPA requested and received comments regarding the prohibition and
enforcement provision for this minimum measure. Commenters specifically
questioned the proposal that the operator only has to implement the
appropriate prohibition and enforcement procedures ``to the extent
allowable under State or Tribal law.'' They raised concerns that by
qualifying prohibition and enforcement procedures in this manner, the
operator could altogether ignore this minimum measure where affirmative
legal authority did not exist. Comments suggested that EPA require
States to grant authority to those municipalities where it did not
exist. Other comments, however, stated that municipalities cannot
exercise legal authority not granted to them under State law, which
varies considerably from one State to another. EPA has no intention of
directing State legislatures on how to allocate authority and
responsibility under State law. As noted above, there is at least one
remedy (the federal CWA) to control non-storm water discharges through
MS4s. If State law prevents political subdivisions from controlling
discharges through storm sewers, EPA anticipates common sense will
prevail to provide those MS4 operators with the ability to meet the
requirements applicable for their discharges.
One comment reinforced the importance of public information and
education to the success of this measure. EPA agrees and suggests that
MS4 operators consider a variety of ways to inform and educate the
public which could include storm drain stenciling; a program to
promote, publicize, and facilitate public reporting of illicit
connections or discharges; and distribution of visual and/or printed
outreach materials. Recycling and other public outreach programs could
be developed to address potential sources of illicit discharges,
including used motor oil, antifreeze, pesticides, herbicides, and
fertilizers.
EPA received comments that State DOT's lack authority to implement
this measure. EPA believes that most DOTs can implement most parts of
this measure. If a DOT does not have the necessary legal authority to
implement any part of this measure, EPA encourages them to coordinate
their storm water management efforts with the surrounding MS4s and
other State agencies. Many DOTs that are regulated under Phase I of
this program are co-permittees with the local regulated MS4. Under
today's rule, DOTs can use any of the options of Sec. 122.35 to share
their storm water management responsibilities.
EPA received comments requesting clarification of various terms
such as ``outfall'' and ``illicit discharge.'' One comment asked EPA to
reinforce the point that a ``ditch'' could be considered an outfall.
The term ``outfall'' is defined at 40 CFR 122.26(b)(9) as ``a point
source at the point where a municipal separate storm sewer discharges
to waters of the United States * * *''. The term municipal separate
storm sewer is defined at 40 CFR Sec. 122.26(b)(8) as ``a conveyance or
system of conveyances (including roads with drainage systems, municipal
streets, catch basins, curbs, gutters, ditches, man-made channels, or
storm drains) * * *''. Following the logic of these definitions, a
``ditch'' may be part of the municipal separate storm sewer, and at the
point where the ditch discharges to waters of the United States, it
would be an outfall. As with any determination about jurisdictional
provisions of the CWA, however, final decisions require case specific
evaluations of fact.
[[Page 68758]]
One commenter specifically requested clarification on the
relationship between the term ``illicit discharge'' and non-storm water
discharges from fire fighting. The comment suggested that it would be
impractical to attempt to determine whether the flow from a specific
fire (i.e., during a fire) is a significant source of pollution. EPA
intends that MS4s will address all allowable non-storm water flows
categorically rather than individually. If an MS4 is concerned that
flows from fire fighting are, as a category, contributing substantial
amounts of pollutants to their system, they could develop a program to
address those flows prospectively. The program may include an analysis
of the flow from several sources, steps to minimize the pollutant
contribution, and a plan to work with the sources of the discharge to
minimize any adverse impact on water quality. During the development of
such a program, the MS4 may determine that only certain types of flows
within a particular category are a concern, for example, fire fighting
flows at industrial sites where large quantities of chemicals are
present. In this example, a review of existing procedures with the fire
department and/or hazardous materials team may reveal weaknesses or
strengths previously unknown to the MS4 operator.
EPA received comments requesting modifications to the rule to
include on-site sewage disposal systems (i.e., septic systems) in the
scope of the illicit discharge program. On-site sewage disposal systems
that flow into storm drainage systems are within the definition of
illicit discharge as defined by the regulations. Where they are found
to be the source of an illicit discharge, they need to be eliminated
similar to any other illicit discharge source. Today's rule was not
modified to include discharges from on-site sewage disposal systems
specifically because those sources are already within the scope of the
existing definition of illicit discharge.
iv. Construction Site Storm Water Runoff Control. Over a short
period of time, storm water runoff from construction site activity can
contribute more pollutants, including sediment, to a receiving stream
than had been deposited over several decades (see section I.B.3). Storm
water runoff from construction sites can include pollutants other than
sediment, such as phosphorus and nitrogen, pesticides, petroleum
derivatives, construction chemicals, and solid wastes that may become
mobilized when land surfaces are disturbed. Generally, properly
implemented and enforced construction site ordinances effectively
reduce these pollutants. In many areas, however, the effectiveness of
ordinances in reducing pollutants is limited due to inadequate
enforcement or incomplete compliance with such local ordinances by
construction site operators (Paterson, R.G. 1994. ``Construction
Practices: The Good, the Bad, and the Ugly.'' Watershed Protection
Techniques 1(2)).
Today's rule requires operators of regulated small MS4s to develop,
implement, and enforce a pollutant control program to reduce pollutants
in any storm water runoff from construction activities that result in
land disturbance of 1 or more acres (see Sec. 122.34(b)(4)).
Construction activity on sites disturbing less than one acre must be
included in the program if the construction activity is part of a
larger common plan of development or sale that would disturb one acre
or more.
The construction runoff control program of the regulated small MS4
must include an ordinance or other regulatory mechanism to require
erosion and sediment controls to the extent practicable and allowable
under State, Tribal or local law. The program also must include
sanctions to ensure compliance (for example, non-monetary penalties,
fines, bonding requirements, and/or permit denials for non-compliance).
The program must also include, at a minimum: requirements for
construction site operators to implement appropriate erosion and
sediment control BMPS, such as silt fences, temporary detention ponds
and diversions; procedures for site plan review by the small MS4 which
incorporate consideration of potential water quality impacts;
requirements to control other waste such as discarded building
materials, concrete truck washout, chemicals, litter, and sanitary
waste at the construction site that may adversely impact water quality;
procedures for receipt and consideration of information submitted by
the public to the MS4; and procedures for site inspection and
enforcement of control measures by the small MS4.
Today's rule provides flexibility for regulated small MS4s by
allowing them to exclude from their construction pollutant control
program runoff from those construction sites for which the NPDES
permitting authority has waived NPDES storm water small construction
permit requirements. For example, if the NPDES permitting authority
waives permit coverage for storm water discharges from construction
sites less than 5 acres in areas where the rainfall erosivity factor is
less than 5, then the regulated small MS4 does not have to include
these sites in its storm water management program. Even if requirements
for a discharge from a given construction site are waived by the NPDES
permitting authority, however, the regulated small MS4 may still chose
to control those discharges under the MS4's construction pollutant
control program, particularly where such discharges may cause siltation
problems in storm sewers. See Section II.I.1.b for more information on
construction waivers by the permitting authority.
Some commenters suggested that the proposed construction minimum
measure requirements went beyond the permit application requirements
concerning construction for medium and large MS4s. In response, EPA has
made changes to the proposed measure so that it more closely resembles
the MS4 permit application requirements in existing regulations. For
example, as described below, the Agency revised the proposed
requirements for ``pre-construction review of site management plans''
to require ``procedures for site plan review.''
One commenter expressed concerns that addressing runoff from
construction sites within urbanized areas (through the small MS4
program) differently from construction sites outside urbanized areas
(which will not be covered by the small MS4 program) will encourage
urban sprawl. Today's rule, together with the existing requirements,
requires all construction greater than or equal to 1 acre, unless
waived, to be covered by an NPDES permit whether it is located inside
or outside of an urbanized area (see Sec. 122.26(b)(15)). Today's rule
does not require small MS4s to control runoff from construction sites
more stringently or prescriptively than is required for construction
site runoff outside urbanized areas. Therefore, today's rule imposes no
substantively different onsite controls on runoff of storm water from
construction sites in urbanized areas than from construction sites
outside of urbanized areas.
One commenter recommended that the small MS4 construction site
storm water runoff control program address all storm water runoff from
construction sites, not just the runoff into the MS4. The commenter
also believed that MS4s should provide clear, objective standards for
all construction sites. EPA agrees. Because today's rule only regulates
discharges from the MS4, the construction pollutant control measure
only requires small MS4 operators to control runoff into its system. As
a practical matter, however, EPA anticipates that MS4 operators will
find that regulation of all construction site
[[Page 68759]]
runoff, whether they runoff into the MS4 or not, will prove to be the
most simple and efficient program. The Agency may provide more specific
criteria for construction site BMPs in the forthcoming rule being
developed under CWA section 402(m). See section II.D.1 of today's rule.
One commenter stated that there is no need for penalties at the
local level by the small MS4 because the CWA already imposes sufficient
penalties to ensure compliance. EPA disagrees and believes that
enforcement and compliance at the local level is both necessary and
preferable. Examples of sanctions, some not available under the CWA,
include non-monetary penalties, monetary fines, bonding requirements,
and denial of future or other local permits.
One commenter recommended that EPA should not include the
requirement to control pollutants other than sediment from construction
sites in this measure. EPA disagrees with this comment. The requirement
is to control waste that ``may cause adverse impacts on water
quality.'' Such wastes may include discarded building materials,
concrete truck washout, chemicals, pesticides, herbicides, litter, and
sanitary waste. These wastes, when exposed to and mobilized by storm
water, can contribute to water quality impairment.
The proposed rule required ``procedures for pre-construction review
of site management plans.'' EPA requested comment on expanding this
provision to require both review and approval of construction site
storm water plans. Many commenters expressed the concern that review
and approval of site plans is not only costly and time intensive, but
may unnecessarily delay construction projects and unduly burden staff
who administer the local program. In addition, some commenters
expressed confusion whether EPA proposed pre-construction review for
all site management plans or only higher priority sites. To address
these comments, and be consistent with the permit application
requirements for larger MS4s, EPA changed ``procedures for pre-
construction review of site management plans'' to ``procedures for site
plan review.'' Today's rule requires the small MS4 to develop
procedures for site plan review so as to incorporate consideration of
adverse potential water quality impacts. Procedures should include
review of site erosion and sediment control plans, preferably before
construction activity begins on a site. The objective is for the small
MS4 operator and the construction site operator to address storm water
runoff from construction activity early in the project design process
so that potential consequences to the aquatic environment can be
assessed and adverse water quality impacts can be minimized or
eliminated.
One commenter requested that EPA delete the requirement for
``procedures for receipt and consideration of information submitted by
the public'' because it went beyond existing storm water requirements.
Another commenter stated that establishing a separate process to
respond to public inquiries on a project is a burden to small
communities, especially if the project has gone through an
environmental review. One commenter requested clarification of this
provision. EPA has retained this requirement in today's final rule to
require some formality in the process for addressing public inquiries
regarding storm water runoff from construction activities. EPA does not
intend that small MS4s develop a separate, burdensome process to
respond to every public inquiry. A small MS4 could, for example, simply
log public complaints on existing storm water runoff problems from
construction sites and pass that information on to local inspectors.
The inspectors could then investigate complaints based on the severity
of the violation and/or priority area.
One commenter believed that the proposed requirement of ``regular
inspections during construction'' would require every construction
project to be inspected more than once by the small MS4 during the term
of a construction project. EPA has deleted the reference to ``regular
inspections.'' Instead, the small MS4 will be required to ``develop
procedures for site inspection and enforcement of control measures.''
Procedures could include steps to identify priority sites for
inspection and enforcement based on the nature and extent of the
construction activity, topography, and the characteristics of soils and
receiving water quality.
In order to avoid duplication of small MS4 construction
requirements with NPDES construction permit requirements, today's rule
adds Sec. 122.44(s) to recognize that the NPDES permitting authority
can incorporate qualifying State, Tribal, or local erosion and sediment
control requirements in NPDES permits for construction site discharges.
For example, a construction site operator who complies with MS4
construction pollutant control programs that are referenced in the
NPDES construction permit would satisfy the requirements of the NPDES
permit. See section II.I.1.d for more information on incorporating
qualifying programs by reference into NPDES construction permits. This
provision has no impact on, or direct relation to, the small MS4
operator's responsibilities under the construction site storm water
runoff control minimum measure. Conversely, under Sec. 122.35(b), the
permitting authority may recognize in the MS4's permit that another
governmental entity, or the permitting authority itself, is responsible
for implementing one or more of the minimum measures (including
construction site storm water runoff control), and not include this
measure in the small MS4's permit. In this case, the other governmental
entity's program must satisfy all of the requirements of the omitted
measure.
v. Post-Construction Storm Water Management in New Development and
Redevelopment. The NURP study and more recent investigations indicate
that prior planning and designing for the minimization of pollutants in
storm water discharges is the most cost-effective approach to storm
water quality management. Reducing pollutant concentrations in storm
water after the discharge enters a storm sewer system is often more
expensive and less efficient than preventing or reducing pollutants at
the source. Increased human activity associated with development often
results in increased pollutant loading from storm water discharges. If
potential adverse water quality impacts are considered from the
beginning stages of a project, new development and redevelopment
provides more opportunities for water quality protection. For example,
minimization of impervious areas, maintenance or restoration of natural
infiltration, wetland protection, use of vegetated drainage ways, and
use of riparian buffers have been shown to reduce pollutant loadings in
storm water runoff from developed areas. EPA encourages operators of
regulated small MS4s to identify specific problem areas within their
jurisdictions and initiate innovative solutions and designs to focus
attention on those areas through local planning.
In today's rule at Sec. 122.34(b)(5), NPDES permits issued to an
operator of a regulated small MS4 will require the operator to develop,
implement, and enforce a program to address storm water runoff from new
development and redevelopment projects that result in land disturbance
of 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 MS4. Specifically, the NPDES permit will require the
operator of a regulated small MS4 to: (1) Develop and implement
[[Page 68760]]
strategies which include a combination of structural and/or non-
structural best management practices (BMPs) appropriate for the
community; (2) 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; (3)
ensure adequate long-term operation and maintenance of BMPs; and (4)
ensure that controls are in place that would minimize water quality
impacts. EPA intends the term ``redevelopment'' to refer to alterations
of a property that change the ``footprint'' of a site or building in
such a way that results in the disturbance of equal to or greater than
1 acre of land. The term is not intended to include such activities as
exterior remodeling, which would not be expected to cause adverse storm
water quality impacts and offer no new opportunity for storm water
controls.
EPA received comments requesting guidance and clarification of the
rule requirements. The scope of the comments ranged from general
requests for more details on how MS4 operators should accomplish the
four requirements listed above, to specific requests for information
regarding transfer of ownership for structural controls, as well as
ongoing responsibility for operation and maintenance. By the term
``combination'' of BMPs, EPA intends a combination of structural and/or
non-structural BMPs. For this requirement, the term ``combination'' is
meant to emphasize that multiple BMPs should be considered and adopted
for use in the community. A single BMP generally cannot significantly
reduce pollutant loads because pollutants come from many sources within
a community. The BMPs chosen should: (1) Be appropriate for the local
community; (2) minimize water quality impacts; and (3) attempt to
maintain pre-development runoff conditions. In choosing appropriate
BMPs, EPA encourages small MS4 operators to participate in locally-
based watershed planning efforts which attempt to involve a diverse
group of stakeholders. Each new development and redevelopment project
should have a BMP component. If an approach is chosen that primarily
focuses on regional or non-structural BMPs, however, then the BMPs may
be located away from the actual development site (e.g., a regional
water quality pond).
Non-structural BMPs are preventative actions that involve
management and source controls such as: (1) 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; (2) policies or ordinances that encourage infill
development in higher density urban areas, and areas with existing
storm sewer infrastructure; (3) education programs for developers and
the public about project designs that minimize water quality impacts;
and (4) other measures such as minimization of the percentage of
impervious area after development, use of measures to minimize directly
connected impervious areas, and source control measures often thought
of as good housekeeping, preventive maintenance and spill prevention.
Detailed examples of non-structural BMPs follow.
Preserving open space may help to protect water quality as well as
provide other benefits such as recharging groundwater supplies,
detaining storm water, supporting wildlife and providing recreational
opportunities. Although securing funding for open space acquisition may
be difficult, various funding mechanisms have been used. New Jersey
uses a portion of their State sales tax (voter approved for a ten year
period) as a stable source of funding to finance the preservation of
historic sites, open space and farmland. Colorado uses part of the
proceeds from the State lottery to acquire and manage open space. Some
local municipalities use a percentage of the local sales tax revenue to
pay for open space acquisition (e.g., Jefferson County, CO has had an
open space program in place since 1977 funded by a 0.50 percent sales
tax). Open space can be acquired in the form of: fee simple purchase;
easements; development rights; purchase and sellback or leaseback
arrangements; purchase options; private land trusts; impact fees; and
land dedication requirements. Generally, fee simple purchases provide
the highest level of development control and certainty of preservation,
whereas the other forms of acquisition may provide less control, though
they would also generally be less costly.
Cluster development, while allowing housing densities comparable to
conventional zoning practice, concentrates housing units in a portion
of the total site area which provides for greater open space,
recreation, stream protection and storm water control. This type of
development, by reducing lot sizes, can protect sensitive areas and
result in less impervious surface, as well as reduce the cost for roads
and other infrastructure.
Minimizing directly connected impervious areas (DCIAs) is a
drainage strategy that seeks to reduce paved areas and directs storm
water runoff to landscaped areas or to structural controls such as
grass swales or buffer strips. This strategy can slow the rate of
runoff, reduce runoff volumes, attenuate peak flows, and encourage
filtering and infiltration of storm water. It can be made an integral
part of drainage planning for any development (Urban Drainage and Flood
Control District, Denver, CO. 1992. Urban Storm Drainage Criteria
Manual, Volume 3--Best Management Practices). The Urban Drainage and
Flood Control District manual describes three levels for minimizing
DCIAs. At Level 1 all impervious surfaces are made to drain over grass-
covered areas before reaching a storm water conveyance system. Level 2
adds to Level 1 and replaces street curb and gutter systems with low-
velocity grass-lined swales and pervious street shoulders. In addition
to Levels 1 and 2, Level 3 over-sizes swales and configures driveway
and street crossing culverts to use grass-lined swales as elongated
detention basins.
Structural BMPs include: (1) Storage practices such as wet ponds
and extended-detention outlet structures; (2) filtration practices such
as grassed swales, sand filters and filter strips; and (3) infiltration
practices such as infiltration basins and infiltration trenches.
EPA recommends that small MS4 operators ensure the appropriate
implementation of the structural BMPs by considering some or all of the
following: (1) Pre-construction review of BMP designs; (2) inspections
during construction to verify BMPs are built as designed; (3) post-
construction inspection and maintenance of BMPs; and (4) sanctions to
ensure compliance with design, construction or operation and
maintenance (O&M) requirements of the program.
EPA cautions that certain infiltration systems such as dry wells,
bored wells or tile drainage fields may be subject to Underground
Injection Control (UIC) program requirements (see 40 CFR Part 144.12.).
To find out more about these requirements, contact your state UIC
Program, or call EPA's Safe Drinking Water Hotline at 1-800-426-4791.
In order to meet the third post-construction requirement (ensuring
adequate long-term O&M of BMPs), EPA recommends that small MS4
operators evaluate various O&M management agreement options. The most
common options are agreements between the
[[Page 68761]]
MS4 operator and another party such as post-development landowners
(e.g., homeowners' associations, office park owners, other government
departments or entities), or regional authorities (e.g., flood control
districts, councils of government). These agreements typically require
the post-construction property owner to be responsible for the O&M and
may include conditions which: allow the MS4 operator to be reimbursed
for O&M performed by the MS4 operator that is the responsibility of the
property owner but is not performed; allow the MS4 operator to enter
the property for inspection purposes; and in some cases specify that
the property owner submit periodic reports.
In providing the guidance above, EPA intends the requirements in
today's rule to be consistent with the permit application requirements
for large MS4s for post-construction controls for new development and
redevelopment. MS4 operators have significant flexibility both to
develop this measure as appropriate to address local concerns, and to
apply new control technologies as they become available. Storm water
pollution control technologies are constantly being improved. EPA
recommends that MS4s be responsive to these changes, developments or
improvements in control technologies. EPA will provide more detailed
guidance addressing the responsibility for long-term O&M of storm water
controls in guidance materials. The guidance will also provide
information on appropriate planning considerations, structural controls
and non-structural controls. EPA also intends to develop a broad menu
of BMPs as guidance to ensure flexibility to accommodate local
conditions.
EPA received comments suggesting that requirements for new
development be treated separately from redevelopment in the rule. The
comment stressed that new development on raw land presents fewer
obstacles and more opportunities to incorporate elements for preventing
water quality impacts, whereas redevelopment projects are constrained
by space limitations and existing infrastructure. Another comment
suggested allowing waivers from the redevelopment requirements if the
redevelopment does not result in additional adverse water quality
impacts, and where BMPs are not technologically or economically
feasible. EPA recognizes that redevelopment projects may have more site
constraints which narrow the range of appropriate BMPs. Today's rule
provides small MS4 operators with the flexibility to develop
requirements that may be different for redevelopment projects, and may
also include allowances for alternate or off-site BMPs at certain
redevelopment projects. Non-structural BMPs may be the most appropriate
approach for smaller redevelopment projects.
EPA received comments requesting clarification on what is meant by
``pre-development'' conditions within the context of redevelopment.
Pre-development refers to runoff conditions that exist onsite
immediately before the planned development activities occur. Pre-
development is not intended to be interpreted as that period before any
human-induced land disturbance activity has occurred.
EPA received comments on the guidance language in the proposed rule
and preamble which suggest that implementation of this measure should
``attempt to maintain pre-development runoff conditions'' and that
``post-development conditions should not be different than pre-
development conditions in a way that adversely affects water quality.''
Many comments expressed concern that maintaining pre-development runoff
conditions is impossible and cost-prohibitive, and objected to any
reference to ``flow'' or increase in volume of runoff. Other comments
support the inclusion of this language in the final rule. Similar
references in today's rule relating to pre-development runoff
conditions are intended as recommendations to attempt to maintain pre-
development runoff conditions. With these recommendations, EPA intends
to prevent water quality impacts resulting from increased discharges of
pollutants, which may result from increased volume of runoff. In many
cases, consideration of the increased flow rate, velocity and energy of
storm water discharges following development unavoidably must be taken
into consideration in order to reduce the discharge of pollutants, to
meet water quality standards and to prevent degradation of receiving
streams. EPA recommends that municipalities consider these factors when
developing their post-construction storm water management program.
Some comments said that the quoted phrases in the paragraph above
are directives that imply federal land use control, which they argue is
beyond the authority of the CWA. EPA recognizes that land use planning
is within the authority of local governments.
EPA disagrees, however, with the implication that today's rule
dictates any such land use decisions. The requirement for small MS4
operators to develop a program to address discharges resulting from new
development and redevelopment is essentially a pollution prevention
measure. The Rule provides the MS4 operator with flexibility to
determine the appropriate BMPs to address local water quality concerns.
EPA recognizes that these program goals may not be applied to every
site, and expects that MS4s will develop an appropriate combination of
BMPs to be applied on a site-by-site, regional or watershed basis.
vi. Pollution Prevention/Good Housekeeping for Municipal
Operations. Under today's final rule, operators of MS4s must develop
and implement an operation and maintenance program (``program'') that
includes a training component and has the ultimate goal of preventing
or reducing storm water from municipal operations (in addition to those
that constitute storm water discharges associated with industrial
activity). This measure's emphasis on proper O&M of MS4s and employee
training, as opposed to requiring the MS4 to undertake major new
activities, is meant to ensure that municipal activities are performed
in the most efficient way to minimize contamination of storm water
discharges.
The program must include government employee training that
addresses prevention measures pertaining to municipal operations such
as: parks, golf courses and open space maintenance; fleet maintenance;
new construction or land disturbance; building oversight; planning; and
storm water system maintenance. The program can use existing storm
water pollution prevention training materials provided by the State,
Tribe, EPA, or environmental, public interest, or trade organizations.
EPA also encourages operators of MS4s to consider the following in
developing a program: (1) Implement 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; (2) implement
controls for reducing or eliminating the discharge of pollutants from
streets, roads, highways, municipal parking lots, maintenance and
storage yards, waste transfer stations, fleet or maintenance shops with
outdoor storage areas, and salt/sand storage locations and snow
disposal areas operated by the MS4; (3) adopt procedures for the proper
disposal of waste removed from the separate storm sewer systems and
areas listed above in (2), including dredge
[[Page 68762]]
spoil, accumulated sediments, floatables, and other debris; and (4)
adopt procedures to ensure that new flood management projects are
assessed for impacts on water quality and existing projects are
assessed for incorporation of additional water quality protection
devices or practices. Ultimately, the effective performance of the
program measure depends on the proper maintenance of the BMPs, both
structural and non-structural. Without proper maintenance, BMP
performance declines significantly over time. Additionally, BMP neglect
may produce health and safety threats, such as structural failure
leading to flooding, undesirable animal and insect breeding, and odors.
Maintenance of structural BMPs could include: replacing upper levels of
gravel; dredging of detention ponds; and repairing of retention basin
outlet structure integrity. Maintenance of non-structural BMPs could
include updating educational materials periodically.
EPA emphasizes that programs should identify and incorporate
existing storm water practices and training, as well as non-storm water
practices or programs that have storm water pollution prevention
benefits, as a means to avoid duplication of efforts and reduce overall
costs. EPA recommends that MS4s incorporate these new obligations into
their existing programs to the greatest extent feasible and urges
States to evaluate MS4 programs with programmatic efficiency in mind.
EPA designed this minimum control measure as a modified version of the
permit application requirements for medium and large MS4s described at
40 CFR 122.26(d)(2)(iv), in order to provide more flexibility for these
smaller MS4s. Today's requirements provide for a consistent approach to
control pollutants from O&M among medium, large, and regulated small
MS4s.
By properly implementing a program, operators of MS4s serve as a
model for the rest of the regulated community. Furthermore, the
establishment of a long-term program could result in cost savings by
minimizing possible damage to the system from floatables and other
debris and, consequently, reducing the need for repairs.
EPA received comments requesting clarification of what this measure
requires. Certain municipalities expressed concern that the measure has
the potential to impose significant costs associated with EPA's
requirement that operators of MS4s consider implementing controls for
reducing or eliminating the discharge of pollutants from streets,
roads, highways, municipal parking lots, and salt/sand storage
locations and snow disposal areas operated by the municipality. EPA
disagrees that a requirement to consider such controls will impose
considerable costs.
One commenter objected to the preamble language from the proposal
suggesting that EPA does not expect the MS4 to undertake new activity.
While it remains the Agency's expectation that major new activity will
not be required, the MEP process should drive MS4s to incorporate the
measure's obligations into their existing programs to achieve the
pollutant reductions to the maximum extent practicable.
Certain commenters requested a definition for ``municipal
operations.'' EPA has revised the language to more clearly define
municipal operations. Questions may remain concerning whether
discharges from specific municipal activities constitute discharges
associated with industrial activities (requiring NPDES permit
authorization according to the requirements for industrial storm water
that apply in that State) or from municipal operations (subject only to
the controls developed in the MS4 control program). Even though there
may be different substantive requirements that apply depending on the
source of the discharge, EPA has modified the deadlines for permit
coverage so that all the regulated municipally owned and operated
sources become subject to permit requirements on the same date. The
deadline is the same for permit coverage for this minimum measure as
for permit coverage for municipally owned/operated industrial sources.
c. Application Requirements
An NPDES permit that authorizes the discharge from a regulated
small MS4 may take the form of either an individual permit issued to
one or more facilities as co-permittees or a general permit that
applies to a group of MS4s. For reasons of administrative efficiency
and to reduce the paperwork burden on permittees, EPA expects that most
discharges from regulated small MS4s will be authorized under general
permits. These NPDES general permits will provide specific instructions
on how to obtain coverage, including application requirements.
Typically, such application requirements will be satisfied by the
submission of a Notice of Intent (NOI) to be covered by the general
permit. In this section, EPA explains the small MS4 operator's
application requirements for obtaining coverage under a NPDES permit
for storm water.
i. Best Management Practices and Measurable Goals, Section
122.34(d) of today's rule requires the operator of a regulated small
MS4 that wishes to implement a program under Sec. 122.34 to identify
and submit to the NPDES permitting authority a list of the best
management practices (``BMPs'') that will be implemented for each
minimum control measure in their storm water management program. They
also must submit measurable goals for the development and
implementation of each BMP. The BMPs and the measurable goals must be
included either in an NOI to be covered under a general permit or in an
individual permit application.
The operator's submission must identify, as appropriate, the months
and years in which the operator will undertake actions required to
implement each of the minimum control measures, including interim
milestones and the frequency of periodic actions. The Agency revised
references to ``starting and completing'' actions from the proposed
rule because many actions will be repetitive or ongoing. The submission
also must identify the person or persons responsible for implementing
or coordinating the small MS4 storm water program. See Sec. 122.34(d).
The submitted BMPs and measurable goals become enforceable according to
the terms of the permit. The first permit can allow the permittee up to
five years to fully implement the storm water management program.
Several commenters opposed making the measurable goals enforceable
permit conditions. Some suggested that a permittee should be able to
change its goals so that BMPs that are not functioning as intended can
be replaced. EPA agrees that a permittee should be free to switch its
BMPs and corresponding goals to others that accomplish the minimum
measure or measures. The permittee is required to implement BMPs that
address the minimum measures in Sec. 122.34(b). If the permittee
determines that its original combination of BMPs are not adequate to
achieve the objectives of the municipal program, the MS4 should revise
its program to implement BMPs that are adequate and submit to the
permitting authority a revised list of BMPs and measurable goals. EPA
suggests that permits describe the process for revising BMPs and
measurable goals, such as whether the permittee should follow the same
procedures as were required for the submission of the original NOI and
whether the permitting authority's approval is necessary prior to the
permittee implementing the revised
[[Page 68763]]
BMPs. The permittee should indicate on its periodic report whether any
BMPs and measurable goals have been revised since the last periodic
report.
Some commenters expressed concern that making the measurable goals
enforceable would encourage the development of easily attained goals
and, conversely, discourage the setting of ambitious goals. Others
noted that it is often difficult to determine the pollutant reduction
that can be achieved by BMPs until several years after implementation.
Much of the opposition to the enforceability of measurable goals
appears to have been based on a mistaken understanding that measurable
goals must consist of pollutant reduction targets to be achieved by the
corresponding BMPs.
Today's rule requires the operator to submit either measurable
goals that serve as BMP design objectives or goals that quantify the
progress of implementation of the actions or performance of the
permittee's BMPs. At a minimum, the required measurable goals should
describe specific actions taken by the permittee to implement each BMP
and the frequency and the dates for such actions. Although the operator
may choose to do so, it is not required to submit goals that measure
whether a BMP or combination of BMPs is effective in achieving a
specific result in terms of storm water discharge quality. For example,
a measurable goal might involve a commitment to inspect a given number
of drainage areas of the collection system for illicit connections by a
certain date. The measurable goal need not commit to achieving a
specific amount of pollutant reduction through the elimination of
illicit connections. Other measurable goals could include the date by
which public education materials would be developed, a certain
percentage of the community participating in a clean-up campaign, the
development of a mechanism to address construction site runoff, and a
reduction in the percentage of imperviousness associated with new
development projects.
To reduce the risk that permittees will develop inadequate BMPs,
EPA intends to develop a menu of BMPs to assist the operators of
regulated small MS4s with the development of municipal programs. States
may also develop a menu of BMPs. Today's rule provides that the
measurable goals that demonstrate compliance with the minimum control
measures in Secs. 122.34 (b)(3) through (b)(6) do not have to be met if
the State or EPA has not issued a menu of BMPs at the time the MS4
submits its NOI. Commenters pointed out that the proposed rule would
have made the measurable goals unenforceable if the menu of BMPs was
not available, but the proposal was silent as to the enforceability of
the implementation of BMPs. Today's rule clarifies that the operators
are not free to do nothing prior to the issuance of a menu of BMPs;
they still must make a good faith effort to implement the BMPs designed
to comply with each measure. See Sec. 122.34(d)(2). The operators would
not, however, be liable for failure to meet its measurable goals if a
menu of BMPs was not available at the time they submit their NOI.
The proposed rule provision in Sec. 123.35 stated that the
``[f]ailure to issue the menu of BMPs would not affect the legal status
of the general permit.'' This concept is included in the final rule in
Sec. 122.34(d)(2)'s clarification that the permittee still must comply
with other requirements of the general permit.
Unlike the proposed rule, today's rule does not require that each
BMP in the menu developed by the State or EPA be regionally
appropriate, cost-effective and field-tested. Various commenters
criticized those criteria as unworkable, and one described them as
``ripe for ambiguity and abuse.'' Other commenters feared that the
operators of regulated small MS4s would never be required to achieve
their goals until menus were developed that were cost-effective, field-
tested and appropriate for every conceivable subregion.
While some municipal commenters supported the requirement that a
menu of BMPs be made available that included BMPs that had been
determined to be regionally appropriate, field-tested and cost-
effective, others raised concerns that they would be restricted to a
limited menu. Some commenters supported such a detailed menu because
they thought they would only be able to select BMPs that were on the
menu, while others thought that it was the permitting authority's
responsibility to develop BMPs narrowly tailored to their situation. In
response, EPA notes that the operators will not be restricted to
implementing only, or all of, the BMPs included on the menu. Since the
menu does not require permittees to implement the BMPs included on the
menu, it is also not necessary to apply the public notice and other
procedures that some commenters thought should be applied to the
development of the menu of BMPs.
The purpose of the BMP menu is to provide guidance to assist the
operators of regulated small MS4s with the development and refinement
of their local program, not to limit their options. Permittees may
implement BMPs other than those on the menu unless a State restricts
its permittees to specific BMPs. To the extent possible, EPA will
develop a menu of BMPs that describes the appropriateness of BMPs to
specific regions, whether the BMPs have been field-tested, and their
approximate costs. The menu, however, is not intended to relieve
permittees of the need to implement BMPs that are appropriate for their
specific circumstances.
If there are no known relevant BMPs for a specific circumstance, a
permittee has the option of developing and implementing pilot BMPs that
may be better suited to their circumstances. Where BMPs are
experimental, the permittee should consider committing to measurable
goals that address its schedule for implementing its selected BMPs
rather than goals of achieving specific pollutant reductions. If the
BMPs implemented by the permittee do not achieve the desired objective,
the permittee may be required to commit to different or revised BMPs.
As stated in Sec. 123.35(g), EPA is committed to issuing a menu of
BMPs prior to the deadline for the issuance of permits. This menu would
serve as guidance for all operators of regulated small MS4s nationwide.
After developing the initial menu of BMPs, EPA intends to periodically
modify, update, and supplement the menu of BMPs based on the
assessments of the MS4 storm water program and research. States may
rely on EPA's menu of BMPs or issue their own. If States develop their
own menus, they would constitute additional guidance (or perhaps
requirements in some States) for the operators to follow. Several
commenters were confused by the proposed rule language that stated that
States must provide or issue a menu of BMPs and, if they fail to do so,
EPA ``may'' do so. Some read this language as not requiring either EPA
or the State to develop the menu. EPA had intended that it would
develop a menu and that States could either provide the EPA developed
menu or one developed by the State.
EPA has dropped the proposed language that States ``must'' develop
the menu of BMPs. Some commenters thought that it was inappropriate to
require States to issue guidance. A menu of BMPs issued by either EPA
or a permittee's State will satisfy the condition in Sec. 122.34(d)
that a regulatory authority provide a menu of BMPs. A State could
require its permittees to follow its menu of BMPs provided that they
are adequate to implement Sec. 122.34(b).
Several commenters raised concerns that operators of small MS4s
could be
[[Page 68764]]
required to submit their BMPs and measurable goals before EPA or the
State has issued a menu of BMPs. EPA has assumed primary responsibility
for developing a menu of BMPs to minimize the possibility of this
occurring. Should a general permit be issued before a menu of BMPs is
available, the permit writer would have the option of delaying the date
by which the identification of the BMPs and measurable goals must be
submitted to the permitting authority until some time after a menu of
BMPs is available.
Several municipal commenters raised concerns that they would begin
to develop a program only to be later told by the permitting authority
or challenged in a citizen suit that their BMPs were inadequate. They
expressed a need for certainty regarding what their permit required.
Several commenters suggested that EPA require permitting authorities to
approve or disapprove the submitted BMPs and measurable goals. EPA
disagrees that formal approval or disapproval by the permitting
authority is needed.
EPA acknowledges that the lack of a formal approval process does
place on the permittee some responsibility for designing and
determining the adequacy of its BMPs. Once the permittee has submitted
its BMPs to the permitting authority as part of its NOI, it must
implement them in order to achieve the corresponding measurable goals.
EPA does not believe that this results in the uncertainty to the extent
expressed by some commenters or unduly expose the permittee to the risk
of citizen suit. If the permit is very specific regarding what the
permittee must do, then the uncertainty is eliminated. If the permit is
less prescriptive, the permittee has greater latitude in determining
for itself what constitutes an adequate program. A citizen suit could
impose liability on the permittee only if the program that it develops
and implements clearly does not satisfy the requirements of the general
permit. EPA believes today's approach strikes a balance between the
competing goals of providing certainty as to what constitutes an
adequate program and providing flexibility to the permittees.
Commenters were divided on whether five years was a reasonable and
expeditious schedule for a MS4 to implement its program. Some thought
that it was an appropriate amount of time to allow for the development
and implementation of adequate programs. One questioned whether the
permittee had to be implementing all of its program within that time,
and suggested that there may be cases where a permitting authority
would need flexibility to allow more time. One commenter suggested that
five years is too long and would amount to a relaxation of
implementation in their area. EPA believes it will take considerable
time to complete the tasks of initially developing a program,
commencing to implement it, and achieving results. EPA notes, however,
that full implementation of an appropriate program must occur as
expeditiously as possible, and not later than five years.
EPA solicited comment on how an NOI form might best be formatted to
allow for measurable goal information (e.g., through the use of check
boxes or narrative descriptions) while taking into account the Agency's
intention to facilitate computer tracking. All commenters supported the
development of a checklist NOI, but most noted that there would need to
be room for additional information to cover unusual situations. One
noted that, while a summary of measurable goals might be reduced to one
sheet, attachments that more fully described the program and the
planned BMPs would be necessary. EPA agrees that in most cases a
``checklist'' will not be able to capture the information on what BMPs
a permittee intends to implement and its measurable goals for their
implementation. EPA will continue to consider whether to develop a
model NOI form and make it available for permitting authorities that
choose to use it. What will be required on an MS4's NOI, however, is
more extensive than what is usually required on an NOI, so a ``form''
NOI for MS4s may be impractical.
ii. Individual Permit Application for a Sec. 122.34(b) program. In
some cases, an operator of a regulated small MS4s may seek coverage
under an individual NPDES permit, either because it chooses to do so or
because the NPDES permitting authority has not made the general permit
option available to that source. For small MS4s that are to implement a
Sec. 122.34(b) program in today's rule, EPA is promulgating simplified
individual permit application requirements at Sec. 122.33(b)(2)(i).
Under the simplified individual permit application requirements, the
operator submits an application to the NPDES permitting authority that
includes the information required under Sec. 122.21(f) and an estimate
of square mileage served by the small MS4. They are also required to
supply the BMP and measurable goal information required under
Sec. 122.34(d). Consistent with CWA section 308 and analogous State
law, the permitting authority could request any additional information
to gain a better understanding of the system and the areas draining
into the system.
Commenters suggested that the requirements of Sec. 122.21(f) are
not necessarily applicable to a small MS4. One suggested that it was
not appropriate to require the following information: a description of
the activities conducted by the applicant which require it to obtain an
NPDES permit; the name, mailing address, and location of the facility;
and up to four Standard Industrial Classification (``SIC'') codes which
best reflect the principal products or services provided by the
facility. In response, EPA notes that the requirements in
Sec. 122.21(f) are generic application requirements applicable to NPDES
applicants. With the exception of the SIC code requirement, EPA
believes that they are applicable to MS4s. In the SIC code portion of
the standard application, the applicant may simply put ``not
applicable.''
One commenter asked that EPA clarify whether Sec. 122.21(f)(5)'s
requirement to indicate ``whether the facility is located on Indian
lands,'' referred to tribal lands, Indian country, or Indian
reservations. For some local governments this is a complex issue with
no easy ``yes'' or ``no'' answer. See the discussion in the Section
II.F in the proposal to today's rule regarding what tribal lands are
subject to the federal trust responsibility for purposes of the NPDES
program.
One commenter suggested that the application should not have to
list the permits and approvals required under Sec. 122.21(f)(6). EPA
notes that the applicant must only list the environmental permits that
the applicant has received that cover the small MS4. The applicant is
not required to list permits for other operations conducted by the
small MS4 operator (e.g., for an operation of an airport or landfill).
Again, in most cases the applicant could respond ``not applicable'' to
this portion of the application.
One commenter suggested that the topographic map requirement of
Sec. 122.21(f)(7) was completely different from, and significantly more
onerous than, the mapping requirement outlined in the proposed rule at
Sec. 122.34(b)(3)(i). EPA agrees and has modified the final rule to
clarify that a map that satisfies the requirements of
Sec. 122.34(b)(3)(i) also satisfies the map requirements for MS4
applicants seeking individual permits under Sec. 122.33(b)(2)(i).
EPA is adding a new paragraph to Sec. 122.44(k) to clarify that
requirements to implement BMPs developed pursuant to CWA 402(p) are
appropriate permit
[[Page 68765]]
conditions. While such conditions could be included under the existing
provision in Sec. 122.44(k)(3) for ``practices reasonably necessary to
achieve effluent limitations and standards or to carry out the purposes
and intent of the CWA,'' EPA believes it is clearer to specifically
list in Sec. 122.44(k) BMPs that implement storm water programs in
light of the frequency with which they are used as effluent
limitations.
iii. Alternative Permit Options/Tenth Amendment. As an alternative
to implementing a program that addresses each of the six minimum
measures according to the requirements of Sec. 122.34(b), today's rule
provides the operators of regulated small MS4s with the option of
applying for an individual permit under existing Sec. 122.26(d). See
Sec. 122.33(b)(2)(ii). If a system operator does not want to be held
accountable for implementation of each of the minimum measures, an
individual permit option under Sec. 122.33(b)(2)(ii) remains available.
(As explained in the next section of this preamble, Sec. 122.35(b) also
provides an opportunity for relief from permit obligations for some of
the minimum measures, but that relief exists within the framework of
the minimum measures.)
EPA originally drafted the individual permit application
requirements in Sec. 122.26(d) to apply to medium and large MS4s.
Today's rule abbreviates the individual permit application requirements
for small MS4s. Although EPA believes that the storm water management
program requirements of Sec. 122.34, including the minimum measures,
provide the most appropriate means to control pollutants from most
small MS4s, the Agency does recognize that the operators of some small
MS4s may prefer more individualized permit requirements. Among other
possible reasons, an operator may seek to avoid having to ``regulate''
third parties discharging into the separate storm sewer system.
Alternatively, an operator may determine that structural controls, such
as constructed wetlands, are more appropriate or effective to address
the discharges that would otherwise be addressed under the construction
and/or development/redevelopment measures.
Some MS4s commenters alleged that an absolute requirement to
implement the minimum measures violates the Tenth Amendment to the U.S.
Constitution. While EPA disagrees that requiring MS4s to implement the
minimum measures would violate the Constitution, today's rule does
provide small MS4s with the option of developing more individualized
measures to reduce the pollutants and pollution associated with urban
storm water that will be regulated under today's rule.
Some commenters specifically objected that Sec. 122.34's minimum
measures for small MS4s violate the Tenth Amendment insofar as they
require the operators of MS4s to regulate third parties. The minimum
measures include requirements for small MS4 operators to prohibit
certain non-storm water discharges, control storm water discharges from
construction greater than one acre, and take other actions to control
third party sources of storm water discharges into their MS4s.
Commenters also argued that it was inappropriate for EPA to require
local governments to enact ordinances that will consume local revenues
and put local governments in the position of bearing the political
responsibility for implementing the program. One commenter argued that
EPA was prohibited from conditioning the issuance of an NPDES permit
upon the small MS4 operators waiving their constitutional right to be
free from such requirements to regulate third parties. The Agency
replies to each comment in turn.
Because the rule does rely on local governments--who operate
municipal separate storm sewer systems--to regulate discharges from
third parties into storm sewers, EPA acknowledges that the rule
implicates the Tenth Amendment and constitutional principles of
federalism. EPA disagrees, however, that today's rule is inconsistent
with federalism principles. [As political subdivisions of States,
municipalities enjoy the same protections as States under the Tenth
Amendment.]
The Supreme Court has interpreted the Tenth Amendment to preclude
federal actions that compel States or their political subdivisions to
enact or administer a federal regulatory program. See New York v.
United States, 505 U.S. 144 (1992); Printz v. United States, 117 S.Ct.
2365 (1997). The Printz case, however, did acknowledge that the
restriction does not apply when federal requirements of general
applicability--requirements that regulate all parties engaging in a
particular activity--do not excessively interfere with the functioning
of State governments when those requirements are applied to States (or
their political subdivisions). See Printz, 117 S.Ct. at 2383.
Today's rule imposes a federal requirement of general
applicability, namely, the requirement to obtain and comply with an
NPDES permit, on municipalities that operate a municipal separate storm
sewer system. By virtue of this rule, the permit will require the
municipality/storm sewer operator to develop a storm water control
program. The rule specifies the components of the control program,
which are primarily ``management'-type controls, for example, municipal
regulation of third party storm water discharges associated with
construction, as well as development and redevelopment, when those
discharges would enter the municipal system.
Unlike the circumstances reviewed in the New York and Printz cases,
today's rule merely applies a generally applicable requirement (the CWA
permit requirement) to municipal point sources. The CWA establishes a
generally applicable requirement to obtain an NPDES permit to authorize
point source discharge to waters of the United States. Because
municipalities own and operate separate storm sewers, including storm
sewers into which third parties may discharge pollutants, NPDES permits
may require municipalities to control the discharge of pollutants into
the storm sewers in the first instance. Because NPDES permits can
impose end-of-pipe numeric effluent limits, narrative effluent limits
in the form of ``management'' program requirements are also within the
scope of Clean Water Act authority. As noted above, however, EPA
believes that such narrative limitations are the most appropriate form
of effluent limitation for these types of permits. For municipal
separate storm sewer permits, CWA section 402(p)(3)(B)(iii)
specifically authorizes ``controls to reduce pollutants to the maximum
extent practicable, including management practices, control techniques
and system, design and engineering methods, and such other provisions
as the Administrator or the State determines appropriate for the
control of such pollutants.''
The Agency did not design the minimum measures in Sec. 122.34 to
``commandeer'' state regulatory mechanisms, but rather to reduce
pollutant discharges from small MS4s. The permit requirement in CWA
section 402 is a requirement of general applicability. The operator of
a small MS4 that does not prohibit and/or control discharges into its
system essentially accepts ``title'' for those discharges. At a
minimum, by providing free and open access to the MS4s that convey
discharges to the waters of the United States, the municipal storm
sewer system enables water quality impairment by third parties. Section
122.34 requires the operator of a regulated small MS4 to control a
third
[[Page 68766]]
party only to the extent that the MS4 collection system receives
pollutants from that third party and discharges it to the waters of the
United States. The operators of regulated small MS4s cannot passively
receive and discharge pollutants from third parties. The Agency
concedes that administration of a municipal program will consume
limited local revenues for implementation; but those consequences stem
from the municipal operator's identity as a permitted sewer system
operator. The Tenth Amendment does not create a blanket municipal
immunity from generally applicable requirements. Development of a
program based on the minimum measures and implementation of that
program should not ``excessively interfere'' with the functioning of
municipal government, especially given the ``practicability'' threshold
under CWA section 402(p)(3)(B)(iii).
As noted above, today's rule also allows regulated small MS4s to
opt out of the minimum measures approach. The individual permit option
provides for greater flexibility in program implementation and also
responds to the comment about requiring a municipal permit applicant's
waiver of any arguable constitutional rights. The individual permit
option responds to questions about the rule's alleged
unconstitutionality by more specifically focusing on the pollutants
discharged from municipal point sources. Today's rule gives operators
of MS4s the option to seek an individual permit that varies from the
minimum measures/management approach that is otherwise specified in
today's rule. Even if the minimum measures approach was
constitutionally suspect, a requirement that standing alone would
violate constitutional principles of federalism does not raise concerns
if the entity subject to the requirement may opt for an alternative
action that does not raise a federalism issue.
For municipal system operators who seek to avoid third party
regulation according to all or some of the minimum measures,
Sec. 122.26(d) requires the operator to submit a narrative description
of its storm water sewer system and any existing storm water control
program, as well as the monitoring data to enable the permit writer to
develop appropriate permit conditions. The permit writer can then
develop permit conditions and limitations that vary from the six
minimum measures prescribed in today's rule. The information will
enable the permit writer to develop an NPDES permit that will result in
pollutant reduction to the maximum extent practicable. See NRDC v. EPA,
966 F.2d at 1308, n17. If determined appropriate under CWA section
402(p)(3)(B)(iii), for example BMPs to meet water quality standards,
the permit could also incorporate any more stringent or prescriptive
effluent limits based on the individual permit application information.
For small MS4 operators seeking an individual permit, both Part 1
and Part 2 of the application requirements in Sec. 122.26(d)(1) and (2)
are required to be submitted within 3 years and 90 days of the date of
publication of this Federal Register notice. Some of the information
required in Part 1 will necessarily have to be developed by the permit
applicant prior to the development of Part 2 of the application. The
permit applicant should coordinate with its permitting authority
regarding the timing of review of the information.
The operators of regulated small MS4s that apply under
Sec. 122.26(d) may apply to implement certain of the Sec. 122.34(b)
minimum control measures, and thereby focus the necessary evaluation
for additional limitations on alternative controls to the
Sec. 122.34(b) measures that the small MS4 will not implement. The
permit writer may determine ``equivalency'' for some or all of the
minimum measures by developing a rough estimate of the pollutant
reduction that would be achieved if the MS4 implemented the Sec. 122.34
minimum measure and to incorporate that pollutant reduction estimate in
the small MS4's individual permit as an effluent limitation. The Agency
recognizes that, based on current information, any such estimates will
probably have a wide range. Anticipation of this wide range is one of
the reasons EPA believes MS4 operators need flexibility in determining
the mix of BMPs (under the minimum measures) to achieve water quality
objectives. Therefore, for example, if a system operator seeks to
employ an alternative that involves structural controls, wide ranges
will probably be associated with gross pollutant reduction estimates.
Permit writers will undoubtedly develop other ways to ensure that
permit limits ensure reduction of pollutants to the maximum extent
practicable.
Small MS4 operators that pursue this individual permit option do
not need to submit details about their future program requirements
(e.g., the MS4's future plans to obtain legal authority required by
Secs. 122.26(d)(1)(ii) and (d)(2)). A small MS4 operator might elect to
supply such information if it intends for the permit writer to take
those plans into account when developing the small MS4's permit
conditions.
Several operators of small MS4s commented that they currently
lacked the authority they would need to implement one or more of the
minimum measures in Sec. 122.34(b). Today's rule recognizes that the
operators of some small MS4s might not have the authority under State
law to implement one or more of the measures using, for example, an
ordinance or other regulatory mechanism. To address these situations,
each minimum measure in Sec. 122.34(b) that would require the small MS4
operator to develop an ordinance or other regulatory mechanism states
that the operator is only required to implement that requirement to
``the extent allowable under State, Tribal or local law.'' See
Sec. 122.34(b)(3)(ii) (illicit discharge elimination),
Sec. 122.34(b)(4)(ii) (construction runoff control) and
Sec. 122.34(b)(5)(ii) (post-construction storm water management). This
regulatory language does not mean that a operator of a small MS4 with
ordinance making authority can simply fail to pass an ordinance
necessary for a Sec. 122.34(b) program. The reference to ``the extent
allowable under * * * local law'' refers to the local laws of other
political subdivisions to which the MS4 operator is subject. Rather, a
small MS4 operator that seeks to implement a program under section
Sec. 122.34(b) may omit a requirement to develop an ordinance or other
regulatory mechanism only to the extent its municipal charter, State
constitution or other legal authority prevents the operator from
exercising the necessary authority. Where the operator cannot obtain
the authority to implement any activity that is only required to ``the
extent allowable under State, Tribal or local law,'' the operator may
satisfy today's rule by administering the remaining Sec. 122.34(b)
requirements.
Finally, although today's rule provides operators of small MS4s
with an option of applying for a permit under Sec. 122.26(d), States
authorized to administer the NPDES program are not required to provide
this option. NPDES-authorized States could require all regulated small
MS4s to be permitted under the minimum measures management approach in
Sec. 122.34 as a matter of State law. Such an approach would be deemed
to be equally or more stringent than what is required by today's rule.
See 40 CFR 123.2(i). The federalism concerns discussed above do not
apply to requirements imposed by a State on its political subdivisions.
iv. Satisfaction of Minimum Measure Obligations by Another Entity.
An operator of a regulated small MS4 may
[[Page 68767]]
satisfy the requirement to implement one or more of the six minimum
measures in Sec. 122.34(b) by having a third party implement the
measure or measures. Today's rule provides a variety of means for small
MS4 operators to share responsibility for different aspects of their
storm water management program. The means by which the operators of
various MS4s share responsibility may affect who is ultimately
responsible for performance of the minimum measure and who files the
periodic reports on the implementation of the minimum measure. Section
122.35 addresses these issues. The rule describes two different
variants on third party implementation with different consequences if
the third party fails to implement the measure.
If the permit covering the discharge from a regulated small MS4
identifies the operator as the entity responsible for a particular
minimum control measure, then the operator-permittee remains
responsible for the implementation of that measure even if another
entity has agreed to implement the control measure. Section 122.35(a).
Another party may satisfy the operator-permittee's responsibility by
implementing the minimum control measure in a manner at least as
stringent or prescriptive as the corresponding NPDES permit
requirement. If the third party fails to do so, the operator-permittee
remains responsible for its performance. The operator of the MS4 should
consider entering into an agreement with the third party that
acknowledges the responsibility to implement the minimum measure. The
operator-permittee's NOI and its annual Sec. 122.34(f)(3) reports
submitted to the NPDES permitting authority must identify the third
party that is satisfying one or more of the permit obligations. This
requirement ensures that the permitting authority is aware which entity
is supposed to implement which minimum measures.
If, on the other hand, the regulated small MS4's permit recognizes
that an NPDES permittee other than the operator-permittee is
responsible for a particular minimum control measure, then the
operator-permittee is relieved from the responsibility for implementing
that measure. The operator-permittee is also relieved from the
responsibility for implementing any measure that the operator's permit
indicates will be performed by the NPDES permitting authority. Section
122.35(b). The MS4 operator-permittee would be responsible for
implementing the remaining minimum measures.
Today's final rule differs from the proposed version of
Sec. 122.35(b), which stated that, even if the third party's
responsibility is recognized in the permit, the MS4 operator-permittee
remained responsible for performance if the third party failed to
perform the measure consistent with Sec. 122.34(b). Under today's rule,
the operator-permittee is relieved from responsibility for performance
of a measure if the third party is an NPDES permittee whose permit
makes it responsible for performance of the measure (including, for
example, a State agency other than the State agency that issues NPDES
permits) or if the third party is the NPDES permitting authority
itself. Because the permitting authority is acknowledging the third
party's responsibility in the permit, commenters thought that the MS4
operator-permittee should not be responsible for ensuring that the
other entity is implementing the control measure properly. EPA agrees
that the operator-permittee should not be conditionally responsible
when the requirements are enforceable against some other NPDES
permittee. If the third party fails to perform the minimum measure, the
requirements will be enforceable against the third party. In addition,
the NPDES permitting authority could reopen the operator-permittee's
permit under Sec. 122.62 and modify the permit to make the operator
responsible for implementing the measure. A new paragraph has been
added to Sec. 122.62 to clarify that the permit may be reopened in such
circumstances.
Today's rule also provides that the operator-permittee is not
conditionally responsible where it is the State NPDES permitting
authority itself that fails to implement the measure. The permitting
authority does not need to issue a permit to itself (i.e., to the same
State agency that issues the permit) for the sole purpose of relieving
the small MS4 from responsibility in the event the State agency does
not satisfy its obligation to implement a measure. EPA does not believe
that the small MS4 should be responsible in the situation where the
NPDES permit issued to the small MS4 operator recognizes that the State
agency that issues the permit is responsible for implementing a
measure. If the State does fail to implement the measure, the State
agency could be held accountable for its commitment in the permit to
implement the measure. Where the State does not fulfill its
responsibility to implement a measure, a citizen also could petition
for withdrawal of the State's NPDES program or it could petition to
have the MS4's permit reopened to require the MS4 operator to implement
the measure.
EPA notes that not every State program that addresses erosion and
sediment control from construction sites will be adequate to satisfy
the requirement that each regulated small MS4 have a program to the
extent required by Sec. 122.34(b)(4). For example, although all NPDES
States are required to issue NPDES permits for construction activity
that disturbs greater than one acre, the State's NPDES permit program
will not necessarily be extensive enough to satisfy a regulated small
MS4's obligation under Sec. 122.34(b)(4). NPDES States will not
necessarily be implementing all of the required elements of that
minimum measure, such as procedures for site plan review in each
jurisdiction required to develop a program and procedures for receipt
and consideration of information submitted by the public on individual
construction sites. In order for a State erosion and sediment control
program to satisfy a small MS4 operator's obligation to implement
Sec. 122.34(b)(4), the State program would have to include all of the
elements of that minimum measure.
Where the operator-permittee is itself performing one or more of
the minimum measures, the operator-permittee remains responsible for
all of the reporting requirements under Sec. 122.34(f)(3). The
operator-permittee's reports should identify each entity that is
performing the control measures within the geographic jurisdiction of
the regulated small MS4. If the other entity also operates a regulated
MS4 and files reports on the progress of implementation of the measures
within the geographic jurisdiction of the MS4, then the operator-
permittee need not include that same information in its own reports.
If the other entity operates a regulated MS4 and is performing all
of the minimum measures for the permittee, the permittee is not
required to file the reports required by Sec. 122.34(f)(3). This relief
from reporting is specified in Sec. 122.35(a).
Section 122.35 addresses the concerns of some commenters who sought
relief for governmental facilities that are classified as small MS4s
under today's rule. These facilities frequently discharge storm water
through another regulated MS4 and could be regulated by that MS4's
program. For example, a State owned office complex that operates its
storm sewer system in an urbanized area will be regulated as an MS4
under today's rule even though its system may be subject to the storm
water controls of the municipality in
[[Page 68768]]
which it is located. Today's rule specifically revised the definition
of MS4 to recognize that different levels of government often operate
MS4s and that each such separate entity (including the federal
government) should be responsible for its discharges. If both MS4s
agree, the downstream MS4 can develop a storm water management program
that regulates the discharge from both MS4s. The upstream small MS4
operator still must submit an NOI that identifies the entity on which
the upstream small MS4 operator is relying to satisfy its permit
obligations. No reports are required from the upstream small MS4
operator, but the upstream operator must remain in compliance with the
downstream MS4 operator's storm water management program. This option
allows small MS4s to work together to develop one storm water
management program that satisfies the permit obligations of both. If
they cannot agree, the upstream small MS4 operator must develop its own
program.
As mentioned previously, comments from federal facilities and State
organizations that operate MS4s requested that their permit
requirements differ from those of MS4s that are political subdivisions
of States (cities, towns, counties, etc.). EPA acknowledges that there
are differences; e.g., many federal and State facilities do not serve a
resident population and thus might require a different approach to
public education. EPA believes, however, that MS4s owned by State and
federal governments can develop storm water management plans that
address the minimum measures. Federal and State owned small MS4s may
choose to work with adjacent municipally owned MS4s to develop a
unified plan that addresses all of the required measures within the
jurisdiction of all of the contiguous MS4s. The options in Sec. 122.35
minimize the burden on small MS4s that are covered by another MS4's
program.
One commenter recommended that if one MS4 discharges into a second
MS4, the operator of the upstream MS4 should have to provide a copy of
its NOI or permit application to the operator of the receiving MS4. EPA
did not adopt this recommendation because the NOI and permit
application will be publicly available; but EPA does recommend that
NPDES permitting authorities consider it as a possible permit
requirement. The commenter also suggested that monitoring data should
be collected by the upstream MS4 and provided to the downstream MS4.
EPA is not adopting such a uniform monitoring requirement because EPA
believes it is more appropriate to let the MS4 operators work out the
need for such data. If necessary, the downstream MS4s might want to
make such data a condition to allowing the upstream MS4 to connect to
its system.
v. Joint Permit Programs. Many commenters supported allowing the
operators of small MS4s to apply as co-permittees so they each would
not have to develop their own storm water management program. Today's
rule specifically allows regulated small MS4s to join with either other
small MS4s regulated under Sec. 122.34(d) or with medium and large MS4s
regulated under Sec. 122.26(d).
As is discussed in the previous section, regulated small MS4s may
indicate in their NOIs that another entity is performing one or more of
its required minimum control measures. Today's rule under
Sec. 122.33(b)(1) also specifically allows the operators of regulated
small MS4s to jointly submit an NOI. The joint NOI must clearly
indicate which entity is required to implement which control measure in
each geographic jurisdiction within the service area of the entire
small MS4. The operator of each regulated small MS4 remains responsible
for the implementation of each minimum measure for its MS4 (unless, as
is discussed in the previous section above, the permit recognizes that
another entity is responsible for completing the measure.) The joint
NOI, therefore, is legally equivalent to each entity submitting its own
NOI. EPA is, however, revising the rule language to specifically
authorize the joint submission of NOIs in response to comments that
suggested that such explicit authorization might encourage programs to
be coordinated on a watershed basis.
Section 122.33(b)(2)(iii) authorizes regulated small MS4s to
jointly apply for an individual permit to implement today's rule, where
allowed by an NPDES permitting authority. The permit application should
contain sufficient information to allow the permitting authority to
allocate responsibility among the parties under one of the two
permitting options in Secs. 122.33(b)(2)(i) and (ii).
Section 122.33(b)(3) of today's rule also allows an operator of a
regulated small MS4 to join as a co-permittee in an existing NPDES
permit issued to an adjoining medium or large MS4 or source designated
under the existing storm water program. This co-permittee option
applies only with the agreement of all co-permittees. Under this co-
permittee arrangement, the operator of the regulated small MS4 must
comply with the terms and conditions of the applicable permit rather
than the permit condition requirements of Sec. 122.34 of today's rule.
The regulated small MS4 that wishes to be a co-permittee must comply
with the applicable requirements of Sec. 122.26(d), but would not be
required to fulfill all the permit application requirements applicable
to medium and large MS4s. Specifically, the regulated small MS4 is not
required to comply with the application requirements of
Sec. 122.26(d)(1)(iii)
(Part 1 source identification), Sec. 122.26 (d)(1)(iv) (Part 1
discharge characterization), and Sec. 122.26(d)(2)(iii) (Part 2
discharge characterization data). Furthermore, the regulated small MS4
operator could satisfy the requirements in Sec. 122.26(d)(1)(v) (Part 1
management programs) and Sec. 122.26(d)(2)(iv) (Part 2 proposed
management program) by referring to the adjoining MS4 operator's
existing plan. An operator pursuing this option must describe in the
permit modification request how the adjoining MS4's storm water program
addresses or needs to be supplemented in order to adequately address
discharges from the MS4. The request must also explain the role of the
small MS4 operator in coordinating local storm water activities and
describe the resources available to accomplish the storm water
management plan.
EPA sought comments regarding the appropriateness of the
application requirements in these subsections of Sec. 122.26(d). One
commenter stated that newly regulated smaller MS4s should not be
required to meet the existing regulations' Part II application
requirements under Sec. 122.26(d) regarding the control of storm water
discharges from industrial activity. EPA disagrees. The smaller MS4
operators designated for regulation in today's rule may satisfy this
requirement by referencing the legal authority of the already regulated
MS4 program to the extent the newly regulated MS4 will rely on such
legal authority to satisfy its permit requirements. If the smaller MS4
operator plans to rely on its own legal authorities, it must identify
it in the application. If the smaller MS4 operator does not elect to
use its own legal authority, they may file an individual permit
application for an alternate program under Sec. 122.33(b)(2)(ii).
The explanatory language in Sec. 122.33(b)(3) recommends that the
smaller MS4s designated under today's rule identify how an existing
plan ``would need to be supplemented in order to adequately address
your discharges.'' One commenter suggested that this must be regulatory
language and not guidance. EPA disagrees that this needs to be
mandatory language.
[[Page 68769]]
Since many of the smaller MS4s designated today are ``donut holes''
within the geographic jurisdiction of an already regulated MS4, the
larger MS4's program generally will be adequate to address the newly
regulated MS4's discharges. The small MS4 applicant should consider the
adequacy of the existing MS4's program to address the smaller MS4's
water quality needs, but EPA is not imposing specific requirements.
Where circumstances suggest that the existing program is inadequate
with respect to the newly designated MS4 and the applicant does not
address the issue, the NPDES permitting authority must require that the
existing program be supplemented.
Commenters recommended that the application deadline for smaller
MS4s designated today be extended so that existing regulated MS4s would
not have to modify their permit in the middle of their permit term,
provided that permit renewal would occur within a reasonable time (12
to 18 months) of the deadline. In response, EPA notes that today's rule
allows operators of newly designated small MS4s up to three years and
90 days from the promulgation of today's rule to submit an application
to be covered under the permit issued to an already regulated MS4. The
permitting authority has a reasonable time after receipt of the
application to modify the existing permit to include the newly
designated source. If an existing MS4's permit is up for renewal in the
near future, the operator of a newly designated small MS4 may take that
into account when timing its application and the NPDES permitting
authority may take that into account when processing the application.
Another commenter suggested that the rule should include a
provision to allow permit application requirements for smaller MS4s
designated today to be determined by the permitting authority to
account for the particular needs/wants of an already regulated MS4
operator. EPA does not believe that the regulations should specifically
require this approach. When negotiating whether to include a newly
designated MS4 in its program, the already regulated MS4 operator may
require the newly designated MS4's operator to provide any information
that is necessary.
The co-permitting approach allows small MS4s to take advantage of
existing programs to ease the burden of creating their own programs.
The operators of regulated small MS4s, however, may find it simpler to
apply for a program under today's rule, and to identify the medium or
large MS4 operator that is implementing portions of its Sec. 122.34(b)
minimum measures.
d. Evaluation and Assessment
Under today's rule, operators of regulated small MS4s are required
to evaluate the appropriateness of their identified BMPs and progress
toward achieving their identified measurable goals. The purpose of this
evaluation is to determine whether or not the MS4 is meeting the
requirements of the minimum control measures. The NPDES permitting
authority is responsible for determining whether and what types of
monitoring needs to be conducted and may require monitoring in
accordance with State/Tribe monitoring plans appropriate to the
watershed. EPA does not encourage requirements for ``end-of-pipe''
monitoring for regulated small MS4s. Rather, EPA encourages permitting
authorities to carefully examine existing ambient water quality and
assess data needs. Permitting authorities should consider a combination
of physical, chemical, and biological monitoring or the use of other
environmental indicators such as exceedance frequencies of water
quality standards, impacted dry weather flows, and increased flooding
frequency. (Claytor, R. and W. Brown. 1996. Environmental Indicators to
Assess Storm Water Control Programs and Practices. Center for Watershed
Protection, Silver Spring, MD.) Section II.L., Water Quality Issues,
discusses monitoring in greater detail.
As recommended by the Intergovernmental Task Force on Monitoring
Water Quality (ITFM), the NPDES permitting authority is encouraged to
consider the following watershed objectives in determining monitoring
requirements: (1) To characterize water quality and ecosystem health in
a watershed over time, (2) to determine causes of existing and future
water quality and ecosystem health problems in a watershed and develop
a watershed management program, (3) to assess progress of watershed
management program or effectiveness of pollution prevention and control
practices, and (4) to support documentation of compliance with permit
conditions and/or water quality standards. With these objectives in
mind, the Agency encourages participation in group monitoring programs
that can take advantage of existing monitoring programs undertaken by a
variety of governmental and nongovernental entities. Many States may
already have a monitoring program in effect on a watershed basis. The
ITFM report is included in the docket for today's rule
(Intergovernmental Task Force on Monitoring Water Quality. 1995. The
Strategy for Improving Water-Quality Monitoring in the United States:
Final Report of the Intergovernmental Task Force on Monitoring Water
Quality. Copies can be obtained from: U.S. Geological Survey, Reston,
VA.).
EPA expects that many types of entities will have a role in
supporting group monitoring activities--including federal agencies,
State agencies, the public, and various classes or categories of point
source dischargers. Some regulated small MS4s might be required to
contribute to such monitoring efforts. EPA expects, however, that their
participation in monitoring activities will be relatively limited. For
purposes of today's rule, EPA recommends that, in general, NPDES
permits for small MS4s should not require the conduct of any additional
monitoring beyond monitoring that the small MS4 may be already
performing. In the second and subsequent permit terms, EPA expects that
some limited ambient monitoring might be appropriately required for
perhaps half of the regulated small MS4s. EPA expects that such
monitoring will only be done in identified locations for relatively few
pollutants of concern. EPA does not anticipate ``end-of-pipe''
monitoring requirements for regulated small MS4s.
EPA received a wide range of comments on this section of the rule.
Some commenters believe that EPA should require monitoring; others want
a strong statement that the newly regulated small MS4s should not be
required to monitor. Many commenters raised questions about exactly
what EPA expects MS4s to do to evaluate and assess their BMPs. EPA has
intentionally written today's rule to provide flexibility to both MS4s
and permitting authorities regarding appropriate evaluation and
assessment. Permitting authorities can specify monitoring or other
means of evaluation when writing permits. If additional requirements
are not specified, MS4s can decide what they believe is the most
appropriate way to evaluate their storm water management program. As
mentioned above, EPA expects that the necessity for monitoring and its
extent may change from permit cycle to permit cycle. This is another
reason for making the evaluation and assessment rule requirements very
flexible.
i. Recordkeeping. The NPDES permitting authority is required to
include at least the minimum appropriate recordkeeping conditions in
each permit. Additionally, the NPDES permitting authority can specify
that permittees develop, maintain, and/or
[[Page 68770]]
submit other records to determine compliance with permit conditions.
The MS4 operator must keep these records for at least 3 years but is
not required to submit records to the NPDES permitting authority unless
specifically directed to do so. The MS4 operator must make the records,
including the storm water management program, available to the public
at reasonable times during regular business hours (see 40 CFR 122.7 for
confidentiality provision). The MS4 operator is also able to assess a
reasonable charge for copying and to establish advance notice
requirements for members of the public.
EPA received a comment that questioned EPA's authority to require
MS4s to make their records available to the public. EPA disagrees with
the commenter and believes that the CWA does give EPA the authority to
require that MS4 records be available. It is also more practical for
the public to request records directly from the MS4 than to request
them from EPA who would then make the request to the MS4. Based on
comments, EPA revised the proposed rule so as not to limit the time for
advance notice requirements to 2 business days.
ii. Reporting. Under today's rule, the operator of a regulated
small MS4 is required to submit annual reports to the NPDES permitting
authority for the first permit term. For subsequent permit terms, the
MS4 operator must submit reports in years 2 and 4 unless the NPDES
permitting authority requires more frequent reports. EPA received
several comments supporting this timing for report submittal. Other
commenters suggested that annual reports during the first permit cycle
are too burdensome and not necessary. EPA believes that annual reports
are needed during the first 5-year permit term to help permitting
authorities track and assess the development of MS4 programs, which
should be established by the end of the initial term. Information
contained in these reports can also be used to respond to public
inquiries.
The report must include (1) the status of compliance with permit
conditions, an assessment of the appropriateness of identified BMPs and
progress toward achieving measurable goals for each of the minimum
control measures, (2) results of information collected and analyzed,
including monitoring data, if any, during the reporting period, (3) a
summary of what storm water activities the permittee plans to undertake
during the next reporting cycle, and (4) a change in any identified
measurable goal(s) that apply to the program elements.
The NPDES permitting authority is encouraged to provide a brief
two-page reporting format to facilitate compiling and analyzing the
data from submitted reports. EPA does not believe that submittal of a
brief annual report of this nature is overly burdensome, and has not
changed the required reporting time frame from the proposal. The
permitting authority will use the reports in evaluating compliance with
permit conditions and, where necessary, will modify the permit
conditions to address changed conditions.
iii. Permit-As-A-Shield. Section 122.36 describes the scope of
authorization (i.e. ``permit-as-a-shield'') under an NPDES permit as
provided by section 402(k) of the CWA. Section 402(k) provides that
compliance with an NPDES permit is deemed compliance, for purposes of
enforcement under CWA sections 309 and 505, with CWA sections 301, 302,
306, 307, and 403, except for any standard imposed under section 307
for toxic pollutants injurious to human health.
EPA's Policy Statement on Scope of Discharge Authorization and
Shield Associated with NPDES Permits, originally issued on July 1,
1994, and revised on April 11, 1995, provides additional information on
this matter.
e. Other Applicable NPDES Requirements
Any NPDES permit issued to an operator of a regulated small MS4
must also include other applicable NPDES permit requirements and
standard conditions, specifically the applicable requirements and
conditions at 40 CFR 122.41 through 122.49. Reporting requirements for
regulated small MS4s are governed by Sec. 122.34 and not the existing
requirements for medium and large MS4s at Sec. 122.42(c). In addition,
the NPDES permitting authority is encouraged to consult the Interim
Permitting Approach, issued on August 1, 1996. The discussion on the
Interim Permitting Approach in Section II.L.1, Water Quality Based
Effluent Limits, provides more information. The provisions of
Secs. 122.41 through 122.49 establish permit conditions and limitations
that are broadly applicable to the entire range of NPDES permits. These
provisions should be interpreted in a manner that is consistent with
provisions that address specific classes or categories of discharges.
For example, Sec. 122.44(d) is a general requirement that each NPDES
permit shall include conditions to meet water quality standards. This
requirement will be met by the specific approach outlined in today's
rule for the implementation of BMPs. BMPs are the most appropriate form
of effluent limitations to satisfy technology requirements and water
quality-based requirements in MS4 permits (see the introduction to
Section II.H.3, Municipal Permit Requirements, Section II.H.3.h,
Reevaluation of Rule, and the discussion of the Interim Permitting
Policy in Section II.L.1. below).
f. Enforceability
NPDES permits are federally enforceable. Violators may be subject
to the enforcement actions and penalties described in CWA sections 309,
504, and 505 or under similar water pollution enforcement provisions of
State, tribal or local law. Compliance with a permit issued pursuant to
section 402 of the Clean Water Act is deemed compliance, for purposes
of sections 309 and 505, with sections 301, 302, 306, 307, and 403
(except any standard imposed under section 307 for toxic pollutants
injurious to human health).
g. Deadlines
Today's final rule includes ``expeditious deadlines'' as directed
by CWA section 402(p)(6). In proposed Sec. 122.26(e), the permit
application for the ``ISTEA'' facilities was maintained as August 7,
2001 and the permit application deadline for storm water discharges
associated with other construction activity was established as 3 years
and 90 days from the final rule date. In proposed Sec. 122.33(c)(1),
operators of regulated small MS4s were required to seek permit coverage
within 3 years and 90 days from the date of publication of the final
rule. In proposed Sec. 122.33(c)(2), operators of regulated small MS4s
designated by the NPDES permitting authority on a local basis under
Sec. 122.32(a)(2) must seek coverage under an NPDES permit within 60
days of notice, unless the NPDES permitting authority specifies a later
date.
In order to increase the clarity of today's final rule, EPA has
changed the location of some of the above requirements. All application
deadlines for both Phase I and Phase II are now listed or referenced in
Sec. 122.26(e). Section 122.26(e)(1) contains the deadlines for storm
water associated with industrial activity. Paragraph (i) has been
changed to correct a typographical error. Paragraph (ii) has been
revised to reflect the changed application date for ``ISTEA''
facilities. (See discussion in section I.3, ISTEA Sources). The
application deadline for storm water discharges associated with other
construction activity is now in a new Sec. 122.26(e)(8). The
application deadline for regulated small MS4s
[[Continued on page 68771]]