[[pp. 68771-68820]] National Pollutant Discharge Elimination System--Regulations for

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 68771-68820]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08de99-12]

[[pp. 68771-68820]] National Pollutant Discharge Elimination System--Regulations for
Revision of the Water Pollution Control Program Addressing Storm Water
Discharges

[[Continued from page 68770]]

[[Page 68771]]

remains in Sec. 122.33(c) because this section is written in ``readable
regulation'' format, but it is also described in a new
Sec. 122.26(e)(9).
Under today's rule, permitting authorities are allowed up to 3
years to issue a general permit and MS4s designated under
Sec. 122.32(a)(1) are allowed up to 3 years and 90 days to submit a
permit application. Operators of regulated small MS4s that choose to be
a co-permittee with an adjoining MS4 with an existing NPDES storm water
permit must apply for a modification of that permit within the same
time frame. Several commenters stated that 90 days was not adequate
time to submit an NOI. This might be true if facilities did not start
developing their storm water program until publication of their general
permit. In fact, municipalities should start developing their storm
water program upon publication of today's final rule, if they have not
already done so. Municipalities that are uncertain if they fall within
the urbanized area should ask their permitting authority. EPA believes
that municipalities should not automatically take three years and 90
days to develop a program and submit their NOI. Three years is the
maximum amount of time to issue a general permit. MS4s that are
automatically designated under today's rule may have less than 3 years
and 90 days if the permitting authority issues a permit that requires
submission of NOIs before that time. EPA encourages States to modify
their NPDES program to include storm water and issue their permits as
soon as possible. It is important for permitting authorities to keep
their municipalities informed of their progress in developing or
modifying their NPDES storm water requirements.
EPA recognizes that MS4s brought into the program due to the 2000
Census calculations do not have as much time to develop a program as
those already designated from the 1990 Census. However, the official
Bureau of the Census urbanized area calculation for the 2000 Census is
expected to be published in the Federal Register in the spring of 2002,
which should give the potentially affected MS4s adequate time to
prepare for compliance under the applicable permit. However, if the
publication of this information is delayed, MS4s in newly designated
urbanized areas will have 180 days from the time the new designations
are published to submit an NOI, consistent with the time frame for
other regulated MS4s that are designated after promulgation of the
rule.
The proposed application deadline for MS4s designated under
Sec. 122.32(a)(2) was within 60 days of notice. Many commenters stated
that 60 days does not provide adequate time for the preparation of an
NOI or permit application. EPA agrees that newly designated MS4s may
not be aware that they might be designated since the permitting
authority could take several years to develop designation criteria. EPA
has decided that the application time frame for these facilities should
be consistent with the 180 days allowed for facilities designated under
Secs. 122.26(a)(9)(i)(C) and (D). Section 122.33(c)(2) of today's final
rule contains the modified time frame of 180 days to apply for
coverage.
h. Reevaluation of Rule
The municipal caucus of the Storm Water Phase II FACA Subcommittee
asked EPA to demonstrate its commitment to revisit the municipal
requirements of today's rule and make changes where necessary after
evaluating the storm water program and researching the effectiveness of
municipal BMPs. In Sec. 122.37 of today's final rule, EPA commits to
revisiting the regulations for the municipal storm water discharge
control program after completion of the first two permit terms. EPA
intends to use this time to work closely with stakeholders on research
efforts. Gathering and analyzing data related to the storm water
program, including data regarding the effectiveness of BMPs, is
critical to EPA's storm water program evaluation. EPA does not intend
to change today's NPDES municipal storm water program until the end of
this period, except under the following circumstances: a court decision
requires changes; a technical change is necessary for implementation;
or the CWA is modified, thereby requiring changes. After careful
analysis, EPA might also consider changes from consensus-based
stakeholder requests regarding requirements applicable to newly
regulated MS4s. EPA will apply the August 1, 1996, Interim Permitting
Approach to today's program during this interim period and encourages
all permitting authorities to use this approach in municipal storm
water permits for newly regulated MS4s and in determining MS4 permit
requirements under a TMDL approach. After careful consideration of the
data, EPA will make modifications as necessary.
EPA received comments that supported waiting two permit cycles
before re-evaluating the rule and other comments that requested re-
evaluation much sooner. EPA anticipates two full permit cycles are
necessary to obtain enough data to significantly evaluate the rule. The
re-evaluation time frame of 13 years from today remains as proposed.

I. Other Designated Storm Water Discharges

1. Discharges Associated with Small Construction Activity
Section 122.26(b)(15) of today's rule designates certain
construction activities for regulation as ``storm water discharges
associated with small construction activity.'' Specifically, storm
water discharges from construction activity equal to or greater than 1
acre and less than 5 acres are automatically designated except in those
circumstances where the operator (i.e., person responsible for
discharges that might occur) certifies to the permitting authority that
one of two specific waiver circumstances (described in section b.
below) applies. Sites below one acre may be designated under
Sec. 122.26(b)(15)(ii) where necessary to protect water quality.
Today's rule regulates these construction-related storm water
sources under CWA section 402(p)(6) to protect water quality rather
than under CWA section 402(p)(2). Designation under 402(p)(6) gives
States and EPA the flexibility to waive the permit requirement for
construction activity that is not likely to impair water quality, and
to designate additional sources below one acre that are likely to cause
water quality impairment. Thus, the one acre threshold of today's rule
is not an absolute threshold like the five acre threshold that applies
under the existing storm water rule.
Today's rule regulating certain storm water discharges from
construction activity disturbing less than 5 acres is consistent with
the 9th Circuit remand in NRDC v. EPA, 966 F.2d 1292 (9th Cir. 1992).
In that case, the court remanded portions of the existing storm water
regulations related to discharges from construction sites. The existing
Phase I regulations define ``storm water discharges associated with
industrial activity'' to include 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 exemption to EPA for further proceedings (966
F.2d at 1310). EPA's objectives in today's action include an effort to
(1) address the 9th Circuit

[[Page 68772]]

remand to reconsider regulation of storm water discharges from
construction activities that disturb less than 5 acres of land, (2)
address water quality concerns associated with such activities, and (3)
balance conflicting recommendations and concerns of stakeholders in the
regulation of additional construction activity.
EPA responded to the Ninth Circuit's decision by designating
discharges from construction activities that disturb between 1 and 5
acres as ``discharges associated with small construction activity''
under CWA section 402(p)(6), rather than as ``discharges associated
with industrial activity'' under CWA section 402(p)(2)(B). Although a
size criterion alone may be an indicator of whether runoff from
construction sites between 1 and 5 acres is ``associated with
industrial activity,'' the Agency is instead relying on a size
threshold in tandem with provisions that allow for designations and
waivers based on potential for ``predicted water quality impairments''
to regulate construction sites between 1 and 5 acres under CWA section
402(p)(6). This approach was chosen by the Agency for the sake of
simplicity and certainty and, most importantly, to protect water
quality consistent with the mandate of CWA section 402(p)(6). Today's
rule also includes extended application deadlines for this new category
of dischargers under the authority of CWA section 402(p)(6) (see
Sec. 122.26(e)(8) of today's rule).
In today's rule, EPA is regulating storm water discharges from
additional construction sites to better protect the Nation's waters,
while remaining sensitive to a concern that the Agency should not
regulate discharges from construction sites that might not or do not
have adverse water quality impacts. EPA believes that today's rule will
successfully accomplish this objective by establishing a 1-acre
threshold nationwide that includes the flexibility to allow the
permitting authority to both waive requirements for discharges from
sites that are not expected to cause adverse water quality impacts and
to designate discharges from sites below 1-acre based on adverse water
quality impacts.
In addition to the diminishing water quality benefits of regulating
all sites below one acre, the Agency relied on practical considerations
in establishing a one acre threshold and not setting a lower threshold.
Regardless of the threshold established by EPA, a NPDES permit can only
be required if a construction site has a point source discharge. A
point source discharge means that pollutants are added to waters of the
United States through a discernible, confined, discrete conveyance.
``Sheet flow'' runoff from a small construction site would not result
in a point source discharge unless and until it channelized. As the
amount of disturbed land surface decreases, precipitation is less
likely to channelize and create a ``point source'' discharge (assuming
the absence of steep slopes or other factors that lead to increased
channelization). Categorical designation of very small sites may create
confusion about applicability of the NPDES permitting program to those
sites. EPA's one acre threshold reflects, in part, the need to
recognize that smaller sites are less likely to result in point source
discharges. Of course, the NPDES permitting authority could designate
smaller sites (below one acre, assuming point source discharges occur
from the smaller designated sites) for regulation if a watershed or
other local assessment indicated the need to do so. The Phase II rule
includes this designation authority at 40 CFR 122.26(a)(9)(i)(D) and
(b)(15)(ii).
The one acre threshold also provides an administrative tool for
more easily identifying those sites that are identified for coverage by
the rule (but may receive a waiver) and those that are not
automatically covered (but may be designated for inclusion). Although
all construction sites less than five acres could have a significant
water quality impact cumulatively, EPA is automatically designating for
permit coverage only those storm water discharges from construction
sites that disturb land equal to or greater than one acre. Categorical
regulation of discharges from construction below this one acre
threshold would overwhelm the resources of permitting authorities and
might not yield corresponding water quality benefits. Construction
activities that disturb less than one acre make up, in total, a very
small percentage of the total land disturbance from construction
nationwide. The one acre threshold is reasonable for accomplishing the
water quality goals of CWA section 402(p)(6) because it results in
97.5% of the total acreage disturbed by construction being designated
for coverage by the NPDES storm water program, while excluding from
automatic coverage the numerous smaller sites that represent 24.7% of
the total number of construction sites.
Some commenters believed that EPA has not adequately identified
water quality problems associated with storm water discharges from
construction activity disturbing less than five acres. Other commenters
believed that storm water discharges from small construction activity
is a significant water quality problem nationwide. Section I.B.3,
Construction Site Runoff, provides a detailed discussion of adverse
water quality impacts resulting from construction site storm water
discharges. EPA is regulating storm water discharges from construction
activity disturbing between 1 and 5 acres because the cumulative impact
of many sources, and not just a single identified source, is typically
the cause for water quality impairments, particularly for sediment-
related water quality standards.
Several commenters requested that EPA regulate discharges from
small construction activity as ``discharges associated with industrial
activity'' under CWA 402(p)(4) and not, as proposed, as ``storm water
discharges associated with other activity'' under CWA 402(p)(6). EPA is
regulating discharges from small construction sites as ``small
construction activity'' under the authority of CWA section 402(p)(6),
rather than section 402(p)(4), to ensure that regulation of these
sources is water quality-sensitive. CWA section 402(p)(6) affords the
opportunity for designations and waivers of sources based on potential
for ``predicted water quality impairments.'' Regulation of storm water
``associated with industrial activity'' does not necessarily focus
regulation to protect water quality.
a. Scope
The definition of ``storm water discharges associated with small
construction activity'' includes discharges from construction
activities, such as clearing, grading, and excavating activities, that
result in the disturbance of equal to or greater than 1 acre and less
than 5 acres (see Sec. 122.26(b)(15)(i)). Such activities could
include: road building; construction of residential houses, office
buildings, or industrial buildings; or demolition activity. The
definition of ``storm water discharges associated with small
construction activity'' also includes any other construction activity,
regardless of size, designated based on the potential for contribution
to a violation of a water quality standard or for significant
contribution of pollutants to waters of the United States
(Sec. 122.26(b)(15)(ii)). This designation is made by the Director, or
in States with approved NPDES programs, either the Director or the EPA
Regional Administrator.
For the purposes of today's rule, the definition of ``storm water
discharges associated with small construction activity'' includes
discharges from activities disturbing less than 1 acre if that
construction activity is part of a

[[Page 68773]]

``larger common plan of development or sale'' with a planned
disturbance of equal to or greater than 1 acre of land. A ``larger
common plan of development or sale'' means a contiguous area where
multiple separate and distinct construction activities are planned to
occur at different times on different schedules under one plan, e.g., a
housing development of five \1/4\ acre lots (Sec. 122.26(b)(15)(i)).
In addition to the regulatory text for smaller construction, the
Agency is also revising the existing text of Sec. 122.26(b)(14)(x) to
clarify EPA's intention regarding construction projects involving a
larger common plan of development or sale ultimately disturbing 5 or
more acres. Operators of such sites are required to seek coverage under
an NPDES permit regardless of the number of lots in the larger plan
because designation for permit coverage is based on the total amount of
land area to be disturbed under the common plan. This designation
attempts to address the potential cumulative effects of numerous
construction activities concentrated in a given area.
Several commenters asked that EPA allow the permitting authority to
set the appropriate size threshold based on water quality studies.
While EPA agrees that location-specific water quality studies provide
an ideal information base from which to make regulatory decisions,
today's rule establishes a default standard for regulation in the
absence of location-specific studies. The rule does allow for deviation
from the default standard through additional designations and waivers,
however, when supported by location-specific water quality information.
The rule codifies the ability of permitting authorities to provide
waivers for sites greater than or equal to one acre (the default
standard) and designate additional discharges from small sites below
one acre when location-specific information suggests that the default 1
acre standard is either unnecessary (waivers) or too limited
(designations) to protect water quality.
Some commenters wanted EPA to base the regulation of storm water
discharges from construction sites not only on size, but also on the
duration and intensity of activity occurring on the site. EPA believes
that a national 1-acre threshold, in combination with waivers and
additional designations, is the most effective and simplest way to
address adverse water quality impacts from storm water from small
construction sites. Moreover, as discussed below, the waiver for
rainfall erosivity does account for projects of limited duration. EPA
believes, however, that the intensity of activity occurring on-site
would be a very difficult condition to quantify.
Many commenters requested that EPA maintain the 5 acre threshold
from the existing regulations, which include opportunities for site-
specific designation, as the regulatory scope for regulating storm
water from construction sites, i.e., that the Agency not automatically
regulate storm water discharges from sites less than 5 acres. Several
commenters wanted construction requirements to be applied to sites
smaller than 1 acre, while some commenters suggested alternative
thresholds of 2 or 3 acres. The rest of the commenters supported the 1
acre threshold. None of the commenters presented any data or rationales
to support a specific size threshold.
EPA examined alternative size thresholds, including 0.5 acre, 1
acre, 2 acres and 5 acres. EPA had difficulty evaluating the
alternative size thresholds because, while directly proportional to the
size of the disturbed site, the water quality threat posed by
discharges from construction sites of differing sizes varies
nationwide, depending on the local climatological, geological,
geographical, and hydrological influences. In order to ensure
improvements in water quality nationwide, however, today's rule does
not allow various permitting authorities to establish different size
thresholds except based on the waiver and designation provisions of the
rule. 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. By selecting the 1 acre size threshold and
coupling it with waivers and additional designations, EPA is seeking to
standardize improvement of water quality on a national basis while
providing permitting authorities with the opportunity to designate
those unregulated activities causing water quality impairments
regardless of site size, as well as to waive requirements when
information demonstrates that regulation is unnecessary.
EPA recognizes that the size criterion alone may not be the most
ideal predictor of the need for regulation, but effective protection of
water quality depends as much on simplicity in implementation as it
does on the scientific information underlying the regulatory criteria.
The default size criterion of 1 acre will ensure protection against
adverse water quality impacts from storm water from small construction
sites while not overburdening the resources of permitting authorities
and the construction industry to implement the program to protect water
quality in the first place.
One commenter stated a need to clarify whether routine road
maintenance is considered construction activity for the purpose of
today's rule. The NPDES general permit for discharges from construction
sites larger than 5 acres defined ``commencement of construction'' as
the initial disturbance of soils associated with clearing, grading, or
excavating activities or other construction activities (63 FR 7913).
For construction sites disturbing less than 5 acres, EPA does not
consider construction activity to include routine maintenance performed
to maintain the original line and grade, hydraulic capacity, or
original purpose of the facility.
Two commenters believed that the Multi-Sector General Permit for
storm water discharges from industrial activities (MSGP) (60 FR 50804)
already applies to storm water discharges from construction activities
at oil and gas exploration and production sites and asked for a
clarification on this issue. Commenters also requested a single general
permit to authorize both industrial storm water discharges and
construction site discharges which occur at the same industrial site.
Currently, when construction activity disturbing more than 5 acres
occurs on an industrial site covered by the MSGP, authorization under a
separate NPDES construction permit is needed because the MSGP does not
include the ``construction'' industrial sector. While the MSGP does
address sediment and erosion control, it is not as specific as the
NPDES general permit for storm water discharges from construction
activities disturbing more than 5 acres. Though permitting authorities
could conceivably develop a single general permit to authorize storm
water discharges associated with construction activity at these
industrial facilities, the commenter's request is not addressed by
today's rulemaking. When today's rule is implemented through general
permits (to be issued later), the permitting authority will have
discretion whether or not to incorporate the permit requirements for
both the industrial storm water discharges and construction site storm
water discharges into a single general permit. This type of request
should be addressed to the permitting authority.
One commenter suggested that discharges from small construction
sites should be regulated through a ``self-implementing rule''
approach. While today's rule is not a self-implementing rule, it does
add Sec. 122.28(b)(2)(v), which

[[Page 68774]]

gives the permitting authority the discretion to authorize a
construction general permit for sites less than 5 acres without
submitting a notice of intent. Such non-registration general permits
function similarly to self-implementing rules, but are, in fact,
permits. Today's rule will be implemented through NPDES permits rather
than self-implementing regulations to capitalize on the compliance,
tracking, enforcement, and public participation associated with NPDES
permits (see discussion in section II.C).
Other commenters believed that only the permitting authority should
regulate construction site storm water discharges (under a NPDES
permit) and that a small MS4 operator's regulation of storm water
discharges associated with construction (under the small MS4 NPDES
storm water program) is redundant. EPA disagrees that control measure
implementation by the NPDES authority and the small MS4 operator is
redundant. To the extent the two efforts overlap, today's rule provides
for consolidation and coordination of substantive requirements via
incorporation by reference permitting. Small MS4s operators may choose
to impose more prescriptive requirements than an NPDES permitting
authority based on localized water quality needs. In those cases, EPA
intends that the substantive requirements from the small MS4 program
should apply as the NPDES permit requirements for the construction site
discharger. In cases where a small MS4 program does not prioritize and
focus on storm water from construction sites (beyond the small MS4
minimum control measure in today's rule, which does not require the
small MS4 operator to control construction site discharges in a manner
as prescriptive as is expected for discharges regulated under NPDES
permits), the Agency intends that the NPDES general permit will provide
the substantive standards applicable to the construction site
discharge. EPA does anticipate, however, that implementation of MS4
programs to address construction site runoff within their jurisdiction
will enhance overall NPDES compliance by construction site dischargers.
EPA also notes that under Sec. 122.35(b), the permitting authority may
recognize its own program to control storm water discharges from
construction sites in lieu of requiring such a program in an MS4's
NPDES permit, provided that the permitting authority's program
satisfies the requirements of Sec. 122.34(b)(4), including, for
example, procedures for site plan reviews and consideration of
information submitted by the public on individual construction sites in
each jurisdiction required to be covered by the program.
b. Waivers
Under Sec. 122.26(b)(15)(i) of today's rule, NPDES permitting
authorities may waive today's requirement for construction site
operators to obtain a permit in two circumstances. The first waiver is
intended to apply where little or no rainfall is expected during the
period of construction. The second waiver may be granted when a TMDL or
equivalent analysis indicates that controls on construction site
discharges are not needed to protect water quality.
The first waiver is based on ``low predicted rainfall erosivity''
which can be found using tables of rainfall-runoff erosivity (R) values
published for each region in the U.S. R factors are published in the
U.S. Department of Agriculture (USDA) Agricultural Handbook 703
(Renard, K.G., Foster, G.R., Weesies, G.A., McCool, D.K., and D.C.
Yoder. 1997. Predicting Soil Erosion by Water: A Guide to Conservation
Planning with the Revised Universal Soil Loss Equation (RUSLE). U.S.
Department of Agriculture Handbook 703). The R factor varies based on
the time during the year when construction activity occurs, where in
the country it occurs, and how long the construction activity lasts.
The permitting authority may determine, using Handbook 703, which times
of year, if any, the waiver opportunity is available for construction
activity. EPA will provide assistance either through computer programs
or the World Wide Web on how to determine whether this waiver applies
for a particular geographic area and time period. Application of this
waiver for regulatory purposes will be determined by the authorized
NPDES authority. This waiver is discussed further in the following
section titled Rainfall-Erosivity Waiver.
The second waiver is based on a consideration of ambient water
quality. This waiver is available after a State or EPA develops and
implements TMDLs for the pollutant(s) of concern from storm water
discharges associated with construction activity. This waiver is also
available for sites discharging to non-impaired waters that do not
require TMDLs, when an equivalent analysis has determined allocations
for small construction sites for the pollutant(s) of concern or
determined that such allocations are not needed to protect water
quality based on consideration of existing in-stream concentrations,
expected growth in pollutant contributions from all sources, and a
margin of safety. The Agency envisions an equivalent analysis that
would demonstrate that water quality is not threatened by storm water
discharges from small construction activity. This waiver is discussed
further below in the sections titled TMDL Waiver and Water Quality
Issues.
The proposed rule included a waiver based on ``low predicted soil
loss.'' This waiver provision would have been applicable on a case-by-
case basis where the annual soil loss rate for the period of
construction for a site, using the Revised Universal Soil Loss Equation
(RUSLE), would be less than 2 tons/acre/year. The annual soil loss rate
of less than 2 tons/acre/year would be calculated through the use of
the RUSLE equation, assuming the constants of no ground cover and no
runoff controls in place.
Several commenters found the low soil loss waiver too complex and
impractical, and stated that expertise is not available at the local
level to prepare and evaluate eligibility for the waiver. Another
commenter questioned whether two tons/acre/year was an appropriate
threshold for predicting adverse water quality impacts. Two other
commenters said that RUSLE was never intended to predict off-site
impacts and is not an indicator of potential harm to water quality. EPA
agrees with the commenters on the difficulty associated with
determining and implementing this waiver. Most construction site
operators are not familiar with the RUSLE program, and the potential
burden on the permitting authority, construction industry, USDA's
Natural Resources Conservation Service and conservation districts
probably would have been significant. The Agency has not included this
waiver in the final rule.
Two commenters asked that EPA allow States the flexibility to
develop their own waiver criteria but did not suggest how the Agency
(or affected stakeholders) could evaluate the acceptability of
alternative State waiver criteria. Therefore, the final rule does not
provide for any such alternative waivers. If a State does seek to
develop alternate waiver criteria, then EPA procedures afford the
opportunity for subsequent actions, for example, under the Project XL
Program in EPA's Office of Reinvention, which seeks cleaner, smarter,
and cheaper solutions to environmental problems. Many commenters
suggested that EPA extend these waivers to existing industrial storm
water regulations for construction activity greater than 5 acres. These
construction site discharges are

[[Page 68775]]

regulated as industrial storm water discharges under CWA 402(p)(2) and
are not eligible for such water quality-based waivers.
Two commenters were concerned that waivers would create a potential
for significant degradation of small streams. EPA disagrees. If small
streams are threatened, the permitting authority would choose not to
provide any waivers. In addition, permitting authorities may protect
small streams by designating discharges from small construction
activity based on the potential for contribution to a violation of a
water quality standard or for significant contribution of pollutants to
waters of the U.S.
Two commenters asked that the waiver options be eliminated. They
felt it would create a gross inequity within the construction community
if some projects will not be subject to the requirements of today's
rule. While the comments may be valid, EPA disagrees that waivers
should be disallowed on this basis. Construction site discharges that
qualify for a waiver from permitting requirements are not expected to
present a threat to water quality, which is the basis for designation
and regulation under today's rule.
A number of commenters suggested additional waivers in cases where
new development will result in no additional adverse impacts to water
quality as compared to the existing development it replaces. EPA
believes these waivers are either unworkable or unnecessary. It would
be very difficult for most construction operators to determine, as well
as for other stakeholders to verify, on a site-by-site basis, that
there is no potential for adverse impact to water quality compared to
the replaced development.
Other commenters proposed waivers in cases where a local erosion
and sediment control program covers the project or a separate waiver
for small linear utility projects. Instead of waivers, today's rule
addresses the first suggestion through the qualifying program provision
described in the section titled Cross-Referencing State/Local Erosion
and Sediment Control Programs below. Today's rule provides waivers for
small linear projects in so far as they satisfy conditions for low
rainfall erosivity. (See Sec. 122.26(b)(15)(i)(A).)
Other commenters suggested waivers based on distance to water body,
existence of vegetated buffer around water body, slope of disturbed
land, or if discharging to very large bodies of water. As a result of
public outreach, EPA believes that these proposed waivers would be
generally unworkable for construction site dischargers and permitting
authorities because of the difficulty in applying them to all small
sites.
One commenter mentioned that waivers for the R factor (rainfall-
erosivity) and soil loss are effluent standards that have not been
developed in accordance with sections 301 and 304 of the CWA. EPA
disagrees that these sections are relevant to the designation of
sources in today's rule. The waiver provisions in this section of the
rule are jurisdictional because they affect the scope of the universe
of entities subject to the NPDES program. Therefore, the waiver
provisions are not themselves substantive control standards implemented
through NPDES permits, and thus, not subject to the statutory criteria
in sections 301 and 304.
Another commenter stated that waivers would allow exemptions to the
technology based requirements and would thus be inconsistent with the
two-fold approach of the CWA (a technology based minimum and a water
quality based overlay). EPA acknowledges that the CWA does not
generally provide for waivers for the Act's technology-based
requirements. The waiver provisions do not create exemptions from
technology-based standards that apply to NPDES dischargers; they
provide exemption from the underlying requirement for an NPDES permit
in the first place. Protection of water quality is the reason these
smaller sites are designated for regulation under NPDES. The Act's two
fold approach imposes more stringent water quality based effluent
limitations when technology-based limitations applicable to regulated
dischargers are insufficient to meet water quality standards. Under
today's rule, water quality protection is the basis for determining
which of the unregulated sources should be regulated at all. Thus,
today's rule is entirely consistent with the Act's two fold approach.
i. Rainfall-Erosivity Waiver. The rainfall-erosivity waiver under
Sec. 122.26(b)(15)(i)(A) is intended to exempt the requirements for a
permit when and where negligible rainfall/runoff-erosivity is expected.
In the development of the Universal Soil Loss Equation, analysis of
data indicated that when factors other than rainfall are held constant,
soil loss is directly proportional to a rainfall factor composed of
total storm kinetic energy times the maximum 30 minute intensity. The
average annual sum of the storm energy and intensity values for an area
comprise the R factor--the rainfall erosivity index. A detailed
explanation of the R factor can be found in Predicting Soil Erosion by
Water: A Guide to Conservation Planning With the Revised Universal Soil
Loss Equation (RUSLE) (USDA, 1997).
This waiver is time-sensitive and is dependent on when during the
year a construction activity takes place, how long it lasts, and the
expected rainfall and intensity during that time. R factors vary based
on location. EPA anticipates that this waiver opportunity responds to
concerns about the requirement for a permit when it is not expected to
rain, especially in the arid areas of the U.S. Under today's rule, the
permitting authority could waive the requirements for a permit for time
periods when the rainfall-erosivity factor (``R'' in RUSLE) is less
than five during the period of construction. For the purposes of
calculating this waiver, the period of construction activity starts at
the time of initial disturbance and ends with the time of final
stabilization. The operator must submit a written certification to the
Director in order to apply for such a waiver. EPA believes that those
areas receiving negligible rainfall during certain times of the year
are unlikely to have storm events causing discharges that could
adversely impact receiving streams. Consequently, BMPs would not be
necessary on those smaller sites. This waiver is most applicable to
projects of short duration and to the arid regions of the country where
the occurrence of rainfall follows a cyclic pattern--between no rain
and extremely heavy rain. EPA review of rainfall records for these
areas indicates that, during periods of the year when the number of
events and quantity of rain are low, storm water discharges from the
smaller construction sites regulated under today's rule should be
minimal.
Some commenters supported the use of the R factor as a waiver,
while others felt that a waiver based on rainfall statistics ignores
the fact that it may rain on any given day and it is the cumulative
effect of wet weather discharges which cause water quality impairments.
A commenter also asked what happens in ``El Nino'' years when
significantly more rainfall than normal occurs. Another commenter also
expressed concern that this waiver was not based on a measured water
quality impact, but instead on an indicator of potential impact. In
response to the previous comments, EPA notes that, under CWA 402(p)(6),
sources are designated on their potential for adverse impact.
Designation under the section is prospective, not retrospective or
remedial only. For that reason, the waivers under today's rule also
operate prospectively. EPA wanted to waive requirements for sites with
little

[[Page 68776]]

potential to impair water quality, and the R factor is the most
straightforward way to do this. The permitting authority, if electing
to use waivers, could always suspend the use of waivers in certain
areas or during certain times. In addition, the permitting authority
may choose to use a lower R factor threshold than the one set by EPA.
Application of this waiver is at the discretion of the permitting
authority, subject only to the limitation that R factors cannot exceed
5.
One commenter expressed the need for EPA to provide a justification
for the threshold value used for the R factor. None of the commenters
included any data to show that EPA's proposed R factor of 2 was either
too high or too low. EPA is using the R factor as an indicator of the
potential to impact water quality. In an effort to determine which R
threshold should be used, EPA conducted additional analysis of the
rainfall/runoff erosivity factor for 134 sites across the country. For
an R factor threshold of 5, approximately 12% of sites would be waived
if the project period lasted 6 months, 27% for 3 months, 47% for 1
month, and 60% of sites would be waived if the project lasted for only
15 days. None of the 134 sites would be waived if the project lasted an
entire year. For an R factor threshold of 2, approximately 9% of sites
would be waived if the project period lasted 6 months, 15% for 3
months, 31% for 1 month, and 43% for 15 days. For an R factor threshold
of 10, approximately 22% of sites would be waived if the project period
lasted 6 months, 37% for 3 months, 60% for 1 month, and 78% for 15
days. EPA believes that an R factor of 5 is an adequate threshold to
waive requirements for sites because they would not reasonably be
expected to impair water quality.
EPA will develop, as part of the tool box described in section
II.A.5, guidance materials and computer or web-accessible programs to
assist permitting authorities and construction site discharges in
determining if any resulting storm water discharges from specific
projects are eligible for this waiver.
ii. Water Quality Waiver. The water quality waiver under
Sec. 122.26(b)(15)(i)(B) is available where storm water controls are
not needed based on a comprehensive, location-specific evaluation of
water quality needs. The waiver is available based on either an EPA-
approved ``total maximum daily load'' (TMDL) under section 303(d) of
the CWA that addresses the pollutant(s) of concern or, for sites
discharging to non-impaired waters that do not require TMDLs, an
equivalent analysis that has either determined allocations for small
construction sites for the pollutant(s) of concern or determined that
such allocations are not needed to protect water quality based on
consideration of existing in-stream concentrations, expected growth in
pollutant contributions from all sources, and a margin of safety. The
pollutants of concern that must be addressed include sediment or a
parameter that addresses sediment (such as total suspended solids
(TSS), turbidity or siltation) and any other pollutant that has been
identified as a cause of impairment of any water body that will receive
a discharge from the construction activity. The operator must certify
to the NPDES permitting authority that the construction activity will
take place, and storm water discharges will occur, within the
applicable drainage area evaluated in the TMDLs or equivalent analyses.
Today's rule modifies the approach in the proposed rule. EPA
proposed to allow a waiver of permit requirements for small
construction if storm water controls were determined to be unnecessary
based on ``wasteload allocations that are part of `total maximum daily
loads' (TMDLs) that address the pollutants of concern,'' or ``a
comprehensive watershed plan, implemented for the water body, that
includes the equivalents of TMDLs, and addresses the pollutants of
concern.''
Commenters asked for clarification of the terms ``comprehensive
watershed plans'' and ``equivalent of TMDLs.'' EPA intended that both
terms would include a comprehensive analysis that determines that
controls on small construction sites are not needed based on
consideration of existing in-stream concentrations, expected growth in
pollutant contributions from all sources, and a margin of safety.
Today's rule makes this clarification.
One commenter pointed out that there are no water quality standards
for suspended solids, the major pollutant expected in discharges from
construction activity. The commenter asserted that no waiver would ever
be available. Another commenter noted that there are no sediment
criteria developed for streams, also making this waiver useless. EPA
notes that a number of States and Tribes have water quality standards
that address TSS, which are narrative in form, and that may serve as a
basis for water quality-based effluent limits. As efforts to identify
impairments and improve water quality progress, some States may yet
develop water quality standards for suspended solids. Although several
TMDLs for sediment and related parameters have been established, EPA
does recognize that currently it is extremely difficult to develop
TMDLs for sediment. EPA is partially addressing this concern by
clarifying in today's rule that the waivers may be based on a TMDL or
equivalent analyses for sediment or one of the various pollutant
parameters that are a proxy for sediment. These include TSS, turbidity
and siltation.
Other commenters noted that this waiver was unattainable if a TMDL
or equivalent analysis must be available for every pollutant that could
possibly be present in any amount in discharges from small construction
sites regardless of whether the pollutant is causing water quality
impairment. Commenters asked that EPA identify what constitutes the
``pollutants of concern'' for which a TMDL or its equivalent must be
developed. EPA has revised the proposed rule in response to these
concerns.
In order for discharges from construction sites under five acres to
qualify for the water quality waiver of today's rule, the construction
site operator must demonstrate that storm water controls are not
necessary for sediment or a parameter that addresses sediment (such as
TSS, turbidity or siltation) and any other pollutant that has been
identified as a cause of impairment of any water body that will receive
a discharge from the construction activity. Even if the water body is
not currently impaired for sediment, today's rule requires an analysis
of the potential impacts of sediment because the storm water discharges
from the construction activity will be a new source of loading to the
water body that could constitute a new impairment. Because the water
body will not necessarily have been included on a ``303(d) list'' and a
TMDL will not necessarily be required, the rule continues to allow an
analysis that is the equivalent of a TMDL. The designation of storm
water discharges from small construction activity for regulation in
today's rule is intended to control pollutants other than sediment.
This waiver provision requires a TMDL or equivalent analysis for a
pollutant other than gross particulates (i.e., sediment and other
particulate-focused pollutant parameters) only if the receiving water
is currently impaired for that pollutant.
One commenter expressed the concern that construction operators
will not know if they are in a watershed covered by a TMDL. To the
extent this is an operator's concern, he or she could contact their
NPDES permitting

[[Page 68777]]

authority before applying for permit coverage to determine if receiving
water is subject to a TMDL. Alternatively, the permitting authority
could identify the TMDL (or equivalent analysis) areas in the general
permit or another operator-accessible information source.
Another commenter expressed the concern that a TMDL waiver is
likely to be ineffective because the TMDL list is submitted only once
every 2 years. By the time a water is listed, the activity may have
been completed and stabilized. The commenter argued that, if a
watershed is impaired due to sediment from construction, then storm
water controls will still be needed, because small construction can
only be waived when it is not identified as a source of impairment. In
response, EPA notes that an analysis that is the equivalent of a TMDL
(specifically, equivalent to the component of a TMDL that
comprehensively analyses existing ambient conditions against the
applicable water quality standards) may also provide a basis for waiver
from the default 1 acre designation. Also, even if a water has been
identified as impaired for sediment, it is possible that a site or
category of sites may receive an allocation that is sufficiently high
enough to allow discharges without storm water controls.
c. Permit Process and Administration
The operator of the construction site, as with any operator of a
point source discharge, is responsible for obtaining coverage under a
NPDES permit as required by Sec. 122.21(b). The ``operator'' of the
construction site, as explained in the current NPDES construction
general permit, is typically the party or parties that either
individually or collectively meet the following two criteria: (1)
Operational control over the site specifications, including the ability
to make modifications in the specifications; and (2) day-to-day
operational control of those activities at the site necessary to ensure
compliance with permit conditions (63 FR 7859). If more than one party
meets these criteria, then each party involved would typically be a co-
permittee with any other operators. The operator could be the owner,
the developer, the general contractor, or individual contractor. When
responsibility for operational control is shared, all operators must
apply.
In today's rule, EPA is not requiring an NOI for NPDES general
permits for storm water discharges from construction activities
regulated by Sec. 122.26(b)(15) if the NPDES permitting authority finds
that the use of NOIs would be inappropriate (see Sec. 122.28(b)(2)(v)).
Under this approach, the NPDES permitting authority will have the
discretion to decide whether or not to require NOIs for discharges from
construction activity less than 5 acres. Compared to the existing storm
water regulation, the permitting authority thus has increased
flexibility in program implementation. EPA does recommend the use of
NOIs, however because NOIs track permit coverage and provide a useful
information source to prioritize inspections or enforcement. Requiring
an NOI allows for greater accountability by, and tracking of,
dischargers. This simple permit application and reporting mechanism
also allows for better outreach to the regulated community, uses an
existing and familiar mechanism, and is consistent with the existing
requirements for storm water discharges from larger construction
activities. Today's rule does not amend the requirement for NOIs in
general permits for storm water discharges from construction activity
disturbing 5 acres for more. See Sec. 122.28(b)(2)(v).
EPA expects that the vast majority of discharges of storm water
associated with small construction activity identified in
Sec. 122.26(b)(15) will be regulated through general permits. In the
event that an NPDES permitting authority decides to issue an individual
construction permit, however, individual application requirements for
these construction site discharges are found at Sec. 122.26(c)(1)(ii).
For any discharges of storm water associated with small construction
activity identified in Sec. 122.26(b)(15) that are not authorized by a
general permit, a permit application made pursuant to Sec. 122.26(c)
must be submitted to the Director by 3 years and 90 days after
publication of the final rule.
Some commenters expressed concern that linear construction projects
(e.g., roads, highways, pipelines) that cross several jurisdictions
will have to comply with multiple sets of requirements from various
jurisdictions, including multiple local governments and States. EPA is
limited in its options to address these concerns because the Agency
cannot issue NPDES permits in States authorized to implement the NPDES
program nor preempt other more stringent local and State requirements.
EPA believes, however, that the option for incorporating by reference
the State, Tribal or local requirements (see discussion in Section
II.I.2.d., Cross-Referencing State/Local Erosion and Sediment Control
Programs) should limit the administrative burden on the operator
responsible for discharges from linear construction projects. If the
operator were to implement the most comprehensive of the various
requirements for the whole project, it could avoid confusion due to
differing requirements for different sections of the project. In
addition, linear utility projects, which usually have a shorter project
period, are more likely to be eligible for the rainfall erosivity
waiver.
One commenter stated there was no reason to delay the application
period for regulated storm water discharges from small construction
activities. The commenter requested that the newly regulated
construction site discharges should be required to seek permit coverage
within 90 days, as opposed to 3 years, of the effective date of the
rule. The Agency does not accept this request. EPA anticipates that
NPDES permitting authorities will need one to two years to develop
adequate legal authority to implement a program to address this new
category of discharges, as well as to develop and issue general
permits. Moreover, to ensure effective implementation to protect water
quality, regulatory authorities will need additional time to inform
small construction site operators of requirements and provide guidance
and training on these requirements.
Finally, EPA received a comment requesting that the three year file
retention requirement be deleted for discharges from small construction
sites. While EPA recognizes that the three year record retention
schedule may be unnecessary for certain construction projects, the
Agency has determined it is necessary to retain files after the
completion of the project to ensure permit compliance, including
applicable construction site stabilization enabling permit termination
for such sites.
d. Cross-Referencing State, Tribal or Local Erosion and Sediment
Control Programs
In developing the NPDES permit requirements for construction sites
less than 5 acres, members of the Storm Water Phase II FACA
Subcommittee asked EPA to try to minimize redundancy in the
construction permit requirements. In response, today's rule at
Sec. 122.44(s) provides for incorporation of qualifying State, Tribal
or local erosion and sediment control program requirements by reference
into the NPDES permit authorizing storm water discharges from
construction sites (described under Secs. 122.26(b)(15) and
(b)(14)(x)). The incorporation by reference approach applies not only
to the newly regulated storm water discharges (from construction
activity disturbing between 1 and 5 acres, including designated sites,
but

[[Page 68778]]

excluding waived sites) but also to discharges from construction
activity disturbing 5 or more acres already covered by the existing
storm water regulations. For this latter category of discharges from
construction activity disturbing 5 or more acres, the incorporation by
reference approach requires that the pollutant control requirements
from the incorporated program also satisfy the statutory standard for
limitations representing application of the best available technology
economically achievable (BAT) and best conventional pollutant control
technology (BCT).
For permits issued for discharges from small construction activity
defined under Sec. 122.26(b)(15), a qualifying State, Tribal, or local
erosion and sediment control program is one that includes the program
elements described under Sec. 122.44(s)(1). These elements include
requirements for construction site operators to implement appropriate
erosion and sediment control BMPs, requirements to control waste, a
requirement to develop a storm water pollution prevention plan, and
requirements to submit a site plan for review. A storm water pollution
prevention plan includes site descriptions, descriptions of appropriate
control measures, copies of approved State, Tribal or local
requirements, maintenance procedures, inspection procedures, and
identification of non-storm water discharges. The construction site's
permit would require it to follow the requirements of the qualifying
local program rather than require it to follow two different sets of
requirements. If a partially-qualifying program does not have all of
the elements described under Sec. 122.44(s)(1), then the NPDES
permitting authority may still incorporate language in the small
construction site discharge's permit that requires the construction
site operator to follow the program, but the construction site
discharge permit also must incorporate the missing required elements in
order to satisfy CWA requirements.
The term ``local'' refers to the geographic area of applicability,
not the form of government that develops and administers the program.
Thus, a qualifying federal erosion and control program, such as certain
programs developed and administered by the federal Bureau of Land
Management, could be a qualifying local program.
As a result of this provision, local requirements will, in effect,
provide the substantive construction site erosion and sediment control
requirements for the NPDES permit authorization. Therefore, by
following one set of erosion and sediment control requirements,
construction site operators satisfy both local and NPDES permit
requirements without duplicative effort. At the same time,
noncompliance with the referenced local requirements will be considered
noncompliance with the NPDES permit which is federally enforceable. The
NPDES permitting authority will, of course, retain the discretion to
decide whether to include the alternative requirements in the general
permit. EPA believes that this approach will best balance the need for
consideration of specific local requirements and local implementation
with the need for federal and citizen oversight, and will extend
supplemental NPDES requirements to control storm water discharges from
construction sites.
EPA developed the ``incorporation by reference'' approach based on
implementation efforts designed by the State of Michigan. Michigan
relies on localities to develop substantive controls for storm water
discharges associated with construction activities on a localized
basis. Localities, however, are not required to do so. In areas where
the local authority does not choose to participate, the State
administers the sedimentation and erosion control requirements. The
State agency, as the NPDES permitting authority, receives an NOI
(termed ``notice of coverage'' by Michigan) under the general permit
and tracks and exercises oversight, as appropriate, over the activity
causing the storm water discharge. Michigan's goal under these
procedures is to utilize the existing erosion and sediment control
program infrastructure authorized under State law for storm water
discharge regulation. (See U.S. Environmental Protection Agency, Office
of Water. January 7, 1994. Memo: From Michael B. Cook, Director OWEC,
to Water Management Division Directors, Regarding the ``Approach Taken
by Michigan to Regulate Storm Water Discharges from Construction
Activities.'')
Most commenters supported the general concept of incorporating by
reference qualifying programs. Two commenters expressed concern that
different local construction requirements will create an impossible
regulatory scheme for builders who work in different localities. EPA
believes that allowing States to incorporate qualifying programs by
reference will minimize the differences for builders who work in
different areas of the State. These differences already exist, however,
not only for erosion and sediment controls, but also other aspects of
construction. In any event, the criteria for qualification for
localized programs should provide a certain degree of standardization
for various localities' requirements. EPA expects that the new rule for
construction and post-construction BMPs being developed under CWA
section 304(m) will also encourage standardization of local
requirements. (See discussion of this new rulemaking in section II.D.1,
Federal Role of this preamble).
Two commenters requested that an ``incorporation by reference''
should include permission, in writing, from the qualifying local
program administrator because of a perceived extra burden on the
referenced program. Any program requirements incorporated by reference
in NPDES permits should already apply to construction site dischargers
in the applicable area and therefore should not add any additional
burden to the referenced program. EPA has left to the discretion of the
permitting authority the decision on whether to seek permission from
the qualifying program before cross-referencing it in an NPDES permit.
One commenter stated that a qualifying local program should require
a SWPPP. The proposed rule defined the qualifying local program as a
program the meets the minimum program requirements established in the
proposed construction minimum control measure for small MS4s. To ensure
consistency in the controls for storm water discharges between the
larger, already regulated construction sites and the discharges from
smaller sites that will be regulated as a result of today's rule, EPA
has made a change to define a qualifying local program as one that
includes the elements described in Sec. 122.44(s)(1). Section
122.44(s)(1) requires the development and implementation of a storm
water pollution prevention plan as a criterion for qualification of
local programs for incorporation by reference. As noted above, if a
qualifying program does not include all the elements in
Sec. 122.44(s)(1) then the permitting authority will need to specify
the missing elements in order to rely on the incorporation by reference
approach.
One commenter asked what happens in regard to the use of qualifying
programs when a construction site operator is also the qualifying local
program operator. The provision for incorporation by reference applies
in this situation also. The local program operator will be required to
comply with requirements it has established for others.

[[Page 68779]]

e. Alternative Approaches
EPA received a number of comments on alternative permitting
approaches. Several commenters supported regulating discharges only
from those construction sites within urbanized areas. Other commenters
opposed this approach. EPA chose to address storm water discharges from
construction sites located both within and outside urbanized areas
because of the potential for adverse water quality impact from storm
water discharges from smaller sites in all areas. Regulating only those
sites within urbanized areas would have excluded a large number of
potential contributors to water quality impairment and would not
address large areas of new development occurring on the outer fringes
of urbanized areas. In fact, designating only small construction
discharges within urbanized areas might create a perverse incentive for
building only outside urbanized areas. Such an incentive would be
inconsistent with the Agency's intention behind designating to protect
water quality. The Agency intends that designation to protect water
quality in today's rule should be both remedial and preventive.
A number of commenters encouraged EPA to cover municipal
construction activities under the small MS4 general permit, instead of
issuing a separate NPDES construction permit to these municipal
construction projects. Similarly, a number of commenters supported EPA
giving industrial facilities the option of having storm water from
construction activities on the site covered by the industrial storm
water permit. Several other commenters found that combining multiple
permit types under one general permit introduced a degree of complexity
which was confusing to permittees. Permitting authorities have the
option of combining MS4 and construction permits or industrial and
construction permits, however, specific requirements for each would
still need to be included in the permit issued. EPA agrees that this
would probably result in a more complex and confusing permit compared
to the existing component permits.
Several commenters supported an alternative for regulated small
MS4s where a local qualified program alone, without an NPDES permit, is
sufficient to enforce compliance with construction site discharge
requirements. On the other hand, one commenter stated that linking the
local construction erosion and sediment control program to the existing
NPDES program for storm water from larger construction has driven
improvements in many local programs. Another commenter stated that the
potential fines under the NPDES program will encourage compliance and
will be much stronger than any fines a local program may have. EPA
agrees that the NPDES program is the best approach to address water
quality impacts from construction sites and provides benefits such as
accountability and federal enforcement.
A number of commenters supported issuing one permit for each
construction company, instead of a permit for each individual
construction activity (also requested for storm water discharges from
the larger, already regulated construction sites). Other commenters
found that a `licensing' program for construction site operators would
have many problems, including identifying who to permit and tracking
information on active sites. EPA is regulating only the storm water
discharges associated with construction activity from small sites, not
the construction activity itself. Separate NPDES permits (either
individual or general permit coverage) for construction site discharges
avoid potential problems in tracking sites and operator accountability.
Section 122.28(b)(2)(v) gives permitting authorities the option to
issue a general permit without requiring an NOI. If an NOI is not
required for each activity, permitting authorities could pursue other
options such as a company-wide NOI, license instead of an NOI, or
another mechanism.
2. Other Sources
In the Storm Water Discharges Potentially Addressed by Phase II of
the National Pollutant Discharge Elimination System Storm Water
Program, Report to Congress, March 1995, (``Report'') submitted by EPA
pursuant to CWA section 402(p)(5), EPA examined the remaining
unregulated point sources of storm water for the potential to adversely
affect water quality. Due to very limited national data on which to
estimate pollutant loadings on the basis of discharge categories, the
discussion of the extent of unregulated storm water discharges is
limited to an analysis of the number and geographic distribution of the
unregulated storm water discharges. Therefore, EPA is not designating
any additional unregulated point sources of storm water on a
nationwide, categorical basis. Instead, the remainder of the sources
will be regulated based on case-by-case post-promulgation designations
by the NPDES permitting authority.
EPA did, however, evaluate a variety of categories of discharges
for potential designation in the Report. EPA's efforts to identify
sources and categories of unregulated storm water discharges for
potential designation for regulation in today's rule started with an
examination of approximately 7.7 million commercial, retail,
industrial, and institutional facilities identified as ``unregulated.''
In general, the distribution of these facilities follows the
distribution of population, with a large percentage of facilities
concentrated within urbanized areas (see page 4-35 of the Report). This
examination resulted in identification of two general classes of
facilities with the potential for discharging pollutants to waters of
the United States through storm water point sources.
The first group (Group A) included sources that are very similar,
or identical, to regulated ``storm water discharges associated with
industrial activity'' but that were not included in the existing storm
water regulations because EPA used SIC codes in defining the universe
of regulated industrial activities. By relying on SIC codes, a
classification system created to identify industries rather than
environmental impacts from these industries discharges, some types of
storm water discharges that might otherwise be considered
``industrial'' were not included in the existing NPDES storm water
program. The second general class of facilities (Group B) was
identified on the basis of potential for activities and pollutants that
could contribute to storm water contamination.
EPA estimates that Group A has approximately 100,000 facilities.
Discharges from facilities in this group, which may be of high priority
due to their similarity to regulated storm water discharges from
industrial facilities, include, for example, auxiliary facilities or
secondary activities (e.g., maintenance of construction equipment and
vehicles, local trucking for an unregulated facility such as a grocery
store) and facilities intentionally omitted from existing storm water
regulations (e.g., publicly owned treatment works with a design flow of
less than 1 million gallons per day, landfills that have not received
industrial waste).
Group B consists of nearly one million facilities. EPA organized
Group B sources into 18 sectors for the purposes of the Report. The
automobile service sector (e.g., gas/service stations, general
automobile repair, new and used car dealerships, car and truck rental)
makes up more than one-third of the total number of facilities
identified in all 18 sectors.
EPA conducted a geographical analysis of the industrial and
commercial facilities in Groups A and

[[Page 68780]]

B. The geographical analysis shows that the majority are located in
urbanized areas (see Section 4.2.2, Geographic Extent of Facilities, in
the Report). In general, about 61 percent of Group A facilities and 56
percent of Group B facilities are located in urbanized areas. The
analysis also showed that nearly twice as many industrial facilities
are found in all urbanized areas as are found in large and medium
municipalities alone. Notable exceptions to this generalization
included lawn/garden establishments, small unregulated animal feedlots,
wholesale livestock, farm and garden machinery repair, bulk petroleum
wholesale, farm supplies, lumber and building materials, agricultural
chemical dealers, and petroleum pipelines, which can frequently be
located in smaller municipalities or rural areas.
In identifying potential categories of sources for designation in
today's notice, EPA considered designation of discharges from Group A
and Group B facilities. EPA applied three criteria to each potential
category in both groups to determine the need for designation: (1) The
likelihood for exposure of pollutant sources included in that category,
(2) whether such sources were adequately addressed by other
environmental programs, and (3) whether sufficient data were available
at this time on which to make a determination of potential adverse
water quality impacts for the category of sources. As discussed
previously, EPA searched for applicable nationwide data on the water
quality impacts of such categories of facilities.
By application of the first criterion, the likelihood for exposure,
EPA considered the nature of potential pollutant sources in exposed
portions of such sites. As precipitation contacts industrial materials
or activities, the resultant runoff is likely to mobilize and become
contaminated by pollutants. As the size of these exposed areas
increases, EPA expects a proportional increase in the pollutant
loadings leaving the site. If EPA concluded that a category of sources
has a high potential for exposure of raw materials, intermediate
products, final products, waste materials, byproducts, industrial
machinery, or industrial activity to rainfall, the Agency rated that
category of sources as having ``high'' potential for adverse water
quality impact. EPA's application of the first criterion showed that a
number of Group A and B sources have a high likelihood of exposure of
pollutants.
Through application of the second criterion, EPA assessed the
likelihood that pollutant sources are regulated in a comprehensive
fashion under other environmental protection programs, such as programs
under the Resource Conservation and Recovery Act (RCRA) or the
Occupational Health and Safety Act (OSHA). If EPA concluded that the
category of sources was sufficiently addressed under another program,
the Agency rated that source category as having ``low'' potential for
adverse water quality impact. Application of the second criterion
showed that some categories were likely to be adequately addressed by
other programs.
After application of the third criterion, availability of
nationwide data on the various storm water discharge categories, EPA
concluded that available data would not support any such nationwide
designations. While such data could exist on a regional or local basis,
EPA believes that permitting authorities should have flexibility to
regulate only those categories of sources contributing to localized
water quality impairments.
EPA received comments requesting designation of additional
industrial, commercial and retail sources (e.g. industrial activity
``look-alikes'', roads, commercial facilities and institutions, and
vehicle maintenance facilities) in the final rule, because the
commenters believe that the data exist to support national designation
of some of these sources. Other comments were received opposing
designation of any additional sources. Today's rule does not designate
any additional industrial or commercial category of sources either
because EPA currently lacks information indicating a consistent
potential for adverse water quality impact or because of EPA's belief
that the likelihood of adverse impacts on water quality is low, with
some possible exceptions on a more local basis. Since the time the
Agency submitted the Report, EPA has continued to seek additional data
and has requested available data from the FACA members. If sufficient
regional or nationwide data become available in the future, the
permitting authority could at that time designate a category of sources
or individual sources on a case-by-case basis. Therefore, today's rule
encourages control of storm water discharges from Groups A and B
through self-initiated, voluntary BMPs, unless the discharge (or
category of discharges) is designated for permitting by the permitting
authority. See discussion in section I.D., EPA's Reports to Congress.
3. ISTEA Sources
Provisions within the Intermodal Surface Transportation and
Efficiency Act (ISTEA) of 1991 temporarily exempted storm water
discharges associated with industrial activity that are owned or
operated by municipalities serving populations less than 100,000 people
(except for airports, power plants, and uncontrolled sanitary
landfills) from the need to apply for or obtain a storm water discharge
permit (section 1068(c) of ISTEA). Congress extended the NPDES
permitting moratorium for these facilities to allow small
municipalities additional time to comply with NPDES requirements for
certain sources of industrial storm water. The August 7, 1995 storm
water final rule (60 FR 40230) further extended this moratorium until
August 7, 2001. However, today's rule changes this deadline so that
previously exempted industrial facilities owned or operated by
municipalities serving populations less than 100,000 people, must now
submit an application for a permit within 3 years and 90 days from date
of publication of today's rule.
EPA received comments recommending that permit requirements for
municipally owned or operated industrial storm water discharges,
including those previously exempt under ISTEA, be included in a single
NPDES permit for all MS4 storm water discharges. The existing NPDES
regulations already provide permitting authorities the ability to issue
a single ``combination'' permit for MS4 discharges. However, if the
permitting authorities chose to issue this type of permit, they must
make sure that in doing so, they are not creating a double standard for
industrial facilities covered under the combination permit versus those
covered under separate general or individual permits. In order to avoid
this double standard, combination permits would have to contain
requirements that are the same or very similar to the requirements
found in separate MS4 and industrial permits, i.e., the minimum
measures and other necessary requirements of an MS4 permit, and the
SWPPP, monitoring and reporting requirements, and other necessary
requirements of an industrial permit. If such a combined MS4 general
permit were issued, the regulations require that each discharger submit
NOIs for their respective discharges, except for discharges from small
construction activities. Flexibility exists in developing a combination
NOI which could reduce the need to submit duplicative information, e.g.
owner/operator name and address. The combination NOI would still need
to require specific information for each separate municipally owned or
operated industrial location, including

[[Page 68781]]

construction projects disturbing 5 or more acres. The regulations at
Sec. 122.28(b)(2)(ii) list the necessary contents of an NOI, which
require: the facility name, facility address, type of facility or
discharge and receiving stream for each industrial discharge location.
When viewed in its entirety, a combination permit, which by necessity
would need to contain all elements of otherwise separate industrial and
MS4 permit requirements, and require NOI information for each separate
industrial activity, may have few advantages when compared to obtaining
separate MS4 and industrial general permit coverage.
In order to allow the permitting authority to issue a single storm
water permit for the MS4 and all municipally owned or operated
industrial facilities, including those previously exempt under ISTEA,
today's rule requires applications for ISTEA sources within 3 yrs and
90 days from date of publication of today's rule. The permitting
authority has the ultimate decision to determine whether or not a
single all-encompassing MS4 permit is appropriate.
4. Residual Designation Authority
The NPDES permitting authority's existing designation authority, as
well as the petition provisions are being retained. Today's rule
contains two provisions related to designation authority at
Secs. 122.26(a)(9)(i)(C) and (D). Subsection (C) adds designation
authority where storm water controls are needed for the discharge based
upon wasteload allocations that are part of TMDLs that address the
pollutant(s) of concern. EPA intends that the NPDES permitting
authority have discretion in the matter of designations based on TMDLs
under subsection (C). Subsection (D) carries forward residual
designation authority under former Sec. 122.26(g), and has been
modified to provide clarification on categorical designation. Under
today's rule, EPA and authorized States continue to exercise the
authority to designate remaining unregulated discharges composed
entirely of storm water for regulation on a case-by-case basis
(including Sec. 123.35). Individual sources are subject to regulation
if EPA or the State, as the case may be, determines that the storm
water discharge from the source contributes to a violation of a water
quality standard or is a significant contributor of pollutants to
waters of the United States. This standard is based on the text of
section CWA 402(p). In today's rule, EPA believes, as Congress did in
drafting section CWA 402(p)(2)(E), that individual instances of storm
water discharge might warrant special regulatory attention, but do not
fall neatly into a discrete, predetermined category. Today's rule
preserves the regulatory authority to subsequently address a source (or
category of sources) of storm water discharges of concern on a
localized or regional basis. For example, as States and EPA implement
TMDLs, permitting authorities may need to designate some point source
discharges of storm water on a categorical basis either locally or
regionally in order to assure progress toward compliance with water
quality standards in the watershed.
EPA received comments asking that Sec. 122.26(a)(9)(i)(D) as
proposed be modified to include specific language clarifying the
permitting authority's ability to designate additional sources on a
categorical basis as explained in the preamble to the proposed rule.
One comment requested that the designation language include
``categories of sources on a Statewide basis.'' EPA agrees that the
intent of the language may not have been clear regarding categorical
designation. Today's rule modifies subsection (D) to clarify that the
designation authority can be applied within different geographic areas
to any single discharge (i.e., a specific facility), or category of
discharges that are contributing to a violation of a water quality
standard or are significant contributors of pollutants to waters of the
United States. The added term ``within a geographic area'' allows
``State-wide'' or ``watershed-wide'' designation within the meaning of
the terms.
One commenter questioned the Agency's legal authority to provide
for such residual designation authority. The stakeholder argued that
the lapse of the October 1, 1994, permitting moratorium under CWA
section 402(p)(1) eliminated the significance of the CWA section
402(p)(2) exceptions to the moratorium, including the exception for
discharges of storm water determined to be contributing to a violation
of a water quality standard or a significant contributor of pollutants
under CWA section 402(p)(2)(E). The stakeholder further argued that
EPA's authority to designate sources for regulation under CWA section
402(p)(6) is limited to storm water discharges other than those
described under CWA section 402(p)(2). Because CWA section 402(p)(2)(E)
describes individually designated discharges, the stakeholder concluded
that regulations under CWA section 402(p)(6) cannot provide for post-
promulgation designation of individual sources. EPA disagrees.
First, as explained previously, EPA anticipates that NPDES
permitting authorities may yet determine that individual unregulated
point sources of storm water discharges require regulation on a case-
by-case basis. This conclusion is consistent with the Congress'
recognition of the potential need for such designation under the first
phase of storm water regulation as described in CWA section
402(p)(2)(E). Under CWA section 402(p)(2)(E), Congress recognized the
need for both EPA and the State to retain authority to regulate
unregulated point sources of storm water under the NPDES permit
program. Second, to the extent that CWA section 402(p)(6) requires
designation of a ``category'' of sources, the permitting authority may
designate such (as yet unidentified) sources as a category that should
be regulated to protect water quality. Though such sources may exist
and discharge today, if neither EPA nor the State/Tribal NPDES
permitting authority has designated the source for regulation under CWA
section 402(p)(2)(E) to date, then CWA section 402(p)(6) provides the
authority to designate such sources.
The Agency can designate a category of ``not yet identified''
sources to be regulated, based on local concerns, even if data do not
exist to support nationwide regulation of such sources. EPA does not
interpret the language in CWA section 402(p) to preclude States from
exercising designation authority under these provisions because such
designation (and subsequent regulation of designated sources) is within
the ``scope'' of the NPDES program.
EPA also believes that sources regulated pursuant to a State
designation are part of (and regulated under) a federally approved
State NPDES program, and thus subject to enforcement under CWA sections
309 and 505. Under existing NPDES State program regulations, State
programs that are ``greater in scope of coverage'' are not part of the
federally-approved program. By contrast, any such State regulation of
sources in this ``reserved category'' will be within the scope of the
federal program because today's rule recognizes the need for such post
promulgation designations of unregulated point sources of storm water.
Such regulation will be ``more stringent'' than the federal program
rather than ``greater in scope of coverage'' (40 CFR 123.1(h)).
EPA does not interpret the congressional direction in CWA section
402(p)(6) to preclude regulation of point sources of storm water that
should be regulated to protect water quality. Under CWA section 510,
Congress expressly recognized and preserved the authority of States to
adopt and enforce

[[Page 68782]]

more stringent regulation of point sources, as well as any requirement
respecting the control or abatement of pollution. Section 510 applies,
``except as expressly provided'' in the CWA. CWA section 502(14) does
expressly provide affirmative limitations on the regulation of certain
pollutant sources through the point source control program, the NPDES
permitting program. Section 502(14) excludes agricultural storm water
and return flows from irrigated agriculture from the definition of
point source, and section 402(l) limits applicability of the section
402 permit program for return flows from irrigated agriculture, as well
as for storm water runoff from certain oil, gas, and mining operations.
Unlike sections 502(14) and 402(l), EPA does not interpret CWA section
402(p)(6) as an express provision limiting the authority to designate
point sources of storm water for regulation on a case-by-case basis
after the promulgation of final regulations. Any source of storm water
discharge is encouraged to assess its potential for storm water
contamination and take preventive measures against contamination. Such
proactive actions could result in the avoidance of future regulation.
One comment was received requesting clarification of the term
``non-municipal'' in Sec. 122.26(a)(9)(ii). The commenter is concerned
that the term ``non-municipal,'' in this context, implies that
municipally owned or operated facilities cannot be designated. The term
``non-municipal'' in this context refers to the universe of unregulated
industrial and commercial facilities that could potentially be
designated according to Sec. 122.26(a)(9)(i) authority. There is no
exemption for municipally owned or operated facilities under these
designation provisions.
Finally, EPA received comments and evaluated the proposal under
which operators of regulated small, medium, and large MS4s would be
responsible for controlling discharges from industrial and other
facilities into their systems in lieu of requiring NPDES permit
coverage for such facilities. EPA did not adopt this framework due to
concerns with administrative and technical burden on the MS4 operators,
as well as concerns about such an intergovernmental mandate.

J. Conditional Exclusion for ``No Exposure'' of Industrial Activities
and Materials to Storm Water

1. Background
In 1992, the Ninth Circuit court remanded to EPA for further
rulemaking, a portion of the definition of ``storm water discharge
associated with industrial activity'' that excluded the category of
industrial activity identified as ``light industry'' when industrial
materials and/or activities were not exposed to storm water. See NRDC
v. EPA, 966 F.2d 1292, 1305 (9th Cir. 1992). Today's final rule
responds to that remand. In the 1990 storm water regulations, EPA
excluded the light industry category from the requirement for an NPDES
permit if the industrial materials and/or activities were not
``exposed'' to storm water (see Sec. 122.26(b)(14)). The Agency had
reasoned that most of the activity at these types of facilities takes
place indoors and that emissions from stacks, use of unhoused
manufacturing equipment, outside material storage or disposal, and
generation of large amounts of dust or particles would be atypical (55
FR 48008, November 16, 1990).
The Ninth Circuit determined that the exemption was arbitrary and
capricious for two reasons. First, the court found that EPA had not
established a record to support its assumption that light industry that
was not exposed to storm water was not ``associated with industrial
activity,'' particularly when other types of industrial activity not
exposed to storm water remained ``associated with industrial
activity.'' The court specifically found that ``[t]o exempt these
industries from the normal permitting process based on an
unsubstantiated assumption about this group of facilities is arbitrary
and capricious.'' Second, the court concluded that the exemption
impermissibly ``altered the statutory scheme'' for permitting because
the exemption relied on the unverified judgment of the light industrial
facility operator to determine non-applicability of the permit
application requirements. In other words, the court was critical that
the operator would determine for itself that there was ``no exposure''
and then simply not apply for a permit without any further action.
Without a basis for ensuring the effective operation of the permitting
scheme--either that facilities would self-report actual exposure or
that EPA would be required to inspect and monitor such facilities--the
court vacated and remanded the rule to EPA for further rulemaking.
One of the major concerns expressed by the FACA Committee, was that
EPA streamline and reinvent certain troublesome or problematic aspects
of the existing permitting program for storm water discharges. One area
identified was the mandatory applicability of the permitting program to
all industrial facilities, even those ``light industrial'' activities
that are of very low risk or of no risk to storm water contamination.
Such dischargers may not have any industrial sources of storm water
contamination on the plant site, yet they are still required to apply
for an NPDES storm water permit and meet all permitting requirements.
Examples of such facilities are a soap manufacturing plant (SIC Code
28) or hazardous waste treatment and disposal facility, where all
industrial activities, even loading docks, are inside a building or
under a roof.
Although they did not provide a written report, the FACA Committee
members advised EPA that the existing storm water program should be
revised to allow such facilities to seek an exclusion from the NPDES
storm water permitting requirements. The Committee agreed that such an
exclusion should also provide a strong incentive for other industrial
facilities that conduct industrial activities outdoors to move the
activities under cover or into buildings to prevent contamination of
rainfall and storm water runoff. The committee believed that such a
``no exposure'' permit exclusion could be a valuable incentive for
storm water pollution prevention.
In today's final rule, the Agency responds to both of the bases for
the court's remand. The exclusion from permitting based on ``no
exposure'' applies to all industrial categories listed in the existing
storm water regulations except construction. The court's opinion
rejected EPA's distinction between light industry and other industry,
but it did not preclude an interpretation that treats all ``non-
exposed'' industrial facilities in the same fashion. Presuming that an
industrial facility adequately prevents exposure of industrial
materials and activities to storm water, today's rule treats discharges
from ``non-exposed'' industrial facilities in a manner similar to the
way Congress intended for discharges from administrative buildings and
parking lots. Specifically, permits will not be required for storm
water discharges from these facilities on a categorical basis.
To assure that discharges from industrial facilities really are
similar to discharges from administrative buildings and parking lots,
and to respond to the second basis for the court's remand, the
permitting exclusion is ``conditional''. The person responsible for a
point source discharge from a ``no exposure'' industrial source must
meet the conditions of the exclusion, and complete, sign and submit the
certification to the permitting authority for tracking and

[[Page 68783]]

accountability purposes. EPA believes today's rule, therefore, is fully
consistent with the direction provided by the court.
EPA relied upon the ``no exposure'' concept discussed by the FACA
Committee in developing the ``no exposure'' provisions of today's rule.
EPA is deleting the sentence regarding ``no exposure'' for the
facilities in Sec. 122.26(b)(14)(xi) and adding a new Sec. 122.26(g)
titled ``Conditional Exclusion for No Exposure of Industrial Activities
to Storm Water.'' The ``no exposure'' provision will make storm water
discharges from all classes of industrial facilities eligible for
exclusion, except storm water discharges from regulated construction
activities. Regulated construction activities cannot claim ``no
exposure'' because the main pollutants of concern (e.g., sediment)
generally cannot entirely be sheltered from storm water.
Today's rule represents a significant expansion in the scope of the
``no exposure'' provision originally promulgated in the 1990 rule,
which was only for storm water discharges from light industry. The
intent of today's ``no exposure'' provision is to provide a simplified
method for complying with the CWA to all industrial facilities that are
entirely indoors. This includes facilities that are located within a
large office building, or at which the only items permanently exposed
to precipitation are roofs, parking lots, vegetated areas, and other
non-industrial areas or activities.
EPA received several comments related to storm water runoff from
parking lots, roof tops, lawns, and other non-industrial areas of an
industrial facility. Storm water discharges from these areas, which may
contain pollutants or which may result in additional storm water flows,
are not directly regulated under the existing storm water permitting
program because they are not ``storm water discharges associated with
industrial activity''. Many comments on this issue supported
maintaining the exclusion from the existing regulations for storm water
permitting for discharges from administrative buildings, parking lots,
and other non-industrial areas. Other comments opposed allowing the
continued exclusion for discharges from non-industrial areas of the
site because discharges from these areas are potentially a significant
cause of receiving water impairment. These comments urged that such
discharges should not be excluded from NPDES permit coverage. Today's
rule does not require permit coverage for discharges from a facility's
exposed areas that are separate from industrial activities such as
runoff from office buildings and accompanying parking lots, lawns and
other non-industrial areas. This approach is consistent with the
existing storm water rules which were based on Congress's intent to
exclude non-industrial areas such as ``parking lots and administrative
and employee buildings.'' 133 Cong. Rec. 985 (1987). EPA also lacks
data indicating that discharges from these areas at an industrial
facility cause significant receiving water impairments. Therefore, the
non-industrial areas at a facility do not need to be assessed as part
of the ``no exposure'' certification.
EPA received comments related to industrial facilities that achieve
``no exposure'' by constructing large amounts of impervious surfaces,
such as roofs, where previously there were pervious or porous surfaces
into which storm water could infiltrate. Some commenters made the point
that large amounts of impervious area may cause a significant increase
in storm water volume flowing off the industrial facility, and thus may
cause adverse receiving water impacts simply due to the increased
quantity of storm water flow. Some commenters said that storm water
discharges from impervious areas at an industrial facility are
generally more frequent, and often larger, than discharges from the
pre-existing natural surfaces. They believe that these discharges will
contain pollutants typical of commercial areas and roads and are an
equal threat to direct human uses of the water and can cause equal
damage to aquatic life and its habitat. Other commenters believe that
if Congress or EPA addresses the issue of flow, it should be addressed
on a broader scale than merely through the ``no exposure'' exclusion,
and that EPA has no authority under any existing legal framework to
regulate flow directly. Some commenters stated that developing federal
parameters for the control of water quantity, i.e. flow, would result
in federal intrusion into land use planning, an authority that they
claim is solely within the purview of State governments and their
political subdivisions.
EPA is not attempting to regulate flow via the ``no exposure''
provisions. EPA does agree, however, that increases in impervious
surfaces can result in increased runoff volumes from the site which in
turn may increase pollutant loading. In addition, the Agency notes that
in some States water quality standards include water quality criteria
for flow or turbidity. Therefore, in order to provide a minimal amount
of information on possible impacts from increased pollutant loading and
runoff volume, EPA's ``no exposure'' certification form (see Appendix
4) asks the discharger to indicate if they have paved or roofed over a
formerly exposed, pervious area in order to qualify for the ``no
exposure'' exclusion. If the answer is yes, the discharger must
indicate, by choosing from three possible responses, approximately how
much impervious area was created to achieve ``no exposure''. The
choices are: (1) less than 1 acre, (2) 1 to 5 acres, and (3) more than
5 acres. This requirement provides additional information that will aid
in determining if discharges from the facility are causing adverse
receiving water impacts. 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 construction of large amounts of impervious surfaces, 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 dischargers consider these
factors when making modifications to their site in order to qualify for
the ``no exposure'' exclusion.
2. Today's Rule
In order to claim relief under the ``no exposure'' provision, the
discharger of an otherwise regulated facility must submit a no exposure
certification that incorporates the questions of Sec. 122.26(g)(4)(iii)
to the NPDES permitting authority once every 5 years. This provision
applies across all categories of industrial activity covered by the
existing program, except discharges from construction activities.
In addition to submitting a ``no exposure'' certification every 5
years, the facility must allow the NPDES permitting authority or
operator of an MS4 (where there is a storm water discharge to the MS4)
to inspect the facility and to make such inspection reports publicly
available upon request. Also, upon request, the facility must submit a
copy of the ``no exposure'' certification to the operator of the MS4
into which the facility discharges (if applicable). All ``no exposure''
certifications must be signed in accordance with the signatory
requirements of Sec. 122.22. The ``no exposure'' certification is non-
transferable. In the event that the facility operator changes, the new
discharger must submit a new ``no exposure'' certification.

[[Page 68784]]

Members of the FACA Committee urged that EPA not allow dischargers
certifying ``no exposure'' to take actions to qualify for this
provision that result in a net environmental detriment. In developing a
regulatory implementation mechanism, however, EPA found that the phrase
``no net environmental detriment,'' was too imprecise to use within
this context. Therefore, today's rule addresses this issue by requiring
information that should help the permitting authority to determine
whether actions taken to qualify for the exclusion interfere with the
attainment or maintenance of water quality standards, including
designated uses. Permitting authorities will be able, where necessary,
to make a determination by evaluating the activities that changed at
the industrial site to achieve ``no exposure'', and assess whether
these changes cause an adverse impact on, or have the reasonable
potential to cause an instream excursion of, water quality standards,
including designated uses. EPA anticipates that many efforts to achieve
``no exposure'' will employ simple good housekeeping and contaminant
cleanup activities. Other efforts may involve moving materials and
industrial activities indoors into existing buildings or structures.
In very limited cases, industrial operators may make major changes
at a site to achieve ``no exposure''. These efforts may include
constructing a new building or cover to eliminate exposure or
constructing structures to prevent run-on and storm water contact with
industrial materials or activities. Where major changes to achieve ``no
exposure'' increase the impervious area of the site, the facility
operator must provide this information on the ``no exposure''
certification form as discussed above. Using this and other available
data and information, permitting authorities should be able to assess
whether any major change has resulted in increased pollutant
concentrations or loadings, toxicity of the storm water runoff, or a
change in natural hydrological patterns that would interfere with the
attainment and maintenance of water quality standards, including
designated uses or appropriate narrative, chemical, biological, or
habitat criteria where such State or Tribal water quality standards
exist. In these instances, the facility operator and their NPDES
permitting authority should take appropriate actions to ensure that
attainment or maintenance of water quality standards can be achieved.
The NPDES permitting authority should decide if the facility must
obtain coverage under an individual or general permit to ensure that
appropriate actions are taken to address adverse water quality impacts.
While the intent of today's ``no exposure'' provision is to reduce
the regulatory burdens on industrial facilities and government
agencies, the FACA Committee suggested that the NPDES permitting
authority consider a compliance assessment program to ensure that
facilities that have availed themselves of this ``no exposure'' option
meet the applicable requirements. Inspections could be conducted at the
discretion of the NPDES authority and be coordinated with other
facility inspections. EPA expects, however, that the permitting
authority will conduct inspections when it becomes aware of potential
water quality impacts possibly caused by the facility's storm water
discharges or when requested to do so by adversely affected members of
the public. The intent of this provision is that the 5 year ``no
exposure'' certification be fully available to, and enforceable by,
appropriate federal and State authorities under the CWA. Private
citizens can enforce against facilities for discharges of storm water
that are inconsistent with a ``no exposure'' certification if storm
water discharges from such facilities are not otherwise permitted and
in compliance with applicable requirements.
EPA received comments from owners, operators and representatives of
Phase I facilities classified as ``light industry'' as defined by the
regulations at Sec. 122.26(b)(14)(xi). The comments recommended
maintaining the approach of the existing regulations which does not
require the discharger to submit any supporting documentation to the
permitting authority in order to claim the ``no exposure'' exclusion
from permitting. As discussed previously, the ``no exposure'' concept
was developed in response to the Ninth Circuit court's remand of part
of the existing rules back to EPA. The court found that EPA cannot rely
on the ``unverified judgment'' of the facility. The comments opposing
documentation did not address the ``unverified judgment'' concern.
Today's rule is a ``conditional'' exclusion from permitting which
requires all categories, including the ``light industrial'' facilities
that have no exposure of materials to storm water, to submit a
certification to the permitting authority. Upon receipt of a complete
certification, the permitting authority can review the information, or
call, or inspect the facility if there are doubts about the facility's
``no exposure'' claim. Also, if the facility discharges into an MS4,
the operator of the MS4 can request a copy of the certification, and
can inspect the facility. The public can request a copy of the
certification and/or inspection reports. In adopting these conditional
``no exposure'' provisions, the Agency addressed the Ninth Circuit
court's ruling regarding the discharger's unverified judgment.
EPA received one comment requesting clarification on whether the
anti-backsliding provisions in the regulations at Sec. 122.44(l) apply
to industrial facilities that are currently covered under an NPDES
storm water permit, and whether such facilities could qualify for the
``no exposure'' exclusion under today's rule. The anti-backsliding
provisions will not prevent most industrial facilities that can certify
``no exposure'' under today's rule from qualifying for an exclusion
from permitting. The anti-backsliding provisions contain 5 exceptions
that allow permits to be renewed, reissued or modified with less
stringent conditions. One exception at Sec. 122.44(l)(2)(A) allows less
stringent conditions if ``material and substantial alterations or
additions to the permitted facility occurred after permit issuance
which justify the application of a less stringent effluent
limitation.'' Section 122.44(l)(B)(1) also allows less stringent
requirements if ``information is available which was not available at
the time of permit issuance and which would have justified the
application of less stringent effluent limitations at the time of
permit issuance.'' Facility's operators who certify ``no exposure'' and
submit the required information once every 5 years will have provided
the permitting authority ``information that was not available at the
time of permit issuance.'' Also, some facilities may, in order to
achieve ``no exposure'', make ``material and substantial alterations or
additions to the permitted facility.'' Therefore, most facilities
covered under existing NPDES general permits for storm water (e.g.,
EPA's Multi-Sector General Permit) will be eligible for the conditional
``no exposure'' exclusion from permitting without concern about the
anti-backsliding provisions. Such dischargers will have met one or both
of the anti-backsliding exceptions detailed above. Facilities that are
covered under individual permits containing numeric limitations for
storm water should consult with their permitting authority to determine
whether the anti-backsliding provisions will prevent them from
qualifying for the exclusion from permitting (for that discharge point)
based on a certification of ``no exposure''.

[[Page 68785]]

EPA received several comments regarding the timing of when the ``no
exposure'' certification should be submitted. The proposed rule said
that the ``no exposure'' certification notice must be submitted ``at
the beginning of each permit term or prior to commencing discharges
during a permit term.'' Some commenters interpreted this statement to
mean that existing facilities can only submit the certification at the
time a permit is being issued or renewed. EPA intended the phrase ``at
the beginning of each permit term'' to mean ``once every 5 years'' and
today's rule reflects this clarification. EPA envisions that the NPDES
storm water program will be implemented primarily through general
permits which are issued for a 5 year term. Likewise the ``no
exposure'' certification term is 5 years. The NPDES permitting
authority will maintain a simple registration list that should impose
only a minor administrative burden on the permitting authority. The
registration list will allow for tracking of industrial facilities
claiming the exclusion. This change allows a facility to submit a ``no
exposure'' certification at any time during the term of the permit,
provided that a new certification is submitted every 5 years from the
time it is first submitted (assuming that the facility maintains a ``no
exposure'' status). Once a discharger has established that the facility
meets the definition of ``no exposure'', and submits the necessary ``no
exposure'' certification, the discharger must maintain their ``no
exposure'' status. Failure to maintain ``no exposure'' at their
facility could result in the unauthorized discharge of pollutants to
waters of the United States and enforcement for violation of the CWA.
Where a discharger believes that exposure could occur in the future due
to some anticipated change at the facility, the discharger should
submit an application and obtain coverage under an NPDES permit prior
to such discharge to avoid penalties.
Where EPA is the permitting authority, dischargers may submit a
``no exposure'' certification at any time after the effective date of
today's rule. Where EPA is not the permitting authority, dischargers
may not be able to submit the certification until the non-federal
permitting authority completes any necessary statutory or regulatory
changes to adopt this ``no exposure'' provision. EPA recommends that
the discharger contact the permitting authority for guidance on when
the ``no exposure'' certification should be submitted.
EPA received comments on the proposed rule requirement that the
discharger ``must comply immediately with all the requirements of the
storm water program including applying for and obtaining coverage under
an NPDES permit,'' if changes occur at the facility which cause
exposure of industrial activities or materials to storm water. The
comments expressed the difficultly of immediate compliance. EPA expects
that most facility changes can be anticipated, therefore dischargers
should apply for and obtain NPDES permit coverage in advance of changes
that result in exposure to industrial activities or materials.
Permitting authorities may grant additional time, on a case-by-case
basis, for preparation and implementation of a storm water pollution
prevention plan.
Finally, today's rule at Sec. 122.26(g)(4) includes the information
which must be included on the ``no exposure'' certification. Authorized
States, Tribes or U.S. Territories may develop their own form which
includes this required information, at a minimum. EPA adopted the
requirements (with modification) from the draft ``No Exposure
Certification Form'' published as an appendix to the proposed rule.
Modifications were made to the draft form to address comments received
and to streamline the required information. EPA included these
certification requirements in today's rule in order to preserve its
integrity. Dischargers in areas where EPA is the permitting authority
should use the ``No Exposure Certification'' form included in Appendix
4.
3. Definition of ``No Exposure''
For purposes of this section, ``no exposure'' means that all
industrial materials or activities are protected by a storm resistant
shelter to prevent exposure to rain, snow, snowmelt, and/or runoff.
Industrial materials or activities include, but are not limited to,
material handling equipment or activities, industrial machinery, raw
materials, intermediate products, by-products, final products, or waste
products. Material handling activities include the storage, loading and
unloading, transportation, or conveyance of any raw material,
intermediate product, final product or waste product. However, storm
resistant shelter is not required for: (1) Drums, barrels, tanks, and
similar containers that are tightly sealed, provided those containers
are not deteriorated and do not leak; (2) adequately maintained
vehicles used in material handling; and (3) final products, other than
products that would be mobilized in storm water discharge (e.g., rock
salt). Each of these three exceptions to the no exposure definition are
discussed in more detail below.
EPA intends the term ``storm resistant shelter'' to include
completely roofed and walled buildings or structures, as well as
structures with only a top cover but no side coverings, provided
material under the structure is not otherwise subject to any run-on and
subsequent runoff of storm water. While the Agency intends that this
provision promote permanent ``no exposure'', EPA understands that
certain vehicles could pass between buildings and, during passage, be
exposed to rain and snow. Adequately maintained vehicles such as
trucks, automobiles, forklifts, or other such general purpose vehicles
at the industrial site that are not industrial machinery, and that are
not leaking contaminants or are not otherwise a source of industrial
pollutants, could be exposed to precipitation or runoff. Such
activities alone does not prevent a discharger from being able to
certify no exposure under this provision. Similarly, trucks or other
vehicles awaiting maintenance at vehicle maintenance facilities, as
defined at Sec. 122.26(b)(14)(viii), that are not leaking contaminants
or are not otherwise a source of industrial pollutants, are not
considered exposed.
In addition, EPA recognizes that there are circumstances where
permanent ``no exposure'' of industrial activities or materials is not
possible. Under such conditions, materials and activities may be
sheltered with temporary covers, such as tarps, between periods of
permanent enclosure. The final rule does not specify every such
situation. EPA intends that permitting authorities will address this
issue on a case-by-case basis. Permitting authorities can determine the
circumstances under which temporary structures will or will not meet
the requirements of this section. Until permitting authorities
specifically determine otherwise, EPA recommends application of the
``no exposure'' exclusion for temporary sheltering of industrial
materials or activities only during facility renovation or
construction, provided that the temporary shelter achieves the intent
of this section. Moreover, ``exposure'' that results from a leak in
protective covering would only be considered ``exposure'' if not
corrected prior to the next storm water discharge event. EPA received
one comment requesting that this allowance for temporary shelter be
limited to facility renovation or construction directly related to the
industrial activity requiring temporary shelter, and be scheduled to
minimize the use of temporary shelter. Another comment suggested
placing time limits

[[Page 68786]]

on the use of temporary shelter. The commenter did not recommend a
specific time period, rather the comment said that renovation in some
instances may take years, and that EPA should not allow temporary
shelter over prolonged periods. EPA agrees that the use of temporary
shelter must be related to the renovation or construction at the site,
and be scheduled or designed to minimize the use of temporary shelter.
Further, EPA agrees that the use of temporary shelter should be limited
in duration, but does not intend to define ``temporary'' or ``prolonged
period''.
Many final products are intended for outdoor use and pose little
risk of storm water contamination, such as new cars. Therefore, final
products, except those that can be mobilized in storm water discharge,
can be ``exposed'' and still allow the discharge to certify ``no
exposure''. EPA intends the term ``final products'' to mean those
products that are not used in producing another product. Any product
that can be used to make another product is considered an
``intermediate product.'' For example, a facility that makes horse
trailers can store the finished trailers outdoors as a final product.
The storage of those final products does not prevent eligibility to
claim ``no exposure''. However, any facility that makes parts for the
horse trailers (e.g., metal tubing, sheet metal, paint) is not eligible
for the ``no exposure'' exclusion from permitting if those
``intermediate products'' are stored outdoors (i.e., ``exposed'').
EPA received comments related to materials in drums, barrels, tanks
and similar containers. Some comments objected to the language in the
preamble to the proposed rule that would have recommended that the
``exposure'' determination for drums and barrels be based on the
``potential to leak.'' Those comments said that all drums and barrels
have the potential to leak, thereby making certification impossible.
They recommended allowing outdoor storage of drums and barrels except
for those that ``are leaking'' at the time of certification. Other
comments suggested allowing drums and barrels to be stored outside only
if the drums and barrels: are empty; have secondary containment; or
there is a spill contingency plan in place. Opposing comments suggested
that allowing outdoor exposure of drums and barrels, based on existing
integrity and condition, is inconsistent with the ``however packaged''
proposed rule language, and also would not satisfy the Ninth Circuit
remand. The comments point out that the former rule was invalidated by
the court in part because it relied on the ``unverified judgment'' of
the light industrial facility operator to determine the non-
applicability of the permit requirements, and that allowing the
facility operator to determine the condition of their drums and barrels
would result in the same flaw.
In response, EPA believes that drums and barrels that are stored
outdoors pose little risk of storm water contamination unless they are
open, deteriorated or leaking. The Agency has modified today's rule
accordingly. EPA intends the term ``open'' to mean any container that
is not tightly sealed and ``sealed'' to mean banded or otherwise
secured and without operational taps or valves. Drums, barrels, tanks,
and similar containers may only be stored outdoors under this
conditional exclusion. The addition of material to or withdrawing of
material from these containers while outside is deemed ``exposure''.
Moving the containers while outside does not create ``exposure''
provided that the containers are not open, deteriorated or leaking. In
order to complete the ``no exposure'' certification, a facility
operator must inspect all drums, barrels, tanks or other containers
stored outside to ensure that they are not open, deteriorated, or
leaking. EPA recommends that the discharger designate someone at the
facility to conduct frequent inspections to verify that the drums,
barrels, tanks or other containers remain in a condition such that they
are not open, deteriorated or leaking. Drums, barrels, tanks or other
containers stored outside that have valves which are used to put
material in or take material out of the container, and that have
dripped or may drip, are considered to be ``leaking'' and must be under
a storm resistant shelter in order to qualify for the no exposure
exclusion. Likewise, leaking pipes containing contaminants exposed to
storm water are deemed ``exposed.'' If at any time drums, barrels,
tanks or similar containers are opened, deteriorated or leaking, the
discharger should take immediate actions to close or replace the
container. Any resulting unpermitted discharge would violate the CWA.
The Director, the operator of the MS4, or the municipality may inspect
the facility to verify that all of the applicable areas meet the ``no
exposure'' conditions as specified in the rule language. In requiring
submission of the conditional ``no exposure'' certification and
allowing the permitting authority and the operator of the MS4 to
inspect the facility, today's rule does not rely on the unverified
judgment of the facility to determine that the no exposure provision is
being met.
EPA received several comments related to trash dumpsters that are
located outside. The preamble to the proposed rule listed dumpsters in
the same grouping as drums and barrels, which based exposure on the
``potential to leak''. Today's rule distinguishes between dumpsters and
drums/barrels. In the Phase I Question and Answer document (volume 1,
question 52) the Agency noted that a covered dumpster containing waste
material that is kept outside is not considered ``exposed'' as long as
``the container is completely covered and nothing can drain out holes
in the bottom, or is lost in loading onto a garbage truck.'' EPA
affirms this approach today. Industrial refuse and industrial trash
that is left uncovered is deemed ``exposed.''
For purposes of this provision, particulate matter emissions from
roof stacks/vents that are regulated and in compliance under other
environmental protection programs, such as air quality control
programs, and that do not cause storm water contamination, are
considered ``not exposed.'' EPA received comments on the phrase in the
draft ``no exposure'' certification form that asked whether
``particulate emissions from roof stacks/vents not otherwise regulated,
and in quantities detectable in the storm water outflow,'' are exposed
to precipitation. One comment expressed concern that the phrase ``in
quantities detectable in the storm water outflow'' implies that the
facility must conduct monitoring prior to completing the checklist, and
must continue to monitor after receiving the no exposure exclusion, in
order to be able to verify compliance with the no exposure provision.
Another comment said that current measurement technology allows
detection of pollutants at levels that may not cause environmental
harm. EPA does not intend to require monitoring of runoff from
facilities with roof stacks/vents prior to or after completing and
submitting the no exposure certification. EPA has thus replaced the
phrase ``in quantities detectable'' with ``evident'' to convey the
message that emissions from some roof stacks/vents have the potential
to contaminate storm water discharges in quantities that are considered
significant or that cause or contribute to a water quality standards
violation. In those instances where the permitting authority determines
that particulate emissions from facility roof stacks/vents are a
significant contributor of pollutants or contributing to water quality
violations, the permitting authority may require the discharger to
apply for and obtain coverage under a

[[Page 68787]]

permit. Visible deposits of residuals (e.g., particulate matter) near
roof or side vents are considered ``exposed''. Likewise, visible
``track out'' (i.e., pollutants carried on the tires of vehicles) or
windblown raw materials are deemed ``exposed.''
EPA received a comment requesting an allowance under the ``no
exposure'' provision for industrial facilities with several outfalls at
a site where some, but not all of the outfalls drain non-exposed areas.
The commenter provided an example of an industrial facility that has 5
outfalls draining different areas of the site, where two of those
outfalls drain areas where industrial activities or materials are not
exposed to storm water. The comment requested that the facility in this
example be allowed to submit a ``no exposure'' certification in order
to be relieved of permitting obligations for discharges from those two
outfalls.
EPA agrees, but the comment would be implemented on an outfall-by-
outfall basis in the permitting process, not through the ``no
exposure'' exclusion. The ``no exposure'' provision was developed to
allow exclusion from permitting of discharges from entire industrial
facilities (except construction), based on a claim of ``no exposure''
for all areas of the facility where industrial materials or activities
occur. Where exposure to industrial materials or activities exist at
some but not all areas of the facility, the ``no exposure'' exclusion
from permitting is not allowed because permit coverage is still
required for storm water discharges from the exposed areas. Relief from
permit requirements for outfalls draining non-exposed areas should be
addressed through the permit process, in coordination with the
permitting authority. Most NPDES general permits for storm water
discharge provide enough flexibility to allow minimal or no
requirements for non-exposed areas at industrial facilities. If the
permitting authority determines that additional flexibility is needed
for this scenario, the permits could be modified as necessary.

K. Public Involvement/Public Role

The Phase II FACA Subcommittee discussed the appropriate role of
the public in successful implementation of a municipal storm water
program. EPA believes that an educated and actively involved public is
essential to a successful municipal storm water program. An educated
public increases program compliance from residents and businesses as
they realize their individual and collective responsibility for
protecting water resources (e.g., the residents and businesses could be
subject to a local ordinance that prohibits dumping used oil down storm
sewers). Finally, the program is also more likely to receive public
support and participation when the public is actively involved from the
program's inception and allowed to participate in the decision making
process.
In a time of limited staff and financial resources, public
volunteers offer diverse backgrounds and expertise that may be used to
plan, develop, and implement a program that is tailored to local needs
(e.g., participate in public meetings and other opportunities for
input, perform lawful volunteer monitoring, assist in program
coordination with other preexisting and related programs, aid in the
development and distribution of educational materials, and provide
public training activities). The public's participation is also useful
in the areas of information dissemination/education and reporting of
violators, where large numbers of community members can be more
effective than a few regulators.
The public can also petition the NPDES 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 waters of the United States.
In evaluating such a petition, the NPDES permitting authority is
encouraged to consider the set of designation criteria developed for
the evaluation of small MS4s located outside of an urbanized area in
places with a population of at least 10,000 and a population density of
1,000 or more. Furthermore, any person can protect water bodies by
taking civil action under section 505 of the CWA against any person who
is alleged to be in violation of an effluent standard or permit
condition. If civil action is taken, EPA encourages citizen plaintiffs
to resolve any disagreements or concerns directly with the parties
involved, either informally or through any available alternative
dispute resolution process.
EPA recognizes that public involvement and participation pose
challenges. It requires a substantial initial investment of staff and
financial resources, which could be very limited. Even with this
investment, the public might not be interested in participating. In
addition, public participation could slow down the decision making
process. However, the benefits are numerous.
EPA encourages members of the public to contact the NPDES
permitting authority or local MS4s operator for information on the
municipal storm water program and ways to participate. Such information
may also be available from local environmental, nonprofit and industry
groups.
Some commenters stressed the need to suggest to the public that
they have a responsibility to fund the municipal storm water program.
While EPA believes it is important that the program be adequately
funded, today's rule does not address appropriate mechanisms or levels
for such funding.
EPA received comments expressing concern that considerable public
involvement requirements could result in increased litigation. EPA is
not convinced there is a correlation between meaningful public
education programs and any increased probability of litigation.
Finally, EPA received comments stating that the Agency should not
en courage volunteer monitoring unless proper procedures are followed.
EPA agrees. EPA encourages only lawful monitoring, i.e., obtaining the
necessary approval if there is any question about lawful access to
sites. Moreover, as a matter of good practice and to enhance the
validity and usefulness of the results, any party, public or private,
conducting water quality monitoring is encouraged to use appropriate
quality control procedures and approved sampling and analytic methods.

L. Water Quality Issues

1. Water Quality Based Effluent Limits
In addition to technology based requirements, all point source
discharges of industrial storm water are subject to more stringent
NPDES permitting requirements when necessary to meet water quality
standards. CWA sections 402(p)(3)(A) and 301(b)(1)(C). For municipal
separate storm sewers, EPA or the State may determine that other permit
provisions (e.g. one of the minimum measures) are appropriate to
protect water quality and, for discharges to impaired waters, to
achieve reasonable further progress toward attainment of water quality
standards pending implementation of a TMDL. CWA section
402(p)(3)(B)(iii). See Defenders of Wildlife, et al. Browner, No. 98-
71080 (9th cir., August 11, 1999). Discharges of storm water also must
comply with applicable antidegradation policies and implementation
methods to maintain and protect water quality. 40 CFR 131.12. Section
122.34(a) emphasizes this point by specifically noting that a storm
water management program designed to reduce the discharge of pollutants
from the storm sewer system ``to the maximum extent practicable'' is
also designed to protect water quality.

[[Page 68788]]

Permits issued to non-municipal sources of storm water must include
water quality-based effluent limits where necessary to meet water
quality standards.
Commenters challenged EPA's interpretation of the CWA as requiring
water quality-based effluent limits for MS4s when necessary to protect
water quality. Commenters asserted that CWA 402(p)(3)(B), which
addresses permit requirements for municipal discharges, limits the
scope of municipal program requirements to an effective prohibition on
non-storm water discharges to a separate storm sewer and to controls
which reduce pollutants to the ``maximum extent practicable, including
management practices, control techniques and system design and
engineering methods.'' They asserted that the final rule should clarify
that neither numeric nor narrative water quality-based limits are
appropriate or authorized for MS4s.
EPA disagrees that section 402(p)(3) divests permitting authorities
of the tools necessary to issue permits to meet water quality
standards. Section 402(p)(3)(B)(iii) specifically preserves the
authority for EPA or the State to include other provisions determined
appropriate to reduce pollutants in order to protect water quality.
Defenders of Wildlife, slip op. at 11688. Small MS4s regulated under
today's rule are designated under CWA 402(p)(6) ``to protect water
quality.''
Commenters argued that water quality standards, particularly
numeric criteria, were not designed to address storm water discharges.
The episodic nature and magnitude of storm water events, they argue,
make it impossible to apply the ``end of pipe'' compliance assessment
approach, for example, in the development of water quality based
effluent limits.
EPA's disagrees with the commenters arguments about the inability
of water quality criteria to address high flow conditions. Today's
final rule does, however, address the concern that numeric effluent
limits will necessitate end of pipe treatment and the need to provide a
workable alternative.
Today's rule was developed under the approach outlined 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) (the ``Interim Permitting Policy''). EPA intends to issue
NPDES permits consistent with the Interim Permitting Policy, which
provides as follows:
In response to recent questions regarding the type of water
quality-based effluent limitations that are most appropriate for NPDES
storm water permits, EPA is adopting an interim permitting approach for
regulating wet weather storm water discharges. Due to the nature of
storm water discharges, and the typical lack of information on which to
base numeric water quality-based effluent limitations (expressed as
concentration and mass), EPA will use an interim permitting approach
for NPDES storm water permits.
``The interim permitting approach uses best management practices
(BMPs) in first-round storm water permits, and expanded or better-
tailored BMPs in subsequent permits, where necessary, to provide for
the attainment of water quality standards. In cases where adequate
information exists to develop more specific conditions or limitations
to meet water quality standards, these conditions or limitations are to
be incorporated into storm water permits, as necessary and appropriate.
This interim permitting approach is not intended to affect those storm
water permits that already include appropriately derived numeric water
quality-based effluent limitations. Since the interim permitting
approach only addresses water quality-based effluent limitations, it
also does not affect technology-based effluent limitations, such as
those based on effluent limitations guidelines or developed using best
professional judgment, that are incorporated into storm water permits.
``Each storm water permit should include a coordinated and cost-
effective monitoring program to gather necessary information to
determine the extent to which the permit provides for attainment of
applicable water quality standards and to determine the appropriate
conditions or limitations of subsequent permits. Such a monitoring
program may include ambient monitoring, receiving water assessment,
discharge monitoring (as needed), or a combination of monitoring
procedures designed to gather necessary information.
``This interim permitting approach applies only to EPA; however,
EPA also encourages authorized States and Tribes to adopt similar
policies for storm water permits. This interim permitting approach
provides time, where necessary, to more fully assess the range of
issues and possible options for the control of storm water discharges
for the protection of water quality. This interim permitting approach
may be modified as a result of the ongoing Urban Wet Weather Flows
Federal Advisory Committee policy dialogue on this subject.''
One commenter challenged the Interim Permitting Policy on a
procedural basis, arguing that it was published without opportunity for
public notice and comment. In response, EPA notes that the Policy was
included verbatim and made available for public comment in the proposal
to today's final rule. Prior to that proposal, the Agency defended the
application of the Policy on a case-by-case basis in individual permit
proceedings. Moreover, the essential elements of the Policy--that
narrative effluent limitations are the most appropriate form of
effluent limitations for storm water dischargers from municipal
sources--was inherent in Sec. 122.34(a) of the proposed rule, and was
the subject of extensive public comment. In any event, the Policy does
not constitute a binding obligation. It is policy, not regulation.
Consistent with the recognition of data needs underlying the
Policy, EPA will evaluate the small MS4 storm water regulations after
the second round of permit issuance. Section 122.34(e)(2) of today's
rule expressly provides that for the interim ten-year period, ``EPA
strongly recommends that until the evaluation of the storm water
program in Sec. 122.37, no additional requirements beyond the minimum
control measures be imposed on regulated small MS4s without the
agreement of the operator of the affected small MS4, except where an
approved TMDL or equivalent analysis provides adequate information to
develop more specific measures to protect water quality.'' This
approach addresses the concern for protecting water resources from the
threat posed by storm water discharges with the important qualification
that there must be adequate information on the watershed or a specific
site as a basis for requiring tailored storm water controls beyond the
minimum control measures. As indicated, the Interim Permitting Policy
has several important limitations--it does not apply to technology-
based controls or to sources that already have numeric end of pipe
effluent limitations. EPA encourages authorized States and Tribes to
adopt policies similar to the Interim Permitting Policy when developing
storm water discharge programs. For a discussion of appropriate
monitoring activities, see Section H.3.d., Evaluation and Assessment.
Where a water quality analysis indicates there is a need and basis
for deriving water quality-based effluent limits in NPDES permits for
storm water discharges regulated under today's rule, EPA believes that
most of these cases would be satisfied by narrative effluent

[[Page 68789]]

limitations that require the implementation of BMPs. NPDES permit
limits will in most cases continue to be based on the specific approach
outlined in today's rule for the implementation of BMPs as the most
appropriate form of effluent limitation to satisfy technology and water
quality-based requirements. See Sec. 122.34(a). For storm water
management plans with existing BMPs, this may require further tailoring
of BMPs to address the pollutant(s) of concern, the nature of the
discharge and the receiving water. If the permitting authority
determines that, through implementation of appropriate BMPs required by
the NPDES storm water permit, the discharge has the necessary controls
to provide for attainment of water quality standards, additional
controls are not needed in the permit. Conversely, if a discharger
(MS4, industrial or construction) fails to adopt and implement adequate
BMPs, the permittee and/or the permitting authority should consider a
different mix of BMPs or more specific conditions to ensure water
quality protection.
Some commenters observed that there was no evidence from the
experience of storm water dischargers regulated under the existing
NPDES storm water program, or from studies or reports that allegedly
support EPA's position, that implementation of BMPs to satisfy the six
minimum control measures would meet applicable water quality standards
for a regulated small MS4. In response, EPA acknowledges that the six
minimum measures are intended to implement the statutory requirement to
control discharges to the maximum extent practicable, and they may not
result in the attainment of water quality standards in all cases. The
control measures do, however, focus on and address well-documented
threats to water quality associated with storm water discharges. Based
on the collective expertise of the FACA Sub-committee, EPA believes
that implementation of the six minimum measures will, for most
regulated small MS4s, be adequate to protect water quality, and for
other regulated small MS4s will substantially reduce the adverse
impacts of their discharges on water quality.
Some commenters asserted that analyses of existing water quality
criteria suggest that numeric criteria for aquatic life may be
overprotective if applied to storm water discharges. These comments
maintained that an approach that prohibits exceedance of applicable
water quality criteria is unworkable. Various commenters recommended
wet weather specific criteria, variances to the criteria during wet
weather events, and seasonal designated uses. Other commenters noted
that water quality-based effluent limits in NPDES permits have
traditionally been developed based on dry weather flow conditions
(e.g., assuming critical low-flow conditions in the receiving water to
ensure protection of aquatic life and human health). Wet weather
discharges, however, typically occur under high-flow conditions in the
receiving water. Assumptions regarding mass balance equations and size
of mixing zones may also not be pertinent during wet weather.
EPA acknowledges the need to devise a regulatory program that is
both flexible enough to accommodate the episodic nature, variability
and volume of wet weather discharges and prescriptive enough to ensure
protection of the water resource. EPA believes that wet weather
discharges can be adequately addressed in the existing regulations
through refining designated uses and assigning criteria that are
tailored to the level of water quality protection described by the
refined designated use.
EPA believes that lack of precision in assigning designated uses
and corresponding criteria by States and Tribes, in many cases may
result in application of water quality criteria that may not
appropriately match the intended condition of the water body. States
and Tribes have frequently designated uses without regard to site-
specific wet weather conditions. Because certain uses (swimming, for
example) might not exist during high-intensity storm events or in the
winter, States may factor such climatic conditions and seasonal uses
into their use designations with appropriate analyses. This would
acknowledge that a lower level of control, at lower compliance cost,
would be appropriate to protect that use. Before modifying any
designated use, however, States would need to evaluate the effect of
less stringent water quality criteria on protecting other uses,
including any threatened or endangered species, drinking water supplies
and downstream uses. EPA will further evaluate these issues in the
context of the Water Quality Standards Regulation, Advance Notice of
Proposed Rule Making (ANPRM), 63 FR, 36742, July 7, 1998.
One of the major themes presented by EPA in the ANPRM is that
refinement in use designations and tailoring of water quality criteria
to match refined use designations is an important future direction of
the water quality standards program. In assigning criteria to protect
general use classifications, a State or Tribe must ensure that the
criteria are sufficiently protective to safeguard the full range of
waters of the State, i.e., criteria would be based on the most
sensitive use. This approach has been disputed, especially for aquatic
life uses, where evidence suggests that the general use criteria will
require controls more stringent than needed to protect the existing or
potential aquatic life community for a specific water body. EPA
recognizes that there is a growing need to more precisely tailor use
descriptions and criteria to match site-specific conditions, ensuring
that uses and criteria provide an appropriate level of protection,
which, to the extent possible, are not overprotective. EPA is engaged
in an ongoing evaluation of its regulations in this area through the
ANPRM effort. At the same time, EPA continues to encourage States and
Tribes to review the applicability of the designated uses and
associated criteria using existing provisions in the water quality
standards regulation.
2. Total Maximum Daily Loads and Analysis To Determine the Need for
Water Quality-Based Limitations
The development and implementation of total maximum daily loads
(TMDLs) provide a link between water quality standards and effluent
limitations. CWA section 303(d) requires States to develop TMDLs to
provide more stringent water quality-based controls when technology-
based controls are inadequate to achieve applicable water quality
standards. A TMDL is the sum of the individual wasteload allocations
for point sources and load allocations for nonpoint sources, with
consideration for natural background conditions. A TMDL quantifies the
maximum allowable loading of a pollutant to a water body and allocates
this maximum load to contributing point and nonpoint sources so that
water quality criteria will not be exceeded and designated uses will be
protected. A TMDL also includes a margin of safety to account for
uncertainty about the relationship between pollutant loads and water
quality.
Today's final rule refers to TMDLs in several provisions. For the
purpose of today's rule, EPA relies on the component of the TMDL that
evaluates existing conditions and allocates loads. For discharges to
waters that are not impaired and for which a TMDL has not been
developed, today's rule also refers to an ``equivalent analysis.'' The
discussion that follows uses the term ``TMDL'' for both.
Under revised Sec. 122.26(a)(9)(i)(C), the permitting authority may
designate

[[Page 68790]]

storm water discharges that require NPDES permits based on TMDLs that
address the pollutants of concern. For storm water discharges
associated with small construction activity, Sec. 122.26(b)(15)(i)(B)
provides a waiver provision where it may be determined that storm water
controls are not needed based on TMDLs that address sediment and any
other pollutants of concern. The NPDES permitting authority may waive
requirements under the program for certain small MS4s within urbanized
areas serving less than 1,000 persons provided that, if the small MS4
discharges any pollutant that has been identified as a cause of
impairment of a water body into which it discharges, the discharge is
in compliance with a wasteload allocation in a TMDL for the pollutant
of concern. The permitting authority may also waive requirements for
MS4s in urbanized areas serving between 1,000 and 10,000 persons, if
the permitting authority determines that storm water controls are not
needed, as provided in Sec. 123.35(d)(2). See Sec. 122.32(c).
Under CWA section 303(d), States identify which of their water
bodies need TMDLs and rank them in order of priority. Generally, once a
TMDL has been completed for one or more pollutants in a water body, a
wasteload allocation for each point source discharging the pollutant(s)
is implemented as an enforceable condition in the NPDES permit.
Regulated small MS4s are essentially like other point source discharges
for purposes of the TMDL process.
A TMDL and the resulting wasteload allocations for pollutant(s) of
concern in a water body may not be available because the water body is
not on the State's 303(d) list, the TMDL has not yet been completed, or
the TMDL did not include specific pollutants of concern. In these
cases, the permitting authority must determine whether point sources
discharge pollutant(s) in amounts that cause, have the reasonable
potential to cause, or contribute to excursions above State water
quality standards, including narrative water quality criteria. This so-
called ``reasonable potential'' analysis is intended to determine
whether and for what pollutants water quality based effluent limits are
required. The analysis is, in effect, a substitute for a similar
determination that would be made as part of a TMDL, where necessary.
When ``reasonable potential'' exists, regulations at Sec. 122.44(d)
require a water quality-based effluent limit for the pollutant(s) of
concern in NPDES permits. The water quality-based effluent limits may
be narrative requirements to implement BMPs or, where necessary, may be
numeric pollutant effluent limitations.
Commenters, generally from the regulated community, objected that,
due to references to the need to develop a program ``to protect water
quality'' and to additional NPDES permit requirements beyond the
minimum control measures based on TMDLs or their equivalent, regulated
small MS4s will be subject to uncertain permit limitations beyond the
six minimum control measures. Commenters also asserted that through the
imposition of a wasteload allocation under a TMDL in impaired water
bodies, there is a likelihood that unattainable, yet enforceable
narrative and numeric standards will be imposed on regulated small
MS4s.
As is discussed in the preceding section, NPDES permits must
include any more stringent limitations when necessary to meet water
quality standards. However, even if a regulated small MS4 is subject to
water quality based effluent limits, such limits may be in the form of
narrative effluent limitations that require the implementation of BMPs.
As discussed earlier, EPA has adopted the Interim Permitting Policy and
incorporated it in the development of today's rule to recognize the
appropriateness of BMP-based limits developed on a case-by-case basis.
EPA formed a Federal Advisory Committee to provide advice to EPA on
identifying water quality-limited water bodies, establishing TMDLs for
them as appropriate, and developing appropriate watershed protection
programs for these impaired waters in accordance with CWA section
303(d). Operating under the auspices of the National Advisory Council
for Environmental Policy and Technology (NACEPT), the committee
produced its Report of the Federal Advisory Committee on the Total
Maximum Daily Load (TMDL) Program (July 1998). EPA recently published a
proposed rule to implement the Report's recommendations (64 FR 46012,
August 23, 1999).
3. Anti-Backsliding
In general, the term ``anti-backsliding'' refers to statutory
provisions at CWA sections 303(d)(4) and 402(o) and regulatory
provisions at 40 CFR 122.44(l). These provisions prohibit the renewal,
reissuance, or modification of an existing NPDES permit that contain
effluent limits, permit terms, limitations and conditions, or standards
that are less stringent than those established in the previous permit.
There are also exceptions to this prohibition known as
``antibacksliding exceptions.''
The issue of backsliding from prior permit limits, standards, or
conditions is not expected to initially apply to most storm water
dischargers designated under today's proposal because they generally
have not been previously authorized by an NPDES permit. However, the
backsliding prohibition would apply if a storm water discharge was
previously covered under another NPDES permit. Also, the backsliding
prohibition could apply when an NPDES storm water permit is reissued,
renewed, or modified. In most cases, however, EPA does not believe that
these provisions would restrict revisions to storm water NPDES permits.
One commenter questioned whether, if BMPs implemented by a
regulated small MS4 operator fail to produce results in removal of
pollutants and the permittee attempts to substitute a more effective
BMP, the small MS4 operator could be accused of violating the anti-
backsliding provisions and also be exposed to citizen lawsuits. In
response, EPA notes that in such circumstances the MS4's permit has not
changed and, therefore, the prohibition against backsliding is not
applicable. Further, any change in the mix of BMPs that was intended to
be more effective at controlling pollutants would not be considered
backsliding, even if it did not include all of the previously
implemented BMPs.
4. Water Quality-Based Waivers and Designations
Several sections of today's final rule refer to water quality
standards in identifying those storm water discharges that are and are
not required to be permitted under today's rule. As noted in
Sec. 122.30 of today's rule, CWA section 402(p)(6) requires the
designation of municipal storm water sources that need to be regulated
to protect water quality and the establishment of a comprehensive storm
water program to regulate these sources. Requirements applicable to
certain municipal sources may be waived based on the absence of
demonstrable water quality impacts. Section 122.32(c). The section
402(p)(6) mandate to protect water quality also provides the basis for
regulating discharges associated with small construction. See also
Sec. 122.26(b)(15)(i). Further, today's rule carries forward the
existing authority for the permitting authority to designate sources of
storm water discharges based upon water quality considerations. Section
122.26(a)(9)(i)(C) and (D).
As is discussed above in sections II.H.2.e (for small MS4s) and
II.I.1.b.ii

[[Page 68791]]

(for small construction), the requirements of today's rule may be
waived based on wasteload allocations that are part of ``total maximum
daily loads'' (TMDLs) that address the pollutants of concern or, in the
case of small construction and municipalities serving between 1,000 and
10,000 persons, the equivalents of TMDLs. One commenter stated that
waivers would allow exemptions to the technology based requirements and
would thus be inconsistent with the two-fold approach of the CWA (a
technology based minimum and a water quality based overlay). EPA
acknowledges that waivers are not allowed for other technology-based
requirements under the CWA. A more flexible approach is allowed,
however, for sources designated for regulation under 402(p)(6) to
protect water quality. For such sources EPA may allow a waiver where it
is demonstrated that an individual source does not present the threat
to water quality that was the basis for EPA's designation.

III. Cost-Benefit Analysis

EPA has determined that the range of the rule's benefits exceeds
the range of regulatory costs. The estimated rule costs range from
$847.6 million to $981.3 million annually with corresponding estimated
monetized annual benefits which range from $671.5 million to $1.628
billion, expected to exceed costs.
The rule's cost and benefit estimates are based on an annual
comparison of costs and benefits for a representative year (1998) in
which the rule is implemented. This differs from the approach used for
the proposed rule which projected cost and benefits over three permit
terms. EPA has chosen to use the current approach because it determined
that the ratio of annual benefits and costs would not change
significantly over time. Moreover, because there is not an initial
outlay of capital costs with benefits accruing in the future (i.e.,
benefits and costs are almost immediately at a steady state), it is not
necessary to discount costs in order to account for a time
differential.
EPA developed detailed estimates of the costs and benefits of
complying with each of the incremental requirements imposed by the
rule. The Agency used two approaches, a national water quality model
and national water quality assessment, to estimate the potential
benefits of the rule. Both approaches show that the benefits are likely
to exceed costs.
These estimates, including descriptions of the methodology and
assumptions used, are described in detail in the Economic Analysis of
the Final Phase II Rule, which is included in the record of this rule
making. Exhibit 3 summarizes costs and benefits associated with the
basic elements of today's rule.

Exhibit 3.--Comparison of Annual Compliance Cost and Benefit Estimates
\1\
------------------------------------------------------------------------
National water National water
quality model quality assessment
Monetized benefits (millions of 1998 (millions of 1998
dollars) dollars)
------------------------------------------------------------------------
Municipal Minimum Measures.. .................... $131.0-$410.2
Controls for Construction .................... $540.5-$686.0
Sites.
-------------------------------------------
Total Annual Benefits... $1,628.5............ $671.5-$1,096.2

------------------------------------------------------------------------
Costs Millions of 1998 dollars \2\
------------------------------------------------------------------------
Municipal Minimum Measures... $297.3
Controls/Waivers for $545.0-$678.7
Construction Sites.
Federal/State Administrative $5.3
Costs.
------------------------------------------
Total Annual Costs $847.6-$981.31
------------------------------------------------------------------------
\1\ National level benefits are not inclusive of all categories of
benefits that can be expected to result from the regulation.
\2\ Total may not add due to rounding.

A. Costs

1. Municipal Costs
Initially, to determine municipal costs for the proposed rule, EPA
used anticipated expenditure data included in permit applications from
a sample of 21 Phase I MS4s. Certain commenters criticized the Agency
for using anticipated expenditures because they could be significantly
different from the actual expenditures. These commenters suggested that
the Agency use the actual cost incurred by the Phase I MS4s. Other
comments stated that because the Phase I MS4s, in general, are large
municipalities, they may not be representative of the Phase II MS4s for
estimating regulatory costs. Finally, one commenter noted that the
sample of 21 municipalities used to project cost was relatively small.
To address the concerns of the commenters, EPA utilized a National
Association of Flood and Stormwater Management Agencies (NAFSMA) survey
of the Phase II community to obtain incremental cost estimates for
Phase II municipalities. Using the list of potential Phase II designees
published in the Federal Register (63 FR 1616), NAFSMA contacted more
than 1,600 jurisdictions. The goal of the survey was to solicit
information from those communities about the proposed Phase II NPDES
storm water program. Several of the survey questions corresponded
directly to the minimum measures required by the Phase II rule. One
hundred twenty-one surveys were returned to NAFSMA and were used to
develop municipal costs.
Using the NAFSMA information, EPA estimated average annual per
household program costs for automatically designated municipalities.
EPA also estimated an average annual per household administrative cost
for municipalities to address application, record keeping, and
reporting requirements of the Rule. The total average per household
cost of the rule is expected to $9.16 per household.
To determine potential national level costs for municipalities, EPA
multiplied the number of households (32.5 million) by the per household
cost ($9.16). EPA estimates the annual cost of the Phase II municipal
program at $298 million.
As an alternative method, and point of comparison, to the NAFSMA-
based approach, EPA reviewed actual expenditures reported from 35 Phase
I MS4s. The Agency targeted these 35 Phase I MS4s because they had
participated in the NPDES program for

[[Page 68792]]

nearly one permit term, were smaller in size and had detailed data
reflecting their actual program implementation costs. Of the 35 MS4s,
appropriate cost data was only available for 26 of those MS4s. EPA
analyzed the expenditure data and identified the relevant expenditures,
excluding costs presented in the annual reports unrelated to the
requirements of the Rule. The cost range and annual per household
program costs of $9.08 are similar to those found using the NAFSMA
survey data.
2. Construction Costs
In order to estimate the rule's construction-related cost on a
national level (the soil and erosion controls (SEC) requirements of the
rule and the potential impacts of the post-construction municipal
measure on construction), EPA estimated a per site cost for sites of
one, three, and five acres and multiplied these costs by the total
number of estimated Phase II construction starts across these size
categories.
To estimate the percentage of starts subject to the soil and
erosion control requirements between 1 and 5 acres, with respect to
each category of building permits (residential, commercial, etc.), EPA
initially used data from Prince George's County (PGC), Maryland, and
applied these percentages to national totals. In the proposal, EPA
recognized that the PGC data may not be representative of the entire
country and requested data that could be used to develop better
estimates of the number of construction sites between 1 and 5 acres.
EPA did not receive any substantiated national data from commenters.
In view of the unavailability of national data from commenters, EPA
made extensive efforts to collect construction site data around the
country. The Agency contacted more than 75 municipalities. EPA
determined that 14 of the contacted municipalities had useable
construction site data. Using data from these 14 municipalities, EPA
developed an estimate of the percentage of construction starts on one
to five acres. EPA then multiplied this percentage by the number of
building permits issued nationwide to determine the total number of
construction starts occurring on one to five acres. Finally, to isolate
the number of construction starts incrementally regulated by Phase II,
EPA subtracted the number of activities regulated under equivalent
programs (e.g., areas covered by the Coastal Zone Act Reauthorization
Amendments of 1990, and areas covered by equivalent State level soil
and erosion control requirements). Ultimately, EPA estimated that
110,223 construction starts would be incrementally covered by the rule
annually.
EPA then used standard cost estimates from Building Construction
Cost Data and Site Work Landscape Cost Data (R.S. Means, 1997a and
1997b) to estimate construction BMP costs for 27 model sites in a
variety of typical site conditions across the United States. The model
sites included three different site sizes (one, three and five acres),
three slope variations (3%, 7%, and 12%), and three soil erosivity
conditions (low, medium, and high). EPA chose BMP combinations
appropriate to the model site conditions. Based on the assumption that
any combination of site factors is equally likely to occur in a given
site, EPA developed average cost of sediment and erosion control for
all model sites. EPA estimated that, on average, BMPs for a 1 acre site
will cost $1,206, for a 3 acre site $4,598 and for a 5 acre site
$8,709.
EPA then estimated administrative costs per construction site for
the following elements required under the rule: Submittal of a notice
of intent for permit coverage; notification to municipalities;
development of a storm water pollution prevention plan; record
retention; and submittal of a notice of termination. EPA estimated the
average total administrative cost per site to be $937.
EPA also considered the cost implications of NPDES permit
authorities waiving the applicability of requirements to storm water
discharges from small construction sites based on two different
criteria involving water quality impact and low rainfall. EPA received
comments stating that a waiver would require a significant investment
in training or acquisition of a consultant. Based on comments received,
EPA eliminated one of the waiver conditions involving low soil loss
threshold because it necessitated use of the Revised Universal Soil
Loss Equation which could require extensive technical expertise.
Based on the opinions of construction industry experts, EPA
estimates that 15 percent of the construction sites that would
otherwise be covered by today's rule will be eligible to receive
waivers. Therefore, the Agency has excluded 15 percent of the
construction sites when deriving costs of sediment and erosion control.
The average cost for sites to qualify for the waiver is expected to be
$34 per site. The construction cost analysis for the proposed rule did
not include any costs for the preparation and submission of waiver
applications because EPA believed those costs would be negligible.
However, in response to public comments, EPA has estimated these
potential costs.
EPA has also estimated the potential costs for construction site
operators to implement the post-construction minimum measure. These are
costs that may be incurred by construction site operators if the MS4
chooses to meet the post-construction minimum measure by requiring on-
site structural, site-by-site control of post-construction runoff.
Municipalities may select from an array of structural and non-
structural options in implementing this measure, so the potential costs
to construction operators is uncertain. Nonetheless, EPA developed
average annual BMP costs for sites of one, three, five and seven acres.
EPA's analysis accounted for varying levels of imperviousness that
characterize residential, commercial, and institutional land uses.
Nationwide, these costs are expected to range from $44 million to $178
million annually.
Finally, to establish national incremental annual costs for Phase
II construction starts, EPA multiplied the total costs of compliance
for the chosen site size categories by the total number of Phase II
construction starts and added post-construction costs. EPA estimates
the annual compliance cost to range from $545 million to $678.7
million.

B. Quantitative Benefits

In the Economic Analysis for the proposed rule, a ``top-down''
approach was used to estimate economic benefits. Under this approach,
the combined economic benefits for wet weather programs were estimated
first, and then were divided among various water programs on the basis
of expert opinion. As a result, the benefits estimates for an
individual program were rather uncertain. Moreover, this approach was
inconsistent with the approach used to estimate the cost of the
proposed storm water rule, which was developed using municipal-based
and cost-based data to develop ``bottom-up'' costs. Therefore, EPA
decided to use a ``bottom-up'' approach for estimating benefits of the
Phase II rule. To adequately reflect the quantifiable benefits of the
rule, EPA used two different methods: (1) National Water Quality Model
and (2) National Water Quality Assessment.
To monetize benefits in both approaches, the Agency applied Carson
and Mitchell's (1993) estimates of household willingness-to-pay (WTP)
for water quality improvement to estimates of waters impaired by storm
water discharges. Carson and Mitchell's 1993 study reports the results
of their 1983 national survey of WTP for incremental

[[Page 68793]]

improvements in fresh water quality. Carson and Mitchell estimate the
WTP for three minimum levels of fresh water quality: boatable,
fishable, and sizable. EPA adjusted the WTP amounts to account for
inflation, growth in real per capita income, and increased attitudes
towards pollution control. The adjusted WTP amounts for improvements in
fresh water quality are $210 for boatable, $158 for fishable, and $177
for sizable. A brief summary of the national water quality model and
national water quality assessment approaches follow.
1. National Water Quality Model
One approach EPA used to estimate the benefits of the Phase II
municipal and construction site controls was the National Water
Pollution Control Assessment Model (NWPCAM). NWPCAM estimates benefits
of the storm water program at the national level, including the impact
on small streams. This model estimates water quality and the resultant
use support for the 632,000 miles of rivers and streams in the USEPA
Reach File Version 1 (RF1), which covers the continental United States.
The model analyzes water quality changes by stream reach. The
parameters modeled in the NWPCAM are biological oxygen demand (BOD),
total suspended solids (TSS), dissolved oxygen (DO), and fecal
coliforms (FC).
The model projects changes in water quality due to the Phase II
municipal and construction site controls. To calculate the economic
benefits of change in water quality, the number of households in the
proximity of the stream reach are determined, by overlaying the model
results on the 1990 Census of Populated Places and Minor Civil
Divisions, and updating the population to 1998. Economic benefits are
calculated using the Carson and Mitchell WTP values. The benefits are
separately estimated for local and non-local waters on the basis of WTP
values and proximity to water quality changes.
The value of the change in use support for local waters is greater
than the value of the non-local waters because of the opportunity to
use local waters by the local population. This model assumes that if
improvement occurs in waters that are not close to population centers
the economic value is lower. Therefore, benefits are estimated for
local and non-local waters separately. This assumption is based on
Carson and Mitchell's survey which asked respondents to apportion each
of their stated WTP values between achieving the water quality goals in
their own State and achieving those goals in the nation as a whole. On
average, respondents allocated 67% of their values to achieving in-
State water quality goals and the remainder to the nation as a whole.
Carson and Mitchell argue that for valuing local water quality changes
67% is a reasonable upper bound for the local multiplier and 33% for
the non-local water quality changes. For the purposes of this analysis,
the locality is defined as urban sites and associated populations
linked into the NWPCAM framework. Using this methodology, the total
monetized benefits of Phase II control of urban and construction site
runoff is estimated to be $1.628 billion per year. The local and non-
local benefits due to Phase II controls are presented in Exhibit 4.

Exhibit 4.--Local and Non-local Benefits Estimates Due to Phase II Controls National Water Quality Model
Estimate
----------------------------------------------------------------------------------------------------------------
Non-local
Use support Local benefits benefits \1\ Total benefits
($million/yr) ($million/yr) ($million/yr)
----------------------------------------------------------------------------------------------------------------
Swimming, Fishing, and Boating......................... 306.20 60.60 366.80
Fishing and Boating.................................... 395.10 51.90 447.00
Boating................................................ 700.10 114.60 814.70
--------------------------------------------------------
Total.............................................. 1401.40 227.10 1628.50
----------------------------------------------------------------------------------------------------------------
\1\ To estimate non-local willingness to pay per household, the 33% of willingness is multiplied by the fraction
of previously impaired national waters (in each use category) that attain the beneficial use as a result of
the Phase II rule. To estimate the aggregate non-local benefits, non-local willingness to pay is multiplied
with the total number of households in the US.

While the numbers of miles that are estimated to change their use
support are small, the benefits estimates are quite significant. This
is because urban runoff and, to a large extent, construction activity
occurs where the people actually reside and the water quality changes
mostly occur close to these population centers. NWPCAM indicates that
changes in pollution loads have the most effect immediately downstream
of pollution changes. As a result, the aggregate WTP is large because
large numbers of households in these population centers are associated
with the local waters that reflect improvement in designated use
support.
2. National Water Quality Assessment
EPA also estimated benefits of the Phase II Storm Water program
using the 1998 National Water Quality Inventory (305(b)) Report to
Congress, rather than the NWPCAM as a basis for estimating impairment
addressed by the rule. The Water Quality Assessment method separately
estimates benefits associated with improvements to fresh water, marine
water and construction site controls, and then aggregates these
separate categories into an estimate of total annual benefits.
a. Municipal Measures

i. Fresh Waters Benefits

In order to develop estimates for the potential value of the
municipal measures (except storm water runoff controls for construction
sites), EPA applied Carson & Mitchell WTP values to estimated existing
and projected future fresh water impairment. Carson & Mitchell did not
evaluate marine waters, so only fresh water values were available from
their research. Even though the Carson and Mitchell estimates apply to
all fresh water, it is not clear how these values would be apportioned
among rivers, lakes, and the Great Lakes. The 305(b) data indicate that
lakes are the most impaired by urban runoff/storm sewers, followed
closely by the Great Lakes, and then rivers. Therefore, EPA applied the
WTP values to the categories separately and assumed that the higher
resulting value for lakes represents the high end of the range (i.e.,
assuming that lake impairment is more indicative of national fresh
water impairment) and that the lower resulting value for impaired
rivers represents the low end of a value range for all fresh waters
(i.e., assuming that river impairment is more indicative of national
fresh water impairment). In addition, EPA estimated that the post-
construction runoff

[[Page 68794]]

requirements of the municipal program might result in benefits of at
least $16.8 million annually from avoided future runoff. The post-
construction estimate significantly underestimates potential program
benefits because it does not account for avoided hydrologic changes and
resulting water quality impairment associated with increases in
imperviousness from development and redevelopment. Summing the benefits
across the water quality use support levels yields an estimate of
benefits ranging from approximately $121.9 million to $378.2 million
per year.

ii. Marine Waters Benefits

In addition to the fresh water benefits captured by the Carson and
Mitchell study, EPA anticipates benefits as a result of improvements to
marine waters. Sufficient methods have not been developed to quantify
national-level benefits for commercial or recreational fishing. EPA
used beach closure data and visitation estimates from its Beach Watch
Program to estimate potential reductions in marine swimming visits due
to storm water runoff contamination events in 1997. The estimated
86,100 trips that did not occur because of beach closures in coastal
Phase II communities is a lower bound because it represents only those
beaches that report both closures and visitation data. EPA estimates
potential swimming benefits from the rule to be at least $2.1 million
annually.
EPA developed an analysis of potential benefits associated with
avoided health impacts from exposure to contaminants in storm sewer
effluent. Based on a study of incremental illnesses found among people
who swam within one yard of storm drains in Santa Monica Bay, EPA
estimated a range of incremental illnesses (Haile et al., 1996).
Depending on assumptions made about number of exposures to contaminants
and contaminant concentrations, benefits ranged from $7.0 million to
$29.9 million annually.
b. Construction Benefits
The major pollutant resulting from construction activities is
sediment. However, in addition to sediment, construction activities
also yield pollutants such as pesticides, petroleum products, and
solvents. Because circumstances will vary considerably from site to
site, data is not available with which to develop estimates of benefits
for each site and aggregate to obtain a national-level estimate.
In the proposed rule, EPA estimated the combined benefits of all
wet weather programs, and then used expert opinions to allocate them to
different individual programs. To eliminate the possible overlap
between the benefits of the soil and erosion control requirements,
municipal measures, and other wet weather storm water programs, EPA
chose to use an approach in today's final rule that directly estimates
the benefits of soil and erosion requirements.
A survey of North Carolina residents (Paterson et al., 1993)
indicated that households are willing to pay for erosion and sediment
controls similar to those in today's rule. Based on income and other
indicators, the values derived from the study are expected to be
similar to values held in the rest of the country. Using the mean value
of the willingness to pay of $25 per household, EPA projects annual
benefits of the soil and erosion requirements to range from $540.5-$686
million.
c. Summary of Benefits From the National Water Quality Assessment
Total benefits from municipal measures and construction site
controls are expected to range from $671.5 million to $1.1 billion per
year, including benefits of approximately $13.7 million per year
associated with small stream improvements. A summary of the potential
benefits is presented in Exhibit 5.
As shown in Exhibit 5, it was not possible to monetize all
categories of benefits using the WTP estimates. In particular, benefits
for improving marine water quality such as fishing and passive use
benefits are not included in the values used to estimate the potential
benefits of the municipal minimum measures (excluding construction
sites controls), and they are not estimated separately, because
information is not currently available.

Exhibit 5.--Potential Annual Benefits of the Phase II Storm Water Rule
National Water Quality Assessment Estimate
------------------------------------------------------------------------
Benefit category Annual WTP
------------------------------------------------------------------------
Municipal Minimum Measures \1\
------------------------------------------------------------------------
Fresh Water Use and Passive $121.9-$378.2
Use \2\.
Marine Recreational Swimming. $2.1
Human Health (Marine Waters). $7.0-$29.9
Other Marine Use and Passive (⁺)
Use.
------------------------------------------------------------------------
Erosion and Sediment Controls for Construction Sites
------------------------------------------------------------------------
Fresh Water and Marine Use $540.5-$686
and Passive Use \3\.
------------------------------------------------------------------------
Total Phase II Program
------------------------------------------------------------------------
Total Use & Passive Use >$671.5->$1,096.2
(Fresh Water and Marine).
------------------------------------------------------------------------
+= positive benefits expected but not monetized.
\1\ Includes water quality benefit of municipal programs, based on 80%
effectiveness of municipal programs.
\2\ Based on research by Carson and Mitchell (1993). Fresh water value
only. Does not include commercial fishery, navigation, or diversionary
(e.g. municipal drinking water cost savings or risk reductions)
benefits. May not fully capture human health risk reduction or
ecological values.
\3\ Based on research by Paterson et al. (1993). Although the survey's
description of the benefits of reducing soil erosion from construction
sites included reduced dredging, avoided flooding, and water storage
capacity benefits, these benefit categories may not be fully
incorporated in the WTP values. Small streams may account for over 2%
of total benefits.

C. Qualitative Benefits

There are additional benefits to storm water control that cannot be
quantified or monetized. Thus, the current estimate of monetized
benefits may understate the true value of storm water controls because
it omits many ways in which society is likely to benefit from reduced
storm water pollution, such as improved

[[Page 68795]]

aesthetic quality of waters, benefits to wildlife and to threatened and
endangered species, cultural values, and biodiversity benefits.
A benefit that EPA did not monetize completely is the flood control
benefits attributable to municipal storm water controls reducing
downstream flooding, although flood control benefits associated with
sediment and erosion control are already reflected to some extent in
the construction benefits. Similarly, the Agency could not value the
benefits from increased property value due to storm water controls
reflected in the rule, even though a commenter suggested inclusion of
these benefits in the estimates.
Moreover, while a number of commenters requested that EPA include
ecological benefits, the Agency was not able to fully monetize these
benefits. Urbanization usually increases the amount of sediment,
nutrients, metals and other pollutants associated with land disturbance
and development. Development usually not only results in a dramatic
increase in the volume of water runoff, but also in a substantial
decrease in that water's quality due to stream scour, runoff and
dispersion of toxic pollutants, and oversiltation. These kinds of
secondary benefits could not be fully reflected in the monetized
benefits. EPA was able to only monetize the aquatic life support
benefits for waters assumed to be impaired. Thus, only the aquatic life
support benefits attributable to municipal controls, reflected through
human satisfaction, are taken into account.
Reduced nutrient level is another benefit of the storm water
control which is not fully captured by the economic analysis. High
nutrient levels often lead to eutrophication of the aquatic system. The
quality change in ecological sources as the result of storm water
controls to reduce pollutants is not fully reflected in the present
benefits.

D. National Economic Impact

Finally, the Agency determined that the rule will have minimal
impacts on the economy or employment. This is because the final rule
regulates small MS4s and construction sites under 5 acres, not the
typical industrial plants or other non-construction activities that
could directly impact production and thus those sectors of the economy.
Discussions with representatives within the construction industry
indicate that construction costs will likely be passed on to buyers,
thus not seriously affecting the housing industry directly. One
commenter argued that the rule will have a negative employment effect
because the builders will build fewer homes requiring less building
materials as a result of the declining demand induced by the cost of
the soil and erosion controls. EPA disagrees with this argument because
the cost of the controls, as the percentage of the price of a median
home, is negligible and will be passed on to final buyers.
Flexibility within the rule allows MS4s to tailor the storm water
program requirements to their needs and financial position, minimizing
impacts. For sedimentation and erosion controls on construction sites,
the rule contemplates application of commonly used BMPs to reduce costs
for the construction industry. Thus, the rule attempts to use existing
practices to prevent pollution, which should minimize impacts on
States, Tribes, municipalities and the construction industry.
Thus, EPA concludes that the effect of the rule, if any, on the
national economy will be minimal. The benefits of today's rule more
than offset any cost impacts on the national economy.

IV. Regulatory Requirements

A. Paperwork Reduction Act

The Office of Management and Budget (OMB) has approved some of the
information collection requirements contained in this final rule (i.e.
those found in 40 CFR 122.26(g) and 123.35(b)) under the provisions of
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned
OMB control number 2040-0211.
The burden and costs described below are for the information
collection, reporting, and record keeping requirements for the three
year period beginning with the effective date of today's rule.
Additional information collection requirements for regulated small MS4s
and small construction sites will occur after this initial three year
period and will be counted in a subsequent information collection
requirement. The total burden of the information collection
requirements for the first three years of this rule is estimated at
56,369 hours with a corresponding cost of $2,151,305 million annually.
This burden and cost is for industrial facilities to complete and
submit the no exposure certification, for NPDES-authorized States to
process and review the no exposure certification, and for the NPDES-
authorized States to develop designation criteria and assess additional
MS4s outside of urbanized areas. Compliance with the applicable
information collection requirements imposed under this rule are
mandatory, pursuant to CWA section 402.
Exhibit 6 presents average annual burden and cost estimates for
Phase II respondents for the first three years. Burden means the total
time, effort, or financial resources expended by persons to generate,
maintain, retain, disclose or provide information to or for a Federal
agency. This includes the time needed to review instructions; develop,
acquire, install, and utilize technology and systems for the purposes
of collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust existing ways for complying with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.

Exhibit 6.--Average Annual Burden and Cost Estimates for Phase II Respondents
----------------------------------------------------------------------------------------------------------------
(A) x (B)=C
A Respondents B Burden hours Annual D Respondent (C) x (D)=E
Information collection activity per year per respondent respondent labor cost ($/ Annual Cost
(projected) per year burden hours hr) (1998 $) ($)
\1\ (predicted) (projected) (projected)
----------------------------------------------------------------------------------------------------------------
Ind. No Expos. Facilities:\2\
No Expos. Certification..... 36,377 1.0 36,377 44.35 1,613,320
---------------- ---------------
Annual Subtotal......... .............. .............. 36,377 .............. 1,613,320
NPDES-Authorized States:\3\
Designation of Addit. MS4s 15 332.8 4,892 26.91 131,644
\4\........................

[[Page 68796]]

No Exp. Cert. Proc. & Rev... 30,200 0.5 15,100 26.91 406,341
---------------- ---------------
Annual Subtotal......... .............. .............. 19,992 .............. 537,985
---------------- ---------------
Annual Totals........... .............. .............. 56,369 .............. 2,151,305
----------------------------------------------------------------------------------------------------------------
Notes:
\1\ Source: U.S. EPA, Office of Wastewater Management. Economic Analysis for the Storm Water Phase II Rule.
\2\ The total number of potential no exposure respondents was divided by 5 to estimate an annual total. It was
assumed that the annual number of respondents for the no exposure certification would be spread over the five
year period the exclusion applies.
\3\ The number of respondents in each category represents only those respondents located within the 44 NPDES-
authorized States and Territories. The burden and cost estimates provided in this section are for the NPDES-
authorized States in their role as the permitting authority for municipal designations and industrial no
exposure.
\4\ The number of respondents for this activity, 15, represents the number of NPDES-authorized States and
Territories that must develop designation criteria and assess small MS4s located outside of an urbanized area
for possible Phase II coverage divided by the three year ICR period.

Given the requirements of today's regulation, EPA believes there
will be no capital startup and no operation and maintenance costs
associated with information collection requirements of the rule.
The government burden associated with today's rule will impact
State, Tribal, and Territorial governments (NPDES-authorized
governmental entities) that have storm water program authority, as well
as the federal government (i.e., EPA), where it is the NPDES permitting
authority. As of March 1999, 43 States and the Virgin Islands had NPDES
authority.
The annual burden imposed upon authorized governmental entities
(delegated States and the Virgin Islands) and the federal government
for the next three years is estimated to be 19,992 hours ($537,985) and
4,087 hours ($115,948) respectively, for a total of 24,079 hours
($653,933). This estimate is based on the average time that governments
will expend to carry out the following activities: designate additional
MS4s (332.8 hours) and process and review ``no exposure'' certificates
from industrial dischargers (0.5 hour).
Under the existing rule, storm water discharges from light
industrial activities identified under Sec. 122.26(b)(14)(xi) were
exempted from the permit application requirements if they were not
exposed to storm water. Today's rule expands the applicability of the
``no exposure'' exclusion to include all industrial activity regulated
under Sec. 122.26(b)(14) (except category (x), construction). The ``no
exposure'' provision is applied through the use of a written
certification process, thus representing a slight reporting burden
increase for ``light'' industries with ``no exposure'.
In addition to the information collection, reporting, and record
keeping burden for the next three years, today's rule contains
information collection requirements that will not begin until three
years or more from the effective date of today's rule. These
information collection requirements were not included in the
information collection request approved by OMB. EPA will submit these
burden estimates for OMB approval when it submits ICR 2040-0211 to OMB
for renewal in three years. The rule burdens for regulated small MS4s
and small construction sites that will be included in the ICR renewal
fall into three areas: application for an NPDES permit or submittal of
waiver information, record keeping of storm water management
activities, and submittal of reports to the permitting authority. There
will also be an additional burden for the permitting authority to
review this information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15. EPA is
amending the table in 40 CFR Part 9 of currently approved ICR control
numbers issued by OMB for various regulations to list the first three
years of information requirements contained in this final rule.

B. Executive Order 12866

Under Executive Order 12866, [58 FR 51,735 (October 4, 1993)] the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action''. As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.

C. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a

[[Page 68797]]

written statement is needed, section 205 of the UMRA generally requires
EPA to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows EPA to adopt an
alternative other than the least costly, most cost-effective or least
burdensome alternative if the Administrator publishes with the final
rule an explanation why that alternative was not adopted.
EPA has determined that today's rule contains a Federal mandate
that may result in expenditures of $100 million or more in any one year
for both State, local, and tribal governments, in the aggregate, and
the private sector. Accordingly, EPA has prepared under section 202 of
the UMRA a written statement which is summarized below.
1. Summary of UMRA Section 202 Written Statement
EPA promulgates today's storm water regulation pursuant to the
specific mandate of Clean Water Act section 402(p)(6), as well as
sections 301, 308, 402, and 501. (33 U.S.C. sections 1342(p)(6), 1311,
1318, 1342, 1361.) Section 402(p)(6) of the CWA requires that EPA
designate sources to be regulated to protect water quality and
establish a comprehensive program to regulate those sources.
In the Economic Analysis of the Final Phase II Rule (EA), EPA
describes the qualitative and monetized benefits associated with
today's rule and then compares the monetized benefits with the
estimated costs for the rule. EPA developed detailed estimates of the
costs and benefits of complying with each of the incremental
requirements imposed by the rule. These estimates, including
descriptions of the methodology and assumptions used, are described in
detail in the EA. The Agency used two approaches, a national water
quality model and national water quality assessment, to estimate the
potential benefits of the rule. Both approaches show that the benefits
are likely to exceed costs. Exhibit 3 in section III of this preamble
summarizes the costs and benefits associated with the basic elements of
today's rule.
There are additional benefits to storm water control that cannot be
quantified or monetized. Thus, the current estimate of monetized
benefits may understate the true value of storm water controls because
it omits many ways by which society is likely to benefit from reduced
storm water pollution, such as improved aesthetic quality of waters,
benefits to wildlife and to threatened and endangered species, cultural
values, and biodiversity benefits.
Several commenters asserted that today's rule is an unfunded
mandate and that, without funding, the monitoring of the already
existing pollution control programs would suffer. In section II.D.3 of
the preamble, EPA lists some of the programs that EPA anticipates may
provide funds to help develop and, in limited circumstances, implement
storm water management programs.
In the EA, EPA reviewed the expected effect of today's rule on the
national economy. The Agency determined that the rule will have minimal
impacts on the economy or employment. This is because the final rule
regulates small MS4s and construction sites under 5 acres, not the
typical industrial plants or other non-construction activities that
could directly impact production and thus those sectors of the economy.
Discussions with representatives within the construction industry
indicate that construction costs will likely be passed on to buyers,
thus not seriously affecting the housing industry directly. Flexibility
within the rule allows MS4s to tailor the storm water program
requirements to their needs and financial position, minimizing impacts.
For sedimentation and erosion controls on construction sites, the rule
contemplates application of commonly used BMPs to reduce costs for the
construction industry. Thus, the rule attempts to use existing
practices to prevent pollution, which should minimize impacts on
States, Tribes, municipalities and the construction industry.
Thus, EPA concludes that the effect of the rule, if any, on the
national economy would be minimal. The benefits of today's rule more
than offset any cost impacts on the national economy.
Consistent with the intergovernmental consultation provisions of
section 204 of the UMRA and Executive Order 12875, ``Enhancing the
Intergovernmental Partnership,'' EPA consulted with the governmental
entities affected by this rule.
First, EPA provided States, Tribal and local governments with the
opportunity to comment on draft alternative approaches for the proposed
rule through publishing a notice requesting information and public
comment in the Federal Register on September 9, 1992 (57 FR 41344).
This notice presented a full range of regulatory alternatives. At that
time, EPA received more than 130 comments, including approximately 43
percent from municipalities and 24 percent from State or Federal
agencies. These comments were the genesis of many of the provisions in
the today's rule, including reliance on the NPDES program framework
(including general permits), providing State and local governments
flexibility in selecting additional sources requiring regulation, and
focusing on high priority polluters. These comments helped to focus on
pollution prevention, watershed-based concerns and BMPs. They also led
to certain exemptions for facilities that do not pollute national
waters.
In early 1993, EPA, in conjunction with the Rensselaerville
Institute, held public and expert meetings to assist in developing and
analyzing options for identifying unregulated storm water sources and
possible controls. These meetings provided participants an additional
opportunity to provide input into the CWA section 402(p)(6) program
development process. The final rule addresses several of the key
concerns identified in these groups, including provisions that provide
flexibility to the States to select sources to be controlled and types
of permits to be issued, and flexibility to MS4s in selecting BMPs.
EPA also conducted outreach with representatives of small entities,
including small government representatives, in conjunction with the
convening of a Small Business Advocacy Review Panel under SBREFA which
is discussed in section IV.E. of the preamble.
In addition, EPA established the Urban Wet Weather Flows Advisory
Committee under the Federal Advisory Committee Act (FACA). The Urban
Wet Weather Flows Advisory Committee, in turn established the Storm
Water Phase II Subcommittee. Consistent with FACA, the membership of
the Committee and the Storm Water Phase II Subcommittee was balanced
among EPA's various outside stakeholder interests, including
representatives from State governments, municipal governments (both
elected officials and appointed officials) and Tribal governments, as
well as industrial and commercial sectors, agriculture, environmental
and public interest groups.
In general, municipal and Tribal government representatives
supported the NPDES approach in today's rule for the following reasons:
It will be uniformly applied on a nationwide basis; it provides
flexibility to allow incorporation of State and local programs; it
resolves the problem of donut holes that cause water quality impacts in
urbanized areas; and it allows co-permitting of small regulated

[[Page 68798]]

MS4s with those regulated under the existing storm water program.
In contrast, State representatives sought alternative approaches
for State implementation of the storm water program for Phase II
sources. State representatives asserted that a non-NPDES alternative
approach best facilitated watershed management and avoided duplication
and overlapping regulations. These representatives pointed out that
there are a variety of State programs--not based on the CWA--
implementing effective storm water controls, and that EPA should
provide incentives for their implementation and improvement in
performance. EPA continues to believe that an NPDES approach is the
best approach in order to adequately protect water quality. However,
EPA has worked with States on an alternative approach that provides
flexibility within the NPDES framework. The final rule allows States
with a watershed permitting approach to phase in permit coverage for
MS4s in jurisdictions with a population less than 10,000 and provides
two waivers from coverage for small MS4s. This issue is discussed in
section II.C of the preamble, Program Framework: NPDES Approach.
Some municipal governments objected that the rule's minimum
measures for small MS4s violate the Tenth Amendment insofar as they
require the operators of MS4s to regulate third parties according to
the ``minimum measures'' for municipal storm water management programs.
EPA disagrees that today's rule is inconsistent with Tenth Amendment
principles. Permits issued under today's rule will not compel political
subdivisions of States to regulate in their sovereign capacities, but
rather to effectively control discharges out of their storm sewer
systems in their owner/operator capacities. For MS4s that do not accept
this ``default'' minimum measures-based approach (to control discharges
out of the storm sewer system by exercising local powers to control
discharges into the storm sewer system), today's rule allows for
alternative permits through individual permit applications. EPA made
revisions to the rule to allow regulated small MS4s to opt out of the
minimum measures approach and instead apply for an individual permit.
This issue is discussed in section II.H.3.c.iii of the preamble,
Alternative Permit Option/Tenth Amendment.
2. Selection of the Least Costly, Most Cost-Effective or Least
Burdensome Alternative That Achieves the Objectives of the Statute
Today's rule evolved over time and incorporated aspects of
alternatives that responded to concerns presented by the various
stakeholders. A primary characteristic of today's rule is the
flexibility it offers both the permitting authority and the regulated
sources (small MS4s and small construction sites), by the use of
general permits, implementation of BMPs suited to specific locations,
and allowing MS4s to develop their own program goals.
In the administrative record supporting the proposed rule, EPA
estimated ranges of costs associated with six different options,
including a no action option, the proposed option, and four other
options that considered various combinations of the following: Covering
all the unregulated construction sites below 5 acres, all small MS4s,
certain industrial and commercial activities, and all point sources.
EPA developed detailed cost estimates for the incremental requirements
imposed under the final regulation, and for each of the alternatives,
and applied these estimates to the remaining unregulated point sources
of storm water. The Agency compared the estimated annual range of costs
imposed under today's rule and other major options considered. The
range of values for each option included the costs for compliance,
including paperwork requirements for the operators of small
construction sites, industrial facilities, and MS4s and administrative
costs for State and Federal NPDES permitting authorities.
Today's rule reflects the least costly option that achieves the
objectives of the statute, thus meeting the requirements of section
205. EPA did not consider ``no regulation'' to be an ``option'' because
it would not achieve the objectives of CWA section 402(p)(6). A portion
of currently unregulated point sources of storm water need to reduce
pollutants to protect water quality.
Today's rule is estimated to range in cost from $847.6 million to
$981.3 million annually, although the cost estimate for the proposed
rule was reported as a range of $138 to $869 million annually. That
range reflected a unit cost range for the municipal minimum measures
and a cost range per construction site for soil erosion control. EPA
has since revised its cost analysis to allow it to report the current
estimate, which is toward the high end of the original cost range. The
four other regulatory options considered at proposal involved higher
regulatory costs and, therefore, were not selected. These four options
and their estimated costs are as follows:
(1) An option based on the August 7, 1995 direct final rule was
estimated to cost between $2.2 billion and $78.9 billion per year.
(2) A ``Plan B'' option was estimated to cost between $0.6 billion
and $3.2 billion per year.
(3) An option based on the September 30, 1996 draft proposed rule
was estimated to cost between $0.2 billion and $3.7 billion per year.
(4) An option based on the February 13, 1997 draft proposed rule,
was estimated to cost between $0.2 billion and $3.5 billion.
There are three reasons why the costs for these four options
exceeded the estimated cost range for the proposed rule. The first two
options regulated substantially more municipal governments. The first,
third, and fourth options required industrial facilities to apply for
permits. Finally, the first three options applied permit requirements
to construction sites below 1 acre. Consequently, these options would
be more costly than today's rule even with the revised analysis methods
used to estimate costs.
3. Effects on Small Governments
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements. EPA
has determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments. Although
today's rule expands the NPDES program (with modifications) to certain
MS4s serving populations below 100,000 and although many MS4s are owned
by small governments, EPA does not believe today's rule significantly
or uniquely affects small governments. As explained in section IV.E. of
the preamble, EPA today certifies that the rule will not have a
significant impact on small governmental jurisdictions. In addition,
the rule will not have a unique impact on small governments because the
rule will affect small governments in

[[Page 68799]]

to the same extent as (or to a lesser extent than) larger governments
that are already covered by the existing storm water rules. Thus,
today's rule is not subject to the requirements of section 203 of UMRA.
Notwithstanding this finding, in developing today's rule, EPA
provided notice of the requirements to potentially affected small
governments; enabled officials of affected small governments to provide
meaningful and timely input in the development of regulatory proposals;
and informed, educated and advised small governments on compliance with
the requirements.
Concerning notice, EPA provided States, local, and Tribal
governments with the opportunity to comment on alternative approaches
for an early draft of the proposed rule by publishing a notice
requesting information and public comment in the Federal Register on
September 9, 1992 (57 FR 41344). This notice presented a full range of
regulatory alternatives. At that time, EPA received more than 130
comments, including approximately 43 percent from municipalities and 24
percent from State or Federal agencies.
The Agency also provided, through the SBREFA panel process and the
FACA process, the opportunity for elected officials of small
governments (and their representatives) to meaningfully participate in
the development of the rule. Through such participation and exchange,
EPA not only notified potentially affected small governments of
requirements of the developing rule, but also allowed officials of
affected small governments to have meaningful and timely input into the
development of regulatory proposals.
In addition to involving municipalities in the development of the
rule, EPA also continues to inform, educate, and advise small
governments on compliance with the requirements of today's rule. For
example, EPA supported 10 workshops, presented by the American Public
Works Association from September 1998 through May 1999, designed to
educate local governments on the implementation of the rule. The
workshop curriculum included information on a variety of key issues
such as anticipated regulatory requirements, agency reporting, best
management practices, construction site controls, post construction
management for new and redeveloped sites, public education and public
involvement strategies, detection and control of illicit discharges,
and good housekeeping practices. Moreover, EPA has prepared a series of
fact sheets, available on the EPA website at www.epa.gov/owm/sw/
toolbox, that explains the rule in detail.
Finally, to assist small governments in implementing the Phase II
program, EPA is committed to the following: (1) developing a tool box
of implementation strategies; (2) providing written technical
assistance, including guidance on developing BMPs and measurable goals;
and (3) compiling a comprehensive evaluation of the NPDES municipal
storm water Phase II program over the next 13 years.

D. Executive Order 13132

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
If EPA complies by consulting, Executive Order 13132 requires EPA
to provide to the Office of Management and Budget (OMB), in a
separately identified section of the preamble to the rule, a federalism
summary impact statement (FSIS). The FSIS must include a description of
the extent of EPA's prior consultation with State and local officials,
a summary of the nature of their concerns and the agency's position
supporting the need to issue the regulation, and a statement of the
extent to which the concerns of State and local officials have been
met. For final rules subject to Executive Order 13132, EPA also must
submit to OMB a statement from the agency's Federalism Official
certifying that EPA has fulfilled the Executive Order's requirements.
EPA has concluded that this final rule may have federalism
implications. As discussed above in section IV.C., the rule contains a
Federal mandate that may result in the expenditure by State, local and
tribal governments, in the aggregate, of $100 million or more in any
one year. Accordingly, the rule may have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
Moreover, the rule will impose substantial direct compliance costs on
State or local governments. Accordingly, EPA provides the following
FSIS under section 6(b) of Executive Order 13132.
1. Description of the Extent of the Agency's Prior Consultation with
State and Local Governments
Although this rule was proposed long before the November 2, 1999
effective date of Executive Order 13132, EPA consulted extensively with
affected State and local governments pursuant to the intergovernmental
consultation provisions of Executive Order 12875, ``Enhancing the
Intergovernmental Partnership'' (now revoked by Executive Order 13132)
and section 204 of UMRA.
First, EPA provided State and local governments the opportunity to
comment on draft alternative approaches for the proposed rule through
publishing a notice requesting information and public comment in the
Federal Register on September 9, 1992 (57 FR 41344). This notice
presented a full range of regulatory alternatives. At that time, EPA
received more than 130 comments, including approximately 43 percent
from municipalities and 24 percent from State or Federal agencies.
These comments were the genesis of many of the provisions in the
today's rule, including reliance on the NPDES program framework
(including general permits), providing State and local governments
flexibility in selecting additional sources requiring regulation, and
focusing on high priority polluters. These comments helped to focus on
pollution prevention, watershed-based concerns and BMPs. They also led
to certain exemptions for facilities that do not pollute national
waters.
In early 1993, EPA, in conjunction with the Rensselaerville
Institute, held public and expert meetings to assist in developing and
analyzing options for identifying unregulated storm water sources and
possible controls. These meetings provided participants an additional
opportunity to provide input into the CWA section 402(p)(6) program

[[Page 68800]]

development process. The final rule addresses several of the key
concerns identified in these groups, including provisions that provide
flexibility to the States to select sources to be controlled and types
of permits to be issued, and flexibility to MS4s in selecting BMPs.
EPA also conducted outreach with representatives of small entities,
including small governments, in conjunction with the convening of a
Small Business Advocacy Review Panel under SBREFA which is discussed in
section III.F. of the preamble.
In addition, EPA established the Urban Wet Weather Flows Advisory
Committee (FACA), which in turn established the Storm Water Phase II
Subcommittee. Consistent with the Federal Advisory Committee Act, the
membership of the Committee and the Storm Water Phase II Subcommittee
was balanced among EPA's various outside stakeholder interests,
including representatives from State governments, municipal governments
(both elected officials and appointed officials) and Tribal
governments, as well as industrial and commercial sectors, agriculture,
environmental and public interest groups.
2. Summary of Nature of State and Local Government Concerns, and
Statement of the Extent to Which Those Concerns Have Been Met
In general, municipal government representatives supported the
NPDES approach in today's rule for the following reasons: it will be
uniformly applied on a nationwide basis; it provides flexibility to
allow incorporation of State and local programs; it resolves the
problem of donut holes that cause water quality impacts in urbanized
areas; and it allows co-permitting of small regulated MS4s with those
regulated under the existing storm water program.
In contrast, State representatives sought alternative approaches
for State implementation of the storm water program for Phase II
sources. State representatives asserted that a non-NPDES alternative
approach best facilitated watershed management and avoided duplication
and overlapping regulations. These representatives pointed out that
there are a variety of State programs--not based on the CWA--
implementing effective storm water controls, and that EPA should
provide incentives for their implementation and improvement in
performance. EPA continues to believe that an NPDES approach is the
best approach in order to adequately protect water quality. However,
EPA has worked with States on an alternative approach that provides
flexibility within the NPDES framework. The final rule allows States
with a watershed permitting approach to phase in permit coverage for
MS4s in jurisdictions with a population less than 10,000 and provides
two waivers from coverage for small MS4s. This issue is discussed in
section II.C of the preamble, Program Framework: NPDES Approach.
Some municipal governments objected that the rule's minimum
measures for small MS4s violate the Tenth Amendment insofar as they
require the operators of MS4s to regulate third parties according to
the ``minimum measures'' for municipal storm water management programs.
EPA disagrees that today's rule is inconsistent with Tenth Amendment
principles. Permits issued under today's rule will not compel political
subdivisions of States to regulate in their sovereign capacities, but
rather to effectively control discharges out of their storm sewer
systems in their owner/operator capacities. For MS4s that do not accept
this ``default'' minimum measures-based approach (to control discharges
out of the storm sewer system by exercising local powers to control
discharges into the storm sewer system), today's rule allows for
alternative permits through individual permit applications. EPA made
revisions to the rule to allow regulated small MS4s to opt out of the
minimum measures approach and instead apply for an individual permit.
This issue is discussed in section II.H.3.c.iii of the preamble,
Alternative Permit Option/Tenth Amendment.
3. Summary of the Agency's Position Supporting the Need To Issue the
Regulation
As discussed more fully in section I.B. above, today's rule is
needed because uncontrolled storm water discharges from areas of urban
development and construction activity have been shown to have negative
impacts on receiving waters by changing the physical, biological, and
chemical composition of the water, resulting in an unhealthy
environment for aquatic organisms, wildlife, and people. As discussed
in section II.C., the NPDES approach in today's rule is needed to
ensure uniform application on a nationwide basis, to provide
flexibility to allow incorporation of State and local programs, to
resolve the problem of donut holes that cause water quality impacts in
urbanized areas, and to allow co-permitting of small regulated MS4s
with those regulated under the existing storm water program.
The draft final rule was transmitted to OMB on July 6, 1999.
Because transmittal occurred before the November 2, 1999 effective date
of Executive Order 13132, certification under section 8 of the
Executive Order is not required.

E. Regulatory Flexibility Act (RFA), as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.

The RFA generally requires an Agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impact of today's rule on small
entities, small entity is defined as: (1) a building contractor (SIC
15) with up to $17.0 million in annual revenue; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district, or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
Although this final rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the impact of this rule on small entities.
For purposes of evaluating the economic impact of this rule on
small governmental jurisdictions, EPA compared annual compliance costs
with annual government revenues obtained from the 1992 Census of
Governments, using state-specific estimates of annual revenue per
capita for municipalities in three population size categories (fewer
than 10,000, 10,000-25,000, and 25,000-50,000).
In order to estimate the annual compliance cost for small
governmental jurisdictions, EPA used the mean variable municipal cost
of $8.93 per household as calculated in a 1998 study of 121
municipalities conducted by the national Association of Flood and
Stormwater Management Agencies (NAFSMA). In addition, EPA used the
estimated fixed administrative costs of $1,545 per municipality for
reporting,

[[Page 68801]]

recordkeeping, and application requirements for today's rule.
In evaluating the economic impact of this rule on small
governmental jurisdictions, EPA determined that compliance costs
represent more than 1 percent of estimated revenues for only 10 percent
of small governments and more than 3 percent of the revenue for 0.7
percent of these entities. In both absolute and relative terms, EPA
does not consider this a significant economic impact on a substantial
number of small entities.
EPA normally uses the ``sales test'' for determining the economic
impact on small businesses. Under a sales test, annual compliance costs
are compared with the small business's total annual sales. However, the
direct application of the sales test is not suitable in this case,
because of the uncertainty associated with estimating the number of
units an ``average'' developer/contractor develops or builds in a
typical year. For this rule, EPA has approximated the sales test by
estimating compliance costs for three sizes of construction sites and
comparing them with a representative sale price for three building
categories. Although EPA's analysis is not exactly a ``sales test,'' it
is similar to the sales test, producing comparable results.
For small building contractors, EPA estimated administrative
compliance costs of $870 per site for applying for coverage, reporting,
record keeping, monitoring and preparing a storm water pollution
prevention plan. EPA estimated compliance costs for installing soil and
erosion controls as ranging from $1,206 to $8,709 per site. EPA
compliance cost estimates are based on 27 theoretical model
construction sites designed to mimic the mostly likely used best
management practices around the country.
In evaluating the economic impact on small building contractors,
EPA divided the revised compliance costs per construction start by the
appropriate homes-to-site ratio for each of the three sizes of
construction sites. The average compliance cost per home ranges from
approximately $450 to $650. EPA concluded that compliance costs are
roughly 0.22 to 0.43 percent of both the mean, $181,300, and median,
$151,000, sale price of a home.
The absence of data to specifically assess annual compliance costs
for building contractors as a percentage of annual sales (i.e., a very
direct estimate of the impact on potentially affected small businesses)
led EPA to perform additional market analysis to examine the ability of
potentially affected firms to pass along regulatory costs to buyers for
single-family homes constructed subject to today's rule. If the small
building contractors covered by the rule are able to pass on the costs
of compliance, either completely or partially, to their purchasers,
then the rule's impact on these small business entities is
significantly reduced. The market analysis shows that demand for homes
is not overly sensitive to small changes in price, therefore builders
should be able to pass on at least a significant fraction of the
compliance costs to buyers.
EPA also assessed the effect of the building contractors' costs on
average monthly mortgage rates and on the demand for new homes. Based
on that screening analysis, EPA concludes that the costs to building
contractors, and the potential changes in housing prices and monthly
mortgage payments for single-family home buyers, are not expected to
have a significant impact on the market for single-family houses. In
both absolute and relative terms, EPA does not consider this a
significant economic impact on a substantial number of small entities.
EPA also certified this rule at proposal. Even though the Agency
was not required to, we convened a Small Business Advocacy Review Panel
(``Panel'') in June 1997. A number of small entity representatives had
already been actively involved with EPA through the FACA process, and
were, therefore, broadly knowledgeable about the development of the
proposed and final rules. Prior to convening the Panel, EPA consulted
with the Small Business Administration to identify a group of small
entity representatives to advise the Panel. The Agency distributed a
briefing package describing its preliminary analysis under the RFA to
the small entity representatives (as well as to representatives from
OMB and SBA) and conducted two telephone conference calls and an all-
day meeting at EPA Headquarters in May of 1997 with small entity
representatives. With this preliminary work complete, in June 1997, EPA
formally convened the SBREFA Panel, comprising representatives from
OMB, SBA, EPA's Office of Water and EPA's Small Business Advocacy
Chair. The Panel received written comments from small entity
representatives based on their involvement in the earlier meetings, and
invited additional comments.
Consistent with requirements of the RFA, the Panel evaluated the
assembled materials and small-entity comments on issues related to: (1)
a description and the number of small entities that would be regulated;
(2) a description of the projected record keeping, reporting and other
compliance requirements applicable to small entities; (3)
identification of other Federal rules that may duplicate, overlap, or
conflict with the proposal to the final rule; and (4) regulatory
alternatives that would minimize any significant economic impact of the
rule on small entities while accomplishing the stated objectives of the
CWA section 402(p)(6).
On August 7, 1997, the Panel provided a Final Report (hereinafter,
``Report'') to the EPA Administrator. A copy of the Report is included
in the docket for the rule. The Panel acknowledged and commended EPA's
efforts to work with stakeholders, including small entities, through
the FACA process. The SBREFA Panel stated that, because of EPA's
extensive outreach and responsiveness in addressing stakeholder
concerns, commenters during the SBREFA process raised fewer concerns
than might otherwise have been expected. Based on the advice and
recommendations of the Panel, today's rule includes a number of
provisions designed to minimize any significant impact on small
entities. (See Appendix 5).

F. National Technology Transfer And Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standard bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This action does not mandate the use of any particular technical
standards, although in designing appropriate BMPs regulated small MS4s
and small construction sites are encouraged to use any voluntary
consensus standards that may be applicable and appropriate. Because no
specific technical standards are included in the rule, section 12(d) of
the NTTAA is not applicable.

G. Executive Order 13045

Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically

[[Page 68802]]

significant'' as defined under E.O. 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to E.O. 13045 because it does not
concern an environmental health or safety risk that may have a
disproportionate effect on children. The rule expands the scope of the
existing NPDES permitting program to require small municipalities and
small construction sites to regulate their storm water discharges. The
rule does not itself, however, establish standards or criteria that
would be included in permits for those sources. Such standards or
criteria will be developed through other actions, for example, in the
establishment of water quality standards or subsequently in the
issuance of permits themselves. As such, today's action does not
concern an environmental health or safety risk that may have a
disproportionate effect on children. To the extent it does address a
risk that may have a disproportionate effect on children, expanding the
scope of the permitting program will have a corresponding
disproportionate benefit to children to protect them from such risk.

H. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the Tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected Tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian Tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian Tribal governments. Even though the Agency is not
required to address Tribes under the Regulatory Flexibility Act, EPA
used the same revenue test that was used for municipalities to assess
the impact of the rule on communities of Tribal governments and
determine that they will not be significantly affected. In addition,
the rule will not have a unique impact on the communities of Tribal
governments because small municipal governments are also covered by
this rule and larger municipal governments are already covered by the
existing storm water rules. Accordingly, the requirements of section
3(b) of Executive Order 13084 do not apply to this rule.

I. Congressional Review Act

The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and the Comptroller General
of the United States. EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This rule is a ``major rule'' as defined by 5 U.S.C. 804(2).
This rule will be effective on February 7, 2000.

List of Subjects

40 CFR Part 9

Environmental protection, Reporting and recordkeeping requirements.

40 CFR Part 122

Administrative practice and procedure, Confidential business
information, Environmental protection, Hazardous substances,
Incorporation by reference, Reporting and recordkeeping requirements,
Sewage disposal, Waste treatment and disposal, Water pollution control.

40 CFR Part 123

Administrative practice and procedure, Confidential business
information, Hazardous materials, Indians--lands, Intergovernmental
relations, Penalties, Reporting and recordkeeping requirements, Sewage
disposal, Waste treatment and disposal, Water pollution control,
Penalties.

40 CFR Part 124

Administrative practice and procedure, Air pollution control,
Hazardous waste, Indians--lands, Reporting and recordkeeping
requirements, Water pollution control, Water supply.

Dated: October 29, 1999.
Carol M. Browner,
Administrator.

Appendices to the Preamble

Appendix 1 to Preamble--Federally-Recognized American Indian Areas
Located Fully or Partially in Bureau of the Census Urbanized Areas
[Based on 1990 Census data]
------------------------------------------------------------------------
State American Indian Area Urbanized Area
------------------------------------------------------------------------
AZ...... Pascua Yacqui Reservation (pt.): Pascua Tucson, AZ (Phase
Yacqui Tribe of Arizona. I).
AZ...... Salt River Reservation (pt.): Salt River Phoenix, AZ (Phase
Pima-Maricopa Indian Community of the I).
Salt River Reservation, California.
AZ...... San Xavier Reservation (pt.): Tohono Tucson, AZ (Phase
O'odham Nation of Arizona (formerly I).
known as the Papago Tribe of the Sells,
Gila Bend & San Xavier Reservation).
CA...... Augustine Reservation: Augustine Band of Indio-Coachella, CA
Cahuilla Mission of Indians of the (Phase I).
Augustine Reservation, CA.
CA...... Cabazon Reservation: Cabazon Band of Indio-Coachella, CA
Cahuilla Mission Indians of the Cabazon (Phase I).
Reservation, CA.

[[Page 68803]]

CA...... Fort Yuma (Quechan) (pt.): Quechan Tribe Yuma, AZ-CA.
of the Fort Yuma Indian Reservation,
California & Arizona.
CA...... Redding Rancheria: Redding Rancheria of Redding, CA.
California.
FL...... Hollywood Reservation: Seminole Tribe... Fort Lauderdale, FL
(Phase I).
FL...... Seminole Trust Lands: Seminole Tribe of Fort Lauderdale, FL
Florida, Dania, Big Cypress & Brighton (Phase I).
Reservations.
ID...... Fort Hall Reservation and Trust Lands: Pocatello, ID.
Shosone-Bannock Tribes of the Fort Hall
Reservation of Idaho.
ME...... Penobscot Reservation and Trust Lands Bangor, ME.
(pt.): Penobscot Tribe of Maine.
MN...... Shakopee Community: Shakopee Mdewakanton Minneapolis-St.
Sioux Community of Minnesota (Prior Paul, MN (Phase I).
Lake).
NM...... Sandia Pueblo (pt.): Pueblo of Sandia, Albuquerque, NM
New Mexico. (Phase I).
NV...... Las Vegas Colony: Las Vegas Tribe of Las Vegas, NV (Phase
Paiute Indians of the Las Vegas Indian I).
Colony, Nevada.
NV...... Reno-Sparks Colony: Reno-Sparks Indian Reno, NV (Phase I).
Colony, Nevada.
OK...... Osage Reservation (pt.): Osage Nation of Tulsa, OK (Phase I).
Oklahoma.
OK...... Absentee Shawnee-Citizens Band of Oklahoma City, OK
Potawatomi TJSA (pt.): Absentee-Shawnee (Phase I).
Tribe of Indians of Oklahoma; Citizen
Potawatomi Nation, Oklahoma.
OK...... Cherokee TJSA 9 (pt.): Cherokee Nation Ft. Smith, AR-OK;
of Oklahoma; United Keetoowah Band of Tulsa, OK (Phase
Cherokee Indians of Oklahoma. I).
OK...... Cheyenne-Arapaho TJSA (pt.): Cheyenne- Oklahoma City, OK
Arapaho Tribes of Oklahoma. (Phase I).
OK...... Choctaw TJSA (pt.): Choctaw Nation of Ft. Smith, AR-OK
Oklahoma. (Phase I).
OK...... Creek TJSA (pt.): Alabama-Quassarte Tulsa, OK (Phase I).
Tribal Town of the Creek Nation of
Oklahoma; Kialegee Tribal Town of the
Creek Indian Nation of Oklahoma;
Muscogee (Creek) Nation of Oklahoma;
Thlopthlocco Tribal Town of the Creek
Nation of Oklahoma.
OK...... Kiowa-Comanche-Apache-Ft. Sill Apache: Lawton, OK.
Apache Tribe of Oklahoma; Comanche
Indian Tribe, Oklahoma; Fort Sill
Apache Tribe of Oklahoma; Kiowa Indian
Tribe of Oklahoma.
TX...... Ysleta del Sur Reservation: Ysleta Del El Paso, TX-NM
Sur Pueblo of Texas. (Phase I).
WA...... Muckleshoot Reservation and Trust Lands Seattle, WA (Phase
(pt.): Muckleshoot Indian Tribe of the I).
Muckleshoot Reservation.
WA...... Puyallup Reservation and Trust Lands Tacoma, WA (Phase
(pt.): Puyallup Tribe of the Puyallup I).
Reservation, WA.
WA...... Yakima Reservation (pt.): Confederated Yakima, WA.
Tribes and Bands of the Yakama Indian
Nation of the Yakama Reservation, WA.
WI...... Oneida (West) (pt.): Oneida Tribe of Green Bay, WI.
Wisconsin.
------------------------------------------------------------------------

Please Note

``(pt.)'' indicates that the American Indian Area (AIA) listed
is only partially located within the referenced urbanized area.
The first line under ``American Indian Area'' is the name of the
federally-recognized reservation/colony/rancheria or trust land as
it appears in the Bureau of the Census data. After this first line,
the names of the tribes included in the AIA are listed as they
appear in the Bureau of Indian Affairs' list of Federally Recognized
Indian Tribes. [Federal Register: Nov. 13, 1996, Vol. 66, No. 220,
pgs. 58211-58216]
``TJSAs'' are Tribal Jurisdiction Statistical Areas in Oklahoma
that are defined in conjunction with the federally-recognized tribes
in Oklahoma who have definite land areas under their jurisdiction,
but do not have reservation status.
``(Phase I)'' indicates that the referenced urbanized area
includes a medium or large MS4 currently regulated under the
existing NPDES storm water program (i.e., Phase I). Any Tribally
operated MS4 within these such urban areas would not automatically
have been covered under Phase I, however.

Sources

Michael Ratcliffe, Geographic Concepts Division, Bureau of the
Census, U.S. Department of Commerce.
1990 Census of Population and Housing, Summary Population and
Housing Characteristics, United States. Tables 9 & 10. [1990 CPH-1-
1]. Bureau of the Census, U.S. Department of Commerce.

BILLING CODE 6560-50-P

[[Page 68804]]

[GRAPHIC] [TIFF OMITTED] TR08DE99.001

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[[Page 68805]]

Appendix 3 to the Preamble--Urbanized Areas of the United States
and Puerto Rico

(Source: 1990 Census of Population and Housing, U.S. Bureau of the
Census--This list is subject to change with the Decennial Census)

Alabama

Anniston
Auburn-Opelika
Birmingham
Columbus, GA-AL
Decatur
Dothan
Florence
Gadsden
Huntsville
Mobile
Montgomery
Tuscaloosa

Alaska

Anchorage

Arizona

Phoenix
Tucson
Yuma, AZ-CA

Arkansas

Fayetteville-Springdale
Fort Smith, AR-OK
Little Rock-North Little Rock
Memphis, TN-AR-MS
Pine Bluff
Texarkana, AR-TX

California

Antioch-Pittsburgh
Bakersfield
Chico
Davis
Fairfield
Fresno
Hemet-San Jacinto
Hesperia-Apple Valley-Victorville
Indio-Coachella
Lancaster-Palmdale
Lodi
Lompoc
Los Angeles
Merced
Modesto
Napa
Oxnard-Ventura
Palm Springs
Redding
Riverside-San Bernardino
Sacramento
Salinas
San Diego
San Francisco-Oakland
San Jose
San Luis Obispo
Santa Barbara
Santa Cruz
Santa Maria
Santa Rosa
Seaside-Monterey
Simi Valley
Stockton
Vacaville
Visalia
Watsonville
Yuba City
Yuma

Colorado

Boulder
Colorado Springs
Denver
Fort Collins
Grand Junction
Greeley
Longmont
Pueblo

Connecticut

Bridgeport-Milford
Bristol
Danbury, CT-NY
Hartford-Middletown
New Britain
New Haven-Meriden
New London-Norwich
Norwalk
Springfield, MA-CT
Stamford, CT-NY
Waterbury
Worcester, MA-CT

Delaware

Dover
Wilmington, DE-NJ-MD-PA

District of Columbia

Washington, DC-MD-VA

Florida

Daytona Beach
Deltona
Fort Lauderdale-Hollywood-Pompano Beach
Fort Myers-Cape Coral
Fort Pierce
Fort Walton Beach
Gainesville
Jacksonville
Kissimmee
Lakeland
Melbourne-Palm Bay
Miami-Hialeah
Naples
Ocala
Orlando
Panama City
Pensacola
Punta Gorda
Sarasota-Bradenton
Spring Hill
Stuart
Tallahassee
Tampa-St. Petersburg-Clearwater
Titusville
Vero Beach
West Palm Beach-Boca Raton-Delray Beach
Winter Haven

Georgia

Albany
Athens
Atlanta
Augusta
Brunswick
Chattanooga
Columbus
Macon
Rome
Savannah
Warner Robins

Hawaii

Honolulu
Kailua

Idaho

Boise City
Idaho Falls
Pocatello

Illinois

Alton
Aurora
Beloit, WI-IL
Bloomington-Normal
Champaign-Urbana
Chicago, IL-Northwestern IN
Crystal Lake
Davenport-Rock Island-Moline, IA-IL
Decatur
Dubuque
Elgin
Joliet
Kankakee
Peoria
Rockford
Round Lake Beach-McHenry, IL-WI
St. Louis, MO-IL
Springfield

Indiana

Anderson
Bloomington
Chicago, IL-Northwestern IN
Elkhart-Goshen
Evansville, IN-KY
Fort Wayne
Indianapolis
Kokomo
Lafayette-West Lafayette
Louisville, KY-IN
Muncie
South Bend-Mishawaka, IN-MI
Terre Haute

Iowa

Cedar Rapids
Davenport-Rock Island-Moline, IA-IL
Des Moines
Dubuque, IA-IL-WI
Iowa City
Omaha, NE-IA
Sioux City, IA-NE-SD
Waterloo-Cedar Falls

Kansas

Kansas City, MO-KS
Lawrence
St. Joseph, MO-KS
Topeka
Wichita

Kentucky

Cincinnati, OH-KY
Clarksville, TN-KY
Evansville, IN-KY
Huntington-Ashland, WV-KY-OH
Lexington-Fayette
Louisville, KY-IN
Owensboro

Louisiana

Alexandria
Baton Rouge
Houma
Lafayette
Lake Charles
Monroe
New Orleans
Shreveport

[[Page 68806]]

Slidell

Maine

Bangor
Lewiston-Auburn
Portland
Portsmouth-Dover-Rochester, NH-ME

Maryland

Annapolis
Baltimore
Cumberland
Frederick
Hagerstown, MD-PA-WV
Washington, DC-MD-VA
Wilmington, DE-NJ-MD-PA

Massachusetts

Boston
Brockton
Fall River, MA-RI
Fitchburg-Leominster
Hyannis
Lawrence-Haverhill, MA-NH
Lowell, MA-NH
New Bedford
Pittsfield
Providence-Pawtucket, RI-MA
Springfield, MA-CT
Taunton
Worcester, MA-CT

Michigan

Ann Arbor
Battle Creek
Bay City
Benton Harbor
Detroit
Flint
Grand Rapids
Holland
Jackson
Kalamazoo
Lansing-East Lansing
Muskegon
Port Huron
Saginaw
South Bend-Mishawaka, IN-MI
Toledo, OH-MI

Minnesota

Duluth, MN-WI
Fargo-Moorhead, ND-MN
Grand Forks, ND-MN
La Crosse, WI-MN
Minneapolis-St.Paul
Rochester
St. Cloud

Mississippi

Biloxi-Gulfport
Hattiesburg
Jackson
Memphis, TN-AR-MS
Pascagoula

Missouri

Columbia
Joplin
Kansas City, MO-KS
St. Joseph, MO-KS
St. Louis, MO-IL
Springfield

Montana

Billings
Great Falls
Missoula

Nebraska

Lincoln
Omaha, NE-IA
Sioux City, IA-NE-SD

Nevada

Las Vegas
Reno

New Hampshire

Lawrence-Haverhill, MA-NH
Lowell, MA-NH
Manchester
Nashua
Portsmouth-Dover-Rochester, NH-ME

New Jersey

Allentown-Bethlehem-Easton, PA-NJ
Atlantic City
New York, NY-Northeastern NJ
Philadelphia, PA-NJ
Trenton, NJ-PA
Vineland-Millville
Wilmington, DE-NJ-MD-PA

New Mexico

Albuquerque
El Paso
Las Cruces
Santa Fe

New York

Albany-Schenectady-Troy
Binghamton
Buffalo-Niagara Falls
Danbury, CT-NY
Elmira
Glens Falls
Ithaca
Newburgh
New York, NY-Northeastern NJ
Poughkeepsie
Rochester
Stamford, CT-NY
Syracuse
Utica-Rome

North Carolina

Asheville
Burlington
Charlotte
Durham
Fayetteville
Gastonia
Goldsboro
Greensboro
Greenville
Hickory
High Point
Jacksonville
Kannapolis
Raleigh
Rocky Mount
Wilmington
Winston-Salem

North Dakota

Bismark
Fargo-Moorhead, ND-MN
Grand Forks, ND-MN

Ohio

Akron
Canton
Cincinnati, OH-KY
Cleveland
Columbus
Dayton
Hamilton
Huntington-Ashland, WV-KY-OH
Lima
Lorain-Elyria
Mansfield
Middletown
Newark
Parkersburg, WV-OH
Sharon, PA-OH
Springfield
Steubenville-Weirton, OH-WV-PA
Toledo, OH-MI
Wheeling, WV-OH
Youngstown-Warren

Oklahoma

Fort Smith, AR-OK
Lawton
Oklahoma City
Tulsa

Oregon

Eugene-Springfield
Longview
Medford
Portland-Vancouver, OR-WA
Salem

Pennsylvania

Allentown-Bethlehem-Easton, PA-NJ
Altoona
Erie
Hagerstown, MD-PA-WV
Harrisburg
Johnstown
Lancaster
Monessen
Philadelphia, PA-NJ
Pittsburgh
Pottstown
Reading
Scranton-Wilkes-Barre
Sharon, PA-OH
State College
Steubenville-Weirton, OH-WV-PA
Trenton, NJ-PA
Williamsport
Wilmington, DE-NJ-MD-PA
York

Rhode Island

Fall River, MA-RI
Newport
Providence-Pawtucket, RI-MA

South Carolina

Anderson
Augusta, GA-SC
Charleston
Columbia
Florence
Greenville
Myrtle Beach
Rock Hill
Spartanburg
Sumter

South Dakota

Rapid City
Sioux City, IA-NE-SD
Sioux Falls

Tennessee

Bristol, TN-Bristol, VA

[[Page 68807]]

Chattanooga, TN-GA
Clarksville, TN-KY
Jackson
Johnson City
Kingsport, TN-VA
Knoxville
Memphis, TN-AR-MS
Nashville

Texas

Abilene
Amarillo
Austin
Beaumont
Brownsville
Bryan-College Station
Corpus Christi
Dallas-Fort Worth
Denton
El Paso, TX-NM
Galveston
Harlingen
Houston
Killeen
Laredo
Lewisville
Longview
Lubbock
McAllen-Edinburg-Mission
Midland
Odessa
Port Arthur
San Angelo
San Antonio
Sherman-Denison
Temple
Texarkana, TX-Texarkana, AR
Texas City
Tyler
Victoria
Waco
Wichita Falls

Utah

Logan
Ogden
Provo-Orem
Salt Lake City

Vermont

Burlington

Virginia

Bristol, TN-Bristol, VA
Charlottesville
Danville
Fredericksburg
Kingsport, TN-VA
Lynchburg
Norfolk-Virginia Beach-Newport News
Petersburg
Richmond
Roanoke
Washington, DC-MD-VA

Washington

Bellingham
Bremerton
Longview, WA-OR
Olympia
Portland-Vancouver, OR-WA
Richland-Kennewick-Pasco
Seattle
Spokane
Tacoma
Yakima

West Virginia

Charleston
Cumberland, MD-WV
Hagerstown, MD-PA-WV
Huntington-Ashland, WV-KY-OH
Parkersburg, WV-OH
Steubenville-Weirton, OH-WV-PA
Wheeling, WV-OH

Wisconsin

Appleton-Neenah
Beloit, WI-IL
Duluth, MN-WI
Eau Claire
Green Bay
Janesville
Kenosha
La Crosse, WI-MN
Madison
Milwaukee
Oshkosh
Racine
Round Lake Beach-McHenry, IL-WI
Sheboygan
Wausau

Wyoming

Casper
Cheyenne

Puerto Rico

Aquadilla
Arecibo
Caguas
Cayey
Humacao
Mayaguez
Ponce
San Juan
Vega Baja-Manati

BILLING CODE 6560-50-P

[[Page 68808]]

Appendix 4 to the Preamble--No Exposure Certification Form
[GRAPHIC] [TIFF OMITTED] TR08DE99.003

[[Page 68809]]

[GRAPHIC] [TIFF OMITTED] TR08DE99.002

[[Page 68810]]

[GRAPHIC] [TIFF OMITTED] TR08DE99.004

[[Page 68811]]

[GRAPHIC] [TIFF OMITTED] TR08DE99.005

BILLING CODE 6560-50-C

Appendix 5 to Preamble--Regulatory Flexibility for Small Entities

A. Regulatory Flexibility for Small Municipal Storm Sewer Systems
(MS4s)

Different Compliance, Reporting, or Timetables That Are Responsive
to Resources of Small Entities

NPDES permitting authorities can issue general permits instead
of requiring individual permits. This flexibility avoids the high
application costs and administrative burden associated with
individual permits.
NPDES permitting authorities can specify a time period of up to
five years for small MS4s to fully develop and implement their
program
Analytic monitoring is not required.
After the first permit term and subsequent permit terms,
submittal of a summary report is only required in years two and four
(Phase I municipalities are currently required to submit a detailed
report each year).
A brief reporting format is encouraged to facilitate compiling
and analyzing data from submitted reports. EPA intends to develop a
model form for this purpose.
NPDES Permitting Authorities can phase in permit coverage for
small MS4s serving jurisdictions with a population under 10,000 on a
schedule consistent with a State watershed permitting approach.

Clarifying, Consolidating, or Simplifying Compliance and Reporting
Requirements

The rule avoids duplication in permit requirements by allowing
NPDES permitting authorities to include permit conditions that
direct an MS4 to follow the requirements of a qualifying local
program rather than the requirements of a minimum measure.
Compliance with these programs is considered compliance with the
NPDES general permit.
The rule allows NPDES permitting authorities to recognize
existing responsibilities among different municipal entities to
satisfy obligations for the minimum control measures.
A further alternative allows a small MS4 to satisfy its NPDES
permit obligations if another governmental entity is already
implementing a minimum control measure in the jurisdiction of the
small MS4. The following conditions must be met:
1. The other entity is implementing the control measure,
2. The particular control measure (or component thereof) is at
least as stringent as the corrersponding NPDES permit requirement,
and
3. The other entity agrees to implement the control measure on
your behalf.
The rule allows a covered small MS4 to ``piggy-back'' on to the
storm water management program of an adjoining Phase I MS4. A small
MS4 is waived from the application requirements of
Sec. 122.26(d)(1)(iii), (iv) and (d)(2)(iii) [discharge
characterization] and may satisfy the requirements of
Sec. 122.26(d)(1)(v) and (d)(2)(iv) [identifying a management plan]
by referencing the adjoining Phase I MS4's storm water management
plan.
The rule accommodates the use of the watershed approach through
NPDES general permits that could be issued on a watershed basis. The
small MS4 can develop measures that are tailored to meet their
watershed requirements. The small MS4's storm water management
program can tie into watershed-wide plans.

Performance Rather Than Design Standards for Small Entities

Small governmental jurisdictions whose MS4s are covered by this
rule are allowed to choose the best management practices (BMPs) to
be implemented and the measurable goals for each of the minimum
control measures:
1. Public education and outreach on storm water impacts
2. Public Involvement/Participation
3. Illicit discharge detection and elimination

[[Page 68812]]

4. Construction site storm water runoff control
5. Post-construction storm water management in new development
and redevelopment
6. Pollution prevention/good housekeeping for municipal
operations
EPA will provide guidance and recommend, but not mandate,
certain BMPs for some of the minimum control measures listed above.
States can provide guidance to supplement or supplant EPA guidance.
Small MS4s can identify the measurable goals for each of the
minimum control measures listed above. In their reports to the NPDES
permitting authority, the small MS4s must evaluate their progress
towards achievement of their identified measurable goals.

Waivers for Small Entities From Coverage

The rule allows permitting authorities to waive from coverage
MS4s operated by small governmental jurisdictions located within an
urbanized area and serving a population less than 1,000 people where
the permitting authority has determined the MS4 is not contributing
substantially to the pollutant loadings of an interconnected MS4
and, if the MS4 discharges pollutants that have been identified as a
cause of impairment in the receiving water of the MS4 then the
permitting authority has determined that storm water controls are
not needed based on a TMDL that addresses the pollutants of concern.
The rule allows the permitting authority to waive from coverage
MS4s serving a population under 10,000 where the permitting
authority has evaluated all waters that receive a discharge from the
MS4 and the permitting authority has determined that storm water
controls are not needed based on a TMDL that addresses the
pollutants of concern and future discharges do not have the
potential to result in exceedances of water quality standards.

B. Regulatory Flexibility for Small Construction Activities

Different Compliance, Reporting, or Timetables That Are Responsive
to Resources of Small Entities

The rule gives NPDES permitting authorities discretion not to
require the submittal of a notice of intent (NOI) for coverage under
a NPDES general permit, thereby reducing administrative and
financial burden. All construction sites disturbing greater than 5
acres must submit an NOI.

Clarifying, Consolidating, or Simplifying Compliance and Reporting
Requirements

The rule avoids duplication by allowing the NPDES permitting
authority to incorporate by reference State, Tribal, or local
programs under a NPDES general permit. Compliance with these
programs is considered compliance with the NPDES general permit.

Performance Rather Than Design Standards for Small Entities

The operator of a covered construction activity selects and
implement the BMPs most appropriate for the construction site based
on the operator's storm water pollution prevention plan.

Waivers for Small Entities From Coverage

Waivers could be granted based on the use of a rainfall
erosivity factor or a comprehensive analysis of water quality
impacts.
(A) Low rainfall waiver: When the rainfall erosivity factor
(``R'' from Revised Universal Soil Loss Equation) is less than 5
during the period of construction activity, a permit is not
required.
(B) Determination based on Water Quality Analysis: The NPDES
permitting authority can waive from coverage construction activities
disturbing from 1 acre up to 5 acres of land where storm water
controls are not needed based on:
1. A TMDL approved or established by EPA that addresses the
pollutants of concern, or
2. For non-impaired waters, an equivalent analysis that
determines that such allocations are not needed to protect water
quality based on consideration of existing in-stream concentrations,
expected growth in pollutant contributions from all sources, and a
margin of safety.

C. Regulatory Flexibility for Industrial/Commercial Facilities

Waivers for Small Entities From Coverage

The rule provides a ``no-exposure'' waiver provision for Phase I
industrial/commercial facilities. Qualifying facilities seeking this
provision simply need to complete a self-certification form
indicating that no industrial materials or activities are exposed to
rain, snow, snow melt and/or runoff.

Appendix 6 of Preamble--Governmental Entities Located Fully or
Partially Within an Urbanized Area

(This is a reference list only, not a list of all operators of
small MS4s subject to Secs. 122.32-122.36. For example, a listed
governmental entity is only regulated if it operates a small MS4
within an ``urbanized area'' boundary as determined by the Bureau of
the Census. Furthermore, entities such as military bases, large
hospitals, prison complexes, universities, sewer districts, and
highway departments that operate a small MS4 within an urbanized
area are also subject to the permitting regulations but are not
individually listed here. See Sec. 122.26(b)(16) for the definition
of a small MS4 and Sec. 122.32(a) for the definition of a regulated
small MS4.)
(Source: 1990 Census of Population and Housing, U.S. Bureau of
the Census. This list is subject to change with the Decennial
Census)
AL Anniston city
AL Attalla city
AL Auburn city
AL Autauga County
AL Blue Mountain town
AL Calhoun County
AL Colbert County
AL Dale County
AL Decatur city
AL Dothan city
AL Elmore County
AL Etowah County
AL Flint City town
AL Florence city
AL Gadsden city
AL Glencoe city
AL Grimes town
AL Hartselle city
AL Hobson City town
AL Hokes Bluff city
AL Houston County
AL Kinsey town
AL Lauderdale County
AL Lee County
AL Limestone County
AL Madison County
AL Midland City town
AL Montgomery County
AL Morgan County
AL Muscle Shoals city
AL Napier Field town
AL Northport city
AL Opelika city
AL Oxford city
AL Phenix City city
AL Prattville city
AL Priceville town
AL Rainbow City city
AL Russell County
AL Sheffield city
AL Southside city
AL Sylvan Springs town
AL Talladega County
AL Tuscaloosa city
AL Tuscaloosa County
AL Tuscumbia city
AL Weaver city
AR Alexander town
AR Barling city
AR Benton County
AR Cammack Village city
AR Crawford County
AR Crittenden County
AR Farmington city
AR Fayetteville city
AR Fort Smith city
AR Greenland town
AR Jacksonville city
AR Jefferson County
AR Johnson city
AR Marion city
AR Miller County
AR North Little Rock city
AR Pine Bluff city
AR Pulaski County
AR Saline County
AR Sebastian County
AR Shannon Hills city
AR Sherwood city
AR Springdale city
AR Sunset town
AR Texarkana city
AR Van Buren city
AR Washington County
AR West Memphis city
AR White Hall city
AZ Apache Junction city
AZ Chandler city
AZ El Mirage town
AZ Gilbert town
AZ Guadalupe town
AZ Maricopa County
AZ Oro Valley town
AZ Paradise Valley town
AZ Peoria city
AZ Pinal County

[[Page 68813]]

AZ South Tucson city
AZ Surprise town
AZ Tolleson city
AZ Youngtown town
AZ Yuma city
AZ Yuma County
CA Apple Valley town
CA Belvedere city
CA Benicia city
CA Brentwood city
CA Butte County
CA Capitola city
CA Carmel-by-the-Sea city
CA Carpinteria city
CA Ceres city
CA Chico city
CA Compton city
CA Corte Madera town
CA Cotati city
CA Davis city
CA Del Rey Oaks city
CA Fairfax town
CA Hesperia city
CA Imperial County
CA Lakewood city
CA Lancaster city
CA Larkspur city
CA Lodi city
CA Lompoc city
CA Marin County
CA Marina city
CA Marysville city
CA Merced city
CA Merced County
CA Mill Valley city
CA Monterey city
CA Monterey County
CA Morgan Hill city
CA Napa city
CA Napa County
CA Novato city
CA Pacific Grove city
CA Palm Desert city
CA Palmdale city
CA Piedmont city
CA Placer County
CA Redding city
CA Rocklin city
CA Rohnert Park city
CA Roseville city
CA Ross town
CA San Anselmo town
CA San Buenaventura (Ventura) city
CA San Francisco city
CA San Joaquin County
CA San Luis Obispo city
CA San Luis Obispo County
CA San Rafael city
CA Sand City city
CA Santa Barbara city
CA Santa Barbara County
CA Santa Cruz city
CA Santa Cruz County
CA Santa Maria city
CA Sausalito city
CA Scotts Valley city
CA Seaside city
CA Shasta County
CA Solano County
CA Sonoma County
CA Stanislaus County
CA Suisun City city
CA Sutter County
CA Tiburon town
CA Tulare County
CA Vacaville city
CA Victorville city
CA Villa Park city
CA Visalia city
CA Watsonville city
CA West Sacramento city
CA Yolo County
CA Yuba City city
CA Yuba County
CO Adams County
CO Arvada city
CO Boulder city
CO Boulder County
CO Bow Mar town
CO Broomfield city
CO Cherry Hills Village city
CO Columbine Valley town
CO Commerce City city
CO Douglas County
CO Edgewater city
CO El Paso County
CO Englewood city
CO Evans city
CO Federal Heights city
CO Fort Collins city
CO Fountain city
CO Garden City town
CO Glendale city
CO Golden city
CO Grand Junction city
CO Greeley city
CO Greenwood Village city
CO Jefferson County
CO La Salle town
CO Lakeside town
CO Larimer County
CO Littleton city
CO Longmont city
CO Manitou Springs city
CO Mesa County
CO Mountain View town
CO Northglenn city
CO Pueblo city
CO Pueblo County
CO Sheridan city
CO Thornton city
CO Weld County
CO Westminster city
CO Wheat Ridge city
CT Ansonia city
CT Avon town
CT Beacon Falls town
CT Berlin town
CT Bethel town
CT Bloomfield town
CT Bozrah town
CT Branford town
CT Bridgeport city
CT Bristol city
CT Brookfield town
CT Burlington town
CT Cheshire town
CT Cromwell town
CT Danbury city
CT Darien town
CT Derby city
CT Durham town
CT East Granby town
CT East Hartford town
CT East Haven town
CT East Lyme town
CT East Windsor town
CT Easton town
CT Ellington town
CT Enfield town
CT Fairfield County
CT Fairfield town
CT Farmington town
CT Franklin town
CT Glastonbury town
CT Greenwich town
CT Groton city
CT Groton town
CT Guilford town
CT Hamden town
CT Hartford city
CT Hartford County
CT Ledyard town
CT Lisbon town
CT Litchfield County
CT Manchester town
CT Meriden city
CT Middlebury town
CT Middlefield town
CT Middlesex County
CT Middletown city
CT Milford city (remainder)
CT Monroe town
CT Montville town
CT Naugatuck borough
CT New Britain city
CT New Canaan town
CT New Fairfield town
CT New Haven city
CT New Haven County
CT New London city
CT New London County
CT New Milford town
CT Newington town
CT Newtown town
CT North Branford town
CT North Haven town
CT Norwalk city
CT Norwich city
CT Orange town
CT Oxford town
CT Plainville town
CT Plymouth town
CT Portland town
CT Preston town
CT Prospect town
CT Rocky Hill town
CT Seymour town
CT Shelton city
CT Sherman town
CT Somers town
CT South Windsor town
CT Southington town
CT Sprague town
CT Stonington town
CT Stratford town
CT Suffield town
CT Thomaston town
CT Thompson town
CT Tolland County
CT Tolland town
CT Trumbull town
CT Vernon town
CT Wallingford town
CT Waterbury city
CT Waterford town
CT Watertown town
CT West Hartford town
CT West Haven city
CT Weston town
CT Westport town
CT Wethersfield town
CT Wilton town
CT Windham County
CT Windsor Locks town
CT Windsor town
CT Wolcott town
CT Woodbridge town

[[Page 68814]]

CT Woodmont borough
DE Camden town
DE Dover city
DE Kent County
DE Newark city
DE Wyoming town
FL Alachua County
FL Baldwin town
FL Bay County
FL Belleair Shore town
FL Biscayne Park village
FL Brevard County
FL Callaway city
FL Cape Canaveral city
FL Cedar Grove town
FL Charlotte County
FL Cinco Bayou town
FL Clay County
FL Cocoa Beach city
FL Cocoa city
FL Collier County
FL Daytona Beach city
FL Daytona Beach Shores city
FL Destin city
FL Edgewater city
FL El Portal village
FL Florida City city
FL Fort Pierce city
FL Fort Walton Beach city
FL Gainesville city
FL Gulf Breeze city
FL Hernando County
FL Hillsboro Beach town
FL Holly Hill city
FL Indialantic town
FL Indian Harbour Beach city
FL Indian River County
FL Indian River Shores town
FL Indian Shores town
FL Kissimmee city
FL Lazy Lake village
FL Lynn Haven city
FL Malabar town
FL Marion County
FL Martin County
FL Mary Esther city
FL Melbourne Beach town
FL Melbourne city
FL Melbourne Village town
FL Naples city
FL New Smyrna Beach city
FL Niceville city
FL Ocala city
FL Ocean Breeze Park town
FL Okaloosa County
FL Orange Park town
FL Ormond Beach city
FL Osceola County
FL Palm Bay city
FL Panama City city
FL Parker city
FL Ponce Inlet town
FL Port Orange city
FL Port St. Lucie city
FL Punta Gorda city
FL Rockledge city
FL Santa Rosa County
FL Satellite Beach city
FL Sewall's Point town
FL Shalimar town
FL South Daytona city
FL Springfield city
FL St. Johns County
FL St. Lucie County
FL St. Lucie village
FL Stuart city
FL Sweetwater city
FL Titusville city
FL Valparaiso city
FL Vero Beach city
FL Virginia Gardens village
FL Volusia County
FL Walton County
FL Weeki Wachee city
FL West Melbourne city
FL Windermere town
GA Albany city
GA Athens city
GA Bartow County
GA Brunswick city
GA Catoosa County
GA Centerville city
GA Chattahoochee County
GA Cherokee County
GA Chickamauga city
GA Clarke County
GA Columbia County
GA Conyers city
GA Dade County
GA Dougherty County
GA Douglas County
GA Douglasville city
GA Fayette County
GA Floyd County
GA Fort Oglethorpe city
GA Glynn County
GA Grovetown city
GA Henry County
GA Houston County
GA Jones County
GA Lee County
GA Lookout Mountain city
GA Mountain Park city
GA Oconee County
GA Payne city
GA Rockdale County
GA Rome city
GA Rossville city
GA Stockbridge city
GA Vernonburg town
GA Walker County
GA Warner Robins city
GA Winterville city
GA Woodstock city
IA Altoona city
IA Asbury city
IA Bettendorf city
IA Black Hawk County
IA Buffalo city
IA Carter Lake city
IA Cedar Falls city
IA Clive city
IA Coralville city
IA Council Bluffs city
IA Dallas County
IA Dubuque city
IA Dubuque County
IA Elk Run Heights city
IA Evansdale city
IA Hiawatha city
IA Iowa City city
IA Johnson County
IA Johnston city
IA Le Claire city
IA Linn County
IA Marion city
IA Norwalk city
IA Panorama Park city
IA Pleasant Hill city
IA Polk County
IA Pottawattamie County
IA Raymond city
IA Riverdale city
IA Robins city
IA Scott County
IA Sergeant Bluff city
IA Sioux City city
IA University Heights city
IA Urbandale city
IA Warren County
IA Waterloo city
IA West Des Moines city
IA Windsor Heights city
IA Woodbury County
ID Ada County
ID Ammon city
ID Bannock County
ID Bonneville County
ID Chubbuck city
ID Idaho Falls city
ID Iona city
ID Pocatello city
ID Power County
IL Addison township
IL Addison village
IL Algonquin township
IL Algonquin village
IL Alorton village
IL Alsip village
IL Alton city
IL Antioch township
IL Antioch village
IL Arlington Heights village
IL Aroma Park village
IL Aroma township
IL Aurora city
IL Aurora township
IL Avon township
IL Ball township
IL Bannockburn village
IL Barrington township
IL Barrington village
IL Bartlett village
IL Bartonville village
IL Batavia city
IL Batavia township
IL Beach Park village
IL Bedford Park village
IL Belleville city
IL Bellevue village
IL Bellwood village
IL Bensenville village
IL Benton township
IL Berkeley village
IL Berwyn city
IL Bethalto village
IL Blackhawk township
IL Bloom township
IL Bloomingdale township
IL Bloomingdale village
IL Bloomington city
IL Bloomington township
IL Blue Island city
IL Bolingbrook village
IL Bourbonnais township
IL Bourbonnais village
IL Bowling township
IL Bradley village
IL Bremen township
IL Bridgeview village
IL Bristol township
IL Broadview village
IL Brookfield village
IL Brooklyn village
IL Buffalo Grove village
IL Burbank city
IL Burnham village
IL Burr Ridge village

[[Page 68815]]

IL Burritt township
IL Burton township
IL Cahokia village
IL Calumet City city
IL Calumet Park village
IL Calumet township
IL Canteen township
IL Capital township
IL Carbon Cliff village
IL Carol Stream village
IL Carpentersville Village
IL Cary village
IL Caseyville township
IL Caseyville village
IL Centreville city
IL Centreville township
IL Champaign city
IL Champaign County
IL Champaign township
IL Channahon township
IL Cherry Valley township
IL Cherry Valley village
IL Chicago city
IL Chicago Heights city
IL Chicago Ridge village
IL Chouteau township
IL Cicero town
IL Cincinnati township
IL Clarendon Hills village
IL Coal Valley township
IL Coal Valley village
IL Collinsville city
IL Collinsville township
IL Colona township
IL Colona village
IL Columbia city
IL Country Club Hills city
IL Countryside city
IL Crest Hill city
IL Crestwood village
IL Crete township
IL Crete village
IL Creve Coeur village
IL Crystal Lake city
IL Cuba township
IL Curran township
IL Darien city
IL Decatur city
IL Decatur township
IL Deer Park village
IL Deerfield township
IL Deerfield village
IL Des Plaines city
IL Dixmoor village
IL Dolton village
IL Dorr township
IL Downers Grove township
IL Downers Grove village
IL Dry Grove township
IL Du Page township
IL Dundee township
IL Dunleith township
IL Dupo village
IL East Alton village
IL East Dubuque city
IL East Dundee village
IL East Hazel Crest village
IL East Moline city
IL East Peoria city
IL East St. Louis city
IL Edwardsville city
IL Edwardsville township
IL Ela township
IL Elgin city
IL Elgin township
IL Elk Grove township
IL Elk Grove Village village
IL Elm Grove township
IL Elmhurst city
IL Elmwood Park village
IL Evanston city
IL Evergreen Park village
IL Fairmont City village
IL Fairview Heights city
IL Flossmoor village
IL Fondulac township
IL Ford Heights village
IL Forest Park village
IL Forest View village
IL Forsyth village
IL Fort Russell township
IL Foster township
IL Fox Lake village
IL Fox River Grove village
IL Frankfort township
IL Frankfort village
IL Franklin Park village
IL Fremont township
IL Gardner township
IL Geneva city
IL Geneva township
IL Gilberts village
IL Glen Carbon village
IL Glen Ellyn village
IL Glencoe village
IL Glendale Heights village
IL Glenview village
IL Glenwood village
IL Godfrey township
IL Golf village
IL Grafton township
IL Grandview village
IL Granite City city
IL Grant township
IL Grayslake village
IL Green Oaks village
IL Green Rock city
IL Groveland township
IL Gurnee village
IL Hainesville village
IL Hampton township
IL Hampton village
IL Hanna township
IL Hanover Park village
IL Hanover township
IL Harlem township
IL Harristown township
IL Harristown village
IL Hartford village
IL Harvey city
IL Harwood Heights village
IL Hawthorn Woods village
IL Hazel Crest village
IL Henry County
IL Hensley township
IL Hickory Hills city
IL Hickory Point township
IL Highland Park city
IL Highwood city
IL Hillside village
IL Hinsdale village
IL Hodgkins village
IL Hoffman Estates village
IL Hollis township
IL Homer township
IL Hometown city
IL Homewood village
IL Indian Creek village
IL Indian Head Park village
IL Inverness village
IL Itasca village
IL Jarvis township
IL Jerome village
IL Jo Daviess County
IL Joliet city
IL Joliet township
IL Justice village
IL Kane County
IL Kankakee city
IL Kankakee County
IL Kankakee township
IL Kendall County
IL Kenilworth village
IL Kickapoo township
IL Kildeer village
IL La Grange Park village
IL La Grange village
IL Lake Barrington village
IL Lake Bluff village
IL Lake Forest city
IL Lake in the Hills village
IL Lake Villa township
IL Lake Villa village
IL Lake Zurich village
IL Lakemoor village
IL Lakewood village
IL Lansing village
IL Leland Grove city
IL Lemont township
IL Leyden township
IL Libertyville township
IL Libertyville village
IL Limestone township
IL Lincolnshire village
IL Lincolnwood village
IL Lindenhurst village
IL Lisle township
IL Lisle village
IL Lockport city
IL Lockport township
IL Lombard village
IL Long Creek township
IL Long Grove village
IL Loves Park city
IL Lynwood village
IL Lyons township
IL Lyons village
IL Machesney Park village
IL Macon County
IL Madison city
IL Madison County
IL Maine township
IL Markham city
IL Marquette Heights city
IL Maryville village
IL Matteson village
IL Maywood village
IL McCook village
IL McCullom Lake village
IL McHenry city
IL McHenry County
IL McHenry township
IL McLean County
IL Medina township
IL Melrose Park village
IL Merrionette Park village
IL Midlothian village
IL Milan village
IL Milton township
IL Moline city
IL Moline township
IL Monee township
IL Monroe County
IL Montgomery village
IL Moro township
IL Morton Grove village
IL Morton township
IL Morton village

[[Page 68816]]

IL Mount Prospect village
IL Mount Zion township
IL Mount Zion village
IL Mundelein village
IL Nameoki township
IL Naperville city
IL Naperville township
IL National City village
IL New Lenox township
IL New Lenox village
IL New Millford village
IL New Trier township
IL Newport township
IL Niles township
IL Niles village
IL Normal town
IL Normal township
IL Norridge village
IL North Aurora village
IL North Barrington village
IL North Chicago city
IL North Pekin village
IL North Riverside village
IL Northbrook village
IL Northfield township
IL Northfield village
IL Northlake city
IL Norwood Park township
IL Norwood village
IL Nunda township
IL Oak Brook village
IL Oak Forest city
IL Oak Grove village
IL Oak Lawn village
IL Oak Park village
IL Oakbrook Terrace city
IL Oakley township
IL Oakwood Hills village
IL O'Fallon city
IL O'Fallon township
IL Olympia Fields village
IL Orland Hills village
IL Orland Park village
IL Orland township
IL Oswego township
IL Oswego village
IL Otto township
IL Owen township
IL Palatine township
IL Palatine village
IL Palos Heights city
IL Palos Hills city
IL Palos Park village
IL Palos township
IL Park City city
IL Park Forest village
IL Park Ridge city
IL Pekin city
IL Pekin township
IL Peoria city
IL Peoria County
IL Peoria Heights village
IL Phoenix village
IL Pin Oak township
IL Plainfield township
IL Plainfield village
IL Pontoon Beach village
IL Posen village
IL Precinct 10
IL Prospect Heights city
IL Proviso township
IL Rich township
IL Richton Park village
IL Richwoods township
IL River Forest village
IL River Grove village
IL Riverdale village
IL Riverside township
IL Riverside village
IL Riverwoods village
IL Robbins village
IL Rochester township
IL Rock Island city
IL Rock Island County
IL Rock Island township
IL Rockdale village
IL Rockford township
IL Rockton township
IL Rockton village
IL Rolling Meadows city
IL Romeoville village
IL Roscoe township
IL Roscoe village
IL Roselle village
IL Rosemont village
IL Round Lake Beach village
IL Round Lake Heights village
IL Round Lake Park village
IL Round Lake village
IL Roxana village
IL Rutland township
IL Sangamon County
IL Sauget village
IL Sauk Village village
IL Savoy village
IL Schaumburg township
IL Schaumburg village
IL Schiller Park village
IL Shields township
IL Shiloh Valley township
IL Shiloh village
IL Shorewood village
IL Silvis city
IL Skokie village
IL Sleepy Hollow village
IL Somer township
IL South Beloit city
IL South Chicago Heights village
IL South Elgin village
IL South Holland village
IL South Moline township
IL South Rock Island township
IL South Roxana village
IL South Wheatland township
IL Southern View village
IL Spring Bay township
IL Springfield city
IL Springfield township
IL St. Charles city
IL St. Charles township
IL St. Clair County
IL St. Clair township
IL Steger village
IL Stickney township
IL Stickney village
IL Stites township
IL Stone Park village
IL Stookey township
IL Streamwood village
IL Sugar Grove township
IL Sugar Loaf township
IL Summit village
IL Sunnyside village

IL Swansea village
IL Tazewell County
IL Thornton township
IL Thornton village
IL Tinley Park village
IL Tolono township
IL Tower Lakes village
IL Tremont township
IL Troy city
IL Troy township
IL University Park village
IL Urbana city
IL Urbana township
IL Venice city
IL Venice township
IL Vernon Hills village
IL Vernon township
IL Villa Park village
IL Warren township
IL Warrenville city
IL Washington city
IL Washington Park village
IL Washington township
IL Wauconda township
IL Waukegan city
IL Waukegan township
IL Wayne township
IL West Chicago city
IL West Deerfield township
IL West Dundee village
IL West Peoria township
IL Westchester village
IL Western Springs village
IL Westmont village
IL Wheatland township
IL Wheaton city
IL Wheeling township
IL Wheeling village
IL Whitmore township
IL Will County
IL Willow Springs village
IL Willowbrook village
IL Wilmette village
IL Winfield township
IL Winfield village
IL Winnebago County
IL Winnetka village
IL Winthrop Harbor village
IL Wood Dale city
IL Wood River city
IL Wood River township
IL Woodford County
IL Woodridge village
IL Woodside township
IL Worth township
IL Worth village
IL York township
IL Zion city
IN Aboite township
IN Adams township
IN Allen County
IN Anderson city
IN Anderson township
IN Baugo township
IN Beech Grove city
IN Bloomington city
IN Bloomington township
IN Boone County
IN Buck Creek township
IN Calumet township
IN Carmel city
IN Castleton town
IN Cedar Creek township
IN Center township
IN Centre township
IN Chesterfield town
IN Chesterton town
IN Clark County
IN Clarksville town
IN Clay township
IN Clermont town
IN Cleveland township
IN Concord township
IN Country Club Heights town

[[Page 68817]]

IN Crown Point city
IN Crows Nest town
IN Cumberland town
IN Daleville town
IN Delaware County
IN Delaware township
IN Dyer town
IN Eagle township
IN East Chicago city
IN Edgewood town
IN Elkhart city
IN Elkhart County
IN Elkhart township
IN Evansville city
IN Fairfield township
IN Fall Creek township
IN Fishers town
IN Floyd County
IN Fort Wayne city
IN Franklin township
IN Gary city
IN German township
IN Goshen city
IN Greenwood city
IN Griffith town
IN Hamilton County
IN Hamilton township
IN Hammond city
IN Hancock County
IN Hanover township
IN Harris township
IN Harrison township
IN Hendricks County
IN Highland town
IN Hobart city
IN Hobart township
IN Homecroft town
IN Honey Creek township
IN Howard County
IN Howard township
IN Indian Village town
IN Jackson township
IN Jefferson township
IN Jeffersonville city
IN Jeffersonville township
IN Johnson County
IN Knight township
IN Kokomo city
IN Lafayette city
IN Lafayette township
IN Lake County
IN Lake Station city
IN Lawrence city
IN Lawrence township
IN Liberty township
IN Lincoln township
IN Lost Creek township
IN Madison County
IN Meridian Hills town
IN Merrillville town
IN Mishawaka city
IN Monroe County
IN Mount Pleasant township
IN Muncie city
IN Munster town
IN New Albany city
IN New Albany township
IN New Chicago town
IN New Haven city
IN New Whiteland town
IN Newburgh town
IN North Crows Nest town
IN North township
IN Ogden Dunes town
IN Ohio township
IN Osceola town
IN Osolo township
IN Otter Creek township
IN Penn township
IN Perry township
IN Pigeon township
IN Pike township
IN Pleasant township
IN Portage city
IN Portage township
IN Porter County
IN Porter town
IN Richland township
IN Riley township
IN River Forest town
IN Rocky Ripple town
IN Roseland town
IN Ross township
IN Salem township
IN Schererville town
IN Seelyville town
IN Sellersburg town
IN Selma town
IN Silver Creek township
IN South Bend city
IN Southport city
IN Speedway town
IN Spring Hill town
IN St. John town
IN St. John township
IN St. Joseph County
IN St. Joseph township
IN Sugar Creek township
IN Taylor township
IN Terre Haute city
IN Tippecanoe County
IN Tippecanoe township
IN Union township
IN Utica township
IN Van Buren township
IN Vanderburgh County
IN Vigo County
IN Wabash township
IN Warren Park town
IN Warren township
IN Warrick County
IN Washington township
IN Wayne township
IN Wea township
IN West Lafayette city
IN West Terre Haute town
IN Westchester township
IN Westfield town
IN White River township
IN Whiteland town
IN Whiting city
IN Williams Creek town
IN Woodlawn Heights town
IN Wynnedale town
IN Yorktown town
IN Zionsville town
KS Attica township
KS Bel Aire city
KS Countryside city
KS Delano township
KS Doniphan County
KS Douglas County
KS Eastborough city
KS Elwood city
KS Fairway city
KS Gypsum township
KS Haysville city
KS Johnson County
KS Kechi city
KS Kechi township
KS Lake Quivira city
KS Lawrence city
KS Leawood city
KS Lenexa city
KS Merriam city
KS Minneha township
KS Mission city
KS Mission Hills city
KS Mission township
KS Mission Woods city
KS Monticello township
KS Ohio township
KS Olathe city
KS Olathe township
KS Park City city
KS Park township
KS Prairie Village city
KS Riverside township
KS Roeland Park city
KS Salem township
KS Sedgwick County
KS Shawnee city
KS Shawnee County
KS Shawnee township
KS Soldier township
KS Tecumseh township
KS Topeka township
KS Waco township
KS Wakarusa township
KS Washington township
KS Westwood city
KS Westwood Hills city
KS Williamsport township
KS Wyandotte County
KY Alexandria city
KY Ashland city
KY Bellefonte city
KY Bellevue city
KY Boone County
KY Boyd County
KY Bromley city
KY Bullitt County
KY Campbell County
KY Catlettsburg city
KY Christian County
KY Covington city
KY Crescent Park city
KY Crescent Springs city
KY Crestview city
KY Crestview Hills city
KY Daviess County
KY Dayton city
KY Edgewood city
KY Elsmere city
KY Erlanger city
KY Fairview city
KY Flatwoods city
KY Florence city
KY Forest Hills city
KY Fort Mitchell city
KY Fort Thomas city
KY Fort Wright city
KY Fox Chase city
KY Greenup County
KY Hebron Estates city
KY Henderson city
KY Henderson County
KY Highland Heights city
KY Hillview city
KY Hunters Hollow city
KY Independence city
KY Jessamine County
KY Kenton County
KY Kenton Vale city
KY Lakeside Park city
KY Latonia Lakes city
KY Ludlow city
KY Melbourne city

[[Page 68818]]

KY Newport city
KY Oak Grove city
KY Owensboro city
KY Park Hills city
KY Pioneer Village city
KY Raceland city
KY Russell city
KY Silver Grove city
KY Southgate city
KY Taylor Mill city
KY Villa Hills city
KY Wilder city
KY Woodlawn city
KY Wurtland city
LA Alexandria city
LA Baker city
LA Ball town
LA Bossier City city
LA Bossier Parish
LA Broussard town
LA Caddo Parish
LA Calcasieu Parish
LA Carencro city
LA Denham Springs city
LA Houma city
LA Lafayette city
LA Lafayette Parish
LA Lafourche Parish
LA Lake Charles city
LA Livingston Parish
LA Monroe city
LA Ouachita Parish
LA Pineville city
LA Plaquemines Parish
LA Port Allen city
LA Rapides Parish
LA Richwood town
LA Scott town
LA Slidell city
LA St. Bernard Parish
LA St. Charles Parish
LA St. Tammany Parish
LA Sulphur city
LA Terrebonne Parish
LA West Baton Rouge Parish
LA West Monroe city
LA Westlake city
LA Zachary city
MA Abington town
MA Acton town
MA Acushnet town
MA Agawam town
MA Amesbury town
MA Andover town
MA Arlington town
MA Ashland town
MA Attleboro city
MA Auburn town
MA Avon town
MA Barnstable County
MA Barnstable town
MA Bedford town
MA Bellingham town
MA Belmont town
MA Berkshire County
MA Beverly city
MA Billerica town
MA Blackstone town
MA Boxborough town
MA Boylston town
MA Braintree town
MA Bridgewater town
MA Bristol County
MA Brockton city
MA Brookline town
MA Burlington town
MA Cambridge city
MA Canton town
MA Charlton town
MA Chelmsford town
MA Chelsea city
MA Chicopee city
MA Cohasset town
MA Concord town
MA Dalton town
MA Danvers town
MA Dartmouth town
MA Dedham town
MA Dennis town
MA Dighton town
MA Dover town
MA Dracut town
MA Dudley town
MA East Bridgewater town
MA East Longmeadow town
MA Easthampton town
MA Easton town
MA Essex County
MA Essex town
MA Everett city
MA Fairhaven town
MA Fall River city
MA Fitchburg city
MA Foxborough town
MA Framingham town
MA Franklin town
MA Freetown town
MA Georgetown town
MA Gloucester city
MA Grafton town
MA Granby town
MA Groton town
MA Groveland town
MA Hadley town
MA Halifax town
MA Hamilton town
MA Hampden County
MA Hampden town
MA Hampshire County
MA Hanover town
MA Hanson town
MA Haverhill city
MA Hingham town
MA Hinsdale town
MA Holbrook town
MA Holden town
MA Holliston town
MA Holyoke city
MA Hudson town
MA Hull town
MA Lanesborough town
MA Lawrence city
MA Leicester town
MA Leominster city
MA Lexington town
MA Lincoln town
MA Littleton town
MA Longmeadow town
MA Lowell city
MA Ludlow town
MA Lunenburg town
MA Lynn city
MA Lynnfield town
MA Malden city
MA Manchester town
MA Mansfield town
MA Marblehead town
MA Marlborough city
MA Mashpee town
MA Maynard town
MA Medfield town
MA Medford city
MA Medway town
MA Melrose city
MA Merrimac town
MA Methuen town
MA Middlesex County
MA Middleton town
MA Millbury town
MA Millis town
MA Millville town
MA Milton town
MA Nahant town
MA Natick town
MA Needham town
MA New Bedford city
MA Newton city
MA Norfolk town
MA North Andover town
MA North Attleborough town
MA North Reading town
MA Northampton city
MA Northborough town
MA Northbridge town
MA Norton town
MA Norwell town
MA Norwood town
MA Oxford town
MA Paxton town
MA Peabody city
MA Pembroke town
MA Pittsfield city
MA Plainville town
MA Plymouth County
MA Quincy city
MA Randolph town
MA Raynham town
MA Reading town
MA Rehoboth town
MA Revere city
MA Rockland town
MA Rockport town
MA Salem city
MA Sandwich town
MA Saugus town
MA Scituate town
MA Seekonk town
MA Sharon town
MA Shrewsbury town
MA Somerset town
MA Somerville city
MA South Hadley town
MA Southampton town
MA Southborough town
MA Southwick town
MA Springfield city
MA Stoneham town
MA Stoughton town
MA Stow town
MA Sudbury town
MA Sutton town
MA Swampscott town
MA Swansea town
MA Taunton city
MA Tewksbury town
MA Tyngsborough town
MA Uxbridge town
MA Wakefield town
MA Walpole town
MA Waltham city
MA Watertown town
MA Wayland town
MA Webster town
MA Wellesley town
MA Wenham town
MA West Boylston town
MA West Bridgewater town
MA West Springfield town

[[Page 68819]]

MA Westborough town
MA Westfield city
MA Westford town
MA Westminster town
MA Weston town
MA Westport town
MA Westwood town
MA Weymouth town
MA Whitman town
MA Wilbraham town
MA Williamsburg town
MA Wilmington town
MA Winchester town
MA Winthrop town
MA Woburn city
MA Worcester County
MA Wrentham town
MA Yarmouth town
MD Allegany County
MD Annapolis city
MD Bel Air town
MD Berwyn Heights town
MD Bladensburg town
MD Bowie city
MD Brentwood town
MD Brookeville town
MD Capitol Heights town
MD Cecil County
MD Cheverly town
MD Chevy Chase Section Five village
MD Chevy Chase Section Three village
MD Chevy Chase town
MD Chevy Chase Village town
MD College Park city
MD Colmar Manor town
MD Cottage City town
MD Cumberland city
MD District Heights city
MD Edmonston town
MD Elkton town
MD Fairmount Heights town
MD Forest Heights town
MD Frederick city
MD Frostburg city
MD Funkstown town
MD Gaithersburg city
MD Garrett Park town
MD Glen Echo town
MD Glenarden town
MD Greenbelt city
MD Hagerstown city
MD Highland Beach town
MD Hyattsville city
MD Kensington town
MD Landover Hills town
MD Laurel city
MD Martin's Additions village
MD Morningside town
MD Mount Rainier city
MD New Carrollton city
MD North Brentwood town
MD Riverdale town
MD Rockville city
MD Seat Pleasant city
MD Smithsburg town
MD Somerset town
MD Takoma Park city
MD University Park town
MD Walkersville town
MD Washington Grove town
MD Williamsport town
ME Androscoggin County
ME Auburn city
ME Bangor city
ME Berwick town
ME Brewer city
ME Cape Elizabeth town
ME Cumberland County
ME Eliot town
ME Falmouth town
ME Gorham town
ME Kittery town
ME Lebanon town
ME Lewiston city
ME Lisbon town
ME Old Town city
ME Orono town
ME Penobscot County
ME Penobscot Indian Island Reservation
ME Portland city
ME Sabattus town
ME Scarborough town
ME South Berwick town
ME South Portland city
ME Veazie town
ME Westbrook city
ME York County
MI Ada township
MI Allegan County
MI Allen Park city
MI Alpine township
MI Ann Arbor township
MI Auburn Hills city
MI Bangor township
MI Bath township
MI Battle Creek city
MI Bay City city
MI Bay County
MI Bedford township
MI Belleville city
MI Benton Charter township
MI Benton Harbor city
MI Berkley city
MI Berlin township
MI Berrien County
MI Beverly Hills village
MI Bingham Farms village
MI Birmingham city
MI Blackman township
MI Bloomfield Hills city
MI Bloomfield township
MI Bridgeport township
MI Brownstown township
MI Buena Vista Charter township
MI Burtchville township
MI Burton city
MI Byron township
MI Calhoun County
MI Canton township
MI Carrollton township
MI Cascade township
MI Cass County
MI Center Line city
MI Chesterfield township
MI Clarkston village
MI Clawson city
MI Clay township
MI Clayton township
MI Clinton County
MI Clinton township
MI Clio city
MI Clyde township
MI Commerce township
MI Comstock township
MI Cooper township
MI Dalton township
MI Davison city
MI Davison township
MI De Witt township
MI Dearborn city
MI Dearborn Heights city
MI Delhi Charter township
MI Delta township
MI Detroit city
MI East China township
MI East Detroit city
MI East Grand Rapids city
MI East Lansing city
MI Eaton County
MI Ecorse city
MI Emmett township
MI Erie township
MI Essexville city
MI Farmington city
MI Farmington Hills city
MI Ferndale city
MI Fillmore township
MI Flat Rock city
MI Flint township
MI Flushing city
MI Flushing township
MI Fort Gratiot township
MI Frankenlust township
MI Franklin village
MI Fraser city
MI Fruitport township
MI Gaines township
MI Garden City city
MI Genesee County
MI Genesee township
MI Georgetown township
MI Gibraltar city
MI Grand Blanc city
MI Grand Blanc township
MI Grand Rapids Charter township
MI Grandville city
MI Grosse Ile township
MI Grosse Pointe city
MI Grosse Pointe Farms city
MI Grosse Pointe Park city
MI Grosse Pointe Shores village
MI Grosse Pointe Woods city
MI Hampton township
MI Hamtramck city
MI Harper Woods city
MI Harrison township
MI Hazel Park city
MI Highland Park city
MI Highland township
MI Holland city
MI Holland township
MI Howard township
MI Hudsonville city
MI Huntington Woods city
MI Huron township
MI Independence township
MI Ingham County
MI Inkster city
MI Ira township
MI Jackson city
MI Jackson County
MI James township
MI Kalamazoo city
MI Kalamazoo County
MI Kalamazoo township
MI Keego Harbor city
MI Kent County
MI Kentwood city
MI Kimball township
MI Kochville township
MI Lake Angelus city
MI Laketon township
MI Laketown township
MI Lansing city
MI Lansing township
MI Lathrup Village city
MI Leoni township
MI Lincoln Park city

[[Page 68820]]

MI Lincoln township
MI Livonia city
MI Macomb County
MI Macomb township
MI Madison Heights city
MI Marysville city
MI Melvindale city
MI Meridian township
MI Milford township
MI Milton township
MI Monitor township
MI Monroe County
MI Mount Clemens city
MI Mount Morris city
MI Mount Morris township
MI Mundy township
MI Muskegon city
MI Muskegon County
MI Muskegon Heights city
MI Muskegon township
MI New Baltimore city
MI Niles city
MI Niles township
MI North Muskegon city
MI Northville city
MI Northville township
MI Norton Shores city
MI Novi city
MI Novi township
MI Oak Park city
MI Oakland Charter township
MI Oakland County
MI Orchard Lake Village city
MI Orion township
MI Oshtemo township
MI Ottawa County
MI Parchment city
MI Park township
MI Pavilion township
MI Pennfield township
MI Pittsfield township
MI Plainfield township
MI Pleasant Ridge city
MI Plymouth city
MI Plymouth township
MI Pontiac city
MI Port Huron city
MI Port Huron township
MI Portage city
MI Portsmouth township
MI Redford township
MI Richfield township
MI River Rouge city
MI Riverview city
MI Rochester city
MI Rochester Hills city
MI Rockwood city
MI Romulus city
MI Roosevelt Park city
MI Roseville city
MI Ross township
MI Royal Oak city
MI Royal Oak township
MI Saginaw city
MI Saginaw County
MI Saginaw township
MI Schoolcraft township
MI Scio township
MI Shelby township
MI Shoreham village
MI Sodus township
MI South Rockwood village
MI Southfield city
MI Southfield township
MI Southgate city
MI Spaulding township
MI Spring Arbor township
MI Springfield city
MI Springfield township
MI St. Clair city
MI St. Clair County
MI St. Clair Shores city
MI St. Clair township
MI St. Joseph Charter township
MI St. Joseph city
MI Stevensville village
MI Sullivan township
MI Summit township
MI Sumpter township
MI Superior township
MI Swartz Creek city
MI Sylvan Lake city
MI Taylor city
MI Texas township
MI Thetford township
MI Thomas township
MI Trenton city
MI Troy city
MI Utica city
MI Van Buren township
MI Vienna township
MI Walker city
MI Walled Lake city
MI Washington township
MI Washtenaw County
MI Waterford township
MI Wayne city
MI West Bloomfield township
MI Westland city
MI White Lake township
MI Whiteford township
MI Williamstown township
MI Wixom city
MI Wolverine Lake village
MI Woodhaven city
MI Wyandotte city
MI Wyoming city
MI Ypsilanti city
MI Ypsilanti township
MI Zeeland city
MI Zilwaukee city
MN Andover city
MN Anoka city
MN Anoka County
MN Apple Valley city
MN Arden Hills city
MN Benton County
MN Birchwood Village city
MN Blaine city
MN Bloomington city
MN Brooklyn Center city
MN Brooklyn Park city
MN Burnsville city
MN Carver County
MN Cascade township
MN Champlin city
MN Chanhassen city
MN Circle Pines city
MN Clay County
MN Coon Rapids city
MN Cottage Grove city
MN Credit River township
MN Crystal city
MN Dakota County
MN Dayton city
MN Deephaven city
MN Dilworth city
MN Duluth city
MN Eagan city
MN East Grand Forks city
MN Eden Prairie city
MN Excelsior city
MN Falcon Heights city
MN Farmington city
MN Fort Snelling unorg.
MN Fridley city
MN Gem Lake city
MN Golden Valley city
MN Grant township
MN Greenwood city
MN Ham Lake city
MN Haven township
MN Hennepin County
MN Hermantown city
MN Hilltop city
MN Hopkins city
MN Houston County
MN Inver Grove Heights city
MN La Crescent city
MN La Crescent township
MN Lake Elmo city
MN Lakeville city
MN Landfall city
MN Lauderdale city
MN Le Sauk township
MN Lexington city
MN Lilydale city
MN Lino Lakes city
MN Little Canada city
MN Long Lake city
MN Loretto city
MN Mahtomedi city
MN Maple Grove city
MN Maple Plain city
MN Maplewood city
MN Marion township
MN Medicine Lake city
MN Medina city
MN Mendota city
MN Mendota Heights city
MN Midway township
MN Minden township
MN Minnetonka Beach city
MN Minnetonka city
MN Minnetrista city
MN Moorhead city
MN Moorhead township
MN Mound city
MN Mounds View city
MN New Brighton city
MN New Hope city
MN Newport city
MN North Oaks city
MN North St. Paul city
MN Oakdale city
MN Oakport township
MN Olmsted County
MN Orono city
MN Osseo city
MN Plymouth city
MN Polk County
MN Prior Lake city
MN Proctor city
MN Ramsey city
MN Robbinsdale city
MN Rochester city
MN Rochester township
MN Rosemount city
MN Roseville city
MN Sartell city
MN Sauk Rapids city
MN Sauk Rapids township
MN Savage city
MN Scott County
MN Sherburne County
MN Shoreview city
MN Shorewood city
MN South St. Paul city

[[Continued on page 68821]]

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

[[pp. 68771-68820]] National Pollutant Discharge Elimination System--Regulations for

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