£33 2 -73001
Friday
January 9, 1998
Part II
Environmental
Protection Agency
40 CFR Parts 122 and 123
National Pollutant Discharge Elimination
System—Proposed Regulations for
Revision of the Water Pollution Control
Program Addressing Storm Water
Discharges; Proposed Rule
153
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 19987 Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122 and 123
[No. W-97-12 (Proposed Rule) and No, W-
97-15 (Information Collection Request);
FRL-5937-8]
RIN 2040-AC82
National Pollutant Discharge
Elimination System—Proposed
Regulations for Revision of the Water
Pollution Control Program Addressing
Storm Water Discharges
AGENCY: Environmental Protection
Agency (EPA). •
ACTION: Proposed rule.
SUMMARY: The National Pollutant
Discharge Elimination System (NPDES)
existing storm water program (Phase I)
is resulting in significant improvement
of surface water quality in the United ,
States by reducing polluted runoff from
a large number of priority sources,
.including major industrial facilities,
large and medium city storm sewers
("municipal separate storm sewer
systems" or "MS4s"), as well as
construction sites that disturb 5 or more
acres. Today's proposed NPDES storm
water regulations (Phase II), which will
be finalized by March 1, 1999, would
expand this existing national program to
smaller municipalities and construction
sites that disturb 1 to 5 acres. In this
expansion, EPA is proposing "safety
valves" which would allow certain
sources to be excluded from the national
program based on the lack of impact on
water quality, as well as to pull in other
sources not regulated on a national basis
based on localized adverse impact on
water quality. Finally, EPA is proposing
to conditionally exclude from the
NPDES storm water program, industrial
facilities that have "no exposure" of
industrial activities to storm water,
thereby reducing application of the '
program to many industrial activities
currently covered by the program that
have no industrial storm water
discharges. This rule would establish a
cost effective, flexible approach for
reducing negative environmental impact
by storm water discharges from these
currently unregulated sources.
The "National Water Quality
Inventory, 1994 Report to Congress"
indicates that storm water discharges
from a variety of sources including
separate storm sewers, construction,,
Waste disposal, and resource extraction
activities are major causes of water
quality impairment; roughly 46 percent
of the identified cases of water quality
impairment of estuarine square miles
surveyed, for example, are attributable
to storm sewer runoff. EPA believes that
the implementation of the six minimum
measures, which focus on a "best
management practices" (BMP)
approach, identified for the small
municipalities in this proposal should
significantly reduce pollutants in'urban
storm water compared to existing levels
in a cost effective manner. If after
implementing the six minimum
measures there, is still a water quality
problem, the municipality would
expand or use better tailored BMPs in
their minimum measures to result in
water quality improvement. Similarly,
EPA believes that implementation of
BMP controls at small construction sites
will also result in a significant reduction
is pollutant discharges and an
improvement in surface.water quality.
EPA believes this rule will cost
significantly less than the existing 1995
rule that is currently in place, and will
result in significant monetized financial,
recreational and health benefits, as well"
as benefits that EPA has been unable to
monetize, including reduced scouring
and erosion of streambeds, improved
aesthetic quality of waters, reduced
eutrophication of aquatic systems,
benefit to wildlife and endangered and
threatened species, tourism benefits,
biodiversity benefits and reduced siting
costs of reservoirs. In addition, there
will be an economic savings from the '
proposed "no exposure" streamlining.
The rule would provide for a NPDES
program approach that: encourages the
use of general permits, provides
flexibility for municipalities to
determine the nature of storm water
controls, provides flexibility in use of
watershed approaches, is consistent
with the existing storm water Phase I
program, recognizes and includes
existing programs, utilizes the existing
NPDES progra.ni which is Federally
enforceable and takes advantage of
existing structures and mechanisms for
public participation. EPA is inviting
comment on alternative approaches that
may be available to allow efficient and
effective targeting of environmental
problems for the Phase II program,
without extension of the NPDES
program to Phase n dischargers. EPA is
committed to continue seeking the input
of all stakeholders in the development
of this proposed rule, including
continuing to seek input and advice
from the Phase II Subcommittee of the
Urban Wet Weather Flows Federal
Advisory Committee which was
established in 1995.
DATES: Public Comment Period for the
Proposed Rule and Information
.Collection Request (ICR). The public
comment period for this proposed rule
and ICR will be from date of publication
in the Federal Register until April 9,
1998.
' Public Meetings/Hearings. The public
meetings/hearings will include a
presentation on the proposed rule and •
allow interested parties the opportunity
to provide written and/or oral
comments for the official record. Public
meetings/hearings will be held at the
times and locations provided below. If
all statements are finished before 4:00
pm the hearings may be finished early.
The hearing dates are:
1. February 23, 1998, 1:00 p.m. to 4:00
p:m., Washington, DC • ,
2. February 25, 1998, 1:00 p.m. to 4:00
p.m., Boston,-Massachusetts
3. February 27, 1998, 1:00 p.m. to 4:00
p.m., Atlanta, Georgia
4. March 2, 1998, 1:00 p.m. to 4:00 p._m.,
Chicago, Illinois
5. March 4, 1998, 1:00 p.m. to 4:00 p.m.,
' Dallas, Texas
6. March 6, 1998, 1:00 p.m. to 4:00 p.m.,
1 San Francisco, California
-ADDRESSES: Public Comments. All
public comments regarding the
proposed rule shall be submitted by
mail to: "ATTN: Storm'Water Proposed
Rule Comment Clerk—W-97-12, Water
Docket, Mail Code 4101, EPA; 401 M
Street, SW; Washington, DC 20460." All
public comments regarding the
proposed amendment to the ICR shall be
submitted by mail to: "ATTN: Storm
Water Proposed Rule ICR Comment
Clerk—W-97-15, Water Docket, Mail
Code 4101, EPA; 401 M Street, SW,
Washington, DC 20460" and to the
Office of Information and Regulatory
Affairs, Office of Management and
Budget, 725 17th Street, NW,
Washington, D.C. 20503, marked
"Attention: Desk Officer for EPA."
1 Please submit an original and three
copies of your comments and enclosures
(including references). Cpmmenters who
want EPA to acknowledge receipt of .
their comments should enclose a self-
addressed, stamped envelope. No
facsimiles (faxes) will be accepted.
Comments may also be submitted •
electronically to ow-
docket@epamail.epa.gov. Electronic
comments must be submitted .as an
ASCII file avoiding the use of special
characters or forms of encryption.
Electronic comments must be identified
by the docket number (W-97-12 (storm
water proposed rule) and W-^97-15
(storm water proposed rule ICR)).
Comments and data-will also be
accepted on disks in WordPerfect in 5.1
format or ASCII file format. Electronic
comments on this notice may be filed
. online at many Federal Depository
Libraries.
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
1537
To ensure that EPA can read,
understand and therefore properly
respond to public comments, EPA
would prefer that commenters cite,
where possible, the paragraph (s) or
sections in the proposed rule language,
preamble or supporting documents to
which the comment refers. Commenters
should use a separate paragraph for each
issue discussed.
Public Hearings. The hearing
locations are:
1. Washington, DC—Auditorium of the
USEPA Education Center, 401 M St.
SW, Washington, DC 20460
2. Boston—John A. Volpe National
Transportation Systems Center—
Auditorium (Bldg. #2), 55
Broadway—Kendall Square,
Cambridge, MA 02142
3. Atlanta—Atlanta Federal Center,
(Room C, AFC Conference Center),
61 Forsyth St.-SW, Atlanta, GA
30303-3104
4. Chicago—USEPA Region 5 (Rm 331)
77 W.Jackson Blvd., Chicago, IL
60604-3590
5. Dallas—USEPA Region 6 (Regional
Conference Room, 12th floor), 1445
Ross Ave., Dallas. TX 75202-2733
6. San Francisco—USEPA Region 9
(Marianas/ Palau Room, First
Floor), 75 Hawthorne Street, San
Francisco, CA 94105-3901
Docket. The complete administrative
record for the proposed rule and the ICR
have been established under docket
numbers W-97-12 (proposed rule) and
W-97-15 (ICR), and includes
supporting documentation as well as
printed, paper versions of electronic
comments. Copies of information in the
record are available upon request. A
reasonable fee may be charged for
copying. The record is available for
inspection and copying from 9 a.m. to
4 p.m., Monday through Friday,
excluding legal holidays at the Water
Docket, EPA, Room 2616, 401 M Street,
SW, Washington, D.C. For access to
docket materials, please call 202/260-
3027 to schedule an appointment.
FOR FURTHER INFORMATION CONTACT:
George Utting, Office of Wastewater
Management, Environmental Protection
Agency. Mail Code 4203, 401 M Street,
SW, Washington. DC 20460; (202) 260-
5816; sw2@epamail.epa.gov.
SUPPLEMENTARY INFORMATION: Entities
potentially regulated by this action
include:
Category
Category
Federal Govern-
ment.
Examples 9! regulated
entities
Tribal Govern-
ment.
State Govern-
ment.
Local Govern-
ment.
Industry.
Construction Ac-
tivity.
Public
Examples of regulated
entities
Owners or operators of a
separate storm sewer
system, or dischargers
of storm water associ-
ated with industrial ac-
tivity.
Owners or operators of
small municipal sepa-
rate storm sewer sys-
tems.
Owners or operators of
small municipal sepa-
rate storm sewer sys-
tems (serving popu-
lations less than
100,000) and municipal
construction and indus-
trial activities.
Owners or operators of
industrial facilities who
may be dischargers of
storm water associated
with industrial or other
. activity.
Construction site owners
or operators.
Persons who may want to
participate in the peti-
tion process.
Owners or operators of
municipal separate
storm sewer systems.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
regulated by this action. This table lists
the types of entities that EPA is now
aware could potentially be regulated by
this action. Other types of entities not
listed in the table could also be
regulated. To determine whether you
are regulated by this action, you should
carefully examine the applicability
criteria in §§ 122.26(b)(15), 122.31,
122.32, and 123.35 of the proposed rule.
If you have questions regarding the
applicability of this action to a
particular entity, consult the person
listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
Table of Contents
I. Background
A. Water Quality Concerns/Environmental
Impacts
1. Studies and Assessments of Storm Water
Runoff
a. Urban Development
b. Illicit Discharges
c. Construction Site Runoff
d. Improper Disposal of Materials
B. Statutory Background
C. EPA's Reports to Congress
D. EPA Regulations for the NPDES Program
for Storm Water .
E. EPA Outreach Efforts
F. The FACA Committee Effort
G. Related Nonpoint Source Programs
1. Section 319 of the Clean Water Act
2. Section 6217 of the Coastal Zone Act
Reauthorization Amendments
H. Watershedvbased Approach for Water
Quality Programs
II. Description of Proposed Program
A. Overview
1. Objectives EPA Seeks to Achieve in
Today's Proposal
2. General Requirements for Regulated
Entities Under Today's Proposal
3. Integration of Today's Proposal With the
Existing Storm Water Program
4. General Permits
5. Tool Box
6. Deadlines Established in Today's '
Proposal
B. Readable Regulations
C. Program Framework
1. Today's Approach—The NPDES
Program Approach
2. Alternatives Considered
a. State Alternative Non-NPDES Program
i. Alternative Overview
ii. State-Proposed Program Criteria
iii. Proposed Procedure for Approval and
Periodic Review
iv. Proposed Procedure for Disapproval
3. Permits Versus Non-Permits
D. Federal Role
1. Develop Overall Framework of the
Program
2. Encourage Use of a Watershed Approach
3. Provide Financial Assistance
4. Implement the Program for Non-NPDES
Authorized States, Tribes, and
Territories
5. Oversee State Programs
6. Comply with Applicable Requirements
as a Discharger
E. State Role
1. Develop the Program
2. Comply With Applicable Requirements
as a Discharger !
3. Communicate with EPA
F. Tribal Role
1. Background
a. EPA's Indian Policy
b. Existing NPDES Regulations for Storm
Water
2. Today's Proposal'
3. Other Relevant Issues
G. NPDES Permitting Authority's Role for
the CWA section 402(p)(6) Municipal
Program
1. Comply With Other Requirements
2. Designate Sources
a. Develop Designation Criteria
b. Apply Designation Criteria
c. Designate Physically Interconnected
Municipal Separate Storm Sewer
Systems
d. Address Public Petition for Designation
3. Provide Waivers
4. Issue Permits
5. Support and Oversee the Local Programs
H. Municipal Role
1. Scope of Today's Proposal .
2. Municipal Definition
a. Nationwide ("Automatic") Designation
i. Urbanized Area Description
ii. Urbanized Area Profiles
iii. Rationale for Using Urbanized Areas
b. Municipal Designation by the Permitting
Authority
c. Waiving the Requirements for Regulated
Small Municipal Separate Storm Sewer
Systems
i. Combined Sewer Systems
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
d. Designation Alternatives Considered—
Preliminary Options '
i. Designation Option 1 ,
ii. Designation Option 2
iii. Designation Option 3 •
3. Municipal Permit Requirements
a. Program Requirements—Minimum
Control Measures
i. Public Education and Outreach on Storm
Water Impacts
ii. Public Involvement/Participation
iii. Illicit Discharge Detection and
. Elimination
iv. Construction Site Storm Water Runoff
• Control
v. Post-Construction Storm Water
' Management in New Development and
Redevelopment '
vi. Pollution Prevention/Good
Housekeeping for Municipal Operations
vii. Satisfaction of Minimum Measure
Obligations
b. Application Requirements, Including
Notice of Intent
c. Evaluation and Assessment
i. Record Keeping
ii. Reporting
iii. Permit-As-A-Shield
d. Other Applicable NPDES Requirements
e. Enforceability
f. Deadlines
g. Reevaluation of Rule
I. Other Designated Storm Water
Discharges
1. Background
2. Construction
a. Scope ' . v
b. Waivers
c. Permit Process and Administration
d. Cross-Referencing State/Local Erosion
and Sediment Control Programs
e. Alternative Approaches
3. Other Sources '
4. Residual Designation Authority
J. Conditional Exemption for "No
Exposure" of Industrial Activities and
Materials to Storm Water
1. Background
2. Definition of "No Exposure"
3. Options Considered
K. Public Involvement/Public Role
L. Water Quality Issues
1. Water Quality Standards •
a. Permitting Policy
2. Total Maximum Daily Loads (TMDLsj
3. Anti-backsliding
4. Monitoring . .
III. Paperwork Reduction Act
IV. Executive Order 12866
V. Unfunded Mandates Reform Act/
Executive Order 12875.
A. UMRA Section 202 Written Statement
B. Description of Intergovernmental
Consultation
C. Selection of the Least Costly, Most Cost-
Effective or Least Burdensome
Alternative That Achieves the Objectives
of the Statute
D. Small Government Agency Plan
VI. Executive Order 12898
VII. Regulatory Flexibility Act
A. Economic Impact on Small Entities
B. SBREFA Panel Process
VIII. National Technology Transfer and
Advancement Act
Legal Authority: 33 U.S.C- 1311; 33 U.S.C.
1342; 33 U.S.C. 1361.
CFR Citation: 40 CFR 122; 40 CFR 123.
I. Background
A. Water Quality Concerns/
Environmental Impacts
In 1972, Congress amended the
Federal Water Pollution Control Act
(referred to as the Clean Water 'Act
(CWA)) to prohibit the discharge of any
pollutant to waters of the United States
from a point source unless, the discharge
is authorized by a National Pollutant
Discharge Elimination System (NPDES)
permit. The NPDES program is a permit
program designed to regulate point
source discharges.
Initial efforts to improve water quality
under the NPDES program primarily
focused on reducing pollutants in
industrial process wastewater and
municipal sewage. This focus developed
because many sources of industrial
process wastewater and municipal
sewage were not adequately controlled
and represented immediate and pressing
environmental problems. Furthermore,
these discharges were easily identified
as responsible for poor, often drastically
degraded, water quality conditions.
As pollution control measures for
industrial process wastewater and
municipal sewage were further
developed, refined, and implemented, it
became increasingly evident that more
diffuse sources of water pollution were
significant causes of water quality
impairments. Specifically, storm water
runoff draining large surface areas, such
as agricultural and urban land, was
found to be a major cause of adverse
water quality impairment, including
nonattainment of designated uses. In
1987, Congress.amended the CWA to
require implementation of a
comprehensive approach for addressing
storm water discharges under the
NPDES program. Storm water
discharges have a number of
environmental effects that can occur
from land development, illicit
discharges, construction site runoff, and
improper disposal of materials. The
following section entitled, Studies and
Assessments of Storm Water Runoff,.
discusses these four issues. Problems
can also occur from agricultural storm
water discharges and return flows from
irrigated agriculture. This area of
concern, however, is statutorily
exempted from regulation under the
NPDES program (see CWA section .
502(14)). Other sources may be of
concern in certain areas and can be
addressed on a case-by-case (or
category-by-category) basis through the
NPDES permitting authority's
designation authority.
Storm water runoff from lands
modified by human activities can harm
surface water resources, and, in turn, ,
violate water quality standards, in two
ways: (1) by changing natural
hydrologic patterns and (2) by elevating
pollutant concentrations and loadings.
Storm water runoff may contain or
mobilize high levels of contaminants,
such as sediment, suspended solids,
nutrients, heavy metals, pathogens,
toxins, oxygen-demanding substances,
and floatables. Such contaminants are
carried to nearby streams, rivers, lakes,
and estuaries. Individually and
combined, these pollutants can reduce
water quality and threaten one or more
designated beneficialuses. Often, an
increased volume of runoff or
contaminants can lead to violations of
applicable State water quality standards.
1. Studies and Assessments of Storm
Water Runoff . ;
a. Urban Development
In support of today's proposal
regarding land development, the United
.States Environmental Protection Agency
(EPA) has relied on several broad-based
assessments of storm water runoff and
related water quality impacts, including:
(1) Nationwide Urban Runoff Program
(NURP) study (U.S. Environmental
Protection Agency, Office of Water
1983. Final Report of the Nationwide
Urban Runoff Program Washington,
D.C.), (2) America's Clean Water—The •
States' Nonpoint Source Assessment
(Association of State and Interstate
Water Pollution Control Administrators
1985. America's Clean Water—The
States' Nonpoint Source Assessment.
Prepared in cooperation with the U.S;
Environmental Protection Agency,
Office of Water, Washington, D.C.), (3)
U.S. Geological Survey Urban-Storm
Water Data Base for 22 Metropolitan ,
Areas Throughout the United States
(Driver, N.E., Mustard, M.H.,
Rhinesmith, R.B. and Middleburg, R.F.
1985. U.S. Geological Survey Urban
Storm Water Data Base for 22 ' .
Metropolitan Areas Throughout the
United States. U.S. Geological Survey
Report No. 85-337, Lakewood, CO.),
and (4) The National Water Quality
Inventory, 1994 Report to Congress (U.S.
Environmental Protection Agency,
Office of Water 1995. National Water
Quality Inventory: 1994 Report to
Congress Washington, D.C. EPA 841-R-
95-005.) These studies, which provide
important data regarding storm water
runoff and associated pollutant loads,
are briefly discussed below. (For an
extensive summary and review of storm
water research, see Makepeace, D.K.,
Smith, D.W., and S.J. Stanley 1995.
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
substantial dry periods, many storm
water outfalls continue to discharge to
receiving waterbodies. Pollutant levels
in these flows, which are commonly
referred to as dry weather flows, were
shown to be high enough to
significantly degrade receiving water
quality.
The Ann Arbor and Ypsilanti water
quality projects inspected 660
businesses, homes, and other buildings
and identified 14 percent of the
buildings as having improper storm
sewer drain connections. The program
assessment revealed that, on average, 60
percent of automobile-related
businesses, including service stations,
automobile dealerships, car washes,
body shops, and light industrial
facilities, had illicit connections to
storm sewer drains. The program
assessment also showed that a majority
of the illicit discharges to the storm
sewer system resulted from improper
plumbing and connections, which had
been approved by the municipality
when installed. (Huron River Pollution
Abatement Program, Washtenaw
County Statutory Drainage Board, 1987.)
Inflows from aging sanitary sewer
collection systems are another illicit
discharge-related problem. Sanitary
s.ewer systems frequently develop leaks
and cracks resulting in discharges of
pollutants to receiving waters through
separate storm sewers. These pollutants
include sanitary waste and sewer main
construction materials (e.g., asbestos
cement, brick, cast iron, vitrified clay).
Municipalities have long recognized the
problems of storm water infiltration into
sanitary sewer collection systems,
because this type of infiltration often
disrupts the operation of the municipal
sewage treatment plant. However, the
reverse problem of sewage exfiltration
out of the sanitary sewer collection
system into the storm water collection
system can occur during dry weather
periods.
c. Construction Site Runoff
Storm water discharges generated
during construction activities can cause
an array of water quality impacts.
Specifically, the biological, chemical,
and physical integrity of the waters may
become severely compromised. Water
quality impairment results, in part,
because a number of pollutants are
preferentially absorbed onto mineral or
organic particles found in fine sediment.
The interconnected process of erosion
(detachment of the soil particles),
sediment transport and delivery is the
primary pathway for introducing key
pollutants, such as nutrients
(particularly phosphorus), metals, and
organic compounds into aquatic systems
(Novotny, V. and G. Chesters. 1989.
"Delivery of Sediment and Pollutants
from Nonpoint Sources: A Water
Quality Perspective." Journal of Soil
and Water Conservation, 44(6): 568-
576.). Estimates indicate that 80 percent
of the phosphorus and 73 percent of the
Kjeldahl nitrogen in streams is
associated with eroded sediment
(USDA. 1989. The Second RCA
•r Appraisal, Soil, Water and Related
Resources on Nonfederal Land in the
United States, Analysis of Condition
and Trends, cited in Fennessey, L.A.J.,
and A.R. Jarrett. 1994. "The Dirt in a
Hole: a Review of Sedimentation Basins
for Urban Areas and Construction
Sites." Journal of Soil and Water
Conservation, 49(4): 317-323.).
In watersheds experiencing intensive
construction activity, the localized
impacts of water quality may be severe
because of high pollutant loads,
primarily sediments.-Siltation is the
second largest cause of impaired water
quality in rivers and lakes (U.S. EPA,
1995b, p. ES-8.). Introduction of coarse
sediment (coarse sand or larger) or a
large amount of fine sediment is also a
concern because of the potential of
filling lakes and reservoirs (along with
the associated remediation costs for
dredging), as well as clogging stream
channels (e.g., Paterson, R.G., Luger,
M.I., Burby, E.J., Kaiser, E.J., Malcolm,
H.R., and A.C. Beard. 1993. "Costs and
Benefits of Urban Erosion and Sediment
Control: North Carolina Experience."
Environmental Management, 17 (2): 167-
178.). Large inputs of coarse sediment
into stream channels will initially
reduce stream depth and minimize
habitat complexity by filling in pools
(U.S. Environmental Protection Agency.
1991. Monitoring Guidelines to Evaluate
Effects of Forestry Activities on Streams
in the Pacific Northwest and Alaska.
Seattle, WA: Region 10, Water Division.
166 pp. EPA/910/9-91-001.). In
addition, studies have shown that
stream reaches affected by construction
activities often extend well downstream
of the construction site. For example,
between 4.8 and 5.6 kilometers of
stream below construction sites in the
Patuxent River watershed were observed
to be impacted by sediment inputs (Fox,
H.L. 1974. Effects of Urbanization on
the Patuxent River, with Special
Emphasis on Sediment Transport,
Storage, and Migration. Ph.D.
Dissertation, Johns Hopkins University,
Baltimore, Maryland, 276 pp. as cited in
Klein, R.D. 1979. "Urbanization and
Stream Quality Impairment." Water
Resources Bulletin, 15 (4): 948-963.).
A primary concern at most
construction sites is the erosion and
transport process related to fine
sediment because rain splash, rills (i.e.,
a channel small enough to be removed
by normal agricultural practices and
typically less than 1 foot deep), and
sheetwash (California Storm Water Best
Management Practice Handbooks—
Construction Activity, Blue Print
Service, Oakland, CA.) encourage the
detachment and transport of this
material to waterbodies.' Forest road
construction sites in steep areas or along
stream banks, however, may initiate
landslides, debris flows, or other types
of mass wasting events (Megahan, W.F.
1984. "Road Effects and Impacts-
Watershed." In Proceedings, Forest
Transportation Symposium, USDA
Forest Service Region 2, Lakewood, CO.
pp, 57-97). In these cases, coarse
sediment inputs may be of greatest
concern. Construction sites can also
generate other pollutants associated
with wastes onsite such as sanitary
wastes or concrete truck washout.
Although streams and rivers naturally
carry sediment loads, erosion from
construction sites and runoff from
developed areas can elevate these loads
to levels well above those in
undisturbed watersheds. It is generally
acknowledged that erosion rates from
construction sites are much greater than
from almost any other land use
(Novotny, V. and H. Olem. 1994. Water
Quality: Prevention, Identification, and
Management of Diffuse Pollution. Van
Nostrand Reinhold, NY. p. 36.). Results
from both field studies and erosion
models indicate that erosion rates from
construction sites are typically an order
of magnitude larger than row crops and
several orders of magnitude greater than
rates from well-vegetated areas, such as
forests or pastures (U.S. Department of
Agriculture, Soil Conservation Service.
1970. Controlling Erosion on
Construction Sites. Agriculture
Information Bulletin, Washington, D.C.
32 pp.; Meyer, L.D., Wischmeier, W.H.,
and W.H. Daniel. 1971. "Erosion, Runoff
and Revegetation of Denuded
Construction Sites." Transactions of the
ASAE, 14(1):138-141; Owen, O.S. 1975.
Natural Resource Conservation.
MacMillan, New York as cited in
Paterson, R.G., Luger, M.I., Burby, R.J.,
Edward, J.K., Malcom, H.R., and A.C.
Beard. 1993. "Costs and Benefits of
Urban Erosion and Sediment Control:
The North Carolina Experience."
Environmental Management, 17(2):
167-178.). Wolman and Schick
(Wolman, M.G. and A.P. Schick. 1967.
"Effects of Construction on Fluvial
Sediment, Urban and Suburban Areas of
Maryland." Water Resources Research,
3(2): 451-464) studied the impacts of
development on fluvial systems in
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1541
Maryland and determined that sediment
-yields in areas undergoing construction
were ,1.5 to 75 times greater than
detected in natural or agricultural
catchments. The authors summarize the
potential impacts of construction on
sediment yields by stating that' 'the
equivalent of many decades of natural
or even agricultural erosion may take
place during a single year from areas
cleared for construction." (Wolman and
Schick, 1967) ,
Similar impacts from storm water
runoff have been reported in a number
of other studies. For example, Daniel et
al. monitored three.residential
construction sites in southeastern
Wisconsin and determined that annual
sediment yields were more than 19
times the yields from agricultural areas
(Daniel, T.'C., McGuire, D., Stoffel, D.,
and B. Miller. 1979. "Sediment and
Nutrient Yield from Residential
Construction Sites.'' Journal of
Environmental Quality, 8(3): 304-308.).
Studies have examined the effects of
road construction on erosion rates and
sediment yields in forested areas. In
northern Idaho, the erosion rate per unit
area of surface cleared for logging road
construction averaged 220 times the
erosion rate of undisturbed areas over a
6-year period (Megahan, W.F., and W.J.
Kidd. 1972. Effects of Logging Roads on
Sediment Production Rates in the Idaho
Batholith. USDA Forest Service
Research Paper INT-123, Odgen, UT.
14pp.). Other studies have documented ••
increased surface erosion following
logging road construction, but at
increases smaller than the 220-fold
increase reported in the 1972 study
(Megahan, 1984).
A highway construction project in
West Virginia disturbed only 4.2 percent
of a 4.72 square mile basin, but resulted
in a three-fold increase in suspended
sediment yields (Downs, S.C., and D.H.
Appel. Progress Report on the Effects of
Highway Construction on Suspended-
Sediment Discharge in the Coal River
and Trace Fork, West Virginia. U.S.
Geological Survey Water Resources
Investigations Report 84-4275,
Charleston, WV. 20pp.). During the
largest storm event, it was estimated
that 80 percent of the sediment in the
stream originated from the.construction
site. As is often the'case, the increase in
suspended sediment load could not be
detected further downstream, where the
drainage area was more than 50 times
larger (269 sq. mi.). Another study
evaluated the effect of 290 acres of '
highway construction on Watersheds
ranging in size from 5 to 38 square
miles. Suspended sediment loads in the
smallest watershed increased by 250
percent, and the estimated sediment
yield from the construction area was 37
tons/acre over a 2-year period (Hainly,
R. A. 1980. The Effects of Highway
Construction on Sediment Discharge
into Blockhouse Creek and Stream
Valley Run, Pennsylvania. U.S.
Geological Survey 'Water Resources ~
Investigations Report 80-68, Harrisburg,
PA. 50pp.). A more recent study in
Hawaii showed that highway
construction increased suspended
sediment loads by 56 to 76 percent in
three small (1 to 4 sq. mi.) basins (Hill,
B.R. 1996; Streamflow and Suspended-
Sediment Loads Before and During
Highway Construction, North Halawa,
Haiku, and Kamooalii Drainage Basins,
Oahu, Hawaii, 1983-91. U.S. Geological
Survey Water Resources Investigations
Report 96-4259, Honolulu, HI. 34pp.) A
1970 study determined that sediment
yields from construction areas can be as
much as 500 times the levels detected
in rural areas (National Association of
Counties Research Foundation. 1970.
Urban Soil Erosion and Sediment
Control. U.S. Department of the Interior,
Federal Water Quality Administration,
Water Pollution Control Research
Series, Program #15030 DTL,
Washington, D.C.)
. Yorke and Herb (Yorke, T.H., and W.J.
Herb. 1978. Effects of Urbanization on
Streamflow and Sediment Transport in
the Rock Creek and Anacostia River
Basins, Montgomery County, Maryland,
1962-74. U.S. Geological Survey
Professional Paper 1003, Washington,
DC.) evaluated nine subbasins in the
Maryland portion of the Anacostia
watershed for more than a decade in an
effort to define the impacts of changing
land use/land cover on sediment in
runoff. Average annual suspended
sediment yields for construction sites
ranged from 7 to 100 tons/acre. Daniel
et al. (Daniel et al., 1979) identified total
storm runoff, followed by peak storm
runoff, .as the most influential, factors
controlling the sediment loadings from
residential construction sites.
Storm water discharges from
construction sites that occur when the
land area is disturbed (and prior to
surface stabilization) can severely
impact designated uses. Examples of
designated uses include public water
supply, recreation, and propagation of
fish and wildlife. The siltation process
described previously can threaten all
three .designated uses by (1) depositing
high concentrations of pollutants in
public water supplies, (2) decreasing the
depth of a waterbqdy which can result
in its limited use by boaters, swimmers,
and other recreational enthusiasts, and
(3) directly impacting the habitat of fish
and other aquatic species which can
limit their ability to reproduce. Excess
sediment can cause a number of other
problems for waterbodies. It is
associated with increased turbidity and
reduced light penetration in the water
column, as well as more long-term
effects associated with habitat,
destruction and increased difficulty in
filtering drinking water. .
Numerous studies have examined the
•effect that excess sediment has on
aquatic ecosystems. For example,
sediment from road construction
' activity in Northern Virginia reduced
aquatic insect, and fish communities by
up to 85 percent and 40 percent,
respectively (Reed, J.R. 1997. Stream
Community Responses to Road
Construction Sediments. Bulletin No.
97. Virginia Water Resources Research
Center, Virginia Polytechnic Institute,
Blacksburg, Virginia, as cited in Klein,
R.D. 1990. A Survey of Quality of
Erosion and Sediment Control and
Storm Water'Management in the
Chesapeake Bay Watershed. Chesapeake
Bay Foundation, Annapolis, MD.) Other
studies have shown that fine sediment
(fine sand or smaller) adversely affects
aquatic ecosystems by reducing light
penetration, impeding sight-feeding,
smothering benthic organisms, abrading
gills and other sensitive structures,
reducing habitat by clogging interstitial •
spaces within a streambed, and
reducing the intergravel dissolved
oxygen by reducing the permeability of
the bed material (Everest, F.H., Beschta,
J.C.rScrivener, K.V., Koski, J.R., Sedell,
J.R., and C.J. Cederholm. 1987. "Fine .
Sediment and Salmonid Production: A
Paradox." Streamside Management:
Forestry and Fishery Interactions, ,
Contract No. 57, Institute of Forest
Resources, University of Washington,
Seattle, WA. pp.98-142. For example,
4.8 and 5.6 kilometers of stream below
construction sites in the Patuxent River
watershed in Maryland were found to
have fine sediment amounts 15 times
greater than normal (Fox, 1974 as cited
in Klein, 1979). Benthic organisms in
the streamfaed can be smothered by
sediment deposits, causing changes in
aquatic flora and fauna such as fish
species composition (Wolman and
Schick, 1967). In addition, the primary
cause of coral reef degradation in coastal
areas is attributed to land disturbances
and dredging activities due to urban
development (Rogers, C.S. 1990.
"Responses of Coral Reefs and Reef
Organization's to Sedimentation.''
Marine Ecology Progress Series, 62:185-
202.). -'.'..'
While most of the published data are
from construction sites larger than 5
acres, there are no compelling reasons
why erosion rates and sediment yields
from smaller (less than 5 acres)
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
construction sites should be
substantially different than those from
larger (more than 5 acres) construction
sites. The limited amount of data
suggests that sediment yields from small
sites are as high as or higher than the
20 to 150 tons/acre/year measured from
larger sites (MacDonald, L.H. 1997.
Technical Justification for Regulating
Construction Sites 1-5 Acres in Size.
Unpublished report submitted to the
U.S. Environmental Protection Agency,
Washington, DC. 28 pp.) Furthermore,
logic suggests that the cumulative
effects of numerous small sites will have
impacts similar to those of larger sites
in a particular area.
The expected contribution of small
sites to total sediment yields depends,
in part, on the extent to which erosion
and sedimentation controls are being
applied. Current storm water regulations
require erosion and sedimentation
controls on larger sites in urban areas
which suggests that in the absence of
any erosion and sedimentation controls
smaller construction sites contribute a
disproportionate amount of the total
sediment from construction activities
{MacDonald, 1997). Another view that
supports the need for controls on
smaller construction sites is that smaller
sites are less likely to have an effective
plan to control erosion and
sedimentation, that these plans are less
likely to be properly implemented and
maintained, and that small sites are less
likely to be inspected (Brown, W. and D.
Caraco. 1997. Controlling Storm Water
Runoff Discharges from Small
Construction Sites: A National Review.
Submitted to the U.S. Environmental
Protection Agency, Office of Wastewater
Management, Washington, DC. by the
Center for Watershed Protection, Silver
Spring, MD). Sediment delivery in
urban areas should produce little
difference between larger and smaller
construction sites because the runoff
from either site is usually delivered
directly to the storm drain network.
Any assessment of impacts from
smaller construction sites should
consider the proportion of a particular
area that is associated with small
construction activity. Brown and Caraco
(Brown and Caraco, 1997) surveyed 219
local jurisdictions to assess erosion and
sediment control (ESC) programs.
Seventy respondents provided data on
the number of ESC permits for
construction sites smaller than 5 acres.
In 27 cases (38 percent of the
respondents), more than three-quarters
of the permits were for sites smaller
than 5 acres; in another 18 cases (26
percent), more than half of the permits
were for sites smaller than 5 acres.
In addition, data on the total acreage
disturbed by smaller construction sites.
have been collected recendy in two
States (MacDonald, 1997). The most
recent and complete data set is the
listing of the disturbed area for each of
the 3,831 construction sites permitted in
North Carolina for 1994-1995 and
1995-1996. Nearly 61 percent of the
sites that were 1 acre or larger were
between 1.0 and 4.9 acres in size. This
proportion was consistent between
years. Data showed that this range of
sites accounted for 18 percent of the
total area disturbed by construction. The
values showed very little variation
between the 2 years of data. The total
disturbed area for all sites over this 2-
year period was nearly 33,000 acres, or
about 0.1 percent of the total area of
North Carolina.
As in many metropolitan areas, nine
counties in the San Francisco Bay area
only require ESC permits for sites larger
than 5 acres. Nearly 70 percent of the
542 permits issued in the Bay area
during the last 3 years were for sites
between 5 and 25 acres in size.
Conversations with several
municipalities indicate that there may
be as many as five construction sites
smaller than 5 acres for every site larger
than 5 acres (MacDonald, 1997). Given
the available data, MacDonald (1997)
estimates that construction sites less
than 5 acres probably account for
slightly less than one-third of the total
area under construction. Regulating
construction sites 1 to 5 acres in size
will probably increase the amount of
area being regulated by approximately
20 to 30 percent. Given the high erosion
rates associated with most construction
sites, this indicates that small
construction sites can be a significant
source of water quality impairment,
particularly in small watersheds that are
undergoing rapid development.
d. Improper Disposal of Materials
Improper disposal of materials may
result in contaminated discharges from
separate storm sewer systems in two
ways. First, materials may be disposed
of directly in a catch basin or other
storm water conveyance. Second,
materials disposed of on the ground
may either drain directly to a storm
sewer or be washed into a storm sewer
during a storm event. Improper disposal
of materials to street catchbasins and
other storm sewer inlets often occurs
because many people mistakenly
believe that disposal to such areas is an
environmentally sound practice. Part of
the confusion may occur because some
areas are served by combined sewer
systems, which are part of the sanitary
sewer collection system, and people
assume that materials discharged to a
catchbasin will reach a,n appropriate
municipal sewage treatment plant.
Materials that are commonly disposed
of improperly include used oil;
household toxic materials; radiator
fluids; and litter, such as disposable
cups, cans, and fast-food packages. EPA
believes that there has been increasing
success in addressing these problems
through alternatives such as recycling
and household pickup programs.
B. Statutory Background
In 1972, Congress enacted the CWA to
prohibit the discharge of any pollutant
to waters of the United States from a
point source unless the discharge is
authorized by an NPDES permit.
Congress added CWA section 402 (p) in
1987 to require implementation of a
comprehensive approach for addressing
storm water discharges. Section
402(p)(l) prohibits EPA or NPDES-
authorized States or Tribes from
requiring NPDES permits for discharges
composed entirely of storm water
("storm water discharges") until
October 1, 1992, except for the
following five classes of storm water
discharges specifically listed under
section 402 (p) (2):
(A) a discharge subject to an NPDES
permit before February 4, 1987
(B) a discharge associated with
industrial 'activity
(C) a discharge from a municipal
separate storm sewer system serving
a population of 250,000 or more
(D) a discharge from a municipal
separate storm sewer system serving
a population of 100,000 or more but
less than 250,000
(E) a discharge that an NPDES
permitting authority determines to
be contributing to a violation of a
water quality standard or a
significant contributor of pollutants
to the waters of the United States.
The October 1992 deadline was later
extended to October 1, 1994, by the
Water Resources Development Act of
1992.
Congress clarified and amended the
requirements for NPDES permits for
storm water discharges in section
402(p)(3)(A). This section requires storm
water discharges associated with
industrial activity to meet all applicable
provisions of section 402 and section
301 of the CWA, including technology-
based requirements and any more
stringent requirements necessary to
meet water quality standards. Section
402 (p) (3) (B) establishes NPDES permit
standards for discharges from municipal
separate storm sewer systems. NPDES
permits for discharges from municipal
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1543
separate storm sewer systems (1) may be
issued on a system or jurisdiction-wide •
basis, (2) must include a requirement to
effectively prohibit non-storm water .
discharges into, the storm sewers, and
(3) mustjequire controls to reduce
pollutant discharges to the maximum
extent practicable, including best
management practices. As with all point
source discharges under the CWA,
storm water discharges are subject to
more stringent limitations when
necessary to meet applicable water-
quality based standards pursuant to
CWA section 301(b)(l)(C).
In CWA section 402(p) (4), Congress
established statutory deadlines for the
initial steps in implementing the NPDES
program for storm water. This section
required development of NPDES permit
application regulations, submission of
NPDES permit applications, issuance of
NPDES permits sources covered by
section 402(p)(2), and compliance with
NPDES permit conditions. This section
instructed EPA to issue regulations
specifying NPDES permitting
application requirements by February 4,
1989. In addition, this section required '
industrial'facilities and large municipal
separate storm sewer systems to submit
NPDES permit applications by February
4, 1990. Medium municipal separate
storm sewer systems were to submit
NPDES permit applications by February
4, 1992. EPA was required to issue or
deny all NPDES permits 1 year after
each of the respective deadlines, and
facilities must comply with all permit
conditions within 3 years of final
NPDES permit issuance. All other storm
water discharges fell under the statutory
moratorium for the requirement for ah
NPDES permit. EPA and authorized
NPDES States were prohibited from
requiring a permit for such sources until
October 1, 1994. •
Congress granted extensions to the
NPDES permit application process for
selected classes of discharges associated
with industrial activity. On December
18, 1991, Congress enacted the
Intermodal Surface Transportation
Efficiency Act (ISTEA), which extended
NPDES permit application deadlines for
most storm water discharges associated
with industrial activity from facilities
that are owned or operated by certain
municipalities. EPA and States
authorized to administer the NPDES
program could not require any
municipality with a population of less
than 100,000 to apply for or obtain an
NPDES permit for any storm water
•discharge associated with industrial,
activity prior to October 1, 1992, except
for storm water discharges from an
airport, power plant, or uncontrolled
sanitary landfill. See 40 CFR
122.26(e)(l); 57 FR 11524, April 2, 1992
(reservation of NPDES application '
deadlines for ISTEA facilities).
,, C. EPA's Reports to Congress'-'
Under CWA section 402(p)(5), EPA, in
consultation with the States, was
required to conduct a study, first, to . "
identify unregulated sources of storm
water discharges, as well as to
determine the nature and extent of
pollutants in such discharges. Second,
the study was to establish procedures
and methods of control of such
discharges to the extent necessary to
mitigate impacts on water quality.
Section 402 (p) (5) also required EPA to.
report the results of the first two
components of that study to Congress by
October 1, 1988, and the final report by
October 1, 1989. .
'. In March 1995, EPA submitted a
report wherein EPA reviewed and
analyzed municipal and industrial
facilities not already regulated .under the
initial NPDES regulations for storm
water (U..S. Environmental Protection
Agency, Office of Water. 1995. Storm
Water Discharges Potentially Addressed
by Phase II of the National Pollutant, •
Discharge Elimination System 'Storm
Wa ter Program: Report to Congress.
Washington, D.C. EPA 833-K-94-002),
The report also analyzed associated
pollutant loadings and water quality
impacts from these unregulated sources.
Based on identification of unregulated
municipal sources and analysis of
information on impacts of storm water
< discharges from municipal sources, the
report recommended that the storm
water program focus1 on the 405
"urbanized areas" identified by the
Bureau of the Census. The report further
found that a number of discharges from
unregulated industrial facilities
warranted further investigation to .
determine the need for regulation. The
report classified these unregulated
industrial discharges in two groups, -
Group A and Group B. Group A
included sources that may be
considered a high priority for inclusion
in the NPDES program for storm water
because discharges from these sources
are similar or identical ,to regulated
sources. These "look alike" sources
were not regulated in the initial NPDES
regulations for storm water due to the
language used to define' "associated
with industrial activity." In the initial
regulations for storm water, "industrial
activity" is identified using Standard
Industrial Classification (SIC) codes.
The use of SIC codes lead to incomplete
categorization of industrial activities
with discharges that needed to be
* regulated to protect water quality.
Group B included 18 industrial sectors,
specifically sources that EPA expected
to contribute to storm water
contamination due to the activities
conducted and pollutants anticipated
pnsite (e.g., vehicle maintenance,
machinery and electrical repair, and .
intensive agricultural activities).
EPA reported on the latter component
of the section 402 (p) (5) study via
President Clinton's Clean Water
Initiative, which was released on
February 1, 1994 (U.S. Environmental
Protection Agency, Office of Water.
1994. Clinton's Clean Water Initiative.
Washington, D.C. EPA. 800-R-94-001).
This report addresses a number of issues
associated with NPDES requirements for
storm water discharges and proposes (1)
establishing a phased compliance with
a water quality standards approach for
discharges from municipal "separate
storm sewer systems with priority on
controlling discharges from municipal
growth and development areas, (2)
clarifying that the maximum extent
practicable standard should be applied
in a site-specific, flexible manner, taking
into, account cost considerations as well
as water quality effects, (3) providing an
exemption from the NPDES program for
storm water discharges from industrial
facilities with no activities or no
significant materials exposed to storm
water, (4) providing extensions to the
statutory deadlines to complete
• implementation of the NPDES program
for the storm water program, (5)
targeting urbanized areas for the
requirements in the NPDES program for
storm water, and (6) providing control.
of discharges from inactive and
abandoned mines located on Federal
lands in a more targeted, flexible
manner. '
D. EPA Regulations for the NPDES •
Program for Storm Water
The purpose of the regulations is to
protect water quality. EPA's findings are
explained in Section LA. For the final __
step in implementation of the point
source control program for storm water,
CWA section 402 (p) (6) requires'EPA, in
consultation with States and local
officials, to issue regulations for the
••i designation of the remaining
unregulated discharges to be regulated
to protect water quality based on studies
conducted under section 402(p) (6), ,
which is discussed below. Under
section 402(p)(6), EPA is to establish an
extension of the existing storm water
program to regulate newly designated
sources. At a minimum, the extension
must establish (1) priorities, (2)
requirements for- State storm water
management programs, and (3)
expeditious deadlines. The section
402 (p) (6) program may include
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performance standards, guidelines,
guidance, and management practices
and treatment requirements, as
appropriate. For additional background
Information about the initial steps in the
NPDES program for storm water, see 55
FR 47990, November 16, 1990 (final
regulations under CWA sections
402(p)(3) and (p)(4)); 60 FR 40230,
August?, 1995 (finalregulations
establishing permit application
deadlines under section 402 (p) (6)). EPA
3s currently subject to a consent order to
propose supplemental rules under
section 402(p)(6) by November 25, 1997
(on July 16, 1997, EPA filed papers to
seek an extension of the signature date
for today's proposal from the original
date of September 1, 1997 to the current
date) and to finalize these rules by
March 1.1999. See Natural Resources
Defense Council, Inc. v. Browner, Civ.
No. 95-634 PLF (D.D.C.. April 7. 1995).
The Agency and NRDC also entered into
a settlement agreement to address the
portions of the existing storm water
rules remanded by the 9th Circuit
according to the same schedule as the
consent order.
The United States District Court for
the District of Columbia entered a
consent decree to resolve this litigation.
EPA and NRDC have also stipulated to
a modification of a companion
settlement, agreement to extend the date
for proposal of regulations to address
portions of the existing storm water
regulations (no exposure and
construction below 5 acres), which were
remanded to the Agency by the U.S.
Court of Appeals for the Ninth Circuit.
In today's notice, EPA is proposing to
control storm water discharges of
concern through the NPDES program.
Please refer to today's preamble Section
LA. for a more detailed discussion of the
impacts of urbanization on water
quality. EPA is also strongly
encouraging partnerships and the
watershed approach as the management
framework for efficiently, effectively,
and consistently protecting and
restoring aquatic ecosystems and
protecting public health. These
regulations are intended to facilitate the
implementation of a watershed
approach by providing the NPDES
permitting authority and municipalities
the flexibility to address local
environmental problems by using
general permits.
E. EPA Outreach Efforts
On September 9.1992, EPA published
a notice requesting information and
public comment on how to prepare
regulations under section 402(p)(6) (see
57 FR 41344). The notice identified
three sets of issues associated with
developing new NPDES storm water
regulations: (1) how should EPA
identify unregulated sources of storm
water to protect water quality, (2) what
types of control strategies should EPA
develop for these sources, and (3) what
are appropriate deadlines for
implementing new requirements.
The September 9, 1992, notice
presented a range of alternatives under
each issue in an attempt to illustrate,
and obtain input on, the full range of
potential approaches for the regulation
of unregulated sources to protect water
quality. The notice recognized that
potential sources for coverage under the
section 402(p)(6) regulations would fall
into two main categories: municipal
separate storm sewer systems and
individual (commercial and residential)
sources. EPA recognized that a major
distinction between most options for
identifying sources to be regulated was
either to require targeted municipalities
to develop source controls and
management programs for storm water
discharges within their jurisdictions or
to require permits for discharges from
facilities on an individual basis.
EPA received more than 130
comments on the September 9, 1992,
notice. Approximately 43 percent of the
comments came from municipalities, 29
percent from trade groups or industries,
24 percent from State or Federal
agencies, and approximately 4 percent
from other miscellaneous sources. No
comments were received from
environmental groups. For further
discussion of the comments received,
see Storm Water Discharges Potentially
Addressed by Phase II of the National
Pollutant Discharge Elimination System:
Report to Congress (EPA, 1995a), pp. 1-
21 to 1-22, and Appendix] (which
provides a detailed summary of the
comments received as they relate to the
specific issues raised in the notice).
In early 1993, the Rensselaerville
Institute and EPA held public and
expert meetings to assist in developing
and analyzing options for identifying
unregulated sources and possible
controls. The report on the 1993
meetings indicates that the two options
most favored by the various groups
participating were:
• A program in which States would
select sources to be controlled in a
manner that was consistent with criteria
developed by EPA. The comprehensive
program under section 402 (p) (6) would
provide States with flexibility to rely on
either NPDES requirements or other
frameworks to control targeted sources.
• A tiered approach that would
provide for EPA selection of high
priority sources for control by NPDES
permits and State selection of other
sources for control under a State water
quality program other than the NPDES
program.
(Appendix I, "Report on the EPA
Storm Water Management Program
(Rensselaerville Study)." EPA, 1995a).
EPA also conducted outreach with
representatives of small entities in
conjunction with the convening of a
Small Business Advocacy Review Panel
under the Small Business Regulatory
Enforcement Fairness Act (SBREFA).
EPA, in consultation with the Small
Business Administration, invited 29
small entity representatives and
streamlining representatives to
participate in this outreach effort. Many
of the representatives contacted in this
outreach had been working closely with
EPA in developing this proposed rule
through the FACA Committee and the
Storm Water Phase II FACA
Subcommittee. The further discussion
of this process is found at Section VII,
Regulatory Flexibility Act.
In May 1997, EPA conducted two
telephone conference calls and held an
all-day meeting at EPA headquarters to
solicit the advice and recommendations
of representatives. EPA eventually
received 12 sets of written comments
from representatives (see Small
Business Advocacy Review Panel
(SBREFA). August 7, 1997. Final Report
on EPA's Planned Proposed Rule for the
National Pollutant Discharge
Elimination System: Storm Water Phase
II.) On June 19, 1997, the Small
Business Advocacy Review Panel was
convened to review the proposed rule.
The panel consisted of officials from
EPA, the Small Business
Administration, and the Office of
Management and Budget. The panel
considered representatives' comments
previously submitted to EPA and
allowed representatives to provide
additional comments. Based on
comments and its own discussions, the
Panel has provided findings regarding
the elements of an IRFA and specific
recommendations regarding the
proposed rule to EPA. The
recommendations of the panel are
discussed in Section VII.B., Regulatory
Flexibility Act, SBREFA Panel Process.
F. The FACA Committee Effort
To assist EPA in coordinating
implementation of the urban municipal
wet weather water pollution control
program, EPA established the Urban
Wet Weather Flows Advisory
Committee (hereinafter, "FACA
Committee") under the Federal
Advisory Committee Act (FACA). The
Office of Management and Budget
approved the charter for the FACA
Committee on March 10, 1995. The
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1545
FACA Committee assisted EPA in
developing cost-effective solutions for
controllingthe environmental and
human health impacts of urban wet
weather flows with a minimum of
regulatory burden. The FACA
Committee provided and continues to
provide a forum for identifying and
addressing issues associated with water
quality impacts from these sources.
The FACA Committee has two
subcommittees: the Storm Water Phase
II FACA Subcommittee (the designation
and comprehensive program
requirements under CWA section
402(p) (6) are often referred to as "Storm
Water Phase II") and the Sanitary Sewer
Overflows (SSOs) FACA Subcommittee.
Consistent with the requirements of
FACA, the membership of both the
FACA Committee and the
subcommittees is balanced among EPA's
various outside stakeholder interests,
including representatives from
municipalities, industrial and
commercial sectors, agriculture,
environmental and public interest
groups, States, Indian Tribes, and EPA.
Members have been selected and
appointed for the duration of the
process. A Federal official or EPA
employee serves as the Designated
Federal Officer and is present at all
meetings. All FACA Committee and
subcommittee meetings are open to the
public and announced in advance in the
Federal Register.
The Storm Water Phase II FACA
Subcommittee met twelve times
between September 1995 and October
1997. The 32 subcommittee members
discussed the regulatory framework that
serves as the basis for today's proposed
rule at these meetings as well as during
numerous conference calls. EPA
provided subcommittee members with
four successive drafts of the proposed
rule and preamble, outlines of the rule,
documents identifying changes made to
each draft, and summaries of the written
comments received on each draft, •
including how the comments had been
addressed. EPA received extensive
written comments from FACA members
on a number of occasions, together with
extensive oral feedback at a number of
meetings and conference calls. Although
the Storm Water Phase II FACA
Subcommittee has not reached
consensus on the details of today's
proposal, they have provided EPA with
significant input and insights, which
EPA has tried to balance and address.
Today's proposed regulations respond
to President Clinton's direction on
regulatory reform. EPA sought to
develop a common sense regulatory
approach to allow EPA, States, and'
Tribes to "manage for results" and
provide for ecosystem protection. EPA
believes there is considerable latitude in
CWA section 402 (p) (6) in establishing
the scope of coverage (i.e., the
designation of sources to be regulated
under the NPDES program for storm
water, as well'as the comprehensive
program for regulating those sources).
EPA has benefitted greatly from the
variety of view points and the lively
exchange of ideas through the FACA
Committees and subcommittees. EPA
has sought to build-upon the issues
raised in proposing the scope, method,
and timing of the comprehensive
program to regulate storm water and to
more effectively provide outreach and
technical assistance for these new
regulations. The Storm Water Phase II
FACA Subcommittee was-also
instrumental in discussing lessons
learned from implementation of the
existing NPDES program for storm
water. Records and Iterative draft
versions of today's proposal'have been
available and continue to be available to
the public at the Office of Wastewater
Management's Home Page (see http://
www.epa.gov/owm) or through the
Point Source Information Provision
Exchange System (PIPES) Home Page '
(see http://www.epa.gov/owmitnet/
pipes/pipes.htm).
The FACA Committee has provided
the Storm Water Phase II FACA
Subcommittee with several
recommendations for improving the
existing NPDES program for storm
water. Some of these recommendations
are reflected as part of today's proposal.
The FACA Committee provided
recommendations, for example, for the
proposal regarding a "no exposure"
incentive for facilities with storm water
discharges "associated with industrial '
activity.".EPA's proposal would apply
this recommendation to the designation
of unregulated sources under section
402 (p) (6) as well. The FACA Committee
also recommended that EPA clarify and
define the standards applicable to
NPDES permit controls for municipal
separate storm sewer systems,
specifically the standards that permits
require for controls to reduce the
discharge of pollutants "to the
maximum extent practicable" (MEP).
G. Related Nonpoint Source Programs
1. Section 319 of the Clean Water Act
In 1987, section 319 was added to the
Clean Water Act to provide a framework
for funding State and local efforts to
address pollutant sources not addressed
by the NPDES program! (i.e., nonpoirit
sources). To obtain funding, States are
required to submit Nonpoint Source
Assessment Reports identifying State
waters that without additional control of
' nonpoint sources of pollution could not
' reasonably be expected to attain or
maintain applicable water quality
standards or the goals and requirements
of the CWA. States are also required to
prepare and submit for EPA approval a
statewide Nonpoint Source Management
Program for controlling nonpoint source
water pollution to navigable waters
within the State-and improving the
quality of such waters. State program
submittals must identify specific best
management practices (BMPs) and
measures that the State proposes to '
implement in the first 4 years after
program submission to reduce pollutant
loadings from identified nonpoint
sources to levels required to achieve the
stated water quality objectives.
State programs funded under section ,
319 can include both regulatory and
nonregulatory State and local
approaches. Section 319(b) (2) (B)
specifies that a combination of
"nonregulatory or regulatory programs
for enforcement, technical assistance,
financial assistance, education, training,,
technology transfer, and demonstration ,
projects" may be used, as necessary, to
achieve implementation of the BMPs or
measures identified in the section 319
submittals.
Although most States have generally
emphasized the use of voluntary
approaches in their section 319 l
programs, some States and local
governments have implemented
regulations and policies to control
pollution from urban runoff. States such
as Delaware and Florida, as well as local
jurisdictions such as, the Lower
Colorado River Authority, are pursuing
storm water management goals through
numerical treatment standards for new
development. Many States and local
governments have enforceable erosion
and sediment control regulations.
On a broader scale, nonpoint source
pollution is being addressed at the
watershed level by such programs as
those being implemented by the State of
Wisconsin, the Puget Sound Water
Quality Authority, and the States that
are parties to the Great Lakes Water
Quality Agreement. A number of
individual States and local communities
have adopted legislation or regulations
that limit development or require
special management practices in areas
surrounding water resources of special
concern, such as Maryland's Critical ,
Areas Act.
2. Section 6217 of the Coastal Zone Act
Reauthorization Amendments
Section 6217 of the Coastal Zone Act
Reauthorization Amendments (CZARA)
of 1990 provides that States with
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approved coastal zone management
programs must develop and submit
coastal nonpoint pollution control
programs to EPA and the National
Oceanic and Atmospheric
Administration (NOAA) for approval.
Failure to submit an approvable
program will result in a reduction of
Federal grants under both the Coastal
Zone Management Act and section 319
oftheCWA.
State coastal nonpoint pollution
control programs under CZARA must
include enforceable policies and
mechanisms that ensure
implementation of the management
measures throughout the coastal
management area. Section 6217(g) (5)
defines management measures as
"economically achievable measures for
the control of the addition of pollutants
from existing and new categories and
classes of nonpoint sources of pollution,
which reflect the greatest degree of
pollutant reduction achievable through
the application of the best available
nonpoint pollution control practices,
technologies, processes, siting criteria,
operating methods, or other
alternatives." Congress mandated a
technology-based approach based on
technical and economic achievability
under the rationale that neither States
nor EPA have the money, time, or other
resources to create and expeditiously
implement a program that depends on
establishing cause and effect linkages
between particular land use activities
and specific water quality problems. If
this technology-based approach fails to
achieve and maintain applicable water
quality standards and to protect
designated uses, CZARA 6217(b)(3)
requires additional management
measures.
EPA issued Guidance Specifying
Management Measures for Sources of
Nonpoint Pollution in Coastal Waters
under 6217(g) in January 1993. The
guidance identifies management
measures for five major categories of
nonpoint source pollution: agriculture,
forestry, urban, marinas and recreational
boating, and hydromodification. The
management measures reflect the
greatest degree of pollutant reduction
that is economically achievable for each
of the listed sources. These management
measures provide reference standards
for the States to use in developing or
refining their coastal nonpoint
programs. In general, the management
measures were written to describe
systems designed to reduce the
generation of pollutants. A few
management measures, however,
contain quantitative standards that
specify pollutant loading reductions.
For example, the New Development
Management Measure, which is
applicable to construction in urban
areas, requires (1) that by design or
performance the average annual total
suspended solid loadings be reduced by
80 percent and (2) to the extent
practicable, that the pre-development
peak runoff rate and average volume be
maintained. The management measures
approach was adopted to provide State
officials flexibility in selecting strategies
and management systems and practices
that are appropriate for regional or local
conditions, provided that equivalent or
higher levels of pollutant control are
achieved.
Storm water discharges regulated
under the existing NPDES program,
such as discharges from municipal
separate storm sewers serving a
population of 100,000 or more and
construction activities that disturb 5 or
more acres, do not need to be addressed
in Coastal Nonpoint Pollution Control
Programs. However, potential new
sources, such as urban development
adjacent to or surrounding municipal
systems serving a population of 100,000
or more, smaller urbanized areas, and
construction sites that disturb less than
5 acres, that are identified in
management measures under section
6217 guidance need to be addressed in
Coastal Nonpoint Pollution Control
Programs until such discharges are
issued an NPDES permit. EPA and
NOAA have worked and continue to
work together in their activities to
ensure that authorities between NPDES
and CZARA do not overlap.
EPA and NOAA published Coastal
Nonpoint Pollution Control Program:
Program Development and Approval
Guidance (1993), which addresses such
issues as the basis and process for EPA/
NOAA approval of State Coastal
Nonpoint Pollution Control Programs,
how EPA and NOAA expect State
programs to implement management
measures in conformity with EPA
guidance, and procedures for reviewing
and modifying State coastal boundaries
to meet program requirements. The
document clarifies that States generally
must implement management measures
for each source category identified in
the EPA guidance developed under
section 6217(g). The document also sets
quantitative performance standards for
some measures. Coastal Nonpoint
Pollution Control Programs are not
required to address sources that are
clearly regulated under the NPDES
program as point source discharges.
Specifically, such programs would not
need to address small municipal
separate storm sewer systems and
construction sites covered under NPDES
storm water permits (both general and
individual). The guidance also clarifies
that regulatory and nonregulatory
mechanisms may be used to meet the
requirement for enforceable policies and
mechanisms, provided that
nonregulatory approaches are backed by
enforceable State authority ensuring that
the management measures will be
implemented. Backup authority can
include sunset provisions for incentive
programs. For example, a State may
provide additional incentives if too few
owners or operators participate in a tax
incentive program or develop
mandatory requirements to achieve the
necessary implementation of
management measures.
H. Watershed-based Approach for Water
Quality Programs
EPA is promoting an integrated
watershed approach for storm water and
other discharges that focuses on
coordinated public and private sector
efforts to address the highest priority
water quality problems within
hydrologically defined geographic areas.
The watershed approach is a
decisionmaking process that reflects a
common strategy for information
collection and analysis and a common
understanding of the roles, priorities,
and responsibilities of all stakeholders
within a watershed. Implementation of
the watershed approach is critical for
the improvement of water quality in the
United States, and the approach is an
essential priority for EPA's water
programs. EPA, therefore, is
reevaluating its programs, including the
NPDES, ground water, drinking water, '
and nonpoint source programs, to
determine how they can be more
effectively incorporated into the
watershed approach.
EPA intends that a central role be
given to watershed planning and
analysis by permitting authorities
implementing storm water programs
under today's proposed rule. While
States are not required to use a
watershed approach, EPA believes that
this approach would significantly
improve implementation of today's
proposed rule. As discussed in Section
H.A., Overview, EPA designed today's
proposed rule to facilitate watershed
planning and analysis, particularly in
the area of designating those storm
water sources to be covered under the
program or giving regulatory relief to
storm water discharges already
designated, but also in determining and
implementing the requirements for the
owners and operators of small
municipal separate storm sewer
systems. EPA expects that the NPDES
permitting authority would work with
State agencies who have jurisdiction
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1547
over nonpoint sources and other areas
within the watershed not covered under
the NPDES program in the development
of a comprehensive watershed plan.
EPA's overall support of using
watershed-based alternatives is
described in greater detail in EPA's
Watershed Approach Framework (June
1996; http:/www.epa.gov/OWOW/
watershed/framework.html#6b) and
NPDES Watershed Strategy (U.S.
Environmental Protection Agency.
March 1994. Watershed Protection—
NPDES Watershed Strategy.
Washington, D.C.). The NPDES
Watershed Strategy discusses
.integration of NPDES program functions
into a broader watershed protection
approach and highlights areas for
coordination with stakeholders to
promote implementation of the
approach. The NPDES Watershed
Strategy is based on the following
principles:
• Watershed protection approaches
may vary in terms pf specific elements,
timing, and resources, but all should
share a common emphasis and
insistence on integrated actions, specific
action items, and measurable
environmental and programmatic,
milestones.
• Related activities within a basin or
watershed must be coordinated to
achieve the greatest environmental
benefit and most effective level of
stakeholder involvement
• Actions relating to restoration and
protection of surface water, ground
water, and habitat within a basin should
be based upon an integrated decision-
making process, a common information
base, and a common understanding of
the roles, priorities, and responsibilities
of all stakeholders within a basin.
• Staff and financial resources are
limited and must be allocated to address
environmental priorities as effectively
and efficiently as possible.
• Program requirements that interfere
or conflict with environmental priorities
should be identified and revised to the
extent possible.
• Accurate information and high
quality data are necessary for decision-
making and should be collected on an
incremental basis; interim decisions
should be made based on available data
to prevent further degradation and
promote restoration of natural resources.
The watershed approach would be
most successful if all stakeholders are
involved. In addition, within a
geographic management unit
(watershed/basin), a cycle of activities
and a schedule for implementation must
be established.
EPA recognizes that many States are
coordinating their authorities, programs,
and decisionmaking using a watershed
management approach to achieve more
efficient and better problem solving. .
The Agency will continue to encourage
the use of the watershed approach
through activities that include tailoring
the EPA program to support this
direction; publishing case studies for
States to use as examples; creating a
tools directory; undertaking other
outreach efforts, such as a quarterly
newsletter (WatershedEvents);
including watershed activities on the
EPA Internet Home Page; training for
permit writers and the regulated
community; and sponsoring '
conferences, such as "Watershed 96."
State representatives of the Storm
Water Phase IIFACA Subcommittee
supported watershed-based
implementation strategies and controls
and noted the following:
(T)he future demands a new model for
managing water resources, based on
well-defined geographic units such as
basins or watersheds, that recognizes all
the interconnections within the
watershed that define the hydrologic
cycle in that area, including surface and
groundwaters as well as wetlands. The
management of any watershed should
reflect all of the things that make it
unique, including specific precipitation
patterns, topography, soil and geological
characteristics,-and land use.
A systems management approach
.would involve the development and
operation of a comprehensive water
resource management program—though
ultimately it need not be limited to
water resources—within the specific
geographic area encompassing the basin
or watershed. Components of such a
comprehensive program would include
water supply, water quality, water
conservation, flood protection, land use,
and protection'of fish and wildlife
resources. This can often be done
effectively through comprehensive
watershed management and planning.
As our government policies transition
to a systems-based, comprehensive
approach to managing water resources,
we must introduce increased flexibility
and latitude into current programs so
that cross-categorical management of
resources can flourish. Water resource
management policies should also
recognize the significant regional
variance in the water resource.
Management policies must be tailored to
local hydrologic and ecological
conditions. Any national policy should
acknowledge unique regional and state
characteristics and provide a framework
for development strategies consistent
-with the national policy.
The States recognize that there are
significant institutional obstacles, and
that the new model needs to be
developed in an evolutionary fashion.
Substantial involvement of dischargers,
users, and the general public will be ,
essential. It will require unprecedented
cooperation among many state and local
entities, among state and federal
agencies, and between states in the case
of watersheds crossing state lines.
Protection efforts should be coherent
and coordinated to make the most
efficient use of scarce resources and
minimize inconsistency among federal;
state, and local programs or agencies.
The FACA Committee is developing a
recommended framework for integrating
urban wet weather discharges, including
storm water discharges, into the'
watershed approach that reflects the key
principles outlined in EPA's Watershed
Approach Framework and NPDES.
Watershed Strategy. The committee's
recommendations are contained in a
draft policy entitled, A Watershed
Alternative. This framework would
provide that all regulated discharges
meet minimum requirements regardless
of their geographic location. Based on a
review and assessment of watershed
conditions and a determination that
water quality objectives are not being
met in a particular watershed, .
watershed stakeholders would be able to
choose to collectively pursue a
watershed approach to address
identified water quality problems. A key
element of this watershed alternative is
the development of a comprehensive
watershed plan that describes (1) who .
will coordinate watershed planning and
implementation, (2) the geographic area
being covered by the watershed
approach, (3) the watershed
stakeholders participating in the
planning and implementation effort, (4)
assessments of aquatic resources and
.existing or potential water quality
problems, (5) the coordinated watershed
management activities that will be
implemented, (6) the financial plan and
schedule for completing the'coordinated
management activities, and (7) a
mechanism for accountability. Once this
plan were approved by the applicable
regulatory authority (ies), relevant
provisions of the watershed plan would
be incorporated into relevant regulatory
and nonregulatory mechanisms and
progress in implementing the watershed
plan would be evaluated periodically.
The watershed alternative has
numerous inherent incentives,
including greater opportunities to
improve water quality and •
environmental conditions, more
equitable allocation of resources,
enhanced program efficiency and lower
costs, improved coordination among
programs, an improved basis for
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management decisions, an emphasis on
local decisionmaking, greater
consistency and responsiveness.
Increased opportunities to use market-
based incentives, and improved public
relations.
EPA's key principals are also reflected
in today's proposed rule. First, the
Agency has structured the designation
of additional sources by the permitting
authority to facilitate the consideration
of watershed impacts. The Agency also
highly recommends that municipal
storm water discharges that would be
designated under this proposal be
covered under general permits issued on
a watershed-wide basis. Such permits ,
could also be written to address other
sources in the watershed as well. Where
a comprehensive watershed plan has
been developed, the Agency believes the
components of that plan should be
reflected in all permits issued to the
parties addressed by the watershed
plan.
Some stakeholders have raised
concerns that the Agency is failing to
consider watershed priorities in
determining which sources will be
designated and in the requirements to
be imposed on such sources under
today's proposal. The Agency disagrees.
The Agency has limited its proposed
designation to those sources generally
believed to be of significant concern to
water quality. While encouraging
designation of additional sources based
on considerations of water quality,
including considerations made on a
watershed basis, the Agency also
proposes to allow a waiver of otherwise
applicable requirements for some
sources (construction sites under 5 acres
and small municipal separate storm
sewer systems serving less than 1,000
people) where the NPDES permitting
authority participates in implementing a
watershed plan and water quality is not
impaired. Further, the Agency proposes
flexible requirements for permittees in
allowing consideration of BMPs tailored
to the needs of the watershed. The
Agency believes that this sort of
flexibility will generally ensure
watershed protection while allowing
permitting authorities flexibility to
tailor program implementation to the
needs of a particular watershed and its
stakeholders.
n. Description of Proposed Program
A. Overview
1. Objectives EPA Seeks to Achieve in
Today's Proposal
EPA seeks to achieve several
objectives in today's proposed rule.
Under CWA section 402(p)(6), EPA is
required to provide a comprehensive
storm water program that designates and
controls additional sources of storm
water discharges to protect water
quality. In addition, EPA is required to
address discharges of storm water from
the activities exempted under the 1990
storm water regulations that were
remanded by the Ninth Circuit Court of
Appeals in NRDC v. EPA (9th Circuit,
'1992)—construction activities
disturbing less than 5 acres and so-
called "light" industrial activities not
exposed to storm water (see discussion
of "no exposure" below). EPA is also
seeking to address the problem of so-
called "donut holes" created by the
existing NPDES storm water program.
Donut holes are municipal separate
storm sewer systems located within the
urbanized areas that include systems
covered by the existing NPDES storm
water program, but are not currently
addressed by the storm water program
because of the particular drafting of the
existing regulations. In other words,
donut holes are gaps in the existing
NPDES storm water program's
regulatory scheme. EPA also is trying to
facilitate and promote watershed
planning as a framework for
implementing water quality programs
where possible.
Although the proposed program can
be structured in various ways to regulate
the remaining unregulated sources of
storm water to protect water quality,
EPA believes it can best achieve its
objectives through flexible innovations
within the framework of the NPDES
program. Unlike the storm water
regulations EPA promulgated in 1995,
EPA no longer proposes to designate all
storm water discharges for nationwide
coverage under the NPDES program for
storm water. The proposed framework
for today's proposed rule is one that
would balance both nationwide
automatic designation and locally based
designation. Nationwide designation
would apply to those classes or
categories of storm water discharges that
EPA believes present a high likelihood
of having adverse water quality impacts,
regardless of location. EPA is proposing
to designate the following sources on a
nationwide basis: storm water
discharges from small municipal
separate storm sewer systems located in
urbanized areas and construction
activities that result in land disturbance
equal to or greater than 1 acre. As noted
under Section I.A.I, Studies and
Assessments of Storm Water Runoff,
these two sources can cause significant
water quality impacts. Additional
sources would not be covered on a
nationwide basis 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 exceptions on a more local basis.
Additional individual sources or
categories of storm water discharges
could, however, be covered under the
program through a local, watershed-
based designation process. Permitting
authorities may designate additional
small municipal separate storm sewer
systems when they develop designation
criteria and apply these criteria to small
municipal separate storm sewer systems
located outside of an urbanized area, in
particular those with a population of
10,000 or more and a population density
of at least 1,000. Exhibit 1 illustrates the
framework for today's proposal.
BILLING CODE 6560-55-P
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1549
Exhibit!
Phase II Source Decisions
WATER QUALITY IMPACT OF SOURCES
I
LOW LIKELIHOOD/
INSUFFICIENT INFORMATION
HIGH LIKELIHOOD
NOT AUTOMATICALLY
DESIGNATED BY RULE
Non-Phase I small MS4s located
. outside Urbanized Areas.
Construction activity that results in the
land disturbance of less than 1 acre. •
Non-Phase I industrial and
commercial sources.
NATIONAL
ASSESSMENT
AUTOMATICALLY
DESIGNATED BY RULE
All nqn-Phase I small MS4s located
outside Urbanized Areas.
Construction activity that results in the
land disturbance of greater than or equal
to 1 acre and less than 5 acres.
BUT DESIGNATED BY
PERMITTING AUTHORITY IF:
, • A small MS4 meets the designation
criteria that permitting authorities are
required to develop. The criteria must
be applied to at least those small MS4s
located in an area with a population of
at least 10,000 and a population density
of at least 1,000.
• Watershed plan, TMDL,* or other
local-water quality assessment defines
need to cover small MS4s and
construction activity not currently
regulated.
• EPA or the State determines
that"the storm water discharge
contributes to a violation of a water
quality standard or is a significant
/ contributor of pollutants to the waters
of the United States.
WATER QUALITY
ASSESSMENT
BUT WAIVERS PROVIDED FOR:
1 Regulated small MS4s serving
jurisdictions with a population of less
than 1,000 where a watershed plan or
TMDL assessment addresses the
pollutants of concern.
1 Construction activities between .1 and
5 acres where:
(1) activity occurs during negligible
rainfall period,
(2) determination of low soil loss, or
(3) a watershed plan or TMDL
assessment addresses the pollutants
of concern.
* EPA will continue to require States to comply
with their TMDL implementation schedules.
BILLING CODE 6560-55-C
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The framework for the proposal
provides a significant degree of
flexibility. The provisions for
nationwide designation of construction
and small municipal separate storm
sewer systems in urbanized areas allow
for a waiver of applicable requirements
based on appropriate water quality
conditions. The proposal would allow a
permitting authority to waive otherwise
applicable requirements for a regulated
small municipal separate storm sewer
system if the jurisdiction served by the
system includes a population of less
than 1,000 persons and meets additional
water quality-based conditions. Water
quality-based conditions would be the
basis for a waiver of requirements of
construction activities between 1 and 5
acres, as well. For construction sources,
the rule would provide significant
flexibility for waiving otherwise •
applicable regulatory requirements
where a permitting authority
determines, based on water quality and
watershed considerations, that storm
water controls are not needed. Coverage
would extend to municipal and
construction sources outside the
nationwide designated classes or
categories based on watershed and case-
by-case assessments. For the municipal
program, today's proposal would
provide broad discretion to NPDES
permitting authorities to develop and
Implement criteria for designating small
municipal separate storm sewer systems
outside of urbanized areas. Other storm
water discharges from unregulated
industrial, commercial, and residential
sources would not be covered unless a
permitting authority determines on a
case-by-case, or categorical, basis that
controls would be needed to protect
water quality. EPA believes that the
flexibility provided in today's proposed
rule would facilitate watershed
planning.
2. General Requirements for Regulated
Entities Under Today's Proposal
Today's proposal defines additional
classes and categories of storm water
discharges for coverage under the
NPDES program. Those dischargers
proposed to be regulated by today's
proposed rule would be required to seek
coverage under an NPDES permit.
Furthermore, all NPDES-authorized
States and Tribes would be required to
implement these provisions and make
any necessary amendments to current
State NPDES regulations to ensure
consistency with today's proposal. EPA
would remain the NPDES permitting
authority for States and Tribes without
NPDES authorization.
EPA proposes to regulate the
remaining unregulated point sources of
storm water under the NPDES
permitting program for a variety of
reasons, primarily programmatic, but
also legal. The primary reason for
regulating storm water under the NPDES
program is for simplicity and
predictability. EPA envisions a
"seamless" program, particularly for
regulating storm water discharges from
municipal separate storm sewer
systems, regardless of the relative size of
the source. Forty-three jurisdictions
(States and territories) administer the
NPDES permit program, providing an
opportunity for expeditious
implementation of a comprehensive
program to regulate storm water to
protect water quality. The NPDES
program is a comparatively mature
regulatory program, and affected
stakeholders are familiar with, if not
accustomed to, how it operates.
Regulations under the NPDES program
are not enforceable against an affected
entity until the effective date of a
permit, thus providing an opportunity
to identify particularized concerns and
tailor permit conditions that are relevant
and meaningful on an individualized
basis. The NPDES permitting authority
periodically reviews the NPDES permits
to ensure that applicable requirements
remain relevant and ensure adequate
protection of receiving waters; CWA
section 402(b)(l)(B) describes the 5-year
permit term. In addition, NPDES
permits are enforceable. Permittees,
inspectors, and enforcement authorities
understand the individualized permit
obligations and, over the years, judicial
precedents have established clear
procedural standards for the
enforcement of those obligations. The
NPDES program also provides clear
rules for citizen participation, not only
in permitting and compliance
monitoring, but also in enforcement.
Legal considerations also affect the
Agency's proposal to regulate the
remaining unregulated storm water
under the NPDES permitting program.
When Congress enacted the point source
storm water provisions of section 402 (p)
in 1987, it also enacted programs for
control of nonpoint sources under
section 319. The statute appears to
suggest, therefore, that EPA should
control point sources under section
402 (p) with different, "regulatory"
programs than the programs for
controlling nonpoint sources under
section 319. While EPA fully anticipates
that States will provide "reasonable
assurances" for the control of nonpoint
sources in a timely and effective
manner, such assurances are not yet
fully developed in practice. Several
States have enacted laws that prescribe
State regulation in a manner that is
"more stringent" than Federal
regulation. While the CWA explicitly
preserves the authority for States to
enact "more stringent" regulations to
control discharges, the Agency would be
concerned that providing maximum
flexibility for States to establish "non-
NPDES" programs would leave
regulatory authorities in many States in
a quandary to determine whether or not
programs they would design are more or
less stringent than a Federal.program.
The NPDES program provides a useful
and recognized standard in these
instances.
As noted earlier, the NPDES program
has a proven record of reducing and
eliminating pollutant discharges. The
NPDES program also provides
mechanisms to assure attainment and
maintenance of water quality standards.
Given that regulations under section
402(p)(6) are to regulate "to protect
water quality," the NPDES program
provides a natural fit. Notwithstanding
the preceding; however, the Agency
recognizes the continuing imperative to
assure that environmental regulations
accomplish statutory objectives in the
least burdensome and most cost-
effective fashion. As explained further
in this preamble, the form and
substance of NPDES permits to address
the sources designated in today's
proposal would provide greater
flexibility for the newly covered sources
than the existing "standard" NPDES
permit.
Today's proposal would establish
requirements for NPDES permitting
authorities, regulated small municipal
separate storm sewer systems,
construction activities disturbing equal
to or greater than 1 acre and less than
5 acres of land, and other discharges
designated by the permitting authority
based on local conditions.
Today's proposal includes some new
requirements for NPDES permitting
authorities implementing the CWA
section 402 (p) (6) program. As noted
above, EPA is making a significant effort
to build flexibility into the program. At
the same time, EPA is maintaining a
level of national consistency, as
appropriate. Permitting authorities
would be required to generally ensure
that the minimum requirements
proposed today would be addressed by
the regulated community (e.g.,
permitting authorities must ensure that
permits issued to municipalities include
the minimum control measures
established under the program).
Permitting authorities would also have
the ability to make numerous decisions
about the program including who is
regulated under the program (e.g., case-
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1551
by-case designations arid waivers), what
the requirements are for regulated
entities (e.g., waiving otherwise
applicable provisions where certain
conditions are met and developing a list
of regionally appropriate, field-tested
BMPs that it believes to be cost-
effective) , and what the allocation of
responsibilities is between regulated
entities.
The rule proposes to extend the
municipal storm water program to
include the following: small municipal
separate storm sewer systems within
urbanized areas (with the exception of
tribally-o'wned systems that serve less
than 1,000 persons and any other
system waived from the requirements by
the NPDES permitting authority), small
municipal separate storm sewer systems
meeting the criteria (to be established by"
the permitting authority) for
designation, and any municipal separate
storm sewer system contributing
substantially to the storm water
pollutant loadings of a regulated, .
physically interconnected municipal
separate storm sewer system. Small
municipal separate storm sewer systems
include municipal, Tribal, State, and
Federal facilities and other systems
located in an urbanized area that fall
within the definition of a municipal
separate storm sewer system. These
would include, for example. State
departments of transportation,1
universities, and military bases.
Today's proposal would require all
regulated small municipal separate
c storm sewer systems to develop and
implement a storm water management
program. Program components would
• include, at a minimum, measures to
address requirements concerning public
education and outreach, public
involvement, illicit discharge detection
and elimination, construction site runoff
control, post-construction storm water
management in new development and -
redevelopment, and pollution
prevention and good housekeeping of
municipal operations. These program
components would be implemented
through NPDES permits. A municipality.
would be required to submit to the .
NPDES permitting authority, either in
' its NOI or individual permit .
application, the BMPs to be
implemented and the measurable goals' ,
for each of the minimum control
measures listed above.
The rule proposes, to address all
construction site activities involving
clearing, grading and excavating land
equal to or greater than 1 acre and less
than 5 acres, unless requirements are
otherwise waived by the NPDES
permitting authority. Such sites,
including construction site activities
disturbing less than 1 acre of land that
are designated by the permitting
authority, would be required to
implement requirements set forth in the
NPDES permit, which may reference the
requirements of a qualifying local
program, issued to cover such sites.
The rule also proposes to address
certain other sources regulated under
the existing program for storm water.
For municipally owned industrial
sources required to be regulated under
the existing NPDES storm water
program but exempted from immediate
compliance by the Intermodal Surface
Transportation Act of 1991 QSTEA), the
rule proposes to maintain the existing
deadline for seeking coverage under an
NPDES permit (August 7, 2001) (EPA is
requesting comment on the possibility
of covering such sources in a single
storm water permit for the municipality
as a whole. See section II.I.3. below.)
The rule also proposes to provide relief
from NPDES storm water permitting
requirements for industrial and other
sources'that provide a written
certification, of "no exposure of
industrial materials and activities to
storm water."
3. Integration of Today's Proposal With
the Existing Storm Water Program
In developing today's proposal,
members of both the FACA Committee
and the Storm Water Phase II FACA
Subcommittee encouraged EPA to seek
opportunities to integrate, where
possible, the proposed Phase II
requirements with existing Phase I
requirements, thus facilitating a
"seamless," unified storm water
program. EPA believes that this
objective is met by using the NPDES
framework. This framework is already
applied to regulated sources under the
existing NPDES storm water program
and would be extended to those sources
that would be designated under today's
proposed rule. This approach would
facilitate program consistency, public
access to information, and program
oversight.
EPA believes that this proposal
provides consistency in terms of
program coverage and requirements for
existing and newly proposed sources.
For example, today's proposal would
include most of the so-called donut
holes—municipal separate storm sewer
systems within urbanized areas that
contain systems covered by the existing
NPDES storm water program, but are not
themselves addressed by the storm
water program. In addition, the
minimum controls required in today's
proposal for regulated small municipal
separate storm sewer systems would be
very similar to a number of the permit
requirements for medium and large
municipal separate storm sewer systems
under the existing storm water program.
As proposed, permit requirements for
all regulated municipal separate storm
sewer systems (i.e., those under the
existing program,and those proposed
today) would require implementation of
BMPs. Furthermore, with regard to the
development of permits to protect water
quality, EPA intends to apply the
August 1,1996, Interim Permitting
Approach for Water Quality-Based
Effluent Limitations in Storm Water
Permits (hereinafter, "Interim
Permitting Approach") (see Section
II.L.l. for further description) to all
municipal separate storm sewer systems
covered by the existing and the • ,
, proposed extension of the existing
• NPDES storm water program. EPA
requests comment on the
appropriateness of applying this
approach to small municipal separate
storm sewer systems regulated under
this rule.
EPA is planning to apply similar ,
permit requirements to construction
sites below 5 acres as are applied to
those above 5 acres. A waiver provision .
applicable to certain circumstances is
proposed. In addition, today's rule
proposes to allow compliance with , ;
qualifying local, Tribal, or State erosion
and sediment controls to meet the
erosion and sediment control
requirements of the general^permits for
construction both above ancl below 5
acres.
,4. General Permits
The proposal would recommend
using general permits for all dischargers
that would be covered under today's
proposal. The use of general permits
instead of individual permits reduces
the administrative burden on permitting
authorities, while also limiting, the
paperwork burden on regulated parties
seeking permit coverage. Permitting
authorities may, of course, require
individual permits in some cases to
address specific concerns, including
permit noncompliance.
While general permits are probably
most appropriately issued on a
watershed-wide basis for all storm water
permittees designated in this proposal,
the Agency strongly recommends that
general permits for municipal sources,
in particular, be issued on a watershed.
basis. Permit conditions cbntoured to a
specific watershed could reflect an
approved watershed plan, special
provisions concerning program
implementation (e.g., allocation of
responsibilities 'among permittees),
applicable water quality standards,
including designated uses, and timing of
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implementation. Alternatively, the
Agency recommends that municipal
general permits be issued to cover the
regulated small municipal separate
storm sewer systems within urbanized
areas. If the permitting authority issues
a State-wide general permit, the
permitting authority may include
separate conditions tailored to
individual watersheds or urbanized
areas.
As discussed in Section I. today's
proposed rule would provide an
opportunity for regulated small
municipal separate storm sewer systems
to become co-permittees with municipal
separate storm sewer systems covered
under existing individual permits. EPA
intends to consult with the Storm Water
Phase n FACA Subcommittee in
developing its general permits for the
proposed program. The Agency would
recommend that State NPDES
permitting authorities use the EPA
feneral permit as a guide in writing
tate-issued permits for newly regulated
storm water sources. Furthermore,
within the context of this rule, EPA
intends to use the August 1,1996,
Interim Permitting Approach (see
Section II.L.I. for further description)
for sources regulated under the NPDES
storm water program.
5. Tool Box
During the FACA process, many
Storm Water Phase E FACA
Subcommittee representatives expressed
an interest in having EPA develop a
"tool box" to assist States, Tribes,
municipalities, and other parties
involved in the Phase n program. EPA
made a commitment to work with Storm
Water Phase n FACA Subcommittee
representatives in developing such a
tool box, with the expectation that a tool
box would facilitate implementation of
the storm water program in an effective
and cost-efficient manner. EPA is
committed to having a preliminary
working tool box by the time the
proposed rule is finalized in 1999; EPA
intends to have the tool box fully
operational at the time ofthe general
permit. EPA also intends to update the
tool box as resources and data become
available. The tool box would most
likely include the following six main
components: fact sheets, guidances, an
information clearinghouse, training and
outreach efforts, technical research, and
support for demonstration projects.
In an attempt to avoid duplication,
the Agency has undertaken an effort to
identify and coordinate sources of
information that relate to the storm
water program from both inside and
outside, the Agency. Such information
may include research and
demonstration projects, grants, storm
water management-related programs,
and compendiums of available
documents, including guidances, related
directly or indirectly to trie
comprehensive NPDES storm water
program. Based on this effort, EPA
would develop a tool box containing
fact sheets and guidance documents
pertaining to the overall program and
rule requirements (e.g., guidance on
municipal and construction programs,
and permitting authority guidance on
designation and waiver criteria); models
of current programs aimed at assisting
States, Tribes, municipalities, and
others in establishing programs; a
comprehensive list of reference
documents organized according to
subject area (e.gs, illicit discharges,
watersheds, water quality standards
attainment, funding sources, and similar
types of references); educational
materials; technical research data; and
demonstration project results. The
information collected by EPA will not
only provide the background for tool
box materials, but may also be included
' in, and made available through, an
information clearinghouse. Due to cost
concerns, EPA is still considering
whether an information clearinghouse
will be part of the tool box. EPA also
intends to provide training workshops
at the regional level with the
expectation that the EPA regional offices
then will assist States, Tribes, and
municipalities with understanding the
storm water program and will ensure
that the regulated entities are aware of
the availability of the tool box materials.
EPA has many funding mechanisms
currently available to support activities
related to storm water. These
mechanisms will be included in the tool
box. Many activities funded under
grants and loan programs include
programs in the nonpoint source area,
storm water demonstration projects, and
wastewater construction projects. EPA
has already provided funding for
numerous research efforts in these areas,
including a database of BMP
effectiveness studies, an assessment of
technologies for storm water
management, a study of the
effectiveness of storm water BMPs for
controlling the impacts of watershed
imperviousness, protocols for wet
weather monitoring, development of a
dynamic model for wet weather flows,
and numerous outreach projects.
EPA has entered into a cooperative
agreement with the Urban Water
Resources Research Council of the
American Society of Civil Engineers
(ASCE) to develop a scientifically-based
approach and management tool for the
information needed to evaluate the
effectiveness of urban storm water
runoff BMPs nationwide. The long-term
goal of the project is to promote
technical design improvements for
BMPs and to better match their selection
and design to the. local storm water
problems being addressed. The project ,
team is collecting and evaluating
existing BMP performance data,
developing a BMP evaluation protocol,
and designing and creating a database.
Eventually the database will include the
nationwide collection of information on
the characteristics of structural and non-
structural BMPs, data collection efforts
(e.g., sampling and flow gauging
equipment), climatological
characteristics, watershed
characteristics, hydrologic data, and
constituent data. The database will
continue to grow as new BMP data
become available. The database software
will be distributed by CD-ROM and will
be accessible through the Internet.
EPA and ASCE invite BMP designers,
owners and operators to participate in
the'database development effort. To
make this effort successful, a large
database is essential. Interested persons
are encouraged to submit their BMP
performance evaluation data and
associated BMP watershed
characteristics for potential entry into
the database. In addition, researchers
planning to conduct BMP performance
evaluations in the future are requested
to compile and collect BMP reporting
information according to a format being
developed by ASCE. For more
information, please contact Eric
Strassler, EPA Engineering and Analysis
Division, at 202-260-7150, e-mail:
strassler.eric@epamail.epa.gov.
EPA intends to promote research
consistent with the Risk Management
Research Plan for Wet Weather Flows
prepared by EPA's Office of Research
and Development. This plan supports
the priority research questions and
needs of the Office of Water. Finalized
in November 1996, the plan will be
updated annually. It includes strategic
research directions and identifies active
and proposed projects for supporting
each research area.
6. Deadlines Established in Today's
Proposal
Exhibit 2 outlines the various
deadlines proposed in today's rule. EPA
believes that the dates proposed allow
sufficient time for completion of both
the NPDES permitting authority's and
the permittee's program responsibilities.
EPA requests comment on the
appropriateness of the proposed
deadline dates.
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1553
EXHIBIT 2.—TODAY'S PROPOSED RULE DEADLINES
Activity
Deadline date ,
Proposed Rule Becomes Final
NPDES-Authorized States Modify NPDES Program :.',
NPDES-Authorized States Modify NPDES Program if Statutory Change is Required
Permitting Authority Issues A Menu of BMPs for Regulated Small Municipal Separate Storm
Sewer Systems (MS4s).
ISTEA Sources Submit Permit Application ,
Permitting Authority Issues General Permit(s) (if this type of permit coverage is selected)
Regulated Small MS4s Submit Permit Application:
a. If designated under §122.32(a)(1) with 1990 Census as "latest" Census ......'
b. If designated under § 122.32(a)(1) with 2000 Census as "latest" Census (2000 Cen-
sus calculations to be completed approximately by August 2001).
c. If designated under § 122.32(a)(2)
d. If designated under §§122.26(a)(9)(i) (C) or (D) ;
Storm Water Discharges Associated With Other Activity Submit Permit Application ..,
Permitting Authority Designates Small MS4s under §123.35(b)(2)
Regulated Small MS4s' Program Developed and Implemented
Reevaluation of the Proposed Rule by EPA
Permitting Authority Determination on a Petition
Non-Municipal Sources Designated Under §122.26(a)(9)(i) (C) or (D) Submit .Permit Applica-
tion-
Submission of No Exposure-Certification .-.'. .......
3/1/99.
3/1/00. ' '
3/1/01'.
3/1/01. •
8/7/01. •
3/1/02. , '
a. 5/31/02.
b. 5/31/02.
c. Within 60 days of notice.
d. Within 180 days of notice!
5/31/02.
5/31/02 or 3/1/04 (if a watershed plan is in place).
2007.
3/1/12.
Within 180 days.
Within 180 days of notice.
Every 5 years.
B. Readable Regulations
Today, EPA is proposing new
regulations in a "readable regulation" •
format. This reader-friendly, plain
English approach is a departure from
traditional regulatory language and
should enhance the rule's readability.
These plain English regulations use
questions and answers, "you" to
identify the person who must comply,
and "must" rather than "shall." The
legal implications of plain English are
the same. The word "must" indicates a
requirement. Words like "should,"
"could," or "encourage" indicate a
recommendation or guidance. This new
format, which minimizes the layers of
subparagraphs- should also allow the
reader to easily locate specific
provisions of the regulation. Language
within parentheses in today's proposal
is intended as guidance. EPA requests
comment on this new format and
whether it provides sufficient
distinction between legal obligations
and EPA recommendations.
Some sections of today's proposed
regulation are presented in the
traditional language and format because
these sections are amending or changing
existing regulations. The readable
regulation format was not used in these
existing provisions in an attempt to
avoid any possible confusion or
disruption of the flow of the regulations.
C. Program Framework
EPA interprets CWA section 402 (p) (6)
to provide broad discretion in
establishing1 the structural framework
for the designation of additional
sources, as well as the program to
regulate-those sources. The Agency
believes it has the authority to develop
the section 402 (p) (6) storm water
program either as part of the existing
NPDES permit program or as a stand
alone non-NPDES program (i.e.,,through
an "authorization by rule" approach).
Under either approach, the Agency
would interpret section 402(p) (6) as
directing the Agency to publish
regulations that "regulate" the
remaining unregulated sources,
specifically to establish requirements
that are federally enforceable under the
CWA. At the same time that Congress
enacted section 402(p), it enacted CWA
section 319. Section 319(b)(2)(B) refers
to "nonregulatory or regulatory
programs for enforcement." The Agency
interprets this distinction as relevant for
the purposes of interpreting the term
"regulate" in section 402(p) (6). The
Agency has considered many options
for the framework, as discussed in this
section. The Agency also notes; that,
although input from the Storm Water
Phase II FACA Subcommittee was
instrumental in the development of
today's proposal, the, subcommittee was
unable to reach consensus on the
structural framework for
implementation.
1. Today's Approach—The NPDES
Program Approach
As discussed in Section II. A,
Overview, EPA sought to achieve
certain goals in today's approach. EPA
believes the best approach to meet these
goals is through the use of the NPDES
program. One of the specific goals that
would be addressed through use of
NPDES permits is equitable'treatment of
all municipal separate storm sewer
systems within an urbanized area in
order to solve the problem of donut
holes. The existence of donut holes
creates an equity problem because some
similar discharges remain unregulated
even though they cause the same water
.quality impacts. EPA believes that
covering the unregulated discharges in
these areas through the NPDES
framework would provide the best
method, given that this approach would
cover urbanized areas under one single
comprehensive and seamless regulatory
program for storm water. For example, '
today's proposal would allow for a
municipality to Join as a co-permittee
with a regulated municipality,
referencing a common storm water
management program (see Section
II.H.3, Municipal Permit Requirements,
for further discussion.) Similarly,
construction activities under the '
existing storm water program and under
today's proposed .program covering 1 to
5 acres of disturbed land would be
subject to essentially the same program
requirements. The NPDES program
approach, as proposed, is highly flexible
in terms of a number of key provisions
that would facilitate and promote
watershed planning arid sensitivity to
local conditions. EPA made an intensive
effort to include flexibility in today's
• proposed rule, and examples abound
throughout the proposal. The following
are some of the more significant
examples of the flexible NPDES-
approach being proposed: using NPDES
general permits for coverage of regulated
sources on a watershed basis;
incorporating qualifying local programs
' in NPDES permit requirements; .
selecting regionally appropriate BMPs
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
for municipalities; allowing minimum
control measures to be implemented by
another governmental entity; and
allowing permitting authorities to waive
otherwise applicable requirements for
sources pursuant to watershed/TMDL
assessments. Furthermore, EPA sought
to accommodate State and Tribes
seeking to coordinate the storm water
program with other State and Tribal
programs, including those that focus on
watershed-based nonpoint source
regulation.
EPA believes that a flexible approach
must be in balance with the need for the
program to be enforceable and to hold
the regulated community accountable
for fulfilling program requirements. As
such, a significant benefit of using an
NPDES approach is that permits would
be enforceable under the CWA. Another
concern for EPA and several Storm
Water Phase IIFACA Subcommittee
members was that the program ensures
citizen participation. Currently, the
NPDES approach ensures citizen
participation throughout the permit
issuance process, as well as in
enforcement proceedings.
In addition, the NPDES approach is
suitable to cover all the sources that
would be potentially regulated under
CWA section 402(p)(6), including
facilities owned or operated by Federal,
State, or Tribal governments.
Incorporating the section 402(p)(6)
program into the NPDES approach
capitalizes upon the existing
governmental infrastructure for
administration of the NPDES program.
Moreover, much of the regulated
community akeady understands the
NPDES program and the way it works.
Some stakeholders shared concerns
that the NPDES approach was
unnecessarily burdensome and costly.
In response, EPA proposes
modifications to and clarifications about
the NPDES program. EPA shares some
of the stakeholder concerns; other
concerns are merely misperceptions.
EPA envisions that NPDES permitting
authorities would use general permits
for the majority of discharges designated
for regulation under the comprehensive
program. General permits should help to
minimize any administrative burden on
NPDES permitting authorities and
expedite permit coverage for
dischargers. The Agency also proposes
provisions that would recognize actions
by States and their political
subdivisions in determining compliance
with permit requirements. For example,
small municipalities could rely on
efforts by States or neighboring
municipalities to satisfy permit
obligations. This flexibility would allow
both the permittee/municipality and the
State to minimize unnecessary
duplication. Another example from
today's proposal would be the
incorporation by reference of existing
programs with locally developed
standards for pollutant controls into
NPDES permits. This would be to the
benefit of permittees who might
otherwise be subject to duplicative
requirements by different levels of
government (local. State, and Federal.)
2. Alternatives Considered
EPA considered a variety of
alternative approaches to structure the
proposed extension of the existing storm
water program. Under the first option,
EPA would develop a completely new
non-NPDES regulatory system. Such an
approach could include authorization of
discharges "by rule" or some other type
of permit program in which permits
were not developed in the same way as
NPDES permits. Under a second option,
EPA would establish only a "baseline"
scope of applicability for State and
Tribal programs; the only nationally
applicable EPA action would be the
designation of sources. EPA would
allow States and Tribes to use existing
water pollution control programs
(NPDES or otherwise) to regulate such
designated sources. To the extent
existing programs did not cover EPA's
baseline program, States and Tribes
would establish additional regulatory
control mechanisms. A Storm Water
Phase II FACA Subcommittee work
group analyzed these approaches and
provided valuable feedback to the
Agency. A caucus of State
representatives from the Storm Water
Phase II FACA Subcommittee submitted
a third option. Under their proposal,
States and Tribes would have an option
to develop an individual storm water
management program. (As an alternative
under this option, States and Tribes
could choose to implement the program
developed by EPA.) The individual
State or Tribal storm water management
program would use NPDES permits but
would also rely on enforceable non-
permit mechanisms (e.g., if EPA
promulgated a regulation that "deemed"
requirements under such non-permit
mechanisms to be "an effluent
limitation or other limitation under
CWA section 301"). Because section 402
is referenced in section 301 (a), non-
permit mechanisms developed by States
according to the comprehensive •
program requirements of section
402 (p) (6) would also constitute effluent
limitations under section 301. Under the
States' proposal, EPA would have to
review and approve these programs to
ensure that they provide for the same .
water quality results as those prescribed
under the Federal program.
Additionally, EPA would periodically
evaluate the management plans and
could require the State or Tribe to
implement the Federal section 402 (p) (6)
program if the plan became inadequate.
The State caucus representatives of the
Storm Water Phase II FACA
Subcommittee amplified this option in
a discussion intended for inclusion in
this preamble and for public comment
thereon (see the next section entitled,
State Alternative Program).
EPA believes the alternative
approaches could provide many of the
same benefits discussed previously
relating to today's proposal.
Specifically, EPA believes that the
options could be designed to provide
adequate integration of the storm water
programs, enforceability, accountability,
public participation, and coverage of
sources (e.g., facilities owned or
operated by Federal, State, or Tribal
governments). The alternative
approaches might also provide
opportunities to streamline the control
mechanisms that the Agency has not yet
evaluated. Furthermore, the storm water
management program proposal allows
States and Tribes the maximum amount
of flexibility in tailoring the section
402 (p) (6) program to address their
specific environmental problems.
The Agency does have some concerns
about the alternative proposals,
however. The alternatives establish new
systems, which could cause a great deal
of confusion. As explained previously,
EPA is not yet aware of any such
program currently in existence for
regulation of storm water. None of the
alternatives would provide any level of
national consistency or predictability.
This may be a special concern for
industrial stakeholders operating in
multiple States nationwide. The Agency
has heard numerous concerns about
inconsistencies in requirements from
different jurisdictions. While today's
proposed approach does not totally
address this issue, the Agency at least
attempts to establish a minimum
program for ensuring a certain level of
consistency nationwide.
In addition, EPA believes it would be
very difficult to determine whether a
State or Tribe has developed an
adequate individual program that
provides the same level of substantive
control. The process of approving these
alternative programs to determine
whether they provide an equivalent or
better level of control could take a great
deal of time and further delay
controlling unregulated point source
discharges that are causing an adverse
impact on water quality. Furthermore, if
a non-NPDES option was included in
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1555
the final rule, EPA would need to
determine which, if any, programmatic
requirements of 40 CFR parts 122 etseq.
should be applicable to State non-
NPDES programs. EPA believes it would
need to address some of the State
program requirements from existing
regulations including conflicts of
interest among governing bodies who
approve permits (consistent with CWA,
section 304 (i) (D)), requirements for
.enforcement authority and penalty
provisions, confidentiality of permit
application information, EPA review of
and objection to State permits, public
notice and public hearings for permit
issuance, citizens appeal of final-issued
permits, and citizen intervention in
enforcement proceedings. These
provisions are particularly important for
ensuring adequate enforcement and
public participation, as well as integrity
and public confidence in the program.
EPA seeks comment on how these
issues could be addressed in a non-
NPDES program.
The Agency is seeking comment on
today's proposal, as well as on the
alternatives considered. Comment is
further sought on whether a viable
approach would be for EPA to adopt a
State alternative approach for part of
today's proposed storm water program.
For example, were it to adopt a non-
NPDES approach, EPA would need to
determine what parts of the State's non-
NPDES program could be submitted for
EPA approval. It would seem that it is
more prudent to specify particular parts
pf a storm water program, rather than
the program in its entirety, as eligible
for approval for a non-NPDES approach. •
Thus, a State or Tribe could propose a
non-NPDES framework for the
construction component (1 or more and
less than 5 acres of disturbed land) of its
storm water program. Likewise, a State
or Tribe could propose a rionrNPDES
framework for storm water runoff from
regulated small municipalities located
outside of urbanized areas. Furthermore,
another option could allow States or
Tribes to seek approvability for a non-
NPDES approach solely for sub-parts of
the program, such as covering
construction sites between 3 and 5 acres
under an NPDES program, while
covering between 1 and 3 acres in a
non-NPDES program. In the municipal
program, a non-NPDES program could
be available for specific minimum
control measures. EPA would like
comment on these options for program
approvability.
a. State Alternative Non-NPDES
Program '
State representatives on the Storm
Water Phase II FACA Subcommittee
have requested that EPA invite
comment on an alternative program
framework to be available to States in
addition to the NPDES State storm water
management program requirements in
today's proposed rule. ;
Today's proposal would rely on the
NPDES permit program to establish a
comprehensive program to regulate
designated sources. EPA believes,
however, that section 402 (p) (6) is
subject to an interpretation that would
allow for a comprehensive program to
regulate designated sources through a
regulatory program other than the
NPDES permit program (e.g., through
authorization by rule). For a State to
qualify for a libn-NPDES approach, it
would probably have to decide to take
such an approach from the start,
however.
. State representatives have suggested
that a process be identified that would
lead to the development of an
alternative non-NPDES State storm
water management program under CWA
section 402(p) (6) for States wishing to
take a more comprehensive approach
than that of today's proposal. Under the
States' proposal. States, Territories, and
Tribes could elect either (1) to regulate
the sources designated in today's
proposal under the NPDES permit
program according to the provisions of
today's proposal (assuming the State,
Territory, or Tribe is authorized to
administer the NPDES program) or (2) to"
develop an alternate State storm water
management program subject to public
review and comment and Federal
approval. The two major features of the
alternative program are that it would be
fully integrated into a State
comprehensive water quality
management program and it would
include specific non-NPDES
mechanisms for controlling storm water
discharges. States would also have the
option of employing some combination
of the above.
i. Alternative Overview. Similar to
today's NPDES proposal, States under
the alternative proposal would need to
specifically identify how urban storm
water management activities would be
coordinated with other water quality
management activities, such as
nonpoint source management and
TMDL development. In addition, as
proposed, the State storm water
management program would be
developed with involvement of
-municipalities, industries, ;
environmental groups, and other
stakeholders, much like the current
NPDES process. Also, as with the
NPDES program, the alternative
program would focus principally on
environmental results, rather than on
the administrative.or planning process
itself. States propose more opportunity
for citizen involvement in the initial'
development and implementation of the
overall alternative program than is
currently envisioned by today's NPDES
proposal. In comparison with today's .
NPDES proposal, the alternative might
allow for less opportunity for citizen
involvement in the details of
requirements imposed on dischargers
(than is-afforded under NPDES permits).
ii. State-Proposed Program Criteria. In
seeking proposal of an alternative
approach, State representatives on the
Storm Water Phase II FACA
Subcommittee have suggested criteria
for EPA approval of an alternative State
storm water management program. Such
a program would be required:
(1) To demonstrate that it would result
in equivalent or better protection of
water quality and designated uses
(2) To provide assurances of
implementation, including:
a. Legal authorities .of participating
- state and local agencies .
b. Resources to carry out
implementation
c. Enforceable mechanisms for
implementation measures,
including backup to voluntary
measures ,
(3) To identify equivalent or better
timeframes for implementation
(4) To allow equivalent or better public
participation elements
(5) To provide for management of the •'
, same types of facilities in an
equivalent'or better manner or
provide for management of
activities that would result in
equivalent or better protection
(6) To include objectives, measures,
monitoring, and corrective action
mechanisms adequate to assure that
the program is being implemented
and is effective
Other substantive considerations would
include, at a minimum, a description of
the mechanism by which storm water
sources are (or would be) regulated; a
description of the opportunities for
public participation, including in the .
development of regulatory and
nbnregulatory mechanisms and
enforcement; and a statement about the
legal authority of the State to administer
such a program by an officer of the State
who is competent to provide such a.
statement.
In utilizing these criteria, the
alternative program submission would
coyer, to at least the same extent, .
sources and related pollutants of
concern designated in today's proposed
rule (e.g., discharges from small
municipaliseparate storm sewer systems
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and from construction sites disturbing
less than 5 acres, including opportunity
for waiver provisions). For a State to
qualify for approval of an alternative
approach, the State program would need
to cover additional wet weather sources
not specifically designated in today's
proposed rule as well. In addition,
covered sources to be designated under
today's proposal and other additional
sources identified by the State
alternative program would be expected
to attain water quality standards,
including designated uses. One area of
flexibility that EPA foresees as a
possibility under the alternative
program relates to the minimum control
measures required in today's NPDES
proposal. Implementation of today's
proposed minimum control measures in
the alternative approach would not be
necessary as long as the alternative
program provided for control measures
that addressed the same impacts to the
same extent as today's proposed
minimum control measures are
intended to.
Hi. Proposed Procedure for Approval
and Periodic Review. If the final rule
were to allow States an option for an
alternative State storm water
management program. States envision
the need for both a Federal approval
procedure and periodic EPA review.
States would need to invest time,
energy, and resources at the outset to
develop such alternative programs.
More planning would be necessary for
such a submission than would
otherwise be expected under today's
proposal. In addition, a State electing to
develop an alternative storm water *
management program might be required
to evaluate, revise, and update its water
quality management program at fixed
intervals. States envision that, EPA, in
conducting such reviews, would seek
comments from the community on the
performance of the statewide storm
water management program. State
representatives believe that this
approach would provide the public
within a State with much more
meaningful involvement at the program
level than is normally achieved through
the issuance of individual or general
permits.
iv. Proposed Procedure for
Disapproval. State representatives have
also suggested criteria for EPA use in
the event that it becomes necessary to
withdraw approval of a State storm
water management program and require
implementation of the federally
prescribed NPDES program in today's
proposed rule. They have proposed the
following criteria:
(1) The State has not implemented its
program or has ceased implementation
of the program;
(2) The State is implementing its
program, but the program is not
effective in managing storm water from
the same sources intended in the
NPDES alternative;
(3) EPA has notified a State of
deficiencies in its program and the State
has not corrected them within 6 months,
or 2 years if statutory revisions are
necessary. (EPA is not required to
provide the State time to make statutory
revisions if the State legislature has
already removed the original necessary
State statutory program authority.)
EPA invites comment on the
appropriateness of this alternative
proposal. Specifically, comments are
sought on the proposed alternative
approval, review, and disapproval
processes as they relate to requirements
under 40 CFR Part 123. EPA invites
comment on the appropriateness of
these substantive criteria, including the
appropriate level of specificity to ensure
consistent.application while providing
States with flexibility, as well as the
need for other substantive criteria. This
would include enforceability of such an
alternative to ensure equivalency or
better protection of water quality as
envisioned by the CWA and the need for
national consistency in point source
control requirements. EPA further
invites comment on whether State
processes for public participation would
provide an adequate opportunity for
input from regulated sources, as well as
from the public in general.
In addition, the States have proposed
that an alternative program could utilize
State efforts undertaken to comply with
Part 130 regulations (40 CFR Part 130).
Although EPA is not proposing to .
amend the Part 130 regulations, EPA
invites comment on how the existing ^
Part 130 regulations could support an
enforceable alternative State program.
For a more complete discussion of the
Part 130 regulations, see Section II.L.2,
Total Maximum Daily Loads, of today's
preamble.
3. Permits Versus Non-Permits
As noted previously, EPA proposes
that the extension of the existing storm
water program under section 402 (p) (6)
be administered as part of the NPDES
permitting program (including the
exemption for discharges associated
with industrial activity composed
entirely of storm water where there is
"no exposure" to storm water). As such,
the extension of the existing storm water
program would be implemented through
NPDES permits. NPDES permits are
advantageous in many ways. As
explained more fully in EPA's April
1995 guidance, Policy Statement on
Scope of Discharge Authorization and
Shield Associated with NPDES Permits
(U.S. Environmental Protection Agency.
July 1, 1994 (revised April 11, 1995).
Memo: From Robert Perciasepe
(Assistant Administrator for Water),
Steven A. Herman (Assistant
Administrator for Enforcement),-and
Jean C. Nelson (General Counsel) to
Regional Administrators, Regarding
"Policy Statement on Scope of
Discharge Authorization and Shield
Associated with NPDES Permits."),
compliance with an NPDES permit
constitutes compliance with the CWA -
(see CWA section 402(k)). Moreover,
certain NPDES discharges qualify as
"federally permitted releases" under
section 101(10) of the Comprehensive
Environmental Response, Compensation
and Liability Act, also known as
Superfund (see 42 U.S.C. 9601(10); 40
CFR 117.12). Additionally, permits
generally require an application or a
notice of intent to be covered. This
information exchange assures
communication between the permitting
authority and the regulated community.
This communication is critical in
ensuring that the regulated community
is aware of the requirements and the
permitting authority is aware of
potential impacts to water quality. The
NPDES permitting process includes the
public as a valuable stakeholder and
ensures that the public is included and
information is made publicly available.
Furthermore, NPDES permits are
enforceable under the^CWA by citizens
and Federal, State, and Tribal
governments, thus ensuring adequate
protection against adverse impacts on
water quality.
The Agency recognizes that using
NPDES permits has some drawbacks.
Issuing individual NPDES permits can
be burdensome on permitting
authorities and the regulated
community. NPDES permits are only
effective for 5 years. The time Spent
issuing permits could restrict resources
to conduct public outreach, inspections,
and enforcement. Commenters have
noted that the application process is
costly and confusing. To address a ,
number of these problems, EPA
encourages using general permits for the
majority of sources to be designated
under this proposal. NPDES general
permits can cover a category of
dischargeris within a defined geographic
area. Areas can be defined very broadly
to include political boundaries (e.g.,
county), watershed boundaries, or State
or Tribal land. Furthermore, EPA is
working to streamline the permit
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1557
application/NOI process to reduce the
burden on the regulated community.
EPA is seeking-comment on today's
proposed approach.
The Storm Water Phase IIFACA
Subcommittee work group that
considered the structural framework for
the extension of the existing storm water
program under section 402 (p) (6) also .
considered the appropriate legal
mechanism for implementation. The
subcommittee discussed numerous
options and considered including self-
implementing rules or "permits-by-
rule."
A self-implementing rule would be a
regulation promulgated at the Federal,
State, or Tribal level. The basic
principle would be that the rule would
spell out the specific requirements for
dischargers. The rule could impose the
exact same restrictions and conditions
as an NPDES permit, but generally
would be effective until modified by
EPA, a State, or a. Tribe. EPA considered
addressing the storm water program
under section 402 (p) (6) directly by rule
instead of through a permitting program.
This approach could reduce the burden
on the regulated community (e.g., by not
requiring permit applications).
Although this approach would provide
consistency across the nation, it would
not address site-specific problems very
well or foster coordination with
authorized NPDES State programs. In
discussing this option, some
stakeholders raised enforcement issues
and the ability of EPA, States, and '
Tribes to determine which discharges
were subject to the program. Although ,
EPA has several programs with self-
implementing requirements (e.g., the
sewage sludge program, Part 129 toxic
standards under the NPDES program,
and categorical standards under the ,
pretreatment program), the Agency does •
not propose to take this approach under
section 402 (p) (6). The Agency does,
however, seek comment on such an
alternative. .
D. Federal Role
Today's proposal describes EPA's
approach to develop the extension of
the existing storm water program under
CWA section 402 (p) (6). As in all other
Federal programs, the Federal
government plays an integral role in
developing, implementing,, overseeing,
and enforcing the program. This section'
describes EPA's role in the revised
storm water program.
1. Develop Overall Framework of the
Program
As discussed previously in the
overview section, the storm water
program under CWA section 402 (p) (6)
would consist of the rule, tool box, and
permits. EPA's primary role would be to
ensure timely development and
implementation of all components.
Today's proposal is a refinement of the
first step in developing the program.
EPA is fully committed to continuing to
work with involved stakeholders on
developing the tool box and issuing :
permits. As noted in today's proposal,
EPA would be required to assess the
municipal storm water program based
on (1) evaluations of data from the
NPDES municipal storm water program,
(2) research of water quality impacts on
receiving waters from storm water, and
(3) research on BMP effectiveness. EPA
will attempt to seek adequate resources,
within annual budgetary constraints, to
ensure that these evaluations, as well as
the necessary research, can be
completed. (Section TL.H, Municipal
Role, provides a more detailed
discussion of this provision.)
2. Encourage-Use of a Watershed
Approach
EPA is promoting an integrated
approach that focuses on public and
private sector efforts to address the
highest priority problems within
hydrologically defined geographic areas.
Today's proposal offers flexibility for
States and Tribes to use a watershed
approach and should facilitate
watershed planning on the part of States
and Tribes implementing the program.
Section I.H. discusses the watershed
approach in more depth.
3. Provide Financial Assistance '
Another important role for the Federal
government would be to assist '
financially in developing and
implementing the storm water program
under section 402(p) (6). EPA has no
independent authority to establish a
funding mechanism. Although Congress
did not establish a fund to fully finance
implementation of the proposed '
extension of the existing NPDES storm
water program under section 402 (p) (6),
numerous Federal financing programs
(administered by EPA and other Federal
agencies) could provide some financial
assistance. These programs include the
CWA section 106 grant program, CWA
section 104(b)(3) grant program, State
surface and ground water management
programs under the Safe Drinking Water
Act, the environmental quality
incentives program, the conservation
reserve program, the wetlands reserve
program, and the estuary management
and Federal monitoring programs. Also,
the Natural Resources Conservation
Service (NRCS) has some grants
available to assist in projects related to
erosion and sediment controls. The
Agency anticipates that some of these
programs would provide funds to help
develop and, in limited circumstances,
implement the section 402 (p) (6) storm
water program. Because some Federal
funds are only available for limited
purposes, for example, nonpoint source
control programs, and because section •
402 (p) (6) describes a program for
controlling point source discharges of
storm water, EPA solicits comment on
suggestions on structuring the final rule
to maximize opportunities for Federal
financial assistance.
4. Implement the Program for Non-
NPDES Authorized States, Tribes, and
Territories •
Since today's proposed approach
utilizes the NPDES framework, EPA
would be the permitting authority for
several States, Tribes, and Territories. .
As such, EPA would have the same
responsibilities as any other NPDES
permitting authority—issuing permits,
designating additional sources, and
taking appropriate enforcement
actions—and would seek to tailor the
storm water program to the specific1
needs of the State, Tribe, or Territory.
EPA would also provide support and
oversight, including outreach, training,
and technical assistance to the regulated
communities.' See the discussions below
related to the NPDES permitting r
authority's responsibilities for today's
proposed rule provisions, and note that
Section II.G. of today's preamble
provides a separate discussion.
5. Oversee State Programs
Under the NPDES program, EPA plays
an oversight role, for NPDES-approved
States and Tribes. In this role, EPA and
the States or Tribes work together to
implement, enforce, and improve the
NPDES program. Part of this oversight
role includes working with States and
Tribes to modify their programs where
inadequacies exist. This role would be
vitally important when States and
Tribes make adjustments to develop,
implement, and enforce, the new section
402 (p) (6) proposed extension of the
existing NPDES storm water program. In
addition, States maintain a continuing
planning process (CPP) under section
303 (e) of the CWA, which EPA
periodically reviews to assess the
program's achievements.
In its oversight role, EPA takes action
to address States and Tribes who have
voluntarily sought NPDES authorization
but are not fulfilling their obligations
Bunder the NPDES program. If an
NPDES-authorized State or Tribe failed
to implement an adequate NPDES storm
water program, for example, EPA would
enter into extensive discussions to
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resolve outstanding issues. EPA has the
authority to withdraw the entire NPDES
program (partial program withdrawal is
not allowed under the CWA) when
resolution cannot be reached.
EPA is also working with the States
and Tribes to improve nonpoint source
management programs and assessments
to incorporate key program elements.
Nonpoint source program elements can
include protecting surface and ground
water; establishing partnerships with
public and private partners; using a
balanced approach incorporating
Statewide and watershed-abatement of
existing impairments; preventing future
impairments; developing processes to
address both impaired and threatened
waters; reviewing upgrades of all
program components, including
program revisions on a 5-year cycle;
addressing Federal land management
and activities inconsistent with State
programs; and managing State/Tribal
nonpoint source management programs.
In addition, EPA has committed to help
address nonpoint source pollution
stemming from Federal lands and
activities.
In particular, EPA works with the
States and Tribes to strengthen their
nonpoint source pollution programs to
address agricultural sources through the
CWA section 319 program. EPA is
working with other government
agencies, as well as with community
groups, to effect voluntary changes
regarding watershed protection and
reduced nonpoint source pollution.
Through the FACA process, the Agency
would continue to work with States to
ensure that the requirements of the
proposed extension of the existing storm
water program under section 402 (p) (6)
are consistent with elements of the
nonpoint source management program.
In addition, EPA and NOAA have
published programmatic and technical
guidance to address coastal nonpoint
source pollution. Under the existing
coastal protection program, EPA and
NOAA review State programs and
provide technical and programmatic
assistance to help the coastal States
upgrade their Coastal Zone Management
Programs. The Agency is committed to
assisting States in identifying sources of
funding to develop and implement State
coastal nonpoint programs.
6. Comply With Applicable
Requirements as a Discharger
Today's proposal covers federally
owned or operated facilities in a variety
of ways. These facilities are generally
areas where people reside, such as a
Federal prison, hospital, or military
base. These facilities could be included
under the definition of a regulated small
municipal separate storm sewer system,
which specifically includes systems
operated by the Federal facilities. For
Federally owned regulated small
municipal separate storm sewer
systems, the proposal would require
compliance with the application
deadlines that apply to regulated small
municipal separate storm sewer systems
generally. EPA believes that all
Federally owned municipal separate
storm sewer systems would serve
populations less than 100,000. We
invite comment on the appropriateness
of this assumption.
Federal facilities could also be
included under the section addressing
storm water discharges associated with
other activities, including construction.
In any case, discharges from these
government-owned facilities would
need to comply with all applicable
NPDES requirements and any additional
water quality-related requirements
imposed by a State, Tribal, or local
government. Failure to comply could
result in enforcement actions. Federally
owned and operated facilities could act
as models for municipal and private
sector facilities and implement or test
state-of-the-art management practices
and control measures.
E. State Role
Today's proposal sets forth an NPDES
approach for implementing the
proposed extension of the existing storm
water program under section 402 (p) (6).
The NPDES program is a voluntary
federal program consistent with the
principals of federalism. Because most
States are approved to Implement the
NPDES program, they will tailor their
storm water programs to address their
water quality needs and objectives.
Federally-recognized Tribes also have
the opportunity to administer the
NPDES program. Several Tribes are
currently seeking NPDES authorization
and, when approved, will also tailor the
proposed extension of the existing
NPDES storm water program to address
their local needs and objectives. While
EPA is proposing the basic framework
for the section 402 (p) (6) program, States
and Tribes have an important role in
fine-tuning the program to address the
water quality issues within their
jurisdictions. The basic framework
would allow for adjustments based on
factors that vary geographically,
including climate patterns and terrain.
Where States or Tribes do not have
NPDES authority, they are not required
to implement the storm water program,
but they may still participate in water
quality protection through participating
in the CWA section 401 certification
process (for any permits) and through
development of water quality standards
and TMDLs when authorized to do so.
1. Develop the Program
In developing the proposed extension
of the NPDES existing storm water
program under section 402 (p) (6), States
and Tribes must evaluate whether
revisions to their NPDES programs are
necessary. If so, modifications must be
made in accordance with § 123.62.
Under § 123.62, States and Tribes must
revise their NPDES programs within 1
year or 2 years if statutory changes are
necessary. EPA believes this time period
is appropriate for incorporating
revisions to existing NPDES programs
because the basic NPDES program
already addresses storm water
discharges from industrial and larger
municipal sources.
EPA is considering modifying the 1
year timeframe to 2 years or 3 years if
statutory changes are required, where a
State or Tribe has a fully developed and
approved watershed program (including
enforceable nonpoint source controls)
by the end of the first year. EPA
supports implementing the section
402 (p) (6) proposed storm water program
as part of a watershed approach (see
more detailed discussion in previous
section on watersheds) and believes it is
appropriate to offer institutional
incentives as encouragement. EPA is
specifically seeking comment on this
issue.
A State or Tribal NPDES program
must meet the requirements of section
402 (b) or conform to the guidelines
issued under section 304(i) (2) of the
CWA. Today's proposal under § 123.25
adds specific cross references to the
section 402 (p) (6) program components
to ensure that States and Tribes
adequately address these. Furthermore,
EPA is proposing § 123.35, which is
discussed more fully in Section II.G,
NPDES Permitting Authority's Role for
the CWA section 402 (p) (6) Municipal
Program.
In tailoring the proposed extension of
the existing NPDES storm water
program to accommodate their needs.
States and Tribes should coordinate and
utilize the data collected under several
programs, including water quality
management programs, TMDL
programs, and water quality monitoring
programs. All States and Tribes have
water quality standards that consist of
designated uses, criteria, an
antidegradation policy, and other
implementation policies and
procedures. Water quality management
programs are geared to achieving these
goals and must be updated every 3
years. In addition, States are required to
submit a prioritized ranking of waters
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1559
requiring TMDLs. (See Sections II.L.l
and ILL. 2 for more information on water
quality standards and TMDLs,
respectively) States and interstate
agencies monitor for contaminants in
ambient water, fish tissue, and specific
point sources. In addition, they conduct
intensive monitoring in watersheds (or
at specific sites within a watershed) to
develop efficient control strategies for .
point and nonpoint sources. CWA
section 305(b) Reports summarize this
information and must be submitted to
EPA every 2 years. It is critical that
States and Tribes evaluate existing
monitoring programs, revise them as
needed to ensure that meaningful data
are being collected, and share
information with the local communities^
(See Section II.L.4 for additional
information on monitoring.)
2. Comply With Applicable-
Requirements as a Discharger
Today's proposal would cover State or,
Tribally owned or operated separate
storm water systems in a variety of
ways. These systems generally drain
areas where people reside, such as a !
prison, hospital; or other populated
facility. These systems could be
included under the definition of a
regulated small municipal separate
storm sewer system, which specifically
includes systems operated by State
departments of transportation.
Alternatively, they could.be included
under the section addressing storm
water discharges associated with other
activities, including construction. In any
case, discharges from these government-
owned facilities would need to comply
with all applicable NPDES
requirements. Failure to comply could
result in enforcement actions. State or
Tribal facilities could act as models for
' municipal and private sector facilities
and implement or test state-of-the-art.
management practices and control
measures.
3. Communicate With EPA
. Under approved NPDES programs,
States and Tribes have an ongoing
obligation to share information with
EPA on a periodic basis..This dialogue
is particularly important in the section .
402 (p) (6) storm water program where
these governments continue to develop
a great deal of the guidance and ' •
outreach related to water quality. EPA .
would continue to use the FACA
process in developing materials related
to the section 40 2 (p) (6) program and
input from States and Tribes throughout
this process would be critical.
F. Tribal Role '{•
1. Background
a. EPA's Indian Policy
EPA is committed to the .nine
principles outlined in its 1984 Indian
Policy, which include working with
Tribes in a government-to-government
relationship, recognizing Tribal
sovereignty, and dealing with the Tribal
government as the primary party for
decisionmaking and .management of
environmental issues on the Indian •
reservations, consistent with EPA
standards and regulations (U.S.
Environmental Protection Agency,
American Indian Environmental Office.
1996. Working Effectively With Tribal
Governments. Participant Manual,
Interim Final, U.S. EPA Training
Seminar). EPA has affirmed and carried
forward its commitment to the 1984
Indian Policy in many ways. In this
regard, on March 14, 1994, EPA
, established the American Indian
Environmental Office and Tribal
Operations Committee. EPA believes
that the approach in today's proposal is
consistent with the principles of the
policy. Further, today's proposal has
been developed with the participation
of the EPA Indian Office, noted above.
In addition to storm water, the 1987
CWA amendments specifically focus on
"Indian Tribes." Under section 518,
EPA may treat Indian Tribes in the same
manner as States for the .purposes of
certain provisions of the CWA,
including section 402 (National
Pollutant Discharge Elimination System)
and section 303 (water quality standards
and implementation plans). Section
518(e) establishes a number of criteria
for the treatment of,an Indian Tribe in
the same manner as a State. These
criteria are discussed in a Federal
regulation regarding Tribal eligibility for
administering NPDES and State sludge
management programs (see 58 FR
67966, December 22, 1993; see also 59
FR 64339, December 14, 1994). Upon
meeting the criteria, a Tribe seeking
authorization to administer one of the
CWA water quality programs would
acquire Treatment in the Same Manner
as a State status for that program. Under
EPA's final regulation, the Tribe's water
quality or sludge management program
authority could extend to lands within"
a "Federal Indian reservation." The
CWA section 518 (h) (1) uses the term ,
"Federal Indian reservation1' to define
the territorial limits for Tribal authority
for CWA purposes. The preambles to
EPA regulations, including NPDES
program regulations, more fully explain
the term Federal Indian reservation.
Most notably, EPA has clarified that it
considers "trust lands," which were
validly set apart for the use of Indians,
to be "within a reservation" for
purposes of the CWA (e.g., 58 FR
67970).
Once authorized as the permitting/
program authority, a Tribe (instead of
EPA) may operate the NPDES and
sludge management programs on its
reservations. Otherwise, EPA is
generally the permitting/program
authority within Indian country. In any
case, the Tribe may also seek authority
to operate a CWA section 303 water
quality standards program. Tribes with
approval to operate a CWA section 303 •
water quality standards program may
also issue certifications under CWA
section 401. >
b. Existing NPDES Regulations for
Storm Water
The existing NPDES regulations for
storm water discharges associated with
industrial activities extend coverage to
private, State, and federally owned
industrial facilities located on Indian
'reservations. Further, the NPDES
regulations cover industrial facilities
owned or operated by a Tribe with a
population of more than 100,000 people
within the reservation and cover all
Tribally owned or operated airports,
power plants, and uncontrolled sanitary
landfills. The NPDES regulations for
storm water associated with industrial
activity established October.!, 1992, as
the deadline to apply for NPDES permit
coverage. EPA issued baseline NPDES
storm water general permits covering
industrial,and construction activities in
September 1992 and a multisectpr
NPDES storm water general permit
covering a number of industrial
categories in September 1995, as
revised. Many industrial facilities
covered under the NPDES regulations
for industrial activities, including
construction, and located on Indian
reservations are included in the
applicability sections of these general
permits and can seek general permit
coverage for satisfying program
requirements.
Existing storm water permit
application regulations address storm
water discharges from large and
medium municipal separate storm
sewer systems (§ 122.26(a) (1)).
Regulations at § 122.2 define the term
"municipality" to include "an Indian
Tribe or an authorized Indian Tribal
organization." Consequently, the criteria
used by the NPDES permitting'authority
for coverage of municipal dischargers
extends to separate storm sewer systems
that are Trifaally owned or operated. At
this time, no Indian reservations are
covered under the existing municipal
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NPDES storm water program. Thus, the
appendices to the definitions of large
and medium separate storm sewer
systems (Part 122, Appendices F-I) list
no reservations for automatic coverage.
Likewise, EPA has not yet designated an
Indian reservation for coverage based on
other factors to be considered under,
CWA section 402(p) (2) (E).
2. Today's Proposal
The current proposed regulation for
the extension of the existing NPDES
program for storm water would cover
two types of dischargers located on
reservations. First, the proposal would
designate storm water discharges from
any regulated small municipal separate
storm sewer system, including Tribally
owned or operated systems. Second, the
proposal would regulate discharges
associated with construction activity
disturbing between one and five acres of
land, including sites located on
reservations. Owners or operators in
each of these categories of regulated
activity would need to apply for
coverage under an NPDES permit within
3 years and 90 days from the date of
publication of the final rule. Under
existing regulations, however, EPA or an
authorized NPDES Tribe may require a
specified storm water discharger to
apply for NPDES permit coverage before
this deadline based on a determination
that the discharge is contributing to a
violation of a water quality standard
(including designated uses) or is a
significant contributor of pollutants.
under this proposal, a Tribal
governmental entity may regulate storm
water discharges on its reservation in
two ways—as either an NPDES-
authorized Tribe or a regulated
"municipality." If a Tribe is already
authorized to operate the NPDES
program. EPA would require the Tribe
to implement today's proposed
regulations for the NPDES program for
storm water, as it does for authorized
States, for covered dischargers located
on the Indian reservation. (As discussed
above, a Tribe may seek NPDES
authorization from EPA to operate the
NPDES program in the'same manner as
a State.) For an outline of the role and
responsibilities of the permitting
authority in the storm water program,
see the proposed § 123.35 (and Section
II.G. of today's preamble) and existing
§ 123.25(a).
Under today's proposed rule, a Tribe
would be a regulated "municipality" for
NPDES program purposes in two ways,
and, therefore, be required to implement
the six minimum control measures to
the extent allowable under Federal law.
(EPA recognizes that tribal regulation of
non-members on fee lands within
Federal Indian Reservations raises
complex legal questions. See 58 FR
67966 and 59 FR 64339. Thus, the
Agency invites comment that would
assist the Agency in developing final
rule language to recognize that Tribes
with MS4s proposed for regulation
under today's proposal would only need
to implement the municipal measures
proposed in section 122.34 to the extent
such Tribes have authority under
federal Indian law.) If the Indian
reservation were located within an
"urbanized area," as defined in
§ 122.32(a)(l) of today's proposed rule,
the Tribe could be an owner or operator
of a regulated small municipal separate
storm sewer system (only the urbanized
area portion of the reservation would be
regulated under an NPDES permit). As
discussed below, Tribal owners or
operators of regulated small municipal
separate storm sewer systems—serving a
population under 1,000 within the
urbanized area portion of the
reservation—would be exempted from
the proposed storm water regulation.
Tribes located outside an urbanized area
Would not automatically be covered, but'
would be able to request designation as
a regulated small municipal separate
storm sewer system from EPA.
EPA believes that only a few Tribes
located in urbanized areas would meet
the criteria to be regulated small
municipal separate storm sewer
systems. The Tribal representative on
the Storm Water Phase E FACA
Subcommittee asked EPA to provide a
list of the Tribes located in urbanized
areas that would fall within the NPDES
storm water program under today's
proposal. In December 1996, EPA
developed a listing of federally,
recognized American Indian Areas
located in Bureau of the Census-
designated urbanized areas (see
Appendix 1). Appendix 1 not only
provides a listing of reservations and
individual Tribes, but also the name of
the particular urbanized area in which
the reservation is located and an
indication of whether the urbanized
area contains a medium or large
municipal separate storm sewer system
that is already covered by the existing
storm water regulations ("Phase I").
There are 27 Tribes on this list; 20 are
outside of Oklahoma and 7 are in
Oklahoma. EPA recognizes that the list
could have errors and invites comment
on its accuracy. The applicability of
CWA section 518 to Tribes located in
Oklahoma would be determined on a
case-by-case basis because of unique
historical and legal considerations
particular to that State. In authorization
of the Oklahoma NPDES program, EPA
retained jurisdiction to regulate
discharges in "Indian Country" (61 FR
65049, December 10, 1996). In the cases
of the 20 Tribes outside of Oklahoma,
Tribal populations within urbanized
areas range from very small numbers to
more than 32,000. In the case of the
seven Oklahoma Tribes, the population
numbers are much larger. It is unlikely,
however, that large populations fall
within areas that would be determined
to be an Indian reservation, as defined
in section 518. In the cases of the 20
Tribes outside of Oklahoma, 9 Tribes
have populations less than 1,000 and,
thus, would be waived from proposed
requirements for the municipal
program. Eight Tribes have a population
between 1,000 and 10,000, and 3 have
a population above 10,000.
As mentioned previously, EPA
proposes to exempt from the proposed
municipal program those Tribally
owned small municipal separate storm
sewer systems in urbanized areas that
serve populations equal to or less than
1,000 persons. As a practical matter,
EPA believes that it may be unlikely
that a Tribe with such a small
• population would have the technical,
administrative, and governmental
capability, including the staff, to
implement a storm water management
program. Unlike similarly situated
political subdivisions of States, these
Tribes in urbanized areas lack the
opportunity for support from States.
Moreover, EPA anticipates that a Tribe
of this size might consider cooperative
arrangements with surrounding local
governmental entities regarding storm
water program implementation. The
nine exempt Tribes in urbanized areas
(populations below 1,000) include:
• Augustine Band of Cahuilla Mission
of Indians of the Augustine Reservation,
CA..
• Caba'zon Band of Cahuilla Mission
of Indians of the Cabazon Reservation,
CA.
• Redding Rancheria of California.
• Seminole Tribe of Florida, Dania,
Big Cypress and Brighton Reservations.
• Penobscot Tribe of Maine.
• Shakopee Mdewakanton Sioux.
Community of Minnesota (Prior Lake).
• Las Vegas Tribe of Paiute Indians of
the Las Vegas Indian Colony, NV.
• Reno-Sparks Indian Colony, NV.
• Ysleta del Sur Pueblo of Texas.
These nine Tribes'in urbanized areas
would not be subject to permit
requirements under today's proposal,
unless EPA subsequently and
specifically designated the discharges
from their storm water systems as a
water quality problem. It is important to
note that this is a preliminary list of
exempted Tribes—it may be the case
that additional tribally-owned small
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1561
municipal separate storm sewer systems
would be eligible for the exemption
based on the population in the portion
of the reservation that is located within
the urbanized area. EPA seeks comment
on any additional Tribes listed in
Appendix 1 that may qualify for this
proposed exemption.
Outside of urbanized areas, non- :
authorized Tribes would be subject to
potential designation by EPA based on .,
the criteria established for designating
all other small municipal separate storm
sewer systems. A Tribe not otherwise
covered by the proposed extension of
the existing NPDES storm water
program would also be able to request •
designation for coverage by EPA. In both
cases, a Tribe would need to comply
with all terms, limitations, and
conditions of the applicable municipal
NPDES permit. EPA designation and
NPDES permit coverage would allow a ,
Tribe to operate a federally recognized
"municipal" storm water management
program and extend Federal recognition
to requirements the Tribe would place
on dischargers of storm water into the
Tribe's separate storm sewer system.
This federal regulation could result in
federal enforcement of the Tribal
program. Moreover, the designation for
NPDES coverage would provide an
opportunity for a Tribe to enhance its
role in the regulation of storm water
discharges within its reservation
without having to undertake the entire
NPDES program and its existing
requirements.
During the public comment period
following today's proposal, EPA plans
to notify each of the Tribes in urbanized
areas that are or may be impacted by
this proposed regulation and will
engage in a discussion of the impact of
the regulation on these Tribes. EPA
invites comment regarding the
appropriateness of its approach to
Tribes in urbanized areas, specifically
the proposed exemption for Tribal
municipal separate storm sewer systems
serving populations under 1,000 people.
3. Other Relevant Issues
During the Storm Water Phase II
FACA Subcommittee process, the Tribal
representative asked how EPA would
apply the NPDES program with respect
to non-federally recognized Indian
reservations and Tribes. At present, EPA
interprets section 518 of the CWA as
applying.only to federally recognized
Tribes and Indian reservations and as
not applicable to non-federally
recognized Indian reservations and
Tribes. EPA regional offices will deal
with this issue on a case-by-case basis
when it is brought to their attention. In -
addition, a State representative
requested EPA to clarify the meaning of
"ownership of a Tribal municipal
•separate storm sewer system." In
response, EPA notes that an Indian tribe
or an authorized Indian Tribal
organization is a municipality under
section 502 (4) of the CWA, unless a '
Tribe is treated as a State under section
518(e) of the CWA. "Indian Tribe"
means any Indian Tribe, band, group, or'
community recognized by the Secretary
of the Interior and exercising
governmental authority over a Federal
Indian reservation.
G. NPDES Permitting Authority's Role
for the CWA Section 402(p) (6)
Municipal Program
As noted previously, the NPDES
permitting authority can be EPA or an
authorized State or an authorized Tribe.
For clarity, the following discussion .
describes the role of the NPDES
permitting authority under today's
proposal. • •
1. Comply With Other Requirements
NPDES permitting authorities would
need to perform certain duties to
implement the CWA section 402 (p) (6)
program. EPA is proposing § 123.35(a)
to emphasize that permitting authorities
have existing obligations under the
NPDES program with which they must
comply. Section 123.35 focuses on
specific issues related to the role of the
NPDES authority to support
administration and implementation of
the municipal storm water program
under CWA section 402 (p) (6).
2. Designate Sources
A new § 123.35(b) addresses the
requirements for the NPDES permitting
authority to designate sources of storm
water discharges to be regulated under
§§ 122.32 through 122.36 of today's
proposed rule. NPDES permitting
authorities would be required to
develop a process, as well as criteria, to
designate municipal sources and the
authority to designate a small municipal
separate storm sewer system where the
otherwise applicable requirements have .
been waived under proposed § 122.33(b)
if circumstances change. EPA is
proposing that EPA may make
designations if an NPDES-approved
State or Tribe fails to do so.
NPDES permitting authorities could
also designate areas that should be •
included in the storm water program (as
regulated small municipal separate
storm sewer systems) but are not located
in an "urbanized area" and, therefore,
would not be designated automatically.
Such areas would be brought into the
program if found to have actual or
potential exce.edances of water quality
standards, including impairment of
designated uses, or other adverse
impacts on water quality, as determined
by local conditions or watershed and
TMDL assessments. EPA's aim is to
address adversely impacted areas while
, protecting areas with the potential for
problems. EPA encourages NPDES
permitting authorities, local
governments, and the interested public
to work together in- the context of a
watershed plan to address water quality
issues, including those associated with
municipal storm water runoff (see
Section I.H. of today's preamble for
further discussion).
a. Develop Designation Criteria . • '
Under a new § 123.35 (fa), the NPDES
permitting authority would need to
establish designation criteria to evaluate
. whether a storm water discharge results
in or has the potential to result in
exceedances of water quality standards,
including impairment of designated
uses, or other significant water quality
impacts, including habitat and
biological impacts. These criteria would
•need to be applied to all municipal
separate storm sewer systems located
outside of an urbanized area with a
population of at least 10,000 and a
population density of at least 1,000.
EPA estimates a total of 583
incorporated places and 2 municipios in
Puerto Rico (Arroyo and Fajardo) fall
within this 10,000 population/1,000
density subset and would need to be
examined for potential designation.
EPA would recommend that the
• NPDES permitting authority consider, in
a balanced manner, certain locally-
focused criteria for designating any
incorporated place, county, or place
under the jurisdiction of a governmental
entity located outside of an urbanized
area on the basis of other significant '.
water quality impacts. EPA proposes to
recommend consideration of criteria
that would include discharge to
sensitive waters, high growth or growth
potential, high population density,
contiguity to an urbanized area,
significant contributor of pollutants to
waters of the United States, and
ineffective control of water quality
concerns by other programs. The
proposed designation criteria are
intended to help encourage the
permitting authority to use an objective
method for identifying and designating,
on a local basis, sources that adversely
impact water quality.
• Discharge to sensitive waters: The
potential impacts of storm water runoff
depend, in part, on the sensitivity of the
receiving waters. For example, cold
Water fisheries, such as trout streams,
show greater levels of impairment from
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poor erosion and sediment control
programs than do other fisheries that are
less dependent on the stream substrate.
EPA recommends that permitting
authorities identify, in coordination
with Federal, State, and local agencies,
and perhaps prioritize, designations
with regard to the sensitivity of the
resource. Sensitive waters generally
include public drinking water intakes
and their designated protection areas;
swimming beaches and waters in which
swimming occurs; shellfish beds;
designated Outstanding National
Resource Waters; National Marine
Sanctuaries; waters within Federal,
State, and local parks; and waters
containing threatened or endangered
species and their habitat, as well as
other waters so designated.
• fHigh growth or growth potential: To
protect watersheds and their receiving
waters from nearly certain adverse
impacts, EPA proposes to recommend
that areas of high growth or growth
potential should also be identified and
included in the designation criteria.
Using this factor could minimize future
restoration or retrofitting costs. Growth
potential can be measured in various
ways, including projected building
starts, comprehensive plans, zoning
maps, bond ratings, and the condition of
infrastructure and building vacancies.
EPA would recommend that, for any
given 10-year period, discharges from
municipal separate storm sewer systems
in areas with localized population
growth rates of more than 10 percent
should be evaluated for designation.
Members of the Storm Water Phase II
FACA Subcommittee questioned
whether a 1 percent threshold (10
percent over a 10-year period) for
"high" growth was reasonable.
According to EPA calculations based on
Census data from 1980 to 1990, the
average rate of growth in the United
States during that 10-year period was
more than 4 percent. For the same
period, the average rate of growth
within urbanized areas was 15.7 percent
and the average for outside of urbanized
areas was just more than 1 percent. EPA
believes that these calculations help to
support the statement that a growth
percentage that is more than 10 times
the national average for areas outside of
urbanized areas is indeed a high rate of
growth for these areas and should be a
basis for designation of municipal storm
water systems.
• High population density:
Population density is related to the level
of human activity, which has been
shown to be directly linked to levels of
impervious land surfaces. Therefore,
EPA recommends "high population
density" as one criterion for designation
of municipal sources. Even areas with
relatively low population densities (i.e.,
less than two residential units per acre)
can have 10 to 20 percent impervious
area (Schueler, T. 1987. Controlling
Urban Runoff: A Practical Manual for
Planning & Designing Urban BMPs.
Metropolitan Washington Council of
• Governments). Macroinvertebrate
diversity becomes poor when
impervious land exceeds 10 to 15
percent (Klein, 1979). Since this study,
extensive research from around the
country has found this threshold to be
consistent with other studies (Schueler,
T. 1995. Environmental Land Planning
Series: Site Planning for Urban Stream
Protection. Prepared for Metropolitan
Washington Council of Governments.).
Further, higher density residential areas
(i.e., two to ten residential units per
acre) have been correlated with as much
as 35 percent imperviousness. By
recommending this criterion, EPA does
not aim to encourage lower density
development and urban sprawl but
rather good urban design and
development patterns.
• Contiguity to an urbanized area:
The areas closely outside of an
urbanized area have a good potential for
future growth and may also have
significant impacts on a neighboring
regulated municipality that is within the
urbanized area. This designation
criterion would allow for an extension
of the seamless coverage provided by
the regulation of urbanized areas where
necessary. The proposed rule also
captures this concept in § 123.35 (b) (4).
• Significant contributor of pollutants
to waters of the United States: This
criterion is one of the basic tenets of
designation and is meant to capture all
significantly contributing sources in an
effort to have both comprehensive and "
equitable coverage (see CWA section
402(p)(2)(E). 40 CFR 122.26(a)(5)). It
also aids in developing" a watershed
approach.
• Ineffective control of water quality
concerns by other programs: EPA
proposes to recommend that NPDES
permitting authorities carefully consider
whether the storm water runoff from a
potentially designated area is effectively
addressed under other regulations or
programs, such as CZARA and other
nonpoint source programs. For example,
an area covered under the National
Estuary Program (NEP) under CWA
section 320 is required to develop a
Comprehensive Conservation and
Management Plan (CCMP) for managing
the estuarine watershed. The CCMP
addresses three general resource areas:
water and sediment quality, living
resources, and land use and water
resources. The permitting authority
could determine that the NEP
comprehensively addresses impacts to
water quality from storm water
discharges for certain systems and,
therefore, the systems would not need to
be designated under the CWA section
402 (p) (6) program.
These criteria are meant to be taken in
the aggregate, with a great deal of
flexibility as to how each would be
weighed in order to best account for
watershed and other local conditions
and to allow for a more tailored case-by-
case analysis. The application of criteria
is meant to be geographically specific.
Furthermore, each criterion does not
have to be met in order for the owner
or operator of a small municipal
separate sewer system to qualify for
designation, nor would a system
necessarily be designated on the basis of
one or two criteria alone. EPA plans to
provide comprehensive guidance to
more fully develop its recommendations
for appropriate criteria, as well as offer
detailed information on how the criteria
could be applied and what standards
could be used. EPA seeks comment on
additional designation criteria, as well
as the validity and applicability of the
proposed criteria.
EPA believes that the application of
the recommended designation criteria,
when considered as a composite, would
provide an objective indicator of real
and potential water quality impacts
from urban runoff on both the local and
watershed levels. EPA encourages the
application of the recommended criteria
in a watershed context, thereby allowing
for the evaluation of the water quality
impacts of the portions of a watershed
outside of an urbanized area. For
example, situations exist where the
urbanized area represents a small
portion of a degraded watershed, and
the adjacent nonurbanized areas of the
watershed have significant cumulative
effects on the quality of the receiving
waters.
' b. Apply Designation Criteria
After customizing the designation
criteria for local geography, the
permitting authority would have to
apply such criteria, at a minimum, to
any incorporated place, county, or place
under the jurisdiction of a governmental
entity (including but not limited to
Tribal or Territorial governments)
located outside of an urbanized area that
has both a population of at least 10,000
and a population density of 1,000
people per square mile or greater (see
proposed § 123.35 (b) (2)). If the NPDES
permitting authority determines that the
place or county meets the criteria, they
would need to designate all small
municipal separate storm sewer systems
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1563
located in the place or county as
regulated small municipal separate
storm sewer systems under the NPDES
storm water program within 3 years and
90 days of publication of the final rule.
Alternatively, the NPDES authority
could designate within 5 years from the
date of final regulation if the
designation criteria are applied on a
watershed basis where a comprehensive
watershed plan exists (a comprehensive
watershed plan is one that includes the
equivalents of TMDLs) (see proposed
§'123.35 (b) (3)). The Agency seeks to
provide incentives for watershed-based
designations.
The timeframe of 3 years and 90 days
would allow States and Tribes up to 2
years to make any necessary statutory
changes and receive program approval
from EPA, an additional year to develop'
their general permit and designation
criteria, and then 90.days for a regulated
entity'to submit its individual
application or Notice of Intent (NOI)
under a general permit. Assuming a •
March 1, 1999, final rule, the resulting
deadline would be May 31, 2002. EPA
believes this woulcl be an adequate
timeframe and would provide
significant guidance to NPDES
permitting authorities on the
responsibilities to be completed during
this period. If an NPDES-authorized
State or Tribe does hot develop and
apply'designation criteria, then EPA
might do so.
EPA believes it has adequate authority
to apply a State's designation criteria (or
to develop and apply designation
criteria) to designate sources in an
authorized NPDES State. Such authority
would derive from the text of section
402 (p) (6), which provides for the
designation of sources other than those.
already regulated under section
402(p) (2). EPA does not believe that
section 402(c)(l), which requires EPA to
suspend'issuance of Federal NPDES'
permits in an authorized State, would
preclude EPA designation of particular
small municipal separate storm sewer
systems (based on subsequently-
developed criteria applicable in a
particular State) after promulgation of
today's proposed rule because
designation of sources is independent of
(and precedes) the issuance of permits.
In addition, as discussed later in Section
11.1.4. entitled, Residual Designation
Authority, EPA believes that section
402 (p) (6) provides the Agency with
authority to subsequently designate
individual sources under today's
proposed rule. Today's approach for
designation by EPA, even, in .authorized
•NPDES States, would also be consistent
with the authority currently available to
the Agency under the existing storm
water regulations at 40 CFR ,
122,26(a)(l)(v). Similarly, the third
party petition process for small •
municipal separate storm sewer systems
(including expeditious deadlines for
acting on such petitions) is consistent
with the existing storm water
regulations at 40 CFR 122.26® (4) & (5).
EPA solicits comment on the proposed-
designation approach.
. It is important to note that NPDES
permitting authorities could designate
any owner or operator of a municipal
separate storm sewer system, including
one below-10,000 in population and
1,000 in density. EPA established the
10,000/1,000 threshold primarily for
prioritization purposes based on the
likelihood of adverse water quality
impacts at these population and '
population density levels. In addition,
the 1,000 persons per square mile
threshold is consistent with both the
Bureau of the Census definition of an
"urbanized area" (see Section II.H.2.
below) and a Storm Water Phase II
FACA Subcommittee work group's
discussion concerning the definition of
a regulated small municipal separate
storm sewer system.
EPA has considered the request from
some Storm Water Phase II FACA
Subcommittee members that interim
deadlines be established for
development of designation criteria and
believes that the designation deadline
identified in today's proposed rule at
§ 123.35(b)(3) provides States and Tribes
with a flexibility that allows them to
.develop and apply the criteria locally in
a timely fashion, while at the same time
establishing an expeditious deadline.
c. Designate Physically Interconnected
Municipal Separate Storm Sewer
Systems
In addition to applying'criteria on a
local basis for potential designation, the
NPDES permitting'authority would be
required to designate any owner or
operator of a municipal separate storm
sewer system that contributes
substantially to the storm water
pollutant loadings of a physically
interconnected municipal separate
storm sewer system that is regulated by
the NPDES storm water program (see
proposed § 123.35(b)(4)). To be
"physically interconnected," the
municipal separate storm sewer system,
including roads with drainage systems
and municipal streets, of one entity
would be physically connected directly
to the municipal separate storm sewer
system of another entity. This provision
would apply to all municipal separate
storm sewer systems located outside of
an urbanized area. EPA added this
section in recognition of the concerns of
local government representatives on the
Storm Water Phase II FACA
Subcommittee that a local government •
should not have to shoulder total
responsibility for a storm water program
when storm water discharges from
another municipality are also
contributing pollutants or adversely
affecting water .quality. This provision
would also help to provide some
consistency among municipalities and
facilitate watershed planning in the
implementation of the NPDES storm
water program. EPA recommended
physical interconnectedness in the
existing NPDES storm water regulations
as a factor for consideration in the ,
designation of additional sources. The
municipal caucus raised an additional
concern relating to sheet runoff from
one adjoining jurisdiction to another,
thereby contributing to the discharges of
a neighboring municipal separate storm
sewer system. EPA would like comment
on the extent to which this problem may
exist and ways in which it could be
addressee!. EPA also welcomes comment
on this proposed designation provision.
Today's proposal does not include
interim deadlines for identifying
physically interconnected municipal
separate storm sewer systems. EPA
believes that this determination would
occur on a case-by-case basis where
deadlines would only work to limit the
permitting authority's ability to identify
such systems. However, in accordance
with the deadlines identified in
§ 123.35 (b) (3) of today's proposal, EPA
encourages the permitting authority to
make that determination within 3 years
from the date of publication of the final
rule or within 5 years if the permitting
authority is implementing a
comprehensive watershed plan.
Alternatively, the affected jurisdiction
could use the petition process under 40
CFR 122.26© in seeking to have the
permitting authority designate the
contributing jurisdiction.
d. Address Public Petition for
Designation
Today's proposal would recognize the
existing opportunity for the public to
petition the permitting authority for
designation of a point source to be
regulated to protect water quality, as
contained in existing NPDES regulations
(see 40 CFR 122.26(1)). Any person may
petition the permitting authority to
require an NPDES permit for a discharge
composed entirely of storm water that
contributes to a violation of a water
quality standard or is a significant
contributor of pollutants to the Waters of
the United States (see proposed
§ 123.35(c)). NPDES permitting
authorities would have to make a final
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determination on any petition within
180 days after receiving the petition (see
proposed § 123.35(c)). EPA believes that
setting a limit of 180 days balances the
public's need for a final determination
within a finite period of time and the
NPDES permitting authority's need to
control its workload. EPA is also
proposing that if an NPDES-approved
State or Tribe fails to act within the 180-
day timeframe, EPA may make a
determination on the petition. EPA
believes that public involvement is an
important component of the NPDES
program for storm water and feels that
this provision encourages public
participation. Section ILK, Public
Involvement/Public Role, further
discusses this topic.
The Storm Water Phase IIFACA
Subcommittee provided EPA with
extensive feedback on today's proposed
approach. Several commenters have
questioned the justification for the use
of urbanized areas or the designation
criteria selected by EPA as guidance to
the NPDES permitting authority (see
§ 123,35(b)(l)). Municipal members of
the subcommittee noted that the
proposed rule could result in inequities
among local governments and would
not cover all contributors of pollutants
to receiving waters. Some subcommittee
representatives expressed concern that
the proposed rule would impede the
watershed approach due to its blanket
coverage within urbanized areas but
only specific designation outside of
urbanized areas. Today's proposed rule
addresses the problem of perceived
inequities through the provision that
any municipal separate storm sewer
system can be designated by the
permitting authority if found to be
significantly contributing pollutants to
the waters of the United States or
contributing to an exceedance of water
quality standards. EPA believes that the
proposed approach, which provides for
the designation of sources to be
regulated based on local conditions,
would facilitate watershed planning.
EPA relies on data summarized in the
NURP study and in the CWA section
305 (b) reports to support an approach
for targeted designation outside of
urbanized areas. EPA has developed
designation criteria based on findings of
the NURP study and other studies that
indicate pollutants of concern,
including total suspended solids,
chemical oxygen demand, and
temperature. These criteria were the
subject of considerable discussion by
. the Storm Water Phase II FACA
Subcommittee and were revised in
response to recommendations from the
subcommittee. EPA invites comment on
this issue. EPA would be particularly
interested in data submitted on storm
water discharges and associated
pollutants of concern.
3. Provide Waivers
EPA received comments from
numerous State representatives that the
proposal should recognize the efforts of
existing State programs to address the
significant concerns that potentially
impact watersheds. In response, the
Agency is proposing to provide some
flexibility under § 122.33(b) that allows
NPDES permitting authorities to waive
otherwise applicable requirements for
certain regulated small municipal
sources. Such waivers could be granted
in cases where the jurisdiction served
by the regulated small municipal
separate storm sewer system includes a
population of less than 1,000 persons,
its discharges are not contributing
substantially to the storm water
pollutant loadings of a physically
interconnected regulated municipal
separate storm sewer system, and the
owner or operator of the small
municipal separate storm sewer system
has certified that storm water controls
are not needed based on (1) wasteload
allocations that are part of TMDLs that
address the pollutants of concern, or (2)
a comprehensive watershed plan,
implemented for the waterbody, that
includes the equivalents of TMDLs and
addresses the pollutants of concern. If
such a waiver is granted, the TMDLs or
watershed plan would need to
demonstrate with reasonable assurance
that load reductions take place pursuant
to CWA section 303 (d). It is important
to note that EPA will continue to require
States to comply with their TMDL
implementation schedules.
Where a State is the NPDES
permitting authority, the permitting
authority would be responsible for the
development of the TMDLs or their
equivalent determination as part of a
watershed plan as well as the
assessment of the extent a small
municipal separate storm sewer
system's discharge is contributing
pollutants to a neighboring regulated
system. In states where EPA is the
permitting authority, EPA would use a
State's watershed plan and TMDLs,
where available. From these
assessments, the permitting authority
could make its determination regarding
wasteload allocations and might
determine that storm water controls are
not required for certain small municipal
separate storm sewer systems. Once
these determinations are made, the
owner or operator of the regulated small
municipal separate storm sewer system,
in seeking a waiver from the otherwise
applicable requirements under today's
proposal, would be responsible for
certifying on a form provided by the
NPDES permitting authority that they
are covered by TMDLs or a watershed
plan that indicates that discharges from
their particular system are not having an
adverse impact on water quality (i.e.,
they were not assigned wasteload
allocations under TMDLs) and,
therefore, implementation of storm
water controls is not necessary and the
waiver provision requirements have
been met. Since the municipal waiver is
indefinite, the owner or operator would
not need to re-certify at the beginning of
each permit term. EPA encourages the
permitting authorities to make their
waiver determinations as soon as
possible in an attempt to avoid having
the owners or operators of regulated
small municipal separate storm sewer
systems apply for a permit and begin to
develop a program, but then later be
waived from the applicable
requirements. EPA seeks comment from
permitting authorities on how they
envision the process of implementing
municipal waivers under today's
proposed rule. Specifically, EPA would
like comment on how the program
could operate on a basis of self-
certification for waivers.
The NPDES permitting authority
could, at any time, mandate compliance
with program requirements from a
previously waived regulated small
municipal separate storm sewer system
if circumstances change. For example, a
waiver could be withdrawn in
circumstances in which the permitting
authority later determines that a storm
water discharge to a small stream would
cause adverse impacts to water quality
resulting in a violation of water quality
standards. A "change in circumstances"
could involve receipt of new
information by the permitting authority.
EPA invites comments on concerns
that the permitting authority could
improperly grant waivers in an effort to
provide relief to regulated entities based
on concerns unrelated to water quality.
EPA is also concerned that a permitting
authority could redirect resources from
other environmental programs in order
to develop a watershed approach that
promotes the issuance of the greatest
number of waivers possible.
EPA also invites comment on the
option of broadening the universe of
potential waivers by waiving the
requirements of all small municipal
separate storm sewer systems that have
a population below 5,000, rather than
1,000, and meet the same criteria as in
today's proposal.
An option not proposed by EPA today
is a waiver based on low population or
low population density alone. EPA
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1565
considered a waiver option based on a
simple population threshold. This
option would have automatically
waived all places within urbanized
areas with a population of 1,000 persons
or below. EPA found it difficult to
justify a particular threshold number
without allowing for more flexibility or
additional criteria in order to determine
if storm water controls were necessary.
This option also did not fully account
for water quality impacts and would
create arbitrary donut holes, some of
which could have significant impacts on
water quality and should be regulated.
Small entity representatives
commented, however, that
municipalities with less than 1,000
persons may lack the technical capacity
to certify that their discharges are not
contributing to adverse water quality
impacts in areas where a TMDL or
comprehensive watershed plan has not
been developed by the permitting
authority. This concern was shared by
the Federal Small Business Advocacy
Review Panel (see Section VII. below).
EPA is thus requesting comment on the
option of waiving coverage for all
municipalities with less than 1,000
people (including those located in
urbanized areas) unless the permitting
authority determines that they should
be -required based on significant adverse
water quality impacts.
In addition to waivers, the Agency is
also considering possible approaches for
providing incentives for local
decisionmaking that would limit the
adverse water quality impact associated
with uncontrolled growth in a
watershed. In situations where there are
special controls or incentives (e.g.
transferable development rights',
traditional neighborhood development
ordinances) in place directing
development toward compact/mixed
use development and away from
wetlands, open space, or other protected
lands, it may be possible to provide
some relief to municipalities in terms of
implementation of the proposed
minimum control measures in areas of
infill, or compact mixed use, the relief
would pertain to minimum control
measures concerning construction and
new infill development or
redevelopment. Where TMDLs are done
in a watershed, the use of such controls
or incentives by municipalities might be
considered as the basis for the TMDLs.
EPA solicits comment on this approach
and any other recommendations for the
use of such incentives.
4. Issue Permits
NPDES permitting authorities have a
number of responsibilities regarding the
permit process. The Agency is
proposing §§ 123.35 (d) through (g) to
ensure a certain level of consistency for
permits,'yet providing numerous -
opportunities for flexibility. NPDES
permitting authorities must issue
NPDES permits to cover municipal
sources that would be regulated under
§ 122.32 of today's proposed rule, unless
waived under § 122.33(b). EPA
encourages permitting authorities to use
general permits as the vehicle for
permitting and regulating small
municipal separate storm sew,er
systems. The Agency notes, however,
that some owners or operators may wish
to take advantage of the option to join ,
as a co-permittee with a municipality
regulated under the existing NPDES
storm water program.
Today's proposal includes a
provision, § 123.35(f), that requires
NPDES permitting authorities to include
the requirements in proposed § 122.34
including as modified in accordance
with §§ 122.33(a)(3), 122.34(c),
122.35(b)) for NPDES permits issued for
regulated small municipal separate
storm sewer systems. See Section
H.H.S.a, Minimum Control Measures, for
more details on the actual requirements.
In an attempt to avoid duplication of
effort, EPA is specifically proposing in
§ 122.34(c) to allow NPDES permitting
authorities to include permit provisions,
that incorporate'by reference qualifying
local, Tribal, or State municipal storm
water management program
requirements that address one or more
of the minimum controls of proposed
§ 122.34(b). For a local, Tribal, or State
program to "qualify," it would need to •
impose, at a minimum, the relevant
requirements,of § 122.34(b). A regulated
small'municipal separate storm sewer
system would still need to submit an
application, either an individual
application or an NOI under a general
permit, but would follow the
requirements of the qualifying local,
Tribal, or State program instead. The
Agency invites comment on this ,
approach.
Under § 122.35 (b), NPDES permitting
authorities might also recognize existing
responsibilities among governmental
entities for the minimum control
measures in an NPDES small municipal
storm water permit, For example, the
permitmight allow for the State to be
responsible for addressing construction
site runoff and require that the
municipalities develop substantive
controls for the remaining minimum
control measures. By acknowledging
existing programs, this provision is
meant to reduce the duplication of
efforts and to increase the flexibility of
the NPDES storm water program.
In § 123.35 (e), EPA is proposing that
NPDES permitting authorities specify a
time period of up to 5 years from the
issuance date of an NPDES permit for
regulated small municipal separate
storm sewer system owners or operators
to fully develop and implement their ,
.storm water programs. EPA believes this
time period is adequate. As discussed
more fully below, permitting authorities
should be providing extensive support
to the local governments to assist them
in developing and implementing their
programs.
Under proposed § 123.35(g), if an
NPDES permitting authority issues a
general permit to authorize storm water
discharges from regulated small
municipal separate storm sewer
systems, the NPDES permitting
authority would also need to provide or
issue a menu of regionally appropriate
and field-tested BMPs that the'
permitting authority determines to be
cost-effective. The regulated small
municipal separate storm sewer systems
could choose to either select from this
menu or select other BMPs that they feel
are appropriate. The purpose of this •
menu is to provide small municipal
separate storm sewer systems with
additional guidance to assist them in
implementing their storm water
program. The menu would be further
elaborated upon in guidance materials ,
provided as part of the tool box (for
further discussion regarding the tool box
see Section H.A.5.). The menu itself is
not intended to replace more
comprehensive BMP guidance
materials. Separate guidance documents
that discuss the results from EPA-
sponsored nationwide general studies
on the construction, operation and
maintenance of BMPs would be
provided as part of the tool box efforts.
The permitting authority may include
this menu in the general permit when it
is issued. This menu would need to be
issued within two years of the
publication of the final rule. This
deadline tracks the amount of time that
the State permitting authority would •
have to make any necessary regulatory
or statutory changes to their program to
accommodate the rule requirements. If,
an NPDES-approved State or Tribe
failed to provide or issue this menu
within two years of the publication of
the final rule, EPA would be able to do
so. Failure of the State to issue the menu
of BMPs would not affect the legal
status of the general permit. Measurable
goals identified in a small municipal
storm sewer system's NOI, or individual
application, would ,not be considered a
condition of the NPDES permit unless,
and until, the permitting authority or
EPA provided or issued the menu of
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BMPs. The issuance of the menu of
BMPs would be critical to assure
protection of water quality since it
triggers the permittee's requirement to
meet narrative performance standards.
5. Support and Oversee the Local
Programs
NPDES permitting authorities would
be responsible for supporting and
overseeing the local municipal
programs. EPA is proposing § 123.35(h)
to highlight issues associated with these
responsibilities.
To the extent possible, NPDES
permitting authorities should provide
financial assistance to local
municipalities, which often have
limited resources, for the development
and implementation of local programs.
EPA recognizes that funding for
programs at the State and Tribal levels
may also be limited, but strongly
encourages States and Tribes to provide
whatever assistance possible. In lieu of
actual dollars, NPDES permitting
authorities could provide cost-cutting
assistance in a number of ways. For
example, NPDES permitting authorities
could develop outreach materials for
municipalities to distribute or the
NPDES permitting authority could
actually distribute the materials.
Another option would be to implement
an erosion and sediment control
program across an entire State (or Tribal
land), thus alleviating the need for the
municipality to implement its own
program. Obviously, NPDES permitting
authorities would need to balance the
need for site-specific controls, which
could be best handled by a local
municipality, with the need to offer
financial relief. EPA, States, Tribes, and
municipalities should work as a team in
making these kinds of decisions.
NPDES permitting authorities would
be responsible for overseeing the local
programs. They would need to work
with the regulated community and other
stakeholders to assist in local program
development and implementation. This
might include sharing information,
analyzing reports, and taking
enforcement actions, as necessary.
NPDES permitting authorities play a
vital role in supporting local programs
by providing technical and
programmatic assistance, conducting
research projects, and monitoring
watersheds. Another important role for
NPDES permitting authorities would be
to ensure adequate legal authority at the
local level so that municipalities could
implement their part of the CWA
section 402(p) (6) program.
NPDES permitting authorities are
encouraged to coordinate and utilize the
data collected under several programs.
States and Tribes address point and
nonpoint source storm water discharges
through a variety of programs. In
developing the CWA section 402 (p) (6)
program, EPA recommends that States
and Tribes coordinate all of their water
programs, including the continuing
planning process (CPP), the existing
storm water program, the CZARA
program, and nonpoint source
programs.
In addition, NPDES permitting
authorities would be encouraged to use
a brief (e.g., two-page) reporting format
to facilitate compiling and analyzing '
data from submitted reports under
proposed § 122.34. EPA would develop
a model form for this purpose.
H. Municipal Role
1. Scope of Today's Proposal
The Agency has selected for today's
proposal an equitable and
comprehensive four-pronged approach
for the designation and coverage of
municipal sources. First, the approach
would define for automatic, coverage the
sources believed to be of most concern.
Second, the approach would designate
sources that~meet a set of objective
criteria used to measure the potential for
water quality impacts. Third, the
approach would designate on a case-by-
case basis sources that "contribute
substantially to the storm water
pollutant loadings of a physically-
interconnected [regulated] municipal
separate storm sewer system." Finally,
the approach would designate on a case-
by-case basis, upon petition, sources
that "contribute to a violation of a water
quality standard or are a significant
contributor of pollutants."
As explained earlier, today's proposed
rule would automatically designate for
regulation small municipal separate
storm sewer systems located in
urbanized areas and would require that
NPDES permitting authorities examine
for potential designation, at a minimum,
a particular subset of small municipal
separate storm sewer systems located
outside of urbanized areas. Any small
municipal separate storm sewer system
automatically designated by the
proposed rule or designated by the
permitting authority under today's
proposed rule would be defined as a
"regulated" small municipal separate
storm sewer system. Today's proposal
also includes a provision that would
allow for a waiver from the otherwise
applicable requirements for some
regulated small municipal separate
storm sewer systems, where warranted,
based on a comprehensive water
quality-based assessment.
In today's proposed rule, all regulated
small municipal separate storm sewer
systems would need to establish a storm
water program that meets the
requirements of six minimum control
measures, unless the system qualifies
for, and the NPDES permitting authority
grants, a waiver. These minimum
control measures would be public
education and outreach on storm water
impacts, public involvement/
participation, illicit discharge detection
and elimination, construction site storm
water runoff control, post-construction
storm water management in new
development and redevelopment, and
pollution prevention/good
housekeeping for municipal operations.
Today's proposal would allow for a
great deal of flexibility in how an owner
or operator of a regulated small
municipal separate storm sewer system
would be authorized to discharge under
an NPDES permit by providing various
options for obtaining permit coverage
and satisfying the required minimum
control measures. For example, the
NPDES permitting authority could
incorporate by reference qualifying
State, Tribal, or local programs in the
NPDES general permit and could
recognize existing responsibilities
among different governmental entities
for the implementation of minimum •
control measures. In addition, a
regulated small municipal separate
storm sewer system could participate in
the storm water management program of
an adjoining regulated medium or large
municipal separate storm sewer system
and could arrange to have another
governmental entity implement a
minimum control measure for them.
2. Municipal Definition
This section explains which small
municipal separate storm sewer systems
would be regulated under today's
proposed rule. This section also
proposes several definitions of terms
used to describe the applicability of the
proposed program requirements. For
one particularly important definition,
the definition of an "urbanized area,"
the discussion includes case studies and
a map as examples. This section
concludes with a discussion of the three
alternatives EPA considered for
determining which small municipal
separate storm sewer systems would be
covered by today's proposed rule.
Regulatory Language in Today's
Proposal
The CWA does not define the term
"municipal separate storm sewer." EPA
has exercised its discretion to define the
scope of municipal systems consistent
with its existing regulations. EPA
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1567
define^ municipal separate storm sewer
in the existing storm water permit
application regulations to mean, in part,
a conveyance or system of conveyances
(including roads with drainage systems
and municipal streets) that is "owned or
operated by a State, city, town borough,
county, parish, district, association, pr
other public body designed or used for
collecting or conveying storm water
which is not a combined sewer and
which is not part of a Publicly Owned
Treatment Works as defined at 40 CFR
122.26" (see 40 CFR 122.26(b)(8)(i)).
Today's proposed rule adds to this
definition "the United States" as a
potential owner or operator of a
municipal separate storm sewer. This
addition is meant to address an
omission from existing regulations and
to clarify that Federal facilities are, in
fact, covered by the NPDES program for
municipal storm water discharges when
the Federal facility is like other
regulated municipal separate storm
sewer systems. Federal facilities may be
like other municipal separate storm
sewer systems due to similar residential
populations and road systems; therefore,
anticipated storm water discharges
would also be similar.
• The existing municipal permit
application regulations define
"medium" and "large" municipal
separate storm sewer systems as those .
located in an incorporated: place or
. county with a population of at least
100,000 (medium) or 250,000 (large) as
determined by the latest Decennial
Census (see 40 CFR 122.26(b) (4) and '
122.26(b)(7)). In today's proposed rule,
these regulations have been revised to
define all medium, and large municipal
separate storm sewer systems as those
meeting the above population
thresholds according to the 1990
Decennial Census. The decision to
"freeze" the definition of medium and
large municipal separate storm sewer
systems as of the 1990 Census was
based on (1) a concern with deadlines,
(2) an understanding that the permitting
authority could always require more
from owners pr. operators of municipal
separate storm sewer systems serving
.."newly over 100,000" populations, and
(3) the Agency's intentipn to merge the
Phase I existing and Phase II proposed
programs into a single seamless storm
water program (see §§ 122.26(b)(4),
(b)(7) and (b)(16)). v
In today's proposed rule, owners or
operators of small municipal separate
.sewer systems may be'regulated under
the NPDES program for storm water.
Small municipal separate sewer systems
are "all municipal separate storm sewer
systems that are not designated as a
"large" or "medium" municipal
separate storm sewer system, pursuant
to 40 CFR 122.26,(b) (4) and (b) (7), or
designated under 40, CFR
122.26(a)(l)(v)." Small municipal
separate storm sewer systems include,
but are not limited to, systems operated
by local governments (including
"municipios"), State departments of
transportation, and State, Tribal, and
federal facilities. The term "State, Tribal
and federal facilities" includes, but is
not limited to, military installations,
penitentiaries, universities and similar
institutions with separate storm sewers
draining areas. Municipal systems that
were designated under 40 CFR
122.26(a) (l)(v) will continue to be
regulated under the existing storm water
program and, therefore, are not
addressed under today's proposed rule.
In today's proposed rule (see
§§122.32(a)(l) and 122.32(a)(2)), EPA
defines "regulated small municipal-
separate storm sewer systems" to
include all municipal separate storm
sewers that are located in:
' (1) An incorporated place, county
(only the portion located in an'
urbanized area), or other place under
the jurisdiction of a governmental entity
(including but not limited tp Tribal or
Territorial governments) located in an ,
urbanized area, as determined by the
latest Decennial Census by the Bureau
of the Census (see 55 FR 42592, October
22, 19907, except for Federal Indian
reservations where the population
within the urbanized area is under 1,000
persons. .
,(2) An incorporated place, county, or
other place under the jurisdiction of a
governmental entity other than those
described in (1) above that is designated
by the NPDES permitting authority. The
NPDES permitting authority may
designate any municipal separate storm
sewer system located outside of an
urbanized area. See Section E.G. NPDES
Permitting Authority Role for the CWA
section 402(p) (6) Municipal Program,
for more details on this process.
Definitions of Key Terms and Phrases
The Bureau of the Census definition'
of "incorporated place," adopted by
EPA for purposes of today's proposal,, is
any place reported to the Bureau as
legally in existence under the laws of
the. respective State as a city, borough,
town, or village, with certain
exceptions. (U.S. Department of
Commerce, Bureau of .the Census. 1994.
'Geographic Areas Reference Manual.)
Because these Bureau of the Census
exceptions would be included within
the term "county" (see definition
belpw), they wpuld npt impact the
application of today's definition of a
regulated small municipal separate
storm sewer system in any way.
The Bureau of the Census definition •
of "county," adopted by EPA for the
purposes of today's proposal, is "the
primary legal subdivision of every State
except Alaska.and Louisiana." (USDC,
1994) For the purposes of today's
proposed rule, the term "county" also
includes Louisiana's county equivalent
known as a parish and Alaska's county
equivalent, which is an organized
borough. A county's unincorporated
territory includes all minor civil
divisions and census-designated places
but excludes all incorporated places.
Therefore, any area that is not an
incorporated place would be included
within the definition of "county," with
the exception of Tribal or Territorial
areas.
The phrase "place under the
jurisdiction of a governmental entity"
includes, but is not limited to, places
within the jurisdiction of Tribes and . •
Territorial governments. EPA is
proposing this language in order to
include governmental entities that are
located within an urbanized area but
whose government structure may not
include incorporated places or counties.
For example, Federal Indian
reservations are neither incorporated,
places nor counties, but are sovereign
entities, and Puerto Rico has
"municipios" as their primary local ,
government. The term "Tribes" includes
any Indian Tribe, band, group, or
community recognized by the Secretary
of the Interior and exercising
governmental authority over a Federal .
Indian reservation (40 CFR 122.2).
"Territorial governments" include the
following U.S. territories: the District of
Columbia; the Commonwealth of Puerto
Rico, American Samoa, Guam, the
Virgin Islands of the United States, and
the Commonwealth of the Northern
Mariana Islands. "Municipio" means a
Puerto Rico division which has legally
established boundaries and constitutes a
governmental unit. "Pueblo" or
"ciudad" means the barrio or group of
barrios which are considered the
municipio center of government.
"Federal Indian reservation" means
all land within the limits of any Indian
reservation or rancheria under the
jurisdiction of the U.S. Government,
notwithstanding the issuance of any
patent, and including rights-of-way
running through the reservation (40 CFR
122.2; see also Section II.F. of today's
preamble and section 518 of the CWA).
Urbanized Areas Definition
The Bureau of the Census definition
of "urbanized area," adopted by EPA for
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the purposes of today's proposed rule, is
as follows:
An urbanized area (UA) comprises a place
and the adjacent densely settled surrounding
territory that together have a minimum
population of 50,000 people.
The "densely settled surrounding
territory" adjacent to the place consists of the
following:
1, Territory made up of one or more
contiguous census blocks having a
population density of at least 1,000 people
per square mile provided that it is:
a. Contiguous with and directly connected
by road to other qualifying territory, or
b. Noncontiguous with other qualifying
territory, and:
(1) Within 1 1/2 road miles of the main
body of the urbanized area and connected to
it by one or more nonqualifying census
blocks that [a] are adjacent to the connecting
road and Ib] together with the outlying
qualifying territory have a total population
density of at least 500 people per square
mile, or
(2) Separated by water or other
undevelopable territory from the main body
of the urbanized area, but within 5 road miles
of the main body of the urbanized area, as
long as the 5 miles include no more than 1
1/2 miles of otherwise nonqualifying
developable territory.
2. A place containing territory qualifying
on the basis of criterion 1 [above] will be
Included in the urbanized area in its entirety
(or partially, if the place is an extended city)
if that qualifying territory includes at least 50
percent of the population of the place. If the
place does not contain any territory
qualifying on the basis of the above criterion,
or if that qualifying territory includes less
than 50 percent of the place's population, the
place is excluded in its entirety.
3. Other territory with a population density
of less than 1,000 persons per square mile,
provided that it:
a. Eliminates an enclave of no more than
5 square miles in the territory otherwise
qualifying for the urbanized area when the
surrounding territory qualifies on the basis of
population density, or
b. Closes an indentation in the boundary of
the territory otherwise qualifying for the -
urbanized area When the contiguous territory
qualifies on the basis of population density,
provided that the indentation is no more than
1 mile across the open end, has a depth at
least two times greater than the distance
across the open end, and encompasses no
more than 5 square miles.
(55 ER 42592, October 22, 1990)
The full definition of an "urbanized
area" has been included primarily for
informational purposes. Because the
Bureau of the Census determines
urbanized areas based on the latest
decennial census, the owner or operator
of a municipal separate storm sewer
system does not need to make any
calculations to determine eligibility as a
regulated small municipal separate
storm sewer system. The Bureau of the
Census provides detailed maps and
comprehensive listings of all political
entities within a given urbanized area.
For a more detailed description of the
treatment of urbanized areas for
purposes of today's proposal, see the
following discussion entitled,
Nationwide Designation. Also, see
Appendix 3 for a listing of urbanized
areas of the United States and Puerto
Rico.
a. Nationwide ("Automatic")
Designation
In today's proposed rule, all-small
municipal separate storm sewer systems
located in an incorporated place,
county, or other place under the
jurisdiction of a governmental entity .
that is included within an urbanized
area would be automatically designated
as "regulated" small municipal separate
sewer systems under today's proposed
storm water program, provided that they
were-not previously designated into the
existing storm water program. Unlike
medium and large municipal separate
storm sewer systems under the existing
storm water regulations, not all small
municipal separate storm sewer systems
would be designated under today's
proposal and, therefore, a distinction is
made in the rule between "small"
municipal separate storm sewer systems
and "regulated small" municipal
separate storm sewer systems.
EPA estimates that this automatic
designation would include
approximately 3,500 incorporated
places and counties (about 16% of all
incorporated places and counties
nationwide), 41 municipios (more than
50% of all municipios in Puerto Rico),
and 27 Tribes (although 9 of these
Tribes would be exempted and there are
other special considerations—see
Section H.F, Tribal Role). In addition, as
previously discussed, this definition
would include State, Tribal, and Federal
highways and facilities located within
urbanized areas.
It is important to note that if a county
or Federal Indian reservation is only
partially included in an urbanized area,
only the urbanized portion of the county
or Federal Indian reservation would be
regulated. Although rare, even if an
incorporated place is only partially
included in the urbanized area, then the
entire place is regulated. The regulation
of counties is meant to capture all
unincorporated areas located within the
urbanized area in an effort to create a
seamless program by avoiding the
creation of unregulated areas
surrounded by regulated areas,
sometimes referred to as "donut holes"
in the regulatory scheme. For example,
if an urbanized area contains a regulated
medium or large municipal separate
sewer system that has within its
boundaries some incorporated places
that were originally excluded from the
storm water program due to the
population threshold of 100,000, most
of these previously unregulated donut
holes would now be defined as
regulated.small municipal separate
sewer systems under today's proposed
rule and would be covered by the
NPDES program for storm water.
In Puerto Rico, EPA is proposing to
regulate the entire municipio where the
total population is equal to or greater
than 100,000. Those municipios include
Bayamon, Caguas, Carolina, Mayaguez,
Ponce, and San Juan. For the other
municipios that are located within an
urbanized area and have populations of
less than 100,000, only the pueblo will
be regulated.
i. Urbanized Area Description. There
are 405 urbanized areas in the United
State's that cover 2 percent of total U.S.
land area and contain approximately 63
percent of the nation's population (see
Appendix 3 for a listing of urbanized
areas of the United States and Puerto
Rico). These numbers include U.S.
Territories, although Puerto Rico is the
only territory to have census-designated
urbanized areas. Urbanized areas
constitute the largest and most dense
areas of settlement. The purpose of
determining an "urbanized area" is to
delineate the boundaries of
development and map the actual built-
up urban area. The Bureau of the Census
geographers liken it to flying over an
urban area and drawing a line around
the boundary of the built-up area as
seen from the air.
An "urbanized area" comprises one or
more places—central placets)—and the
adjacent densely settled surrounding
area—urban fringe—consisting of (1)
incorporated places, (2) census
designated places, and (3) county
nonplace territory that together have a
minimum population of 50,000.
"Central places" include both
incorporated and census-designated
places. "County nonplace territory" is
the area of the county that does not
include incorporated or census-
designated places. (It is important to
note that "county" as defined for the
purposes of today's proposed rule
includes census-designated places). The
urban fringe is a contiguous area with
an average population density of at least
1,000 persons per square mile at its
perimeter (see full "urbanized area"
definition above).
The basic unit for delineating the
urbanized area boundary is the census
block. Census blocks are based on
visible physical boundaries, such as the
city block, when possible or on invisible
political boundaries when not.. In a
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1569
larger sense, the urbanized area
determination is not based on political •
boundaries for counties or Federal
Indian reservations but is for "places."
• Place—A place is included in its
entirety whether or not all of its census
blocks meet the urbanized area
definition. Therefore, this part of the
urbanized area determination is based
on political boundaries. However, it
should be noted that in rare cases (1.28
places), a place is not included in its
entirety, but rather is only partly
included within the urbanized area, due
to the existence of large expanses of
vacant or very sparsely populated
territory within its incorporated area.
(Such "extended cities," as they are
called, are most common in North
Carolina due to their unique annexation
laws.)
• County/Federal Indian
reservation—A county is included in its
entirety only if all of its census blocks,
based on the county's unincorporated
area, meet the urbanized area definition.
Unlike a place, a county is often "split"
into urbanized and non-urbanized
portions, with no regard for political
boundaries. Under .today's proposed
rule, only the urbanized portion of a
"split county" would be covered. The
same case applies to Federal Indian
reservations. •
Most owners or operators of
municipal separate storm sewer systems
would not need to independently •
determine the status of coverage under
today's proposal. Most likely, a list of
the places, counties, and other places
under the jurisdiction of a governmental
entity within an urbanized area would
be published with the general permit. If
not, they can contact their permitting
authority or the Bureau of the Census to
find out if their storm sewer systems are
within an urbanized area. In addition,
the necessary information should be
available on the Bureau of the Census
Internet Home Page (see http://
www.census.gov/). Using data from the
latest decennial census, the Census
Bureau applies the urbanized area
definition nationwide (including U.S.
Tribes and Territories) and determines
which places and counties are included
within each urbanized area. For each
urbanized area, the Bureau provides full
listings of who is included, as well as
detailed maps and special CD-ROM
files for use with computerized mapping
systems (such as GIS). Each State's data
center receives a copy of the list, and
some maps, automatically. The States
also have the CD-ROM files and a
variety of publications available to them
for reference from the Bureau of the
Census. In addition, local or regional
planning agencies may have urbanized
area files already. New listings for,
urbanized areas based on the 2000
Census will be available by July/August
2001, but the more comprehensive
computer files will not be available
until late 200 I/early 2002. Appendix 6
to this preamble provides-a list of
incorporated places and counties
proposed to be automatically designated
as part of today's proposed rule.
Additional designations based on
subsequent census years would be
governed by the Bureau of the Census'
definition of an^urbanized area in effect
for that year. Based on historical trends,
EPA expects that any area (incorporated
place, county, or other place)
determined by the Bureau of the Census
to be included within an urbanized area
as of the 1990 Census would not later
be excluded from the urbanized area as
of the 2000 Census due to a possible
change in the Bureau of the Census' ,
urbanized area definition. However, it is
important to note that even if this
situation, were to occur, a small
municipal separate storm sewer system
once automatically designated into the
NPDES program for storm water under.
an urbanized area calculation for any
given Census year would remain
regulated regardless of the results of
subsequent urbanized area calculations.
Appendix 2 is a simplified urbanized
area illustration to help demonstrate the
concept of urbanized areas in 'relation to
today's proposed rule. The "urbanized
area" is the shaded, area that includes
within its boundaries incorporated
places, a portion of a Federal Indian
•reservation, an entire county, and
portions of three .other counties. Any
and all owners and operators of small
municipal separate storm sewer systems
located in the shaded area would be
covered by the proposed rule. Any small
municipal separate storm sewers located
outside of the shaded area would be
subject to potential designation by the
permitting authority.
ii. Urbanized Area Profiles. To further
illustrate the concept of urbanized areas,
this section highlights two urbanized
. areas and their relationship to the
NPDES storm water program. The first
case study is the Milwaukee, Wisconsin,
urbanized area, which already includes
medium and large municipal separate
storm sewer systems and would also
include regulated small municipal
separate storm sewer systems under
today's proposed rule. The second case
study is the Myrtle Beach, South
Carolina, urbanized area, which would
include only regulated small municipal
separate storm sewer systems. Neither
urbanized area has within its
boundaries a Federal Indian reservation.
• Case Study 1:'Milwaukee, WI (total
urbanized area population = 1,226,293)
The Milwaukee, Wisconsin,
urbanized area has at its core the large
municipal separate storm sewer system''
of Milwaukee, which is contained
within the county of Milwaukee. The
urbanized area extends beyond the -•
boundaries Of the city-of Milwaukee into
the county of Milwaukee and the four
surrounding counties of Racine,
Wauklesha, Washington, and Ozaukee.
The county of Milwaukee is entirely
within the urbanized area, while the
other four counties are only partially
within it. A total of five counties would
be included in the storm water program,
but only the municipal separate storm
sewer systems in the urbanized portions
of the counties would be automatically
designated. In addition to the five .
counties, 38 incorporated places are
within the urbanized area and would
also be automatically designated as
regulated small municipal separate
storm sewer systems under today's
proposal: River Hills Village, Mequon,
Germantown, Larinon, Sturtevant, Wind
Point, Big'Bend, Pewaukee, Bayside,
North Bay, Butler, West Milwaukee,
Thiensville, Elmwood Park, Elm Grove,
Sussex, Fox Point, Hales Corners,
Cedarburg, St. Francis, Grafton, Oak
Creek, Brown Deer,. Glendale,
Greendale, Cudahy, Shorewood,
Whitefish Bay, Franklin, Menomonee
Falls,, New Berlin, Brookfield,
Greenfield, South Milwaukee,
Wauwataso, Waukesha, West Allis,.City
of Racine. The result is a pattern where
a regulated medium or large municipal
separate .storm sewer system core is
surrounded by regulated small
municipal separate storm sewer systems
located within unincorporated areas
(counties) and incorporated places. Each
owner or operator of a municipal
separate storm sewer system in these
areas would be responsible for obtaining
an NPDES permit for the discharges
from their system.
• Case Study 2: Myrtle Beach, SC
(total urbanized area population =
58,384) ' - .
The Myrtle Beach, South Carolina,
urbanized area does riot include a
medium or large municipal separate
storm sewer system. The entire
urbanized area, with Myrtle Beach at its
core, would meet the definition of-a
regulated small municipal separate
storm sewer system. The Myrtle Beach
urbanized area spreads into two
counties, Harry and Georgetown
counties, and covers only two
incorporated places, Myrtle Beach and
Surfside Beach. As was the case in the
Milwaukee example, the counties of
Harry and Georgetown are only partially
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within the urbanized area. All owners or
operators of municipal separate sewer
systems located in the urbanized
portions of Harry and Georgetown
counties and in the two incorporated
places would be included under the
NPDES storm water program as
regulated small municipal separate
storm sewer systems, resulting in
blanket coverage by the storm water
program with no unregulated "donut
holes."
Hi, Rationale for Using Urbanized
Areas. EPA proposes using urbanized
areas to automatically designate
regulated small municipal separate
storm sewer systems on a nationwide
basis for several reasons: (1) studies and
data show a high correlation between
degree of development/urbanization and
adverse impacts on receiving waters due
to storm water (U.S. EPA, 1983; Driver
et al.. 1985; Pitt, R.E. 1991. "Biological
Effects of Urban Runoff Discharges."
Presented at the Engineering
Foundation Conference: Urban Runoff
and Receiving Systems; An
Interdisciplinary Analysis of Impact,
Monitoring and Management, August
1991. Mt Crested Butte, CO. American
Society of Civil Engineers, New York.
1992.; Pitt, R.E. 1995. "Biological Effects
of Urban Runoff Discharges," in Storm
water Runoff and Receiving Systems:
Impact, Monitoring, and Assessment.
Lewis Publishers, New York.; Galli, J.
1990. Thermal Impacts Associated with
Urbanization and Storm water
Management Best Management
Practices. Prepared for the Sediment
and Storm water Administration of the
Maryland Department of the
Environment.; Klein, 1979), (2) this
approach would target present and
future growth areas as a preventative
measure to help ensure water quality
protection, (3) the determination of
urbanized areas by the Bureau of the
Census allows owners or operators of
small municipal separate storm sewer
systems to quickly determine whether
they are included in the NPDES storm
water program as a regulated small
municipal separate storm sewer system,
and (4) the blanket coverage within the
urbanized area encourages the
watershed approach and addresses the
problem of "donut-holes," where
unregulated areas are surrounded by
regulated areas. (Donut hole areas
present a problem due to their
contributing uncontrolled impacts on
neighboring regulated communities and
local waters.)
One drawback to the proposed
approach is that it would divide some
counties into regulated areas and
nonregulated areas. Such "split"
counties could have difficulty focusing
efforts, such as public education and the
maintenance and management of
infrastructure on just the regulated
areas. One commenter suggested that in
the case of a "split" county, only the
incorporated areas within the urbanized
portion of the county should be
regulated, not the entire urbanized
portion of the county. EPA would
prefer, however, to create a seamless
program that does not create donut
holes as this suggestion would do, but
rather includes all of the municipal
separate storm sewer systems within the
urbanized area. EPA is attempting to
eliminate the existence of donut hole
areas because municipal separate storm
sewer system discharge sources within
them could contribute to water quality
impairment and could adversely affect
the storm water management efforts of
the neighboring regulated communities.
Furthermore, as noted previously,
including the entire urbanized portion
of a county would promote partnerships
in watershed efforts to improve local
water quality.
b. Municipal Designation by the
Permitting Authority
Today's proposed rule would also
allow NPDES permitting authorities to
designate areas that should be included
in the storm water program as regulated
small municipal separate storm sewer
systems but do not qualify under the
regulatory "urbanized areas" definition.
The proposed rule requires, at a
minimum, that a set of designation
criteria be applied to all small
municipal separate storm sewer systems
within a jurisdiction that includes a
population of at least 10,000 and a
population density of at least 1,000.
Appendix 7 to this preamble provides a
list of incorporated places and counties
proposed to be potentially designated as
part of today's proposed rule. In
addition, the owner or operator of any
small municipal separate storm sewer
system.may be the subject of a petition
to the NPDES permitting authority for
designation. See Section H.G, NPDES
Permitting Authority's Role for the CWA
section 402 (p) (6) Municipal Program,
for more details on the designation and
petition processes. EPA believes that the
approach of combining nationwide and
local designation to determine
municipal coverage in today's proposed
rule balances the potential for
significant impacts on water quality
with local watershed protection and
planning efforts. The Agency solicits
comments on this approach and
possible alternatives.
c. Waiving the Requirements for
Regulated Small Municipal Separate
Storm Sewer Systems
Today's proposed rule would include
some flexibility in the nationwide
coverage of all small municipal separate
storm sewer systems located in
urbanized areas by providing the
NPDES permitting authority with the
discretion to waive the otherwise
applicable requirements of a regulated
small municipal separate storm sewer
system serving less than 1,000 people
where assessments of local conditions
and watersheds warrant such a waiver.
Note that even if a regulated small
municipal separate storm sewer system
had requirements waived, it could
subsequently be brought back into the
program if circumstances change. See
Section Il.G, NPDES Permitting
Authority's Role for the CWA section
402 (p) (6) Municipal Program, for more
details on this process.
i. Combined Sewer Systems. The
definition of "municipal separate storm
sewer systems" does not include
combined sewer systems. A combined
sewer system is a wastewater collection
system that conveys sanitary wastewater
and storm water through a single set of
pipes to a publicly-owned treatment
works (POTW) for treatment before
discharging to a receiving waterbody.
During wet weather events when the
capacity of the combined sewer system
is exceeded, the system is designed to
discharge, prior to the POTW, directly
into a receiving waterbody. Such an
overflow is a combined sewer overflow,
or CSO. Combined sewer systems are
not subject to existing regulations for
storm water, nor will they be subject to
today's proposed regulations. EPA
addresses combined sewer systems and
CSOs in its National Combined Sewer
Overflow (CSO) Control Policy that was
issued on April 19, 1994 (59 FR 18688).
The CSO Control Policy contains
provisions for developing appropriate,
site-specific NPDES permit
requirements for combined sewer
systems. CSO discharges are subject to
BAT/BCT limits; municipal separate
storm sewer systems are subject to MEP.
Some municipalities are served by
both separate storm sewer systems and
combined sewer systems. If such a
municipality is located within an
urbanized area, only the separate storm
sewer system within that municipality
would be included in the NPDES storm
water program and subject to today's
proposed rule. If the municipality is not
located in an urbanized area, then the
NPDES permitting authority would have
discretion as to whether the separate
storm sewer system is subject to today's
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1571
proposed rule. Under today's proposed
rule, the NPDES permitting authority
would use the same process to designate
for coverage a municipal separate storm
sewer system where the municipality is
also served by a combined sewer
system, as it would for municipalities
that are served only by a separate storm
sewer system. The Agency recognizes
that municipalities that have both .
combined and separate storm sewer
systems may wish to find ways to
develop a unified program to meet all
• wet weather requirements more
efficiently. EPA seeks comment on ways
to achieve such a unified program.
d. Designation Alternatives
Considered—Preliminary Options
In developing the proposed approach,
EPA considered several alternative
approaches for designation. Three of the
primary options considered are
discussed below, in no particular order.
EPA seeks comment on all three of these
options and welcomes ideas for other
alternative options for determining the
definition of a regulated small
municipal separate storm sewer system^
L Designation Option 1. One option
EPA considered was the proposal
suggested by the Storm Water Phase II
FACA Subcommittee's Municipal De
Minimis Work Group. Under this
option, all municipal separate storm
sewer systems would be included in the
NPDES permit program, unless the
system is aboveground, or underground
and serving an area with a population
density of less than 1,000. Local
governments with no underground
storm drain systems would be excluded,
unless the NPDES permitting authority
determined that storm drainage from
aboveground (e.g., open drainage
ditches) is within the control of the
local government and that pollution '
from runoff from such drains is causing
impairment to beneficial uses or
exceedances of water quality standards
in a permanent water body. This option
would also exclude local governments
with underground storm drains if they
had a density of less than 1,000 persons/
square mile (or some other criteria, such
as building starts, rainfall, or percentage
of imperviousness, if such parameters
are proven better indicators of storm
water pollution), unless:
• The NPDES authority finds that
runoff from the local government
drainage system is contributing to the
impairment of beneficial uses or
exceedances of water quality standards
in a permanent waterbody. (The
Municipal De Minimis Work Group
purposely used the term "permanent
water body,'! and not the term "waters
.of the United States," because they did
not want intermittent streams, seasonal
wetlands, etc. to be included. However,
they did not define exactly what they
envisioned to be a "permanent water
body.") Any person could petition the
NPDES authority to make or verify such
a finding.
• Pollution from runoff from the local
government drainage system either
directly'discharges to an adjacent
municipality covered by these
requirements or significantly
contributes to the pollution from runoff
that would otherwise be attributable to
an adjacent municipality covered by
these requirements.
While EPA believes that this option
concerning aboveground/underground .
systems for densities of less than 1,000
persons has merit, the Storm Water
Phase II FACA Subcommittee could not
resolve issues associated with defining
and quantifying the different types of
ditches and drainage systems on a
nationwide basis. The work group
assumed that aboveground systems
would consist primarily of vegetated
ditches. However, enough data are not
available to either prove or disprove this
assumption. The work group found
vegetated ditches highly desirable and
worthy of exemption because of the
benefits of natural management of storm
water that they can provide. The
pervious and. contoured surface of
vegetated ditches allows the water to
percolate, resulting in an overall
decrease in velocity and volume of flow
and pollutant levels. However, these
systems have variable removal
efficiencies for pollutants and can
potentially contribute additional
pollutants to storm water runoff. Due to
the variability of the types of
aboveground system surfaces and the
lack of data, EPA chose not to propose
this option as its own. In addition, EPA
had significant concerns about the
number of smaller municipalities that
would be permitted under such an
approach, even though they might not
• contribute to significant water quality
impacts. Under the approach selected
for today's proposed rule, EPA believes
that only those municipalities likely to
contribute,to significant water quality
impacts would be designated into the
storm water program. '
ii. Designation Option 2. Another
option, which was suggested by several
members of the Storm Water Phase n
FACA Subcommittee, would require all
small municipal separate storm sewer
systems to be regulated under the
NPDES program for storm water and to
implement the six •minimum measures
as described in today's approach, unless
the owner or operator of the system
could prove that the system is not
causing adverse water quality impacts
and not contributing to pollutant loads
in the watershed. One commenter
suggested the use of this approach with
an automatic exemption based on
objective criteria, such as low
population and proximity to waters of
the United States. , .
EPA acknowledges that this approach
has advantages. It would guarantee that
the areas of most concern are regulated,
create a seamless storm water program
without donut holes, avoid disputes
over designation, and promote a
watershed-based program because all
sources in a watershed would already be
in the program. In addition, its simple
blanket coverage would create less
confusion over whether an owner or .
operator of a municipal separate storm
sewer system is in or out of the storm
water program, and the burden for
exclusion would be on the owner or
operator of. the municipal separate
sewer system, not the permitting
authority. Overall, this option best
addresses the cumulative impact of all
activities within a watershed that create
environmental problems. By including
only particular sources within a
watershed, as is the case with the other
options, the potential environmental
benefits of the storm water program
could be limited.
Although this option might
appropriately address issues of fairness
and simplicity, it fails to target the areas
of greatest concern (i.e., areas causing
significant water quality impacts) and
instead would regulate all areas
regardless of impacts, unless an
exemption was approved. This
approach, by including a universe of
approximately 19,289 incorporated
places and 17,796 minor civil divisions
located in 3,141 counties, in addition to
Tribal lands and Territories, could
regulate many more entities than the .
current proposal, resulting in higher
costs than today's proposal for all
involved. The exemption process,
which could apply to thousands of
municipalities, would require them to
spend valuable time and resources
trying to prove that they have little or
no impact on water quality, while the
permitting authority would be saddled
with the additional burden of
processing and evaluating such
requests. It may be the case that the
administrative burden for a storm water
program of this size, and the potential
overregulation, would not justify the
full coverage it would provide.
Furthermore, it would also be difficult
to justify an automatic exemption based
solely on the criteria of population size
and proximity to waters of the United
States. Total population (as opposed to
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population density) is not a good
measure of storm water impacts because
it lacks an indication of where and how
the population is distributed, both of
which are significant factors addressed
in today's proposal. For example, an
area with high population could be less
urbanized with fewer impacts on water
quality than a place with lower
population due to the size of the area
involved in each. EPA anticipates
extreme difficulty in determining and
justifying a particular population
threshold without also considering
other factors that would help to both
account for the variability of local
conditions and indicate whether or not
there are significant water quality
impacts. Furthermore, a population
threshold would still result in donut
holes. Similar problems could be
associated with the second criterion of
"proximity to waters of the United
States." It is an important consideration
but not much more telling than total
population due to the variety of local
conditions that could or could not make
this criterion a significant factor in the
determination of real or potential water
quality impacts. Therefore, even the
tandem use of these two criteria could
lack enough information to make an
informed and justifiable decision on an
exemption. For the reasons discussed
above, EPA chose not to propose this
• option.
///. Designation Option 3. To satisfy
CWA section 402(p) (5) (C), EPA
recommended the approach outlined in
President Clinton's Clean Water
Initiative. This approach was similar to
today's proposed approach in that the
NPDES permitting authority would
issue system-wide NPDES permits for
all municipal separate storm sewer
• systems in census-designated urbanized
areas. This option would require storm
water management programs for
municipal separate storm sewer systems
in the 138 urbanized areas in which a
medium or large municipal separate
sewer system is located. At a minimum,
the programs would address non-storm
water discharges into storm sewers and
storm water runoff from growth and
development and significant
redevelopment. NPDES permitting
authorities would be encouraged to
Implement watershed approaches and
more comprehensive program
requirements where necessary and
appropriate. In the remaining 267
census-designated urbanized areas
(containing only small municipal
separate storm sewer systems),
municipal storm water management
programs would be less stringent and
required to focus only on controlling
non-storm water discharges into storm
sewers and storm water runoff from
growth, development, and significant
redevelopment activities.
By focusing on census-designated
urbanized areas, many of the sources of
greatest concern would be addressed,
while also providing a clear definition
'of who is included in the storm water
program. However, the tiered permitting
requirements of this approach could
create unnecessary confusion. EPA
would not want to require regulated
small municipal separate storm sewer
systems in urbanized areas with a
medium or large municipal separate
storm sewer system to do more than
those in urbanized areas without a
medium or large municipal separate
storm sewer system. Rather, EPA
envisions progress toward a seamless,
unified, and comprehensive NPDES
storm water program with equivalent
program requirements as the best
approach. If this alternative option was
adopted, three varying levels of
requirements (the existing requirements
plus two tiers for small municipal
separate sewer systems) would
eventually need to be unified instead of
just two, as found under today's
proposal. Although primarily concerned
with growth associated with urbanized
areas, this approach is also limited by
its reliance on non-NPDES programs for
addressing sources beyond urbanized
areas. Environmental and municipal
representatives on the Storm Water
Phase II FACA Subcommittee agreed
that any sources that are significant
contributors of pollutants should be
considered for regulation directly under
an NPDES permit, including those
outside of urbanized areas. For these
reasons, EPA did not present this option
as the lead option.
3. Municipal Permit Requirements
EPA is proposing that all owners or
operators of regulated small municipal
separate storm sewer systems, as
defined at § 122.32, must seek coverage
under an NPDES permit. EPA intends
that the vast majority of discharges from
these sources would be authorized
under general permits issued by the
NPDES permitting authority. These
NPDES general permits would provide
specific instructions for how to seek
coverage, including application
requirements. Typically, such
application requirements would be
satisfied by the submission of an NOI to
be covered by the general permit.
For cases in which an NPDES general
permit is not available or the NPDES
permitting authority requests that an
owner or operator be "covered under an
individual NPDES permit, EPA is
proposing simplified individual permit
application requirements at § 122.33.
Under the simplified individual permit
application requirements, the owner or
operator would submit an application to
the NPDES permitting authority that
includes the information required under
§ 122.21 (f), an estimate of square
mileage served by the separate storm
sewer system, and any additional
information that the NPDES permitting .
authority requests. Consistent with
CWA section 308 and analogous State
law, the permitting authority could
request any additional information to
gain a better understanding of the
system and the areas draining into the
system.
Today's proposal also would allow an
owner or operator of a regulated small
municipal separate storm sewer system
to join as a co-permittee in an existing
NPDES permit issued to an adjoining
medium or large municipal separate
storm sewer system or designated
source under the existing storm water
program through a modification of that
municipal separate storm sewer
system's permit. This co-permittee
provision would only apply if agreed to
by all co-permittees. Under a co-
permittee arrangement, the owner or
operator of the regulated small system
would need to comply with the
applicable requirements of § 122.26 and
the terms and conditions of the
applicable permit, but would not be
required to fulfill all the permit
application requirements applicable to
medium and large systems and permit
condition requirements applicable to
regulated small systems. Specifically,
the regulated small system owner or
operator would not be required to
comply with the permit condition
requirements of § 122.34 of today's
proposal or with the application
requirements of § 122.26(d) (1) (iii) (Part
1 source identification), § 122.26
(d)(l)(iv) (Part 1 discharge
characterization), and § 122.26(d)(2)(iii)
(Part 2 discharge characterization data).
Furthermore, the owner or operator of
the regulated small system could satisfy
the requirements in § 122.26(d)(l)(v)
(Part 1 management programs) and
§ 122.26(d)(2)(iv) (Part 2 proposed
management program) by referring to
the adjoining municipality's existing
plan. An owner or operator pursuing
this option would need to describe in
the permit modification request how the
adjoining municipality's storm water
program addresses or would need to be
supplemented in order to adequately
address discharges from the municipal
separate storm sewer system. The
request would also need to explain the
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1573
role of the owner or operator in
coordinating local storm water activities
and describe the resources available to
accomplish the plan.
EPA believes that this approach
would support the goal of an integrated
and coordinated national storm water
program. Regulated small system
owners or operators could take
advantage of existing programs to ease
the burden of creating their own from ..
scratch. The proposal would allow them
to conduct activities that are
coordinated on a regional basis. For
medium and large system owners or
operators, this approach would promote
the use of regional and watershed-based
planning as an implementation
.framework for the storm water program
and would create opportunities for
sharing the resource and cost burden of
the program with participating entities.
EPA is particularly interested in
comments regarding the actual
implementation of this application
provision. For instance, whether the
provision contains the appropriate
subsections of § 122.26(d) and whether
the process as set forth creates an
incentive to use this alternative for
permit coverage.
In today's notice, EPA is proposing
certain minimum control measures for
all NPDES permits issued to.regulated
small municipal separate storm sewer
systems, with the exception of joint co-
permittees, as noted previously, to
ensure equity and consistency among
owners or operators. Any NPDES permit
issued:under this program would, at a
minimum, require the owner or operator
to develop, implement, and enforce a
storm water management program
designed to reduce the discharge of
pollutants from a regulated system to
the maximum extent practicable (MEP)
and protect water quality (see MEP
discussion in the following section).
Narrative effluent limitations requiring
implementation of BMPs would
generally be considered the most
appropriate form of effluent limitations
when designed to satisfy technology
requirements, including reductions of
pollutants to the maximum extent
practicable, and water quality-based
requirements of the CWA. Examples of
narrative effluent limitations include no
floatables in storm water discharges and
no visible sheen on waterbodiesr5
In the first two to three rounds of
permit issuance, EPA envisions that
implementation of the minimum
measures and BMP-based program
would be the extent of the storm water
permit requirements for the large
majority of regulated small municipal
separate storm sewer systems. EPA ,
assumes that a regulated small
municipal separate storm sewer system
implementing BMPs to satisfy the six
minimum control measures would meet
applicable water quality standards,
because, though uncontrolled urban
storm water continues to present a
significant water quality problem, the
six measures represent a significant
level of control if properly
implemented. EPA believes that the
implementation of any controls, but
particularly the six minimum measures
identified in today's proposal, should
significantly reduce, pollutants in urban
storm water compared to existing levels.
If after implementing the six minimum
control measures there is still a water
quality problem associated with
discharges from the municipal separate
storm sewer system, the municipality
would need to expand or better tailor its
BMPs within the scope of the six
minimum control measures for each
subsequent permit. EPA envisions that
this process would take two to three
permit terms. During this time, EPA
would revisit the regulations for the
municipal storm water program. If
additional specific measures to protect ,
water quality were imposed, they would
likely, be the result of'an assessment
based on TMDLs,'or the equivalent of
TMDLs, where the proper allocations
would be made to all contributing
sources. EPA believes that the
municipality's additional requirements,
if any; should be guided by its equitable
share based on a variety Of
considerations, such as cost
effectiveness, proportionate
contribution of pollutants, and ability to
.reasonably assume wasteload
reductions. Narrative effluent
limitations requiring implementation of
BMPs are generally the most appropriate
form of effluent limitations when
designed to satisfy technology
requirements, including reductions of
pollutants to the maximum extent
practicable, and water quality-based
requirements of the Clean Water Act.
See Section ILL, Water Quality Issues, •
for further discussion of this approach
to permitting, consistent with EPA's
interim permitting guidance:
The municipal caucus was concerned
that a requirement to meet water quality
standards would be interpreted by a
permitting authority as a requirement to
include water quality-based numeric
limitations in municipal storm water
permits. Municipal representatives
believe that in many cases it would not
be possible to develop a storm water
program that would result in the
attainment of numeric limitations,
except at considerable cost. Today's
proposal addresses this concern, as
discussed above.
As part of this program, the owner or
operator would be required to identify
and submit to the NPDES permitting
authority, either in an NOI to be covered
under a general permit or in an
individual permit application, the BMPs
to be implemented and the measurable
goals for each of the minimum control
measures discussed in Section II.H.S.a.,
Program Requirements—Minimum
Control Measures.
The term "measurable goals" is
derived from negotiations among FACA
representatives. Section 402 (p) (6) of the
CWA states that the program to regulate
additional storm water discharges may '
include performance standards,
guidelines, guidance, and management
practices as appropriate. Discussions
among FACA representatives resulted in
the use,of the term "measurable goals."
On the one hand, environmental
representatives wanted to include
performance standards as conditions of
NPDES permits as a means of providing
for specific, tangible activities to be
undertaken within the municipal storm
water management program. On the
"other hand, municipal representatives
opposed the inclusion of performance
standards, asserting that they were ,
counter productive because they could
encourage an owner or operator of a
municipal separate storm sewer system
to avoid risks associated with setting
any standard that it felt it could not
achieve with certainty. Out of this
discussion, a compromise was reached
in the use of the term "measurable •
goals" and the process embodied in the
proposed rule. This process sets the
issuance of a menu of regionally-
appropriate BMPs as the conditions
precedent to "measurable goals"
becoming permit conditions. Some
storm water, management plans
developed to meet requirements of the
existing storm water program include
provisions similar to the concept of
. "measurable goals" proposed today.
Specifically, some municipal storm
water management plans include, for
example, inspection of or cleaning of a
fixed number of storm drain inlets per
year and a survey of all municipal right-
of-ways to'identify illicit connections to
the municipal separate storm sewer
system. Currently, existing permit
application regulations for municipal
separate storm sewer systems require
identification and implementation of
BMPS and not necessarily measurable
goals, much less performance standards.
Qualifying State, Tribal, or local
programs that meet the requirements of
one or more of the minimum control •
measures could be incorporated.by
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reference into the NPDES municipal
separate storm sewer system general
permit. For more information regarding
the general permit NOI or individual
permit application, see Section II.H.S.b.,
Application Requirements.
Maximum Extent Practicable
Maximum extent practicable (MEP) is
a technology-based control standard
currently used in the existing municipal
storm water program against which
permit writers and permittees assess
whether or not an adequate level of
control has been proposed in the storm
water management program. The Urban
Wet Weather Flows Federal Advisory
Committee recommended to EPA that
MEP be applied to all permits issued to
municipal separate storm sewer
systems, including those proposed to be
regulated today, to achieve greater
cooperation and consistency, reduce
conflicts and confusion, and improve
economies of scale in the efforts of
municipalities to manage storm water
pollution.
In today's proposal, NPDES permits
issued for regulated small municipal
separate storm sewer systems, whether
in the form of general or individual
permits, would require the owner or
operator to develop, implement, and
enforce a storm water management
program designed to reduce the
discharge of pollutants to the maximum
extent practicable. The permittee would
be expected to reduce the pollutants to
the MEP through implementation of the
following minimum control measures:
Public education and outreach on storm
water impacts, public involvement/
participation, illicit discharge detection
and elimination, construction site storm
water runoff control, post-construction
storm water management in new
development and redevelopment, and
pollution prevention/good
housekeeping for municipal operations.
Under today's proposed approach,
MEP would be determined through a
series of steps associated with
identification and implementation of
the minimum control measures. In
issuing the general permit, for example,
the NPDES permitting authority would
establish requirements for each of the
minimum control measures and require
municipalities to identify the BMPs to
be performed and measurable goals to
be achieved. Permittees would then be
required to identify the BMPs and
associated measurable goals for
addressing each of the minimum control
measures in their NOIs.
Upon receipt of the NOI from a
municipality, the NPDES permitting
authority would then have the
opportunity to review the NOI to verify
that the identified BMPs and
measurable goals would meet the MEP
requirement and, if necessary, could ask
the permittee to revise the mix of BMPs
to better reflect the requirement. A
similar procedure could be established
for a small municipal separate storm
' sewer system that is a co-permittee with
a municipal separate storm sewer
system that is already regulated in an
individual NPDES permit. This process
would be followed by actual program
implementation by the municipality.
Under the proposed approach,
implementation of BMPs consistent
with storm water management program
requirements at § 122.34 and permit
provisions at § 122.33 would constitute
compliance with the standard of
"reducing pollutants to the maximum
extent practicable."
The pollutant reductions that
represent MEP may be different for each
municipality, given the unique storm
water concerns that may exist and the
differing possible remedies. Therefore,
each permittee would determine'the
specific details in each of the six
minimum control measures that
represent MEP through an evaluative
process. In this process, permittees and
permit writers would evaluate the
proposed storm water management
controls to determine whether reduction
of pollutants to the MEP could be
achieved with the identified BMPs. EPA
envisions that this evaluative process
would consider such factors as
conditions of receiving waters, specific
local concerns, and other aspects
included in a comprehensive watershed
plan. The FACA Committee is currently
working to identify evaluative MEP
criteria. Suggestions have included: (1)
The effectiveness to address the
pollutant(s) of concern, (2) public
acceptance, (3) cost, (4) technical
feasibility, and (5) compliance with
Federal, State and local laws and
regulations.
Prior to permit .issuance, EPA plans to
develop additional policy and technical
guidance on the process of evaluating
MEP for municipal separate storm sewer
system permits based upon the
recommendations received from the
FACA Committee. This guidance would
be applicable to both medium and large
systems (addressed by existing
requirements), as well as those
addressed by today's proposal. It is
important to note that States
implementing their own NPDES
•programs may develop more stringent
requirements than those proposed in
today's rule. In any event, additional
elaboration of the MEP determination
process is not necessary prior to
issuance of the final rule, because MEP
is determined on a permit-by-permit
basis.
a. Program Requirements—Minimum
Control Measures
L Public Education and Outreach on
Storm Water Impacts. EPA is proposing
that any NPDES permit issued to
regulated small municipal separate
storm sewer systems would require the
owner or operator to implement a public
education program to distribute
educational materials to the community
(or conduct equivalent outreach
activities) about the impacts okstorm
water discharges on waterbodies and the
steps to reduce storm water pollution.
The State, EPA, environmental
organizations or other public interest or
trade organizations could provide
materials, subject to the approval of the
owner or operator of the municipal
system. The materials or outreach
programs should inform individuals and
households about steps that can be
taken to reduce storm water pollution,
such as ensuring proper septic system
maintenance, limiting the use and
runoff of garden chemicals to
appropriate amounts, properly
disposing of used motor oil or
household hazardous wastes, and
becoming involved in local stream
restoration activities. EPA would
encourage individuals to participate in
activities coordinated by youth service
organizations, conservation corps, or
other citizen groups. Other possible
outreach materials could encourage
citizens to participate in the municipal
program by performing such services as
roadside litter pickup and storm drain
stenciling or highlight the potential
public health risks to children if
exposed to pollution when playing near
storm drains. In addition, some of the
materials or outreach programs should
be directed toward targeted groups of
commercial, industrial, and institutional
entities likely to have significant storm
water impacts to explain their impacts
on storm water pollution (e.g.,
information to restaurants on the impact
of grease clogging storm drains and to
garages on the impacts of used oil
discharges). The owner or operator is
encouraged to tailor the outreach
program to address the viewpoints and
concerns of all communities,
particularly minority and .disadvantaged
communities, as well as children.
EPA believes that as the public gains
a greater understanding of the
municipally developed program, the
municipality is likely to gain more
support for the program (including
funding initiatives). In addition,
compliance with the program would
probably be greater if the public
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1575
understands the personal
responsibilities expected of them and
others. Well-informed citizens could
even act as formal or informal educators
to further disseminate information-and
gather support for the program, thus
easing the burden on the municipalities
to perform all educational activities.
The public outreach provision has been
tailored to respond to specific concerns
raised in the course of the FACA
process. For example, municipal
representatives advocated the inclusion
of language that would clarify that use
of educational materials from outside
groups, such as trade associations and
environmental groups, would be subject
to the approval of the municipality.
Also, the above-referenced language
addressing environmental justice
concerns was in response to input from
Storm Water Phase II FACA '
Subcommittee members.
, Municipalities would ;be encouraged
to enter into partnerships with their
States in fulfilling the public education
requirement. It may be much more cost-
effective to utilize a State education
program instead of numerous
municipalities developing their own. .
Municipalities would also be
encouraged to work, with other
organizations (e.g., environmental and
nonprofit groups and industry) that
might be able to assist in fulfilling this
requirement. Many of these kinds of
organizations already have educational
materials, and the groups could work
together to educate the public.
EPA requests comment on the
appropriateness of the specified
requirements for public education and
outreach.
ii. Public Involvement/Participation:
Public involvement is an integral part of
the municipal storm water program. The
Agency believes that the public can
provide valuable input and assistance to
the municipality's storm water program.
The Agency, therefore, is proposing that
the public play an active role in the
development and implementation of the
municipality's storm water management
program. • , .
The municipal storm water
management program would need to
include a public participation program
that complies with applicable State and
local public notice requirements. The
public should participate as a partner in
developing, implementing, and
reviewing the storm water management
program. Opportunities for members -of
the public to participate in program
development and implementation could
include serving as citizen
representatives on a local storm water
management panel, attending public
hearings, working as citizen volunteers
to educate other individuals about the
program, assisting in program
coordination with other pre-existing
programs, or participating in volunteer .
monitoring efforts. The public
participation process should engage all
economic and ethnic groups.
Early; and frequent public
involvement can shorten
implementation schedules and broaden
public support for a program. One
challenge associated with public
involvement is addressing conflicting
viewpoints. Another challenge is in
engaging the public in the public
meeting and program design process.
Nevertheless, EPA strongly believes that
the overall benefits of an aggressive and
inclusive program, including
involvement of low-income and
minority communities, is an essential
component of a State, Tribal, Federal,
and municipal storm water management
program.
Public participation ensures a more1
successful storm water program by
providing valuable expertise and a
conduit to other programs and
governments, which would be of
primary importance if the municipal
storm water program is to be
implemented on a watershed basis. The
public could act as volunteers in all
aspects of the program, thus saving
municipal resources. Another
recognized benefit is that members of
the public are less likely to raise legal
challenges to a municipality's storm
water program if they have been
involved in the decisionmaking process
and program development and,
therefore, are partially responsible for
the program themselves. Section ILK.
provides further discussion.on public
involvement.
EPA requests comment :on the
appropriateness of the specified
requirements for public involvement/
participation. ./'
Hi. Illicit Discharge Detection and
Elimination. Discharges from storm
water drainage systems often include
wastes and wastewater from non-storm
water sources. EPA's Nationwide Urban
Runoff Program (N.URP) indicated that
many storm water outfalls .still
discharge during substantial dry
periods. Pollutant levels in these dry
weather flows were shown to be high
enough to significantly degrade
receiving water, quality. Results from a
1987 study conducted in Sacramento,
California, revealed that slightly less
than one-half of the water discharged
from a municipal separate storm sewer
system was not directly attributable to
precipitation runoff (U.S.
Environmental Protection Agency,
Office .of Research and Development.
1993. Investigation of Inappropriate
Pollutant Entries Into Storm Drainage
Systems—A User's Guide. Washington,
D.C.-EPA 600/R-92/238.) A significant
portion of these dry weather flows
results .from illicit and/or inappropriate
discharges and connection^ to the
municipal separate storm sewer system.'
Illicit discharges enter the system
through either direct connections (e.g.,
wastewater piping either mistakenly or
'deliberately connected to the storm
drains) or indirect connections (e.g.,
infiltration into the storm drain system
or spills collected by drain inlets).
Under the existing NPDES program for
storm water, permits for large and
medium municipal separate storm • i
sewer systems are to include an
effective prohibition against non-storm
Water discharges into their storm sewers
(see CWA section 402(p)(3)(B)(ii)).
Further, EPA believes that.in
implementing municipal storm water
management plans under these permits,
large and medium municipalities
generally found their illicit discharge
' detection and elimination programs to
be cost-effective.
In today's proposal, any NPDES
permit issued to an owner or operator of
a regulated small municipal separate
storm sewer system would, at a
minimum, require that owner or
operator to develop and implement an
illicit discharge detection and
elimination program. Inclusion of this
measure for municipal storm water
programs for regulated small
municipalities would be consistent with
the "effective prohibition" requirement
for.large and medium municipal
separate storm sewer systems. Under
such a program, the owner or operator
would be required to demonstrate
awareness, of the system using maps or
other existing documents. The owner>or
operator would also be required to
develop (if not already completed) a
storm sewer system map (or equivalent)
showing the location of major pipes,
outfalls, and topography. The map
should identify areas of concentrated
activities likely to be a source of storm
water pollution, if the data already exist.
To ensure the effectiveness of this
measure, the owner or operator would
be required to effectively prohibit
through ordinance, order, or similar
means (for nongovernmental owners or
operators of municipal separate storm
sewer systems), to the extent allowable
under State or Tribal law, illicit
discharges into the separate storm sewer
systern and implement appropriate
enforcement procedures and actions as
needed. This measure would also
require the owner or operator to develop
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and implement a plan to detect and
address illicit discharges (including
illegal dumping) to the system. Finally,
the measure would require the owner or
operator to inform public employees,
businesses, and the general public of
hazards associated with illegal
discharges and improper disposal of
waste. These informational actions
could include storm drain stenciling; a
program to promote, publicize, and
facilitate public reporting of illicit'
connections or discharges; and
distribution of outreach materials.
Recycling and other public outreach
programs could be developed to address
potential sources of illicit discharges,
including used motor oil, antifreeze,
pesticides, herbicides, and fertilizers.
EPA seeks comment regarding the
prohibition and enforcement provision
for this minimum measure and
specifically requests comment regarding
the implications of specifying that the
owner or operator would have to
implement the appropriate prohibition
and enforcement procedures "to the
extent allowable under State or Tribal
law." Concerns have been raised that by
qualifying prohibition and enforcement
procedures in this manner, the owner or
operator could altogether ignore this
minimum measure where appropriate
authority did not exist. Municipalities
have pointed out, however, that they
cannot legally exceed the authority
granted them under State law, which
varies considerably from one state to
another.
The illicit discharge detection and
elimination program would not
necessarily need to address all types of
non-storm water discharges. As with the
existing municipal application
requirements, the following categories
of non-storm water discharges or flows
would only need to be addressed in the
municipal storm water program where
such discharges are identified as
significant contributors of pollutants:
water line flushing, landscape irrigation,
diverted stream flows, rising ground
waters, uncontaminated ground water
infiltration (as defined at 40 CFR
35.2005(20)) to separate storm sewers,
uncontaminated pumped ground water,
discharges from potable water sources,
foundation drains, air conditioning
condensation, irrigation water, springs,
water from crawl space pumps, footing
drains, lawn watering, individual
residential car washing, flows from
riparian habitats and wetlands,
dechlorinated swimming pool
discharges, and street wash water. The
program should address discharges or
flows from fire fighting where such
discharges or flows are identified as
significant sources of pollutants.
The existing storm water permit
application requirements at § 122.26(d),
contain two sets of application
requirements regarding illicit discharges
that EPA does not propose to require of
regulated small municipal separate
storm sewer systems. Specifically, EPA
does not propose to require regulated
small system owners or operators to
describe procedures to prevent, contain,
and respond to spills that could
discharge into the municipal separate
storm sewer and controls to limit
infiltration of seepage from municipal
sanitary sewers to municipal separate
storm sewer systems where necessary.
This is pursuant to comments received
from municipal representatives on the
Storm Water Phase IIFACA
Subcommittee. EPA anticipates that
these procedures are already effectuated
through the implementation of existing
municipal programs, such as emergency
response teams and operation of the
wastewater treatment system.
EPA requests comment on the
appropriateness of the specified
requirements for illicit discharge
detection and elimination.
iv. Construction Site Storm Water
Runoff Control. Over a short period of
time, storm water discharges from
construction site activity can contribute
more pollutants, including sediment, to
a receiving stream than had been
deposited over several decades. Storm
water runoff from construction sites can
include pollutants other than sediment,
such as phosphorus and nitrogen from
fertilizer, pesticides, petroleum
derivatives, construction chemicals, and
solid wastes that may become mobilized
when land surfaces are disturbed.
Generally, properly implemented
construction site ordinances are
effective in reducing thesfe pollutants. In
many areas, however, the effectiveness
of ordinances in reducing pollutants is '
limited due to inadequate enforcement
or incomplete compliance with such
local ordinances by construction site
discharges of storm water. Not all
construction site owners or operators
properly maintain BMPs. For example,
sediment traps and sediment basins may
fill up and silt fencing may break or be
overtopped.
Today's proposed rule would require
owners or operators of regulated small
municipal separate storm sewer systems
to develop, implement, and enforce a
pollutant control program to reduce
pollutants in storm water runoff from
construction activities that result in
land disturbance of 1 or more acres to
their municipal separate storm sewer
systems as a part of their storm water '
management program. The owner or
operator would need to use an
ordinance or other regulatory
mechanism that controls erosion and
sediment to the maximum extent
practicable and allowable under State,
Tribal, or local law. The program also
would need to ensure control of other
Waste at construction sites that could
adversely impact water quality. This
waste could include discarded building
materials, concrete truck washout, and
sanitary waste. The program would
need to- include, at a minimum,
requirements for construction site
owners or operators to implement
appropriate BMPs, such as silt fences,
temporary detention ponds and hay
bales; provisions for pre-construction
review of site management plans;
procedures for receipt and consideration
of information provided by the public;
regular inspections during construction;
and penalties to ensure compliance.
Today's proposal includes the
program requirement to establish
procedures for the receipt and
consideration of information provided
by the public in response to stakeholder
concerns regarding public involvement
and public access to information. This
requirement further reinforces the
public participation component of the
municipal program by establishing a
formal process for considering and
responding to public inquiries regarding
construction activities. Some
stakeholders have expressed concern
regarding the proposed site management
plan provision, which would establish
requirements for review but not for
approval of such plans. EPA requests
comment on expanding this provision to
require both review and approval of
construction site storm water plans.
EPA also invites comment on the basic
program components.
In conjunction with these
requirements, EPA is also proposing to
add § 122.44(s) which would allow the
NPDES permit issued to regulated
construction sites (described under
§ 122.26(b)(15)(i)) to incorporate by
reference qualifying State, Tribal, or
local erosion and sediment control
program requirements. A qualifying
State, Tribal, or local erosion and
sediment control program would be one
that meets the requirements of a
municipal NPDES separate storm sewer
permit or a program otherwise approved
by the NPDES permitting authority for
programs operating outside geographic
boundaries of a permitted municipal
separate storm sewer system. The
NPDES permitting authority's approval
of such programs would need to assure
compliance with the minimum
construction site control program
requirements described above. The
permitting authority could also include,
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1577
by reference in a general permit, those
State, Tribal, or local requirements that
meet the standard of best available
technology (BAT) for those construction
site storm water discharges identified at
§ 122.26(b)(14)(x) (i.e.f sites disturbing"
more than 5 acres of land), including
clearing, grading, and excavation
activities. As a result of this" provision,
such local requirements would, in
effect, provide the construction site
erosion and sediment control
requirements of the NPDES permit.
Construction site owners and operators
would be subject to only one set of
erosion and sediment control
requirements,.thereby eliminating
duplication. At the same time,
noncompliance with the referenced
local requirements would be considered
noneompliance with the NPDES permit ,
and would be federally enforceable.
EPA developed the "incorporation by
reference" approach, which is similar to
implementation efforts designed by the
State of Michigan, to avoid duplication -
,of effort in the development of
regulatory requirements by different
levels of government. Michigan relies on
localities to develop substantive
. controls for storm water discharges
associated with construction activities
on a localized basis. 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-.")
EPA acknowledges that many owners
or operators of small municipal separate
storm sewer systems already administer
local erosion and sediment control
programs. EPA believes that today's
proposed approach would recognize a
municipality's flexibility in developing
practical procedures to control
construction site discharges from within
its jurisdiction, while still requiring an
NPDES permit to ensure an appropriate
base level of water quality protection.
Moreover, the Agency also believes that
there is an appropriate role for the
permitting authority as well as citizens
groups in ensuring that construction site
owners/operators comply with the
requirements of an NPDES permit.
Finally, EPA contemplates that there
would be some permit provisions, such
as requirements for site management
plans, that are not typically required by
local erosion and sediment control
programs which would be required as
one of the requirements of a
construction general permit. Therefore,
the Agency believes that the proposed
dual approach of local controls and
NPDES permitting most effectively
ensures implementation of appropriate
storm water control measures at
construction sites while minimizing .
redundant controls. EPA solicits
comment on this "incorporation by
reference" approach.
Today's proposal for permit
requirements for regulated construction
sites (described under § 122.26(b)(15)(i))
would include developing a storm water
pollution prevention plan (SWPPP).
However, the current proposal for the
municipal program minimum measure
for construction site storm water control
runoff does not contain an equivalent
requirement—leaving a gap between the
two areas of the proposal that address
regulation of construction. EPA asks for
comment as to the effect of this
potential regulatory gap and whether
the municipal program for construction
should be made to include a
requirement for developing a SWPPP.
Specifically, EPA asks for comment on
the effect this may have on the
applicability of the provision allowing
for an NPDES permit to incorporate by ,
reference a qualifying local erosion and
sediment control program. Currently,
the proposal defines a local program as
"qualifying" if it meets the minimum
program requirements established in
§ 122.34(b)(4). EPA is concerned as to
whether this raises a potential
inequitable regulatory scheme where
certain construction sites would need to
be covered under a SWPPP because they
are outside a covered municipality
while nearby construction sites would
not need SWPPP coverage because they
are within a municipality that has a
construction program that meets'
§122:34(b) (4) requirements. EPA .
intends to facilitate the broadest
application of the § 122.44(s) provision
to avoid duplication of programmatic
requirements and paperwork
redundancy and seeks comment on a
means to best achieve this goal.
In discussions with the Storm Water
Phase IIFACA Subcommittee, EPA
considered structuring the permit
requirements for the municipal "
construction program around five •
control principles that were to underlie •
the development of eight program
elements to be implemented by the
owner or operators of the municipal
separate 'Storm sewer system. The five
principles were use of good site
planning, minimization of soil
movement, capture of sediment to the
greatest degree possible, good
housekeeping practices, and mitigation
of the impacts of post-construction
storm water discharges. The eight
elements include a program description;
coordination mechanisms with existing
programs; requirements for
nonstructural and structural BMPs;
priorities for site inspections;
educational and training measures;
exemption of some construction
activities due to limited impact;
incentives, awards, or streamlining
mechanisms available to developers;
and description of staff and resources.
Under this approach, any local program
that incorporated these principles and
.elements into its storm water program
"•would have been considered a
"qualifying" local program that met
Federal requirements. The elements
suggested were modified from current
requirements found at 40 CFR
122.26(d)(2)(iv)(D). '
After in-depth discussion with all
stakeholders, many of these elements
were considered to be more appropriate
as guidance than as regulatory
requirements for small municipal
systems. Some stakeholders expressed
concerns about the applicability and
interpretation Of the five control •
principles and eight program elements
on a national level, specifically that a
single, national specification would be
unworkable. Therefore, EPA is
proposing regulatory text intended to
build on the fundamental aspects of the
existing NPDES program for municipal
storm water, while streamlining and
improving certain aspects of the
program applicable to owners or
operators of regulated small municipal
separate storm sewer systems.
EPA requests comment on the
appropriateness of the specified
requirements for construction site
control.
v. Post-Construction Storm Water
Management in New Development and
Redevelopment. The Nationwide Urban
Runoff Program study and more recent
investigations indicate that prior
planning and designing for the
minimization of pollutants in storm
water discharges is the'most cost-
effective approach to storm water
quality management. Reducing the
discharge of pollutants after the
discharge enters a storm sewer system is
often more expensive and less efficient
than preventing or reducing the
discharge of pollutants at the source.
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Increased human activity associated
with development often results in
increased discharges of pollutants. In
addition, sediment and debris transport
and deposition can directly impair
aquatic life. If the involved parties
consider water quality impacts from the
beginning stages of projects, new
development and possibly
redevelopment allow opportunities for
more water quality sensitive projects.
For example, minimization of
impervious areas, maintenance or
restoration of natural infiltration,
wetland protection, use of vegetated
drainage ways, and use of riparian
buffers have been shown to reduce
pollutant loadings in storm water runoff
from developed areas. EPA encourages
local governments to identify specific
problem areas within their jurisdictions
and initiate innovative solutions and
designs to focus attention on those areas
through local planning.
In today's rule, EPA is proposing that
owners or operators of regulated small
municipal separate storm sewer systems
develop, implement, and enforce a
program that includes a plan to address
storm water runoff from new
development and redevelopment
projects to their municipal separate
storm sewer systems using site-
appropriate and cost-effective structural
and non-structural BMPs, as
appropriate. The program would need to
ensure that controls are in place that
would prevent or minimize water
quality impacts. The program should
ensure adequate long-term operation
and maintenance of BMPs. EPA would
address questions regarding
responsibility for long-term BMP
operation and maintenance in guidance
materials. EPA intends the term
"redevelopment" to refer to alterations
of a property that change the "footprint"
of a site or building in such a way that
results in the disturbance of equal to or
greater than 1 acre of land. The term is
not intended to include such activities
as exterior remodeling, which would
not be expected to cause adverse storm
water quality impacts and offer no new
opportunity for storm water controls.
EPA intends to provide guidance to
owners or operators of municipal
systems and permitting authorities on
appropriate planning considerations,
structural and non-structural controls,
and post-construction operation and
maintenance of BMPs. Guidance
materials would also address questions
regarding responsibility for long-term
operation and maintenance of storm
water controls. EPA also intends to
present a broad menu of options as
guidance allowing for flexibility to
accommodate local conditions. EPA
proposes to recommend that
municipalities establish requirements
for the use of cost-effective BMPs that
minimize water quality impacts and
attempt to maintain pre-development
runoff conditions. In other words, post-
development conditions should not be
different from pre-development
conditions in a way that adversely
affects water quality. The municipal
program should include structural and/
or non-structural BMPs. EPA encourages
locally-based watershed planning and
the use of preventative measures,
including non-structural BMPs, which
are generally lower in cost than
structural BMPs, to minimize water
quality impacts. Non-structural BMPs
are preventative actions that involve
management and source controls.
Examples of non-structural BMPs
include policies and ordinances that
result in protection of natural resources
and prevention of runoff. These include
requirements to limit growth to
identified areas, protect sensitive areas
such as wetlands and riparian areas,
minimize imperviousness, maintain
open space, and minimize disturbance
of soils and vegetation.
Examples of structural BMPs include
storage practices (wet ponds and
extended-detention outlet structures),
filtration practices (grassed swales, sand
filters and filter strips), and infiltration
practices (infiltration basins, infiltration
trenches, and porous pavement). System
owners or operators have significant
flexibility both to develop this measure
as appropriate to address local concerns
and to apply new control technologies
as they become available. Since storm
water technologies are constantly being
improved, EPA recommends that
municipal requirements be responsive
to these changes.
EPA requests comment on the
appropriateness of the specified
requirements for post-construction
storm water management in new
development and redevelopment.
vi. Pollution Prevention/Good
Housekeeping for Municipal
Operations. In today's proposal, any
NPDES permit issued to an owner or
operator of a regulated small municipal
separate storm sewer system must, at a
minimum, require the owner or operator
to develop and implement a cost-
effective operation and maintenance/
training program with the ultimate goal
of preventing or reducing pollutant
runoff from municipal operations. EPA
would encourage the owner or operator
to consider the following in developing
such a program: (1) Maintenance
activities, maintenance schedules, and
long-term inspection procedures for
structural and other storm water
controls to reduce floatables and other
pollutants discharged from the separate
storm sewers; (2) controls for reducing
or eliminating the discharge of
pollutants from streets, roads, highways,
municipal parking lots, maintenance
and storage yards, and waste transfer
stations—including programs that
promote recycling and pesticide use
minimization; (3) procedures for the
proper disposal of waste removed from
the separate storm sewer systems and
areas listed above in (2), including
dredge spoil, accumulated sediments,
floatables, and other debris; and (4)
ways to ensure that new flood
management projects assess the impacts
on water quality and examine existing
projects for incorporation of additional
water quality protection devices or
practices. In general, the requirement to
develop and implement an operation
and maintenance program, including
local government employee training, is
meant to ensure that municipal
activities are performed in the most
appropriate way to minimize
contamination of storm water
discharges, rather than requiring the
municipality to undertake new
activities.
Proper operation and maintenance of
the municipal separate storm sewer
system and the storm water pollution
control structures is essential to the
success of the management program
overall. The effective performance of
this program measure would hinge on
the proper maintenance of the BMPs
utilized. Without proper maintenance,
BMP performance declines significantly
over time, with rates of decline varying
by BMP type and site conditions.
Additionally, BMP neglect may produce
health and safety threats, such as
structural failure leading to flooding,
undesirable animal and insect breeding,
and odors. Maintenance of structural
BMPs could include activities to restore
the integrity of infiltration control BMPs
such as replacing upper levels of gravel;
. dredging of detention ponds; and repair
of outlet structure integrity. Non-
structural BMPs could also require
maintenance over time. For example,
educational materials might need to be
updated periodically.
EPA intends that controls for
discharges from maintenance and
storage yards listed above include
controls for discharges from salt/sand
storage locations and snow disposal
areas operated by the municipality. EPA
encourages coordination with flood
control managers for the purpose of
identifying and addressing the
environmental impacts of existing and
proposed flood management activities.
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1579
• Using existing storm Water pollution
prevention training materials that could
be available from the NPDES authorities
or from other organizations whose
materials are approved by the local
government, the program would need to
include local government employee
training addressing these prevention
measures in government operations
(such as park, golf course and open
space maintenance; fleet maintenance;
planning, building oversight and storm
water system maintenance). In
developing this minimum, program
element, the Agency sought to identify
existing practices and training as a
means to avoid duplication of efforts
and reduce overall costs. EPA also
sought to emphasize those practices or
programs designed and undertaken by
municipalities to address non-storm
water problems but also that have storm
water pollution prevention benefits. In
addition, EPA designed'this municipal
program measure intending to create a
streamlined version of the permit
application requirements for medium
and large municipal separate storm
sewer systems described at 40 CFR
122.26(d)(2)(iv). The streamlined
approach is intended to provide, more
flexibility for these smaller
municipalities. Today's proposed
requirements provide for a consistent
approach to control pollutants from
operation and maintenance among
medium, large, and regulated small
municipal separate storm sewer
systems.
By implementing a cost-effective
operation and maintenance program, the
municipal storm system owner or
operator would serve as a model for the
regulated community. Furthermore, the
establishment of a long-term training
and maintenance program could result
in cost savings for the owner or operator
by minimizing possible damage to the
system from floatables and other, debris
and, consequently,.reducing the need
for repairs. ,
The proposed minimum measure,
which originated with members of the
Storm Water Phase IIFACA
Subcommittee, is similar to the
requirements of the existing storm water
program. EPA requests comment on the
appropriateness of the specified
requirements for pollution prevention/
good housekeeping for municipal
operations. • .-.
vii. Satisfaction of Minimum Measure
Obligations. Today's proposal would
allow regulated small system owners or
operators to satisfy their NPDES permit
obligations for a minimum control
measure by having another
governmental or other entity perform
the measure under the following
circumstances: The other entity is
implementing the control measure; the
particular control measure (or
component thereof) is at least as
stringent as the corresponding NPDES
permit requirements; and the owner or
operator has requested, and the other
entity has -agreed to accept
responsibility for, implementation of a
particular control measure (or measures)
, on behalf of, and to satisfy, the owner
or operator's municipal permit
obligations. The owner or operator •
would need to specify in the
§ 122.34(f)(3)' reports submitted to the
NPDES permitting authority when the
owner or operator relies on another
person to satisfy the permit obligations.
The owner or operator would remain
responsible for compliance with the
permit obligations if the entity fails to
implement the control measure (or
component thereof). Therefore, EPA
wquld encourage the owner or operator
to enter into a legally binding agreement
with that entity to minimize any
.uncertainty regarding compliance with
the NPDES permit.
In addition to the permittee-
coordinated arrangement, today's
proposal also includes a provision that
would allow the NPDES permitting
authority to recognize existing
responsibilities among governmental
entities for the control measures in an .
NPDES permit. For example, a State-
may have an existing erosion and
sediment control program that
adequately addresses construction site
discharges, to regulated small municipal
separate storm seWer systems. The
NPDES permitting authority in that ->
State could draft the NPDES permit
conditions such that the State is
responsible for the construction site ,
storm water discharge control minimum
measure.'Assuming that no other
existing programs meet the •
requirements of the other minimum
control measures, the municipality .
would be responsible for implementing
those remaining minimum measures.
Where the NPDES permitting authority
• recognizes existing responsibilities for
one or more of the minimum control
measures in an NPDES permit, these
responsibilities would be waived from a
regulated small system's storm water
management plan and would remain
waived as long as the other
governmental entity implements the
measure consistent with the proposed
municipal program permit requirements
at § 122.34(b). When the NPDES
permitting authority recognizes an
existing responsibility in an NPDES
permit, the permittee would not be
obligated to notify the other
governmental entity about the
arrangement. Instead, EPA anticipates it
-would be the responsibility of the,
NPDES permitting authority to do so. .
b. Application Requirements, Including
Notice of Intent
As part of the municipal program, the'
owner or operator of a regulated small '.
municipal separate storm sewer system
would be required to identify and
submit to the NPDES permitting
authority, either in a notice of intent
(NOI) to be covered under a general
permit or in an individual permit
application, the BMPs that the owner or.
operator would implement and the
measurable goals for the minimum
control measures discussed previously.
In reviewing NOIs submitted by the
owners or operators of municipal
systems, the NPDES permitting
authority would need to pay particular
attention to the BMPs and measurable
goals identified for municipal separate
storm sewer systems that are located in
impaired watersheds. Where specific
measurable goals to satisfy minimum
control measures in paragraphs (b) (3)
through (b) (6) of § 122.34 (illicit
discharges detection and elimination,
construction -site storm water runoff
control, post-construction storm water
management in new development and
redevelopment, pollution prevention/
good housekeeping for municipal
operations) are identified in an NOI,
these goals would not constitute a
condition of the NPDES permit, unless
EPA or the State, has provided or issued
a menu of regionally appropriate, field-
tested BMPs that it believes to be cost-
effective. EPA has limited this provision
to only four of the minimum control
measures because the Agency does not
believe that municipalities need the
kind of technical assistance in
developing measurable goals for public
education and outreach or public
involvement that might be essential in
determining measurable goals for the
other four minimum control measures.
Measurable goals for the two minimum
control measures of public education
and outreach and public involvement
would be required and would be
enforceable permit conditions even
without the issuance of the menu of
BMPs. In the general permit NOI or
individual permit application, the
owner or operator would also be
required to .identify the month and year
in which the owner or operator would
start and would aim to complete each of
the minimum control measures or
indicate the frequency of the action.
The NPDES permitting authority
would specify a time period (of up to
five years) for the owner or operator to
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
fully develop and implement the
program. The owner or operator would
also be required to identify in the
general permit NOI or individual permit
application the person or persons
responsible for implementing or
coordinating the municipal storm water
program. EPA intends to provide
guidance on the development of BMPs
and measurable goals. EPA would later
modify, update, and supplement this
guidance based on the assessments of
the municipal storm water program and
research conducted over the next 13
years.
EPA seeks comment on certain permit
application provisions identified in
today's proposed rule. First, EPA seeks
comment on the potential implications
of linking the enforceability of
measurable goals identified in an NOI to
EPA/State issuance of a menu of
regionally appropriate BMPs. EPA also
requests comment on the procedure for
Issuing a regionally appropriate menu of
BMPs. For example, the menu could be
developed and published concurrently
with the general permit or prior to or
after issuance of the general permit.
Furthermore, commenters have raised
concerns that if measurable goals
become enforceable permit conditions
without a menu of BMPs first being
issued, the owner or operator of the
municipal system would only propose
easily attainable goals that might not
achieve higher levels of water quality
protection. Conversely, municipalities
are concerned that measurable goals not
become enforceable permit
requirements until the permitting
authority determines that they are, in
fact, achievable through the use of cost-
effective BMPs. EPA seeks comment on
these concerns. Finally, EPA seeks
comment on how an NOI form might
best be formatted to allow for
measurable goal information (e.g.,
through the use of check boxes or
narrative descriptions) while taking into
account the need to facilitate computer
tracking.
c. Evaluation and Assessment
Under today's approach, owners or
operators would be required to evaluate
the appropriateness of their identified
BMPs and progress toward achieving
their identified measurable goals. The
purpose of this evaluation is to
determine whether or not the owner or
operator is meeting the requirements of
the minimum control measures
identified in today's proposal. The
NPDES permitting authority would be
i responsible for determining whether
any monitoring needs to be conducted
and could require monitoring in
accordance with State/Tribe monitoring
plans appropriate to the watershed. EPA
does not encourage requirements for
"end-of-pipe" monitoring for regulated
small municipal storm sewer systems.
Rather, EPA encourages permitting
authorities to carefully examine existing
ambient water quality and assess data
needs. Permitting authorities should
consider a combination of physical,
chemical, and biological monitoring or
the use of other environmental
indicators such as exceedance
frequencies of water quality standards,
impacted dry weather flows, increased
flooding frequency, and fish assemblage.
(Claytor, R. and W. Brown. 1996.
Environmental Indicators to Assess
Storm Water Control Programs and
Practices. Center for Watershed
Protection, Silver Spring, MD.) Section
ILL., Water Quality Issues, discusses
monitoring in greater detail.
As recommended by the
Intergovernmental Task Force on
Monitoring Water Quality (ITFM), the
NPDES permitting authority would be
encouraged to consider the following
watershed objectives in determining
monitoring requirements: (1) to
characterize water quality and
ecosystem health in a watershed over
time, (2) to determine causes of existing
and future water quality and ecosystem
health problems in a watershed and
develop a watershed management
program, (3) to assess progress of
watershed management program or
effectiveness of pollution prevention
and control practices, and (4) to support
documentation of compliance with
permit conditions and/or, water quality
standards. With these objectives in
mind, the Agency encourages
participation in group monitoring
programs that would take advantage of
existing monitoring programs
undertaken by a variety of governmental
and nongovernmental entities. Many
States may already have a monitoring
program in effect on a watershed basis.
- The ITFM report is included in the
docket for this proposal
(Intergovernmental Task Force on
Monitoring Water Quality. 1995. The
Strategy for Improving Water-Quality
Monitoring in the United States: Final
Report of the Intergovernmental Task
Force on Monitoring Water Quality.
Copies can be obtained from: U.S.
Geological Survey, Reston, VA.).
EPA expects that many types of
entities would have a role in supporting
group monitoring activities—including
federal agencies, State agencies, the
public, and various classes or categories
of point source dischargers. It is
possible that some regulated small
municipal separate storm sewer systems
would need to contribute to such
monitoring efforts. EPA expects,
however, that their participation in
monitoring activities would be
relatively limited. For purposes of
today's proposal, EPA recommends that,
in general, small municipalities not be
required to .conduct in the first permit
term any additional monitoring beyond
any they may be already performing. In
the second and subsequent permit
terms, EPA expects that some limited
ambient monitoring might be
appropriately required for perhaps half
of the regulated small municipal
separate storm sewer systems. EPA
expects that such monitoring would
only be done in several discrete
locations for relatively few pollutants of
concern. EPA does not anticipate "end-
of-pipe" monitoring requirements for
regulated small municipal separate
storm sewer systems. EPA seeks
comment on this approach, particularly
from the perspective of dischargers
other than small municipalities, on the
sharing of responsibility for the support
of monitoring activities.
i. Recordkeeping. The NPDES
permitting authority would be required
to include at least the minimum
appropriate recordkeeping conditions in
each permit. Additionally, the NPDES
permitting authority could specify that
permittees'develop, maintain, and/or
.submit other records to determine
compliance with permit conditions. The
owner or operator would need to keep
these records for at least 3 years but
would not be required to submit records
to the NPDES permitting authority
unless specifically directed to do so.
The owner or operator would be
required to make the records, including
the storm water management program,
available to the public at reasonable
times during regular business hours (see
40 CFR 122.7 for confidentiality
provision). The owner or operator
would also be able to assess a
reasonable charge for copying and to
establish advance notice requirements,
not to exceed 2 business days, for
members of the public.
ii. Reporting. Under today's proposal,
the owner or operator of a regulated
small municipal separate storm sewer
system would be required to submit
annual reports to the NPDES permitting
authority for the first permit term. For
subsequent permit terms, the owner or
operator would need to submit reports
in years 2 and 4 unless the NPDES
permitting authority required more
frequent reports. EPA determined that
annual reports would be needed during
the first 5-year permit term to help
permitting authorities in track and
assess the development of municipal
programs, which should be well
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1581
'established by the end; of the initial
term. Information contained in these
reports could be used to respond to
public inquiries.
The report would need to include (1)
the status of compliance with permit
conditions, an assessment of the'
appropriateness of identified BMPs and
progress toward achieving measurable ,
goals for each of the minimum control
measures, (2) results of information
.collected and analyzed, including
monitoring data, if any, during the
reporting period, (3) a summary of what
storm water activities the permittee
plans to undertake during the next
reporting cycle, and (4) a change in any
identified measurable goal or goals that
apply to the program elements.
The NPDES permitting authority
would be encouraged to use .a brief (e.g.,
two'page) reporting format to facilitate
compiling and analyzing the data from
submitted reports. The permitting
authority would use the reports in
evaluating compliance with permit
conditions and, where necessary, would
modify the permit conditions to address ,
changed conditions. EPA requests .
comment on the appropriate content of
the reports and the timing of the
submittal.
. iii. Permit-As-A-Shield. Section
122.36 describes the NPDES "permit-as-
a-shield" coverage offered by section
402(k) of the CWA. Section 402(k)
provides that compliance with an
NPDES permit would be deemed
compliance, for purposes of
enforcement under CWA sections 309
and 505, with CWA sections 301, 302,
306, 307, and 403, except for any
standard imposed under section- 307 for
toxic pollutants injurious to human
health.
EPA's Policy Statement on Scope of
Discharge Authorization and Shield,
Associated with NPDES Permits, issued
on July 1, 1994, and revised by EPA's
policy memorandum on the same
subject issued on April 11,1995,
provides additional information on this
matter,
d. Other Applicable NPDES
Requirements
Any NPDES permit issued to an
owner or operator of a regulated small
municipal separate .storm sewer system
would also need to include other
applicable NPDES permit requirements
and standard conditions, specifically
those requirements and conditions at 40
CFR 122.41 through 122.49 (EPA
recognizes that reporting requirements
for regulated small municipal separate
Storm sewer systems would be governed
by proposed § 122.34 and not the
existing requirements for medium and
large municipal separate Storm sewer
systems at § 122.42(c)). In addition, the
NPDES permitting authority is
encouraged to consult the Interim
Permitting Approach, issued on August.
1, 1996. The discussion on the Interim
Permitting Approach in Section H.L.1,
Water Quality Standards, provides more
information. Members of the municipal
caucus expressed considerable concern
that imposing these conditions would,
in effect, undermine the intent of the
program developed in consultation with
the Storm Water Phase IIFACA
Subcommittee—to develop a program
with a simplified set of permit
requirements based on the
implementation of BMPs. EPA does not
believe that this.is a concern. The
•provisions of §§ 122.41 through 122.49
establish permit conditions and
limitations that are broadly applicable
to the entire range of NPDES permits.
These provisions should be interpreted
in a manner that is consistent with
provisions that address specific classes
or categories of discharges. For example,
§ 122.44(d) is a general requirement that
each NPDES permit shall include
conditions to meet water quality
standards. This requirement would be
met by the specific approach outlined in
today's proposal for the implementation
of BMPs as the most appropriate form of
effluent limitations to satisfy technology
requirements and water quality-based
requirements (see the introduction to
Section II.H.3, Municipal Permit
Requirements, Section II.H.S.g,
•Reevaluation of Rule, and the
discussion of the Interim Permitting
Policy in Section II.L.l.a. below).
e. Enforceability
NPDES permits- are federally
enforceable. Violators may be subject to
the enforcement actions and penalties
described in CWA sections 309, 504,
and 505 or under appropriate State or
local law. Compliance with a permit
issued pursuant to section 402 of the
Clean Water Act would be deemed
compliance, for purposes of sections
309 and 505, with sections 301, 302,
306, 307, and 403 (except any standard
imposed under section 307 for toxic
pollutants injurious to human health).
f. Deadlines
Under § 122.32(a) (1) of today's
proposed rule, which automatically
designates all small municipal separate
storm sewers located in an "urbanized
area," owners or operators of regulated
• small municipal separate storm sewer
systems would need to seek coverage
under an NPDES permit within 3 years
and 90 days from the date of publication
of the final rule. Assuming a March 1,
1999, final rule, the resulting deadline
would be May 31, 2002—this allows 90
days after the issuance of.a general
permit to submit the NOI. Owners or
operators of regulated small municipal
separate storm sewer systems that
choose to be a co:perrnittee with an
adjoining municipality or other-
governmental entity with an existing
NPDES storm water permit would need
to apply for a modification of that
permit by May 31, 2002—allowing for
90 days as well. EPA recognizes that the
use of the "latest" Decennial Census by
the Bureau of the Census as a basis for
nationwide designation raises an issue
regarding applicable deadlines fpr
municipalities brought into the program
due to 2000 Census calculations. EPA
proposes that small municipal separate
storm sewer systems that are
automatically designated as of the 2000
Census would need to seek coverage
under an NPDES permit within 3 years
and 90 days from the date of publication
of the final rule. Since the official
Bureau of the Census urbanized area
calculation for the 2000 Census is
expected to be published by August
2001, this proposed deadline would
allow the affected municipalities to
have approximately 9 months notice to
prepare for compliance under the
applicable permit. EPA invites comment
on this proposed deadline for
municipalities affected by the 2000
Census. EPA also seeks comment on the
appropriateness of the range of time
allowed for regulated small municipal
separate storm sewer systems to prepare
an NOI or permit application, which
varies from 3 years and 90 days (if •
automatically designated by the 1990
Census) to 60 days (if designated by the
NPDES permitting authority under
proposed § 122.32(a)(2)), with 9 months
in between (if automatically designated
, by the 2000 Census).
As stated above, owners or operators
of regulated small municipal separate
storm sewer systems designated by the
NPDES permitting authority on a local
basis under § 122.32(a)(2) would need to
seek coverage under an NPDES permit
within 60 days of notice, unless the
; NPDES permitting authority specifies a
later date. EPA seeks comment
specifically on whether 60 days
provides adequate time for the
preparation of an NOI or permit
application or if a 90 day time period
would be more appropriate.
g. Reevaluation of Rule
The municipal caucus of the Storm
Water Phase II FACA Subcommittee
asked EPA to demonstrate its
commitment to.revisit today's proposed
rule as it applies to municipal separate
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storm sewer systems and make changes
where necessary after evaluating the
storm water program and researching
the effectiveness of municipal BMPs.
Today, EPA is proposing § 122.37 to
commit the Agency to revisit the
regulations for the municipal storm
water program, at §§ 122.32 through
122.26 and 123.35, after completion of
the first two permit terms. The Agency
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,
during this time would be critical to
EPA's storm water program evaluation.
The Agency does not intend to change
today's proposed 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, the Agency might
also consider changes from consensus-
based stakeholder requests for newly
regulated municipal systems. EPA
would apply the August 1, 1996, Interim
Permitting Approach to today's
proposed program during this interim
period and would encourage all
permitting authorities to use this
approach in storm water permits for
newly regulated municipal systems and
in determining municipal requirements
under a TMDL approach. After careful
consideration of the data, EPA would
make modifications as necessary. EPA is
seeking comment on the proposal to re-
evaluate the rule after 13 years from the
date of publication of the final rule (i.e.,
following the completion of the first two
permit terms).
In addition, proposed § 122.37 states
that EPA strongly recommends that no
additional requirements beyond the
minimum control measures be imposed
on regulated municipal separate storm
water systems without the agreement of
the affected municipal separate storm
water system, except where adequate
information exists in approved TMDLs
or equivalents of TMDLs to develop
more specific measures to protect water
quality or until EPA's comprehensive
evaluation is completed. The wasteload
allocations that form part of approved
TMDLs or equivalents of TMDLs would
constitute "adequate information to
develop more specific conditions or
limitations to meet water quality
standards." EPA regulations at 40 CFR
122.44(d)(l)(vii) currently require that
effluent limits in NPDES permits be
consistent with assumptions and
requirements of any available wasteload
allocations for the discharge contained
in EPA-approved TMDLs. Consequently,
where wasteload allocations have been ,
established for a municipal storm water
source in approved TMDLs, the permit
would need to include terms and
conditions consistent with the
assumptions and requirements of the
wasteload allocations. These-terms and
conditions might include non-numeric
requirements, such as implementation
of BMPs coupled with some means to
monitor effectiveness, if they are
consistent with the assumptions and
requirements of the conditions of the
wasteload allocations.
I Other Designated Storm Water
Discharges
1. Background
Under section 402 (p) (6), EPA is
proposing to regulate categories of storm
water discharges in addition to the
municipal separate storm sewer systems
described earlier. The proposal would
designate certain construction activities
for regulation as "storm water
discharges associated with other
activity." Specifically, such discharges
would include storm water discharges
from construction sites disturbing equal
to or greater than 1 acre and less than
5 acres, unless the NPDES permitting
authority waives the application
requirements.
Today's action also would maintain
the existing application deadline from
the August 7, 1995, rule for municipally
owned or operated sources of industrial
storm water exempted from the October
1, 1994, compliance deadline by the
Intermodal Surface Transportation and
Efficiency Act of 1991 (and the Water
Resources Development Act of 1992).
The proposed regulation, including
application deadlines, for each of these
classes is further explained below.
2. Construction
Today's proposal to regulate certain
storm water discharges from
" construction sites 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
regulations define "storm water
discharges associated with industrial
activity" to include only those storm
water discharges from construction sites
disturbing 5 acres or more of total land
area (see 40 CFR 122.26(b)(14)(x)). In its
decision, the court concluded that the 5-
acre threshold was improper because
the Agency had failed to identify
information "to support its perception
that construction activities on less than
5 acres are non-industrial in nature"
(966 F.2d at 1306). The court remanded
the exemption to EPA for further
proceedings (966 F.2d at 1310). EPA's
objectives in,today's proposal include
an effort to (1) address the 9th Circuit
remand, (2) address water quality
concerns associated with construction
activities that disturb less than 5 acres
of land, and (3) balance conflicting
recommendations and concerns of
stakeholders.
EPA responded to the 9th Circuit's
request for further proceedings by
consulting with the Storm Water Phase
IIFACA Subcommittee regarding
possible approaches for addressing the
remanded provision. Although the
Subcommittee was not able to reach
consensus on any of the issues relating
to the construction remand,
Subcommittee members, provided
considerable feedback concerning a
variety of possible approaches. Today's
proposal represents the Agency's effort
to balance the concerns raised by
various subcommittee representatives.
This proposal would designate
discharges from construction activities
that disturb between 1 and 5 acres as
"discharges associated with other
activity" under section 402 (p) (6), rather
than as "discharges associated with
industrial activity" under 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 proposing to rely on a size
threshold in tandem with provisions
that allow for designations and waivers
based on potential for "predicted water
quality impairments" to regulate such
construction sites under section
402 (p) (6) for the sake of simplicity and
certainty and, most importantly, to
protect water quality consistent with the
mandate of section 402 (p) (6). The
proposal would include extended
application deadlines for this new
category of dischargers under the
authority of section 402 (p) (6) (see*
122.26(e)(l)(iii)). The proposed
designation would also be consistent
with EPA's earlier proposal to regulate
this category of discharges as
"discharges associated with industrial
activity" (55 FR 48035-36).
Today's proposal would designate
storm water discharges from certain
construction sites under 5 acres for
regulation based on the authorities of
section 402(p) (6) because such sources
should be regulated to protect water
quality. Section I.A.I., under
Construction Site Runoff, provides a
detailed discussion of water quality
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1583
impacts Resulting from construction site
storm water runoff. Under section
402 (p) (6), such designation also carries
with it "expeditious deadlines," which
are important to ensure a nationally
consistent timeperiod for the
development and implementation of a
program to regulate these sources. EPA
invites comment on how the Agency
should codify this proposed
designation, as well as the statutory
basis upon which EPA should rely for
regulation of storm water discharges
from construction sites less than 5 acres.
The proposed regulatory changes for
storm water construction activities are
not proposed in the same "question and
answer" format as the other regulations
proposed because "storm water
discharges associated with other
activity" would be included as a new
category of dischargers in the NPDES
regulations for. storm water.
a. Scope
The definition of "storm water
discharges associated with other
activity" would include construction -
activities, including clearing, grading,
and excavating activities, that result in
the disturbance of equal to or greater
than 1 acre and less than 5 acres (see
new language at § 122.26(b)(15)). Such
activities might include road building;
construction of residential houses, office
buildings; or industrial buildings; or
demolition activity. Sites disturbing less
than 1 acre would be included if they
were part of a "larger common plan of
development or sale" with a planned
disturbance of equal to or greater than
1 and 5 acres. A "larger common plan
of development or sale" would mean a
contiguous area where multiple separate
and distinct construction activities
might be occurring at different times on
different schedules under one plan (e.g.,
a housing development of five Vk acre
lots) (§122.26(b)(15)(i)(A)). Such sites
would be required to seek coverage
under an NPDES permit regardless of
the number of lots in the larger plan
because designation for permit coverage
would be based on the total amount of
disturbed land area. This proposed
designation attempts to address the
potential cumulative effects of
numerous construction activities
concentrated in a given area. These
requirements would riot apply to
agricultural or silvicultural activities,
which are exempt from NPDES permit
requirements under 40 CFR 122.3.
Although all construction sites less
than 5 acres could have a significant
water quality impact cumulatively, EPA
today is proposing to require that only
construction sites that disturb land
equal to or greater than 1 acre seek
coverage under ari NPDES permit.
Categorical regulation of construction
below this 1-acre threshold would
overwhelm the resources of permitting
authorities. The'NPDES permitting
authority could, however, designate for
regulation those construction activities
that disturb below 1 acre of land if a
watershed or other local assessment
indicated the need to do so.
Furthermore, the permitting authority
could designate any other construction '
activity "based on the potential for
adverse1 impact on water quality or for
significant contribution of pollutants"
(see new § 122.26(a)(9) (i) (D) and •
§122.26(b)(15)(i)(B)).
The proposed 1-acre threshold is
based on a balanced consideration of
recommendations from numerous
stakeholders participating in the Storm
Water Phase II FACA Subcommittee ,
process. In today's proposed rule, EPA
is attempting to regulate additional
construction sites to better protect the
nation's waters, while remaining
sensitive to a concern that the Agency
not regulate construction sites that ;
might hot have adverse water quality
impacts. EPA believes that today's
proposal would successfully accomplish
this objective by coupling a 1-acre
threshold that includes waiver options
for sites that have been determined not
to impact water quality with the
provision that allows the designation
authority to include sites below 1 acre .
that do impact water quality.
Specifically, construction activity equal
to or greater than 1 acre and less than
5 acres would be automatically
designated except in those
circumstances where owner or operator
certifies that any of three specific waiver
circumstances (described below) would
apply. As mentioned previously,
construction activity that disturbs less
than 1 acre would not be automatically
designated, but the NPDES permitting
authority could designate such areas for
permitting where there is reason to
believe that impacts.to water quality are
likely to occur from activity on these
sites. For example, if a trout hatchery
area is located downstream from the
proposed less than 1-acre site, the
permitting authority would likely want
to control the construction activity's
impact on trout egg survival. EPA
believes that coupling categorical
designations with waivers would be
necessary to address the challenge of
providing a technical justification for a
nationwide size threshold considering
the hydrologic, climatologic,
geographic, and geologic variations
nationwide. EPA invites comment
regarding this approach.
EPA also examined alternative size
thresholds, including 0.5 acre, 1 acre, . ,
and 2 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
construction sites of differing sizes
varies nationwide^ depending on the
local climatological, geological,
geographical, and hydrological
influences. In the interest of nationwide
consistency, EPA does not propose to
allow permitting authorities to set their
own size thresholds. By selecting the 1
acre size threshold coupled with
waivers and designation, EPA sought to
make the regulation consistent on a
national basis and to also provide
permitting authorities with the
opportunity to further designate those
activities causing water quality
impairments regardless of site size.
Thus, oversight of discharges from -
construction site activities less than 5
acres would be consistent on a national
basis and would ultimately allow local
authorities to address those activities
causing water quality impairment
regardless of any cutoff or threshold
acreage.
b. Waivers ,
Under the proposal, NPDES
permitting authorities would have the
option of providing a waiver to
construction site owners or operators ,
from permit requirements in three
circumstances. The first waiver would
be based on "low predicted rainfall
potential." The permitting authority
would determine which times of year, if
any, the waiver opportunity would be
available for construction sites based on
a table of R values published in the U.S.
Department of Agriculture (USDA)
Agricultural Handbook 703 (Renard,
K.G., Foster, G.R., Weesies, G.A.,
McCpol, 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. Copies may
be obtained from USDA-ARS,
Southwest Watershed Research Center,
2000 East Allen Road, Tucson, AZ
85719.). These tables summarize average
periodic rainfall data on a geographic .
basis throughout the United States. The
second waiver would be based on "low
predicted soil loss." Under this waiver,
the permittee would apply the Revised
Universal Soil Loss Equation (RUSLE) to
determine whether or not the second
waiver would be available. The third
waiver would be based on a
consideration of ambient water quality.
This waiver would be available after
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
development and implementation of
TMDLs for the pollutants of concern
from storm water discharges associated
with construction site storm water
runoff. This waiver would also be
available after development and
implementation of a TMDL-like
allocation process in water bodies that
are not impaired. Note that TMDLs are
only required for water bodies listed
under CWA section 303 (d).
The first waiver would be time-
sensitive and would be dependent on
when during the year a construction
activity takes place, how long it lasts,
and the expected rainfall during that
time. The waiver is intended to exempt
the requirements for a permit when and
where the permitting authority expects
negligible rainfall. EPA anticipates that
this waiver opportunity would respond
to concerns about the requirement for a
permit when it does not rain, especially
in the arid western States. Under this
waiver provision, the permitting
authority could identify timeperiods
when construction activity could be
waived from permitting requirements
where the rainfall erosivity factor ("R"
in the Revised Universal Soil Loss
Equation (RUSLE)) is less than two
during the period of construction
activity for specificareas of the State.
EPA believes that those areas receiving
negligible rainfall during certain times
of the year are unlikely to have storm
water events that would adversely
Impact receiving streams and,
consequently, BMPs would not be
necessary on those smaller sites. This
waiver would be most applicable to the
arid regions of the country where the
occurrence of rainfall follows a cyclic •
pattern—between no rain and extremely
heavy rain. Review of rainfall records
for these areas indicates that there are
periods (up to 6 months) during which
the number of events and quantity of
rain are low enough that storm water
runoff from small sites is predicted to be
minimal. Default conditions that were
included in this examination consisted
of slope length (300 feet), slope
steepness (3%), soil type (silt), no
natural cover material, and no erosion
control practices in place.
The second option for a waiver would
be based on "low predicted soil loss"
and would be available where
application of the RUSLE by the
permittee indicated negligible predicted
soil loss. Developed initially by the
USDA as a predictive tool to evaluate
the potential for soil loss from
agricultural lands at various times of the
year and on a regional basis, the
Universal Soil Loss Equation (USLE)
was identified as a technique which
could be useful in predicting
construction site soil losses in the early
1970s (Wischmeir and Meyer, 1973).
USLE is a widely used and easily
accessible equation which predicts soil
loss from four variables; rainfall
erosivity, soil credibility, length of
slope, and steepness of slope. A
refinement of USLE is reflected in the
Revised Universal Soil Loss Equation
(RUSLE), which provides a broader
range of data within the individual
variable. Several permitting authorities
have recommended the utilization of the
USLE or RUSLE for predicting
construction site soil losses in their
guidance documents that support
implementation of the existing storm
water program.
Today, EPA is proposing a modified
use of the equation for purposes of
predicting soil erosion rates from small
construction sites using the RUSLE. The
equation comprises the variables rainfall
erosivity (R), soil credibility (K), slope
length (L), slope steepness (S), cover-
management factor (C), and the support
practice factor (P). The equation is:
A-RKLSCP
where A is the average soil erosion rate
in tons per acre per year. This waiver
provision would be applicable on a
case-by-case basis where the annual soil
loss rate for the period of construction
for a site 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
equation, assuming the constants of no
ground cover and no runoff controls in
place. For the purposes of today's
proposal, RUSLE would be used to
predict where storm water discharges
associated with construction activity
(i.e., soil disturbance through clearing,
grading, and excavating would not be
expected to adversely affect water
quality.)
The third waiver would be available
where the State (or EPA) has completed
either wasteload allocations that are part
of TMDLs that address the pollutants of
concern or a comprehensive watershed
.plan, implemented for the water body,
in which the equivalents of TMDLs have
been done as part of the watershed plan
addressing the pollutants of concern
from construction activities. The
permitting authority would need to
reflect relevant components of the
comprehensive watershed plan or
TMDLs in NPDES permits. The
watershed plan, or TMDLs, would need
to demonstrate with reasonable
assurance that load reductions take
place pursuant to CWA section 303 (d)
and that such discharge does not cause
or have a potential to cause water
quality impacts. In determining this
waiver, EPA (if the NPDES permitting
authority) might rely on a State's
wasteload allocations that are part of
TMDLs or a State's comprehensive
watershed plan in which the
equivalents of TMDLs has been done as
part of the watershed plan. To qualify
for this waiver option, the owner or
operator would need to certify that the
construction activity will take place,
and storm water discharges will occur,
within an area covered either by the
TMDLs or comprehensive watershed
plan. By using the term "comprehensive
watershed plan," EPA recognizes that
TMDLs address "impaired waters" and
that there may be TMDL-like activities
on waters that are not found to be
"impaired." It is expected that when
TMDLs are done there may be a
determination, in some cases, that
certain classes of sources such as small
construction sites would not have to
control their contribution of pollutants
of concern to the waterbody in order for
it to be in attainment (i.e., these sources
are not assigned wasteload allocations)
and, therefore, implementation of storm
water-controls would not be necessary
under today's proposed storm water
program.
EPA is continuing to review technical
information to determine whether the
waiver thresholds for rainfall erosivity
and annual soil loss are the appropriate
thresholds. The agency is also interested
in comment regarding the feasibility of
these waiver provisions/For example,
concerns have been raised that
application of the second waiver (case-
by-case basis where the annual soil loss
rate for the period of construction for a
site would be less than 2 tons/acre/year)
might not sufficiently protect sensitive
ecosystems or species. Impacts from fine
sediment could be heightened for coral
reef systems or for extremely
oligotrophic systems, such as Lake
Tahoe in Nevada or Crater Lake in
Oregon (see the general discussion of,
construction impacts in Section I.A.I.,
Construction Site Runoff). In addition,
concerns have been raised that the
second waiver provision would be too
complicated and, thus, misapplied
because the variables and assumptions
in the RUSLE would be misinterpreted
or misrepresented. EPA encourages the .
submission of data and other
information that could ensure a waiver
process that is fair and easily applied
'while providing sufficient protection for
sensitive ecosystems.
Preliminary comments on the
proposed waiver provisions also raised
a process issue regarding how a
permittee would qualify for a waiver.
Today's proposal includes a
certification process whereby the
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1585
permittee would certify to the NPDES
permitting authority that it meets the
particular waiver criteria or waiver
--requirements applicable in a particular
State or watershed (see proposed
§122.26(b)(15)(i)(A)(lH3)). EPA invites
comment on such a certification process
and requests comment on any other
similar process that could reduce the
waiver processing burden for the
NPDES permitting authority and the
permittee while ensuring that waivers
are granted only for those circumstances
.applicable under one of the three waiver
options.
EPA also seeks comment from
permitting authorities on how they
envision the process of implementing
waivers for construction activity based
on TMDLs or TMDL-type assessments
under watershed plans.
EPA invites comment on concerns
that waivers might be improperly
utilized in an effort to provide relief to
regulated entities for reasons unrelated
to water quality. In particular, concerns
have been raised that an NPDES
permitting authority might redirect
resources from other environmental
programs in order to develop a
watershed approach that promotes the
issuance of the greatest possible number
of waivers. ;
In addition to waivers, the Agency is
also considering possible approaches for
providing incentives for local
decisiorimaking that would limit the
adverse water quality impact associated
with uncontrolled growth in a
watershed. In situations where there are
special controls or incentives (e.g.
transferable development rights,
traditional neighborhood development
ordinances) in place directing
development toward compact/mixed
use development and away from
wetlands, open space, or other protected
lands, it may be possible to provide
some relief to small construction sites in
areas of less dense development,
provided that the average development
densities are very low (e.g., less than
one unit per 25 acres). In addition, relief
from requirements may also be
appropriate where redevelopment
construction replaces existing
development and the new development
results in a net water quality benefit.
This type of incentive could be a
consideration in development of TMDLs
by State or local authorities. Based on a
TMDL that recognizes that 'the
discharges from areas of less
development do not cause or have
potential to cause water quality impacts,
• relief from small construction site
permitting requirements could be
granted. EPA solicits comment on this
approach and any other -
recommendations for the use of such
incentives. ^
c. Permit Process and Administration
As with any owner or operator of a
point source discharge, the operator of
the construction site would be,
responsible for applying for the NPDES
permit as required by § 122.21 (b). The
operator of a construction activity ,
would be 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. If more than one party meets
these criteria,, then each party involved
would need to be a co-permittee with
any other operators. The operators could
be the owner, the developer, the general
contractor, or individual contractors.
As mentioned previously, the Agency
has proposed extended application
deadlines for small construction sites at
§ 122.26(e)(l)(iii). EPA also considered .
whether NOIs should be required of
construction sites less than 5 acres.
Requiring an NOI allows for greater
accountability by, and tracking of, .
dischargers. It allows for better outreach
to the regulated community, uses an
existing and familiar mechanism, and is
consistent with the existing
requirements for construction activities.
EPA recognizes, however, die
paperwork burden for both the regulated
community and regulators. The Agency
is proposing not to specify the NOI
requirements for NPDES general permits
for storm water at § 122.28 to address
the storm water discharges from
construction activities proposed to be
regulated at § 122.26(b)(15). EPA
believes that this approach would
provide the NPDES permitting authority
with the discretion to decide whether or
not to require NOIs for construction
activity less than 5 acres. Thus, the
proposal would increase flexibility for
the permitting authority regarding
program implementation. The Agency
invites comment on whether NOI
submission should be a requirement for
general permits.for construction activity
less than 5 acres. .
EPA expects that the vast majority of
discharges of storm water associated
with other activity identified in
§ 122.26(b)(15) would 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 sites would be found
at § 122.26(c)(l)(ii). Except for
application deadlines and NOIs under
general permits, the permit application
requirements would be identical to
. those applicable to storm water
discharges associated with industrial ;
activity under the existing NPDES storm
water program. EPA proposes to revise
§ 122.26 accordingly. For any discharges
of storm water associated with other
activity identified in § 122.26(b)(15) that
are not authorized by a general permit,
a permit application made pursuant to
§ 122.26(c) would need to be submitted
.to the Director by 3 years and 90 days
after issuance of the final rule. All
regulated sources would be required to
seek coverage under an NPDES permit
regardless'of whether they discharge
directly to waters of the United States or
through a municipal separate storm
sewer system to waters of the United
States.
The Storm Water Phase IIFACA
Subcommittee also identified issues
regarding linear construction projects
(e.g., roads, highways, pipelines) that
cross several jurisdictions. Some
Subcommittee members were concerned
about having to comply with multiple
sets of requirements from various
jurisdictions, including multiple local
governments and States. Because EPA
cannot issue NPDES permits in States
authorized to implement the NPDES
program and because EPA cannot
preempt other more stringent local and
State requirements, EPA is limited in its
options to address these concerns. EPA
believes that the option for
incorporating by reference the local or
State requirements (see discussion in
Section II.L2.cL, Cross-Referencing
State/Local Erosion and Sediment
Control Programs) would limit the
administrative burden on the operator
responsible for discharges from linear
construction projects. The operator
could implement the most
comprehensive of the various
requirements for the whole project to
avoid differing requirements for
different sections of the project. In
addition, EPA notes that discharges of
dredged or fill material into waters of
the United States that are regulated
under section 404 of the CW A do not
require NPDES permits (40 CFR
122.3(b)).
On a similar note, one comment or
requested exemptions for "routine
maintenance" activities such as . ,
repairing potholes, clearing out drainage
ditches, and maintaining fire breaks,
because these activities often involve
rights-of-way extending across multiple
regulatory jurisdictions. The commenter
suggested that, at most, these activities
by required to adhere to generic best
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management practices. The Agency is
interested in comments on how such an
exemption would work, what the
criteria for such an exemption would be,
and the appropriate BMPs for such sites.
EPA also invites comment on
recordkeeping requirements for today's
proposed rule regarding construction.
The NPDES program requires that the
entity submitting the NOI keep its
records on file for three years. Given
that some smaller construction activities
may last less than a year, some
recommendations suggest that this file
retention requirement be modified or
deleted for such sites. EPA invites
comment on appropriate and reasonable
recordkeeping requirements.
d. Cross-Referencing State/Local Erosion
and Sediment Control Programs
In developing the permit
requirements for designated
construction sites less than 5 acres,
members of the Storm Water Phase n
FACA Subcommittee asked EPA to try
to minimize redundancy in the
construction permit requirements. As
previously discussed in the
Construction Site Storm Water Runoff
Control discussion (see Section II.H.S.a.,
Minimum Control Measures), the
Agency is proposing to allow permitting
authorities to incorporate by reference
the requirements of qualifying State,
Tribal, or local erosion and sediment
control programs. The NPDES
permitting authority would, of course,
retain the authority to deny coverage
under the general NPDES permit,
disapprove inclusion of alternative
requirements in the general permit, and
could require that designated general
permit applicants apply for an
individual NPDES permit.
EPA envisions that this incorporation
by reference approach would apply not
only to the proposed newly regulated
storm water discharges from
construction sites between 1 and 5
acres, but also to discharges from larger
construction sites already covered by
the existing storm water regulations
provided the program meets best
available technology (BAT)
requirements. Under existing
regulations, storm water discharges
"associated with industrial activity" are
subject to the same technology-based
standards as any other discharge under
the CWA (except publicly owned
treatment works and municipal separate
storm sewer systems) (see CWA section
402(p)(3)(A)). The Agency invites
comment on whether the imposition of
controls designed to satisfy the
proposed § 122.34 (b) would assure
compliance with CWA section
402(p)(3)(A) for discharges from
construction sites over 5 acres. Note that
the Agency does not intend that
incorporation by reference of qualifying
programs would relieve construction
site discharges "associated with
industrial activity" from the. applicable
requirements of CWA section 301.
EPA believes that this approach
would best balance the need for
consideration of specific local
requirements and local implementation
with the need for Federal and citizen
oversight, and would extend
supplemental NPDES requirements to
construction sites. EPA solicits
comment on this approach.
In a somewhat different context,
municipal representatives
recommended that construction
activities undertaken by municipalities
be covered by the municipal storm
water permit rather than under a
separate, distinct storm water permit for
construction activity. The Agency agrees
that this would be a reasonable
approach. The Agency explored several
possible ways to make such an approach
possible during the development of
today's proposal, and feels that there are
some options that could achieve
program objectives. One option would
be to simply relieve municipalities that
would be covered under today's
proposal of requirements to submit an
NOI for the general'permit covering
construction activity. Under this option,
municipalities would still be subject to
both types of permit, but would be-
relieved of the paperwork associated
with filing NOIs. This option might
require a revision to existing
122.28(b)(2)(v). Another option to
address this concern would be to issue
individual permits to municipalities
seeking such a "one-stop shopping"
approach that would include provisions
covering the municipal storm water
program and construction activity
conducted by the municipality. Under
such an'option, municipalities might
need to submit individual permit,
applications and the NPDES permitting
authority might have to issue many
more municipal permits. Under a third
option, the general permit issued to
small municipalities would include
municipal storm water program
requirements as well as construction
site discharge components. This option
would result in the issuance of a more
complex general permit than EPA
currently envisions for small
municipalities. This complexity could
be minimized, however, by organizing
the general permit into distinct
modules, one dealing with the six
minimum measures, one with
municipal construction, and possibly
one with municipal industrial facilities
(see Section II.I.3, "Other Sources"
below). Alternatively, municipal general
permits could potentially reference
provisions included in construction
general permits. As a practical matter,
the controls for municipally-owned or
operated construction would
presumably dovetail with the
requirements of the municipal
minimum control measure for
construction, at least for sites between 1
and 5 acres (construction less than 5 -
acres would have to meet BAT). The
Agency seeks further input on these
possible approaches and others that
could be considered. Specifically, how
would such an approach work, what
would the permit look like, who would
be covered, and what would be the
responsibilities of covered
municipalities.
In a similar vein, industrial
representatives recommended that
construction activities undertaken by
permitted industrial storm water
facilities be covered by the industrial
storm water permit. Again, the Agency
agrees with the concept. One option
contemplated by the Agency would be
to include in industrial storm water
permits requirements for construction
undertaken by permitted industrial
facilities. Another option would be to
cross-reference construction general
permit provisions in industrial general
permits. The Agency seeks comment on
these possible approaches and others
that could be considered.
e. Alternative Approaches
As previously discussed, EPA also
examined size thresholds other than one
acre for regulation. Although a range of
size thresholds was mentioned in
stakeholder comments, no data were
offered to support such alternatives. The
Agency solicits comments that would
assist the Agency in making an
informed decision as to an appropriate
threshold related to environmental
effect. Alternatively, the Agency also
solicits comment on an approach by
which only those construction sites
located within urbanized areas would
be automatically subject to permitting
requirements. Under such an
alternative, small construction sites
outside urbanized areas would not be
required to be covered by an NPDES
permit unless specifically designated by
the permitting authority on a case-by-
case basis.
Some stakeholders asked EPA to
consider allowing storm water
discharges associated with construction
activities between 1 and 5 acres to be
regulated solely under municipal storm
water programs where discharges to a
municipal separate storm sewer system
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1587
are subject to a permit, rather than
requiring construction site discharges to
be subject to both NPDES permit
requirements and municipal program
requirements. Under such an approach,
construction sites would only be subject
to the requirements and oversight of a
, qualifying local program. The Agency
has described the "incorporation by _
reference" approach of today's proposal
and the rationale for 'the proposed
approach elsewhere in this preamble. If
EPA adopted this "qualifying local ,
program" alternative, construction site
operators in qualifying municipalities
would not be subject to the
requirements of an NPDES permit. The
Agency solicits comment on this
particular alternative and seeks input
specifically on the effectiveness of local
erosion and sediment control programs
in the absence of NPDES permits
incorporating such local programs. The
Agency also solicits comment on the
appropriate qualifications to establish
for municipalities to qualify under such
an alternative.
EPA considered several other
alternatives for controlling construction
storm water discharges on sites less than
5 acres, including state/local
implementation only, Federal
requirements/guidelines for local
erosion and sediment control programs,
and State-developed requirements,
Small entity representatives
recommended that EPA only establish a
voluntary program based on EPA
guidance, and perhaps including
incentives for small site operators. This
would effectively translate into a
program which would not require such
sites to be covered by an NPDES permit
unless they were specifically designated
•by the permitting authority on a case-by-
case basis. One commenter raised,
concerns that small site operators may
lack the resources to put together a good
site plan, which wouldlikely be
required under the proposed approach.
EPA seeks cbmment.on these
alternatives, as well, including comment
on how such programs have worked
where they have been in effect.
In evaluating options to administer
the storm water control program for
discharges from construction sites, EPA
considered an'owner or operator
certification program that would have
allowed the owner or operator, or
authorized representative, of a
construction firm to apply for coverage
once for all the firm's activities in one
jurisdiction for the term of the NPDES
permit. Focusing on operators in the
"construction industry" (regardless of
the size of the construction site) would
have more closely paralleled the
existing storm water program' for
discharges "associated with industrial
activity." This option would have
allowed for the'coverage of each site by
submittal of one NOI, thereby reducing
the paperwork burden substantially
without sacrificing accountability. This
option would have applied to all
regulated construction site discharges,
regardless of size. Homeowners who
performed construction activities oh
their own property would have been
exempt from the requirements for a '
permit under this option. This option
would have focused instead on the
•construction "industry."'' This option
also would have resulted in a different
proposal for municipal programs to
control construction site discharges.
Concerns with this option included
issues regarding: identification of the
responsible parties onsite (e.g., whether
all parties could reasonably be held
responsible for all permit conditions)
and site-by-site identification of
construction discharges for tracking
compliance with permit conditions.
Such a change also would have affected
operators discharging storm water from
existing, larger regulated construction
, sites by restructuring the entire
regulatory scheme to focus on the
"industry" of construction site
operators,,thus creating significant ;
confusion among regulated entities and
disruption in regulatory processes.
Nonetheless, EPA invites comment on
the option to establish what would
amount to an NPDES-based "licensing"
program for construction site operators
within an NPDES jurisdiction (usually
within State or Tribal boundaries).
Industrial stakeholders recommended
.that the regulation of construction site
discharges under section 402 (p) (6)
should distinguish between "low
intensity" small construction and "high
intensity" small construction. While
EPA proposes case-by-case waiver
opportunities for small construction
discharges (i.e., the second waiver '
opportunity for predicted soil loss of
less than 2 tons/acre/year), the
industrial commenters recommended
that the designation of small
construction site discharges .
categorically distinguish and exempt
"low intensity" construction activity
from the provisions of the proposed
rule. The commenters recommended
that construction activities include
intense levels of clearing, grading and
excavating associated with projects
which meet the following criteria:
clearing, grading and excavation
activities.with a duration in excess of
six months; and construction of single
or multiple story .office or industrial
buildings with a grade slab in excess of
15,000 square feet; or road building
(does not include construction of
wooden roads for access to remote
locations); or construction of a ,
residential home that is part of a larger
common plan of .development or sale.
Under the industrial proposal, such
"high intensity" small construction
would be subject to Federal storm water
regulations. The default, "low intensity"
construction, activity would not.
Today's proposal does not incorporate
these suggestions because the Agency
believes that regulation of storm water
to protect water quality relates more to
the disturbance of land surfaces (i.e., on
a two dimensional, roughly horizontal
plane) rather than to the activity or
reason for the land disturbance. EPA
proposes to regulate storm water
discharges associated with construction
activity from smaller sites, hot the
construction activity itself. EPA would
consider this option in the final rule,
however, if public comments
demonstrate that a "low intensity"
exclusion would relate to the intensity
of the surface disturbance. The'second
waiver opportunity EPA proposes today
does relate to the intensity of surface
disturbance, and necessarily accounts
for regional variation. The Agency,
therefore, invites comment on how to
define applicability provision to •
exclude "low intensity" surface
disturbances associated with
construction activity and still provide a
simple, workable regulation that
accounts for regional variability.,
EPA believes the approach proposed
in this proposal would provide EPA and
the States with a more manageable
program than the other alternatives
discussed. The proposed approach
should offer flexibility to State and local
governments in managing their storm
water programs with little or no
interruption in the consistency of ,
current environmental management and
would assure appropriate tracking and
enforcement mechanisms. EPA requests
comment on the appropriateness of the
scope and requirements of this part of
today's proposed storm water prograrru
3. Other Sources
In the National Water Quality
Inventory, 1994 Report to Congress
submitted by EPA pursuant to 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
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of the unregulated storm water
discharges. Therefore, EPA is not
proposing to designate any additional
unregulated point sources of storm
water on a nationwide, categorical basis.
Instead, EPA is designating a category of
sources to 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 to Congress.
EPA's efforts to identify sources and
categories of unregulated storm water
discharges for potential designation for
regulation under today's proposal
started with an examination of
approximately 7.7 million commercial,
retail, industrial, and institutional
facilities identified as "unregulated." I
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 Storm Water
Discharges Potentially Addressed by
Phase II of the NPDES Storm Water
Program. EPA 833-K-94-002). 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, which were not
classified according to environmental
impacts, 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 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., treatment works with a
design flow of less than 1 million
gallons per day, and 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 to Congress. 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
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 to
Congress). 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. Based on input from the Storm
Water Phase II FACA Subcommittee,
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
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 likelihqpd 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 be
contaminated with 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.
Therefore, today's proposal does not
propose to designate any additional
industrial or commercial category of
sources. Rather, today's proposal would
encourage control of storm water
discharges from Groups A and B
through self-initiated, voluntary BMPs,
unless the discharge (or category of
discharges) is individually or locally
designated as described in the following
section. The necessary data to support
designation could be available on a
local; regional, or watershed basis and
would allow the NPDES permitting
authority to designate a category of
sources or individual sources on a case-
by-case basis. If sufficient nationwide
data become available in the future, EPA
could at that time designate additional
categories of industrial or commercial
sources on a national basis.
EPA requests comment on the three-
pronged analysis used to assess the need
to designate additional industrial or
commercial sources and invites
suggestions regarding watershed-based
designation. EPA also requests
information regarding any available
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1589
national or local data on the potential
water quality impacts of other currently
unregulated point sources of storm
water.
Finally, storm water discharges from
facilities exempted by the Intermodal
Surface Transportation and Efficiency
Act of 1991 (discharges from industrial
activities other than power plants,
airports, and uncontrolled sanitary
• landfills that are owned or operated by
municipalities of.less than 100,000 .
people) were also identified as potential
, sources for designation under today's
proposal. These facilities discharge
storm water in the same manner (and
are expected to use identical processes
and materials) as the .industrial facilities
regulated under the existing regulations.
As such, these facilities would pose
similar water quality threats. The
extended moratorium for these facilities
was necessary to allow municipalities
additional, time to comply with NPDES
requirements. EPA proposes to maintain
August 7, 2001, as the NPDES permit
application deadline,for such
municipally owned or operated
facilities discharging industrial storm
water. General permits are available in
States where EPA issues permits and
should already be available for such
sources in most NPDES-authorized
States. Based on advice and
recommendations of small entity
representatives, EPA also invites
comment on whether permit
authorization for these discharges could
be combined with permit authorization
for other discharges from the municipal
set
recommended to EPA that permit
requirements for municipally-owned or
operated industrial facilities be
included in municipal storm water
permits (this recommendation could be
extended' to cover municipally^owned
construction activities, as well). As
such, municipalities would be covered
by a single permit, rather than by two
or more separate permits. The Agency
agrees with" th'e recommendation and is
considering options to implement it.
One option would be to include relevant
industrial storm water controls in the
municipal storm water permits for the
types of industrial facilities typically
owned or operated by municipalities.
Another option would be to cross-
reference industrial storm water permit
requirements in municipal storm water
permits. A third option would be to
design an additional minimum control
measure for municipal storfn water
, programs that would address
municipally-owned or operated
industrial-facilities. The Agency seeks
input on these options and suggestions
as to any additional options. The
Agency also seeks comment on any
implementation issues associated with
this recommended approach.
4. Residual Designation Authority
The NPDES permitting authority's
existing designation authority,, as well
as the petition provisions would be
retained. The proposed rule contains
two provisions related to designation
authority at §§ 122.26(a)(9)(i)(C) and (D).
Subsection (C) would add designation
authority where storm water controls
are needed for the discharge based upon
wasteload allocations that are part of
TMDLs that address the pollutants of
concern or upon a comprehensive
watershed plan implemented for the .
waterbody that includes the equivalents
of TMDLs and addresses the pollutants
of concern. EPA intends that the NPDES
permitting authority would have
discretion in the matter of designations
based on existing TMDLs under
subsection (C) and would invite
comment on the implementation of
existing TMDLs as the basis for
designation under today's proposed
storm water program. Subsection (D)
would carry forward residual
designation authority under § 122.26(g)
of the existing regulations. Under
today's proposal, EPA and authorized
States would continue to exercise the
authority to designate remaining
unregulated discharges composed
entirely of storm water for regulation on
a case-by-case basis (see proposed
§§ 122.26(b)(15) and 123.35). The
standard for designation would be the
same as under the existing NPDES
regulations for storm water. Individual
sources would be subject to regulation
if EPA or the State, as the case may be,
determines that the storm water
discharge 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 402 (p). In today's
proposed rule, EPA believes, as
-Congress did in drafting section
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. EPA does
envision, however, that preservation of
such regulatory authority would be
necessary to subsequently address a
source (or sources) of storm water
discharges of concern on a localized or
regional basis. As States and EPA
implement TMDLs, for example,
permitting authorities might need to
designate some of the point sources-of
storm water not subject to regulation on •
categorical basis nationwide in order to
assure progress toward compliance with
water quality standards in the,
watershed. EPA intends that the TMDL-
based waiver would be available '
prospectively, applying to future
construction sites. This raises an issue
of how this waiver provision could be
applied to such sites.
One of the industrial stakeholders on
the Storm Water Phase IIFACA
Subcommittee 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 section 402(p)(l) eliminated the
significance of the 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 section 402 (p) (2) (E). The
stakeholder further argued that EPA's
authority to designate sources for
regulation under section 402 (p) (6) is
limited to storm water discharges other
than those described under section
402(p)(2). Because section 402(p)(2)'(E)
'describes individually designated
discharges, the stakeholder concluded
that-regulations under 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 may 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 section 402(p)(2)(E). Under
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 section
402(p) (6) requires designation of a
' 'category'' of sources, EPA would
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
NPDES permitting authority has
designated .the source for regulation
under section 402(p)(2)(E) to date, then
, section 402 (p) (6) provides EPA with
authority to designate such sources.
The Agency would make this
designation of a category of "not yet
identified" sources in order to ensure
that sources that should be regulated
based on local concerns could be
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regulated even if data does notexist to
support nationwide regulation of such
sources. EPA does not believe that the
language in section 402(p) should be
interpreted to preclude States from
exercising designation authority under
this category after promulgation of a
final rule because any such designation
(and subsequent regulation of
designated sources) would be within the
"scope" of the NPDES program.
EPA also believes that sources
regulated pursuant to a State
designation would be 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" would be within the scope of
the Federal program because today's
proposal would recognize the need for
such post promulgation designations of
unregulated point sources of storm ,
water. Such regulation would be "more
stringent" than the Federal program
rather than "greater in scope of
coverage" (40 CFR 123.1(h)).
In addition, EPA does not interpret
the congressional direction in 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
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. The
CWA does expressly provide affirmative
limitations on the regulation of certain
pollutant sources through the point
source control program in section
502(14), which excludes agricultural
storm water and return flows from
irrigated agriculture from the definition
of point source, and section 402(1),
which again 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. EPA
does not interpret 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
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
requirements.
Finally, EPA evaluated the proposal
under which owners or operators of
regulated small, medium, and large
municipal separate storm sewer systems
would be responsible for controlling
discharges from industrial and other
facilities into their systems in lieu of
requiring NPDES permit coverage for
the individual facilities. EPA does not
propose this framework due to concerns
with administrative and technical
burden on the municipalities, as well as
concerns about such an
intergovernmental mandate. EPA does,
however, request comments on this
approach.
/. Conditional Exemption for "No
Exposure" of Industrial Activities and
Materials to Storm Water
1. Background
As noted previously, the 9th Circuit
remanded to EPA for further rulemaking
a portion of the definition of "storm
water discharge associated with
industrial activity" that exempted the'
category of industrial activity identified
as "light industry" (NRDC v. EPA, 966
F.2d 1292, 1305 [9th Cir. 1992]). In
addition to the rulemaking conducted
under section 402(p) (6) on August 7,
1995, today's proposal also responds to
that remand. In the 1990 storm water
regulations, EPA exempted facilities in
the category from the requirement for an
NPDES permit if the industrial materials
or activities were not "exposed" to
storm water (see 40 CFR 122.26(b)(14)
[introductory text]). The Agency has
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 (966 F.2d at 1305). 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" (966 F.2d at 1305). Second,
the court concluded that the exemption
impermissibly "altered the statutory
scheme" for permitting because the
exemption relied on the unverified
judgement 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 (966 F.2d
at 1305). •
Under today's proposal, the Agency
responds to both of the bases for the
court's remand. First, the exemption
from permitting based on "no exposure"
applies to all industrial categories listed
in the existing storm water regulations,
regardless of the type of industry. The
court's opinion rejected EPA's
distinction between light industry and
other industry, but it did not preclude
an interpretation that treats "non-
exposed" industrial facilities in the
same fashion. Presuming that an
industrial facility adequately precludes
exposure of industrial materials and
activities to storm water, EPA proposes
to treat 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 would not be required 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, EPA proposes
that the permitting exemption be
conditional. The person responsible for
a point source discharge from a "no
exposure" industrial source must meet
the conditions of the exemption and
provide a certification pursuant to 40
CFR 122.22 for tracking and
accountability purposes. EPA believes
today's proposal, therefore, is fully
consistent with the direction provided
by the court. ,
A major objective of the FACA
Committee at the outset (August 1995),
was to streamline and reinvent certain
troublesome or problematic aspects of
the existing storm water permitting
program. 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
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1591
no risk to storm water contamination.
Such dischargers could have no
industrial sources of storm water
contamination on the industrial plant
site, yet they are still required to acquir
an NPDES storm water permit and meet
all permitting requirements. Examples
of such facilities would be 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. .
Committee members advised EPA that
the existing storm water program
needed to be revised to allow such
facilities to seek an exemption from the
NPDES storm water permitting
requirements. Committee members
agreed that such an exemption should
also provide a strong incentive for other
industrial facilities that might conduct
some industrial activities outdoors
exposed to rainfall and runoff 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 exemption provision
could be a valuable incentive for storm
water pollution prevention;
Over approximately 2 years, the Phase
I Improvement Work Group of the
FACA Committee developed and '
recommended to EPA the concept of a
no-exposure incentive provision, which
EPA is proposing by making a change to
the existing storm water rules and
adding a new storm water rule
provision, including a no-exposure
certification process as discussed below.
EPA relied upon the no-exposure
concept developed by the FACA
Committee in developing today's
proposal regarding "no exposure." EPA
proposes to incorporate the
recommendations of the committee by ,
deleting the sentence regarding "no
exposure" for the facilities in
§ 122.26 (b) (14) (xi) and adding a new
section—§ 122.26(g) Conditional
Exemption for No Exposure of Industrial
Activities to Storm Water. In accordance
with the committee's recommendations,
the proposed no-exposure provision
refers to all classes of industrial and
other facilities discharging storm water
that would be defined under existing
§ 122.26(b) (14), except construction
defined under existing § 122.26(b) (14) (x)
and proposed § 122.26(b)(15)(i) and
sources individually designated under
§§ 122.26(a)(l)(v), 122.26(a)(9)(i)(B),(C),
& (D) and 122.26(g)(3). Thus, proposed
§ 122.26(g) would make all classes of
industrial facilities eligible for
exemption from the identification as
"associated with industrial activity"
under the existing regulations.
Today's proposal represents a
significant expansion in the scope of the
no-exposure provision originally
promulgated in the 1990 rule for only
light industry. The intent of this ,
proposal is to provide industrial
facilities that are entirely indoors a
simplified method of complying with
the CWA. This could include facilities
that are located within a larger 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.
Although the FACA Committee
agreed in principle to the basic concept
of this exemption, committee members
could not resolve two significant issues
related to the actual implementation of
the concept. The first issue relates k>
how to account for storm water runoff
from parking lots, rooftops, lawns,.and
other non-industrial areas of an
industrial facility. These types of storm
water discharges, which may contain
pollutants or which'may result in excess
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."
The second issue involves an
industrial facility that achieves 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), which results in
a significant increase in storm water
volume flowing off the industrial '
facility and thus causes adverse
receiving water impacts simply due to
the increased quantity of storm water
flow. Although discussed extensively,
the FACA Committee was not able to
reach a consensus recommendation on
how to fully address these two
remaining issues.
From the perspective of the
environmental groups on the committee,
excessive storm water flows from an
^industrial site and pollutants from non-
industrial areas of the site are
potentially a significant cause of
receiving water impairment and, as
such, should not be allowed to occur as
a result of achieving no exposure and
gaining an exemption from an NPDES
storm water permit. Environmental
groups believe that storm water
discharges from impervious areas at an
industrial facility are generally more
frequent, and many of them larger, than
discharges from the preexisting natural
surfaces.,These discharges will contain
pollutants typical of commercial areas,
streets, 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. The environmental
groups believe that these storm water
discharges should be permitted in the
same way that residential and
commercial storm water discharges are
permitted and that, otherwise, these
discharges—their volume alone often
destructive of aquatic life and habitat,
and containing conventional pollutants
as well—would escape the control
required under the CWA.
The industry representatives support
streamlining the existing storm water
1 permitting program by exempting no-
exposure facilities. They believe that
creating this exemption, however, does
not create in EPA the authority to'
regulate other activities not subject to
the existing storm water program.
Industry representatives point out that
since 1990, the NPDES storm water
permitting program has excluded
' administrative buildings, parking lots,
and other non-industrial areas from
permitting or other regulatory'.
requirements. The industry
representatives also reserved the right to
address the legal authority provided by
Congress to EPA to regulate the amount
of storm water discharged from these
areas. Industry representatives 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 exemption.
Municipal representatives.believe that
EPA has no authority under any existing
legal framework to regulate flow.
Developing federal parameters for the
control of flow would result in federal '
intrusion into land use planning, an
authority that they claim is solely
within the purview of State government
and their political subdivisions. Local
governments are aware of the impact
that flows have on receiving waters and,
as has been well documented, take the
appropriate steps to ameliorate negative
results within the context of locally
developed and agreed upon long-term
land use plans. Under no circumstances
will local governments agree to share or
cede this authority with or to federal
agencies or departments.
Given the lack of consensus by the
FACA Committee on these two
remaining key issues, EPA is soliciting
public comment on potential ways to
address these issues, if possible, in the
context 'of the proposed no-exposure
exemption. , "
In an effprt to address the second
issue the FACA Committee "
recommended that the no-exposure 5- '
year certification form (discussed
below) should be modified to add an
. additional question that asks the facility
operator to provide information,
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indicating if large amounts of
impervious surfaces were created to
qualify for the no-exposure exemption.
To respond to the question, a series of
four boxes would be checked by the
facility operator indicating
approximately how much impervious
area was created, if any, to achieve no
exposure. These boxes would be (1)
none, (2) less than 1 acre, (3) 1 to 5
acres, and (4) more than 5 acres. This
question would provide additional
information that would help the NPDES
permitting authority determine whether
or not an NPDES storm water permit
should be required for the facility.
In order to be covered under the no-
exposure provision, EPA proposes that
an owner or operator of an otherwise
regulated facility would need to submit
to the NPDES permitting authority the
no exposure form certifying that the
facility meets the no-exposure
requirements (see Appendix 4 for the
Draft No Exposure Certification Form).
This requirement would apply across all
categories of industrial activity covered
by the existing program, except
discharges associated with construction
activity, and would include those
facilities currently in § 122.26(b)(14)(xi)
("light industry") that are not permitted
based upon a claim of "no exposure."
The category (xi) "light" industrial
facilities that claim to have no exposure
of materials to storm water are not
required under the existing regulations
to submit any type of form to the
permitting authority, but would need to
submit a certification under today's
proposal. The facility would need to
allow the NPDES permitting authority
or operator of a municipal separate
storm sewer system (where there is a
storm water discharge to the municipal,
system) to inspect the facility and to
make such inspection reports publicly
available, upon request. In addition,
based on committee recommendations,
EPA proposes that the certification
would require only minimal amounts of '
information from the facility claiming
the no-exposure exemption. The NPDES
permitting authority would maintain a
simple registration list that should
impose minimal administrative burden,
but that would allow for tracking of
industrial facilities claiming the
exemption.
EPA envisions the NPDES storm
water program to be implemented
primarily through general permits and
the no exposure certification to be
submitted at the "beginning" of each
permit term. However, EPA invites
comment on situations that may affect
the timing of submission of the no
exposure certification, for example, in
cases where a facility's process water
and storm water are covered under an
individual permit.
2. Definition of "No Exposure"
For purposes of this section, "no
exposure" would mean that all
industrial materials or activities are
protected by storm resistant sheltering
so that they are not exposed to rain,
snow, snowmelt, or runoff. Industrial
. materials or activities would refer to
those activities or materials described
under § 122.26(b)(14) (e.g., material
handling equipment, industrial
machinery, raw materials, intermediate
products, byproducts, or industrial
waste products, however packaged).
Barrels, drums, dumpsters, and other
packaging containing industrial wastes
are inherently prone to leak and
therefore could be a source of exposure,
thereby precluding the facility from
qualifying for the exemption.
The FACA Committee held lengthy
discussions on the definition of no
exposure pertaining to barrels, drums,
dumpsters, and other packaging
containers. The committee could not
agree on whether barrels, drums,
dumpsters, and other packaging
containers that are outdoors should
trigger the disqualification of an
industrial facility from the no-exposure
exemption. One perspective expressed
was that any such containers that are
stored outdoors should constitute
exposure and the need for a permit,
whether or not they are leaking. The
opposing perspective was that
containers should be allowed to be
stored outdoors and not be considered
exposure as long as they were not
actually leaking. The committee also
discussed the concept of "potential to
leak" as a trigger for exposure, but could
not agree on this approach. Therefore,
EPA is soliciting public comment on
this issue and the approach proposed in
today's rule.
The term "storm resistant shelter" is
intended 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. For purposes of
this provision, emissions from roof
stacks/vents that are regulated and in
compliance under other environmental
protection programs and that do not
cause storm water contamination would
be considered not exposed. EPA
requests comment on the scope of roof
stacks/vents that would be covered by
this provision. EPA welcomes, in
particular, any suggestions as to ways in
which this provision might be narrowed
so as to focus on significant stack
emissions that could result in
identifiable levels of storm water
contamination. Visible "track out" (i.e.,
pollutants carried on the tires of
vehicles) or windblown raw materials
would be deemed "exposed." Leaking
pipes containing contaminants-exposed
to storm water would be deemed
"exposed," as would past sources of
storm water contamination that remain
onsite. General refuse and trash, not of
an industrial nature, would not be
considered exposed industrial materials.
While the intent of this provision is
to promote permanent no exposure, EPA
understands that certain machinery,
such as trucks, could pass between
buildings and, during passage, would be
exposed to rain and snow. Adequately
maintained mobile equipment (e.g.,
trucks, automobiles, trailers, or other
such general purpose vehicles found at
the industrial site that are not industrial
machinery or material handling
equipment 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 would not prevent a
facility from being able to certify no
exposure under this provision.
Similarly, trucks or other vehicles
located at vehicle maintenance facilities
awaiting maintenance, as defined at 40
CFR 122:26(b)(14)(viii), that are not
leaking contaminants or are not
otherwise a source of industrial
pollutants, would not be considered
exposed.
In addition, EPA recognizes that other
instances could occur where permanent
no exposure of industrial activities or
materials is not possible and, therefore,
is proposing that under such conditions,
materials and activities be covered with
temporary covers, such as tarps,
between periods of permanent
enclosure. This proposal would not
specify every such situation, instead
EPA intends that permitting authorities
would address this issue on a case-by-
case basis. Permitting authorities could,
determine the circumstances under
which temporary structures would or
would not meet the requirements of this
section. Until permitting authorities
determined otherwise, temporary
coverage of industrial materials or
activities would be allowable under this
section during facility renovation or
construction, provided the temporary
cover achieved 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
eve.nt. -
While the intent of this proposal
would be to reduce the regulatory
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1593
burdens on industrial facilities and
government agencies, the FACA
Committee suggested that the NPDES
permitting authority should consider a
compliance assessment program to ,
ensure that facilities that have availed
themselves of this no-exposure option
meet the applicable requirements.
Inspections would be conducted at the
discretion of the NPDES permitting
authority arid would likely be
coordinated with other facility
inspections. EPA expects, however, that
the permitting authority would conduct
inspections when it became aware of
potential water quality impacts possibly
caused by the facility's storm water
discharges or when requested to do so
by affected members of the public. The
intent of this provision would be that
the 5-year no-exposure certification be
fully available to, and enforceable by,
appropriate federal and State authorities
under the CWA. Private citizens could
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. >
The FACA Committee recommended
that the certifying party not allow any
actions taken to qualify for this
provision to result in a net
environmental detriment. The phrase
"no net environmental detriment,"
however, seemed too imprecise a phrase
to use within this context. Therefore,
EPA is proposing to implement this
recommendation by requiring that
actions taken to qualify for this
provision shall not interfere with the
attainment or maintenance of water
quality standards, including designated-
uses. Permitting authorities would be
able, where necessary, to make a
determination by evaluating the
activities changed at the industrial site
to achieve no exposure and assess
whether these changes adversely
impact, or have the potential to impact,
water quality standards, including
designated uses. EPA anticipates that
most efforts to achieve no exposure
would employ simple good
housekeeping and contaminant cleanup
activities. Other efforts could involve;
moving materials and industrial
activities indoors into existing buildings
or structures.
In very limited cases, industrial
operators could make major changes at
a site to achieve no exposure. These
efforts could 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 were undertaken to
achieve no exposure that increase the
impervious area of the site, the facility
operator would need to provide
information on this in the certification
form discussed'above. Using this
information, 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 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 could determine the need for
the facility to obtain coverage under an
individual permit or a general permit to
ensure that appropriate actions are
taken to address water quality impacts.
Another issue that the FACA'
Committee discussed but was unable to
reach consensus on was whether or not
the facility operator .should bear the
burden of determining whether the
activities undertaken to achieve no
exposure impact, or have the potential
to impact, water quality standards,, or
whether the NPDES permitting
authority should be responsible for
making that determination. Some
members of the FACA Committee
indicated that facility operators are not
sufficiently trained to conduct water
quality impact assessments, nor privy to <
the necessary information, and,
therefore, would not be able to make
these determinations. Similarly, these
members highlighted that under the
existing NPDES permitting program, the
NPDES permitting authority appears to
have this responsibility (see 40 CFR
122.44(d)). Other committee members
explained that only the facility operator
would know exactly what changes were
made at the industrial site to achieve no '
exposure and, therefore, should make,
the determination. Other committee
members were concerned that these
determinations would place an /
extensive burden on permitting
authorities. In today's proposed rule, the
NPDES permitting authority would have
'the'primary responsibility for
determining potential or actual water
quality impacts; however, this ,
determination would be based upon
specific information that the operator
would be required to provide. Given the
differing opinions expressed by
committee members regarding this
provision, EPA is also inviting public
comment on this aspect of the no
exposure incentive.
EPA envisions that general permits
would be used to implement the
program and that the owner or operator
would submit a written certification to
the permitting authority once every 5
years at the "beginning" of the permit
term or prior to commencing discharges
during a permit term. Upon request, the
owner or operator would also need to
submit a copy of the certification to tfie
municipality in which the facility is
located. EPA invites .comment on
situations that may affect the timing of
submission of the certification. For
example, some States are transitioning
toward "specific" general permits
(industry or watershed-based), and to
the extent possible, to individual
permits—making it likely that more
than one general permit may be
applicable to a given facility and raising
an issue as to when to submit a "no
exposure" certification.
Once a facility operator has
established that the facility meets the
definition of no exposure, it would be
imperative that the operator of the
facility maintains the no-exposure
condition. Failure to do so would result
in the unauthorized discharge of
pollutants to waters of the United
States, which could result in penalties
under the CWA. Where a facility
operator determines.that exposure
would occur in the future due to some
anticipated change at the facility, the
operator would need to submit an
application and acquire storm water
permit coverage prior to such discharge
to avoid such penalties.
3. Options Considered
In the course of the "no-exposure
dialogue," the FACA Committee
considered a number of options for
implementing the no-exposure
provision, including regulating
qualifying industrial'facilities by (1) an
NPDES general permit for no-exposure
facilities, (2) a no-exposure permit by
rule, (3) a modification of the definition
of "storm water associated with
industrial activity" such that industrial
facilities without exposure could
instead be covered under the
requirements of a new or different storm
water program,, and (4) a watershed
approach to no exposure. The FACA
Committee did not fully support any of
these options.
, Some committee members thought
that options 1 and 2 provided little
incentive to achieve no exposure.
However, Option 1 was considered the
most enforceable, and Option 2 was
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Federal Register /Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
considered to have the advantage of
enforceability and potential for reduced
administrative burden.
Under Option 3, the definition of
"discharge associated with industrial
activity" at § 122.26(b)(14) would be
modified such that facilities with no
exposure could lose their status as
"storm water discharges associated with
industrial activity" under the existing
regulations. Rather, these facilities
would become storm water dischargers
under today's proposed rule and would
be required to do whatever the final
section 402(p)(6) regulation required.
This option would not track, however,
the proposed requirements of today's '
rule because the rule would not impose •
any requirements on undesignated
sources. EPA anticipates that permitted
sources would be expected to comply
with requirements similar to those for
industrial facilities permitted under the
existing storm water program. Option 4
had virtually no support.
K. Public Involvement/Public Role
The Phase II Subcommittee discussed
the appropriate role of the public in
successful implementation of a
municipal storm water program. The
Subcommittee generally agreed that a
successful municipal storm water
program requires an educated and
actively involved public. Although
efforts to educate and involve the public
consume limited staff and financial
resources, the benefits are numerous.
An educated public increases program
compliance from residents and
businesses as they realize their
individual and collective responsibility
for protecting water resources. For
instance, an educated and motivated
public could reduce pollutant loadings
by limiting the use of garden chemicals.
Moreover, an educated public is more
likely to understand the environmental
benefits of a municipal storm water
program and, therefore, may be more
willing to fund such a program. 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 decisionmaking
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. 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 may undertake several roles in
the municipal storm water program to
help ensure a beneficial and workable
program for all involved. The public is
encouraged to contact the NPDES
permitting authority or local municipal
separate storm sewer operator for
information on the municipal storm
water program and ways to participate.
Such information may also be available
from local environmental or other
public advocacy groups.
EPA is inviting comment regarding
the appropriate role of the public in a
municipal storm water program, and the
best approach that EPA can take in the
final regulation to provide appropriate
recognition of this role and
involvement. The advantages of active
public involvement include reduced
pollutant loadings,' increased program
support, and vigilant protection of
waterbodies. Some examples of such
involvement follow. First of all, the
public may be subject to local storm
water program requirements, guidelines,
and financial costs. For example, the
public could be subject to a local
ordinance that prohibits dumping used
oil down storm sewers. In addition,
members of the public might choose to
participate as actively involved partners
in program planning, development, and
implementation (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, report suspected
violators to the municipal, State, or
Tribal authorities), aid in the
development and distribution of
educational materials, and provide
public training activities. In addition,
the public could protect waterbodies 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. In such
situations, members of the public would
be strongly encouraged, however, to
resolve any disagreements or concerns
directly with the parties involved, either
informally or through any available
alternative dispute resolution process.
The public could 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 would be encouraged to
consider the set of designation criteria
developed for the evaluation of the
small municipal separate storm sewer
systems 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. The NPDES permitting
authority must make a final
determination within 180 days of
receiving a petition.
Public involvement and participation
pose challenges, however. 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
decisionmaking process. Nevertheless,
EPA believes the public is vital to the
long-term success of the municipal
storm water program and strongly
encourages public involvement and
participation.
In response to comments from the
' Storm Water Phase IIFACA
Subcommittee, EPA believes it is
important for the public to seek
administrative remedies before filing
civil suit under section 505 of the CWA.
EPA also received comments stressing
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, as a
federal agency it cannot take a position
on the appropriate mechanism or level
for such funding.
L. Water Quality Issues
The CWA combines a technology-
based approach with a water quality-
based approach to "restore and maintain
the chemical, physical, and biological
integrity of the Nation's waters . ..."
EPA and most States issue NPDES
permits to point source discharges of
pollutants to meet the technology-based
and water quality-based requirements of
the act. Technology-based requirements
are the minimum level of control and
are generally applicable nationwide:
When the technology-based controls are
not sufficient for the waterbody to
support the water quality standards that
States or Tribes adopted for their waters,
the CWA requires development of more
stringent permit limits and control
programs to ensure compliance with
water quality standards.
1. Water Quality Standards
Water quality standards are the
cornerstone of a State's or Tribe's water
quality management program. States
and Tribes adopt water quality
standards for waters within their
jurisdictions. Water quality standards
define a use for a waterbody and
describe the specific water quality
criteria to achieve that use. Examples of
designated uses are recreation and
protection of aquatic life. Water quality
criteria can include chemical, physical,
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1595
or biological parameters, expressed as
either numeric limits or narrative
statements. The water quality standards
also contain antidegradation policies to
protect existing uses and high quality
water. The antidegradation policy
ensures that water quality
improvements are conserved,
maintained, and protected. States and
Tribes review their water quality
standards every 3 years and, if
appropriate, revise them. Water quality
standards provide the goals for the
waterbody, serve as the regulatory basis
of water quality management programs,
and are benchmarks by which success is
ultimately gauged for a given waterbody
or watershed.
EPA recognizes that urban runoff is
not the only contributor of pollutants
and other stressors to urban waterways.
Controls on urban runoff, however,
represent an opportunity to prevent or
capture a significant portion of the
pollutants that are causing or
contributing to violations of water
quality standards, including impairment
of designated uses. Storm Water Phase
IIFACA Subcommittee municipal
representatives expressed concern that
municipalities not be liable for loadings
attributable to other sources. Today's
proposal contains provisions that
establish a BMP-based program with •
'measurable goals that must meet the
standard of MEP and protect water
quality. In the first two to three rounds
of storm water permits, EPA envisions
that this would be the extent of the
municipal requirements for a large
majority of regulated entities. If
additional specific measures to protect
water quality were imposed, they would
likely be the result of an assessment
based on TMDLs, or the equivalent of
TMDLs, where the proper allocations
would be made to all contributing
sources. EPA believes that the
municipality's additional requirements,
if any, should be guided by its equitable
share based on a variety of
considerations, such as cost -,
effectiveness, proportionate
contribution of pollutants, and ability to
reasonably assume wasteload
reductions.
a. Permitting Policy
As a result .of today's proposed
regulation, NPDES general permits that
would be issued to owners or operators
of regulated small municipal separate
storm sewer systems, as well as storm
water discharges associated with other
activity, will be the primary mechanism
used to implement these requirements.
As is the case in the issuance of any
NPDES permit, the permitting authority
•would use its.NPDES program
requirements, including 40 CFR 122.44
in establishing appropriate permit
terms. EPA intends to issue NPDES
permits consistent with the August 1,
1996, Interim Permitting Approach
guidance (61 FR 43761, November 6,
1996.) This guidance describes the
interim permitting approach as follows:
In response to recent questions regarding
the type of water quality-based effluent
limitations that are most appropriate for
National Pollutant Discharge Elimination
System (NPDES) storm water permits, the
Environmental Protection Agency (EPA) is
adopting an interim permitting approach for
regulating wet weather storm water .
discharges. Due to the nature of storm wate
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 t
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.
EPA would encourage authorized States
and Tribes to adopt policies similar to
the Interim Permitting Approach when
developing its storm water program. For
a discussion of appropriate monitoring
activities, see Section II.L.4. below.
2. Total Maximum Daily Loads
A TMDL analysis includes the
determination of the relative ,
contributions of pollutants from point,
nonpoint, and natural background
sources, including a margin of safety of
pollutants that can be discharged to a
water quality-limited waterbody to meet
water quality standards. More
specifically, an allowable TMDL is
defined as the sum of the individual
wasteload allocations for existing and
future point sources (including storm
water) and load allocations for existing
and future nonpoint sources (including
diffuse runoff and agricultural storm
water) and natural background materials
with a margin of safety incorporated to
account for uncertainty in the analysis.
TMDLs are required in the CWA section
303 (d) (1) for waters that will not
achieve water quality standards after
implementation of technology-based
controls. These provisions have been
codified in 40 CFR 130.7.
The Part 130 regulations were
designed to implement CWA sections
106, 205 (g), 205Q), 208, 303, and 305,
which address ambient water quality
monitoring and planning for
implementation, including funding and
periodic reporting of ambient water
quality for the development of a
national inventory. Section 130.5
describes a continuing water quality
planning process designed to implement
CWA section 303 (e). Of particular
significance,for an alternative State
storm water management program
described above are the provisions of
§ 130:6, which describes water quality
management planning under sections
208 and 303. The water quality
management regulations specify some of
the elements of water quality
management, including provisions for
point and nonpoint source management
and control. The nonpoint source
management elements include, for
example, regulatory and nonregulatory
programs, activities, and BMPs for a
variety of sources, including urban
storm water (see 40 CFR
130.6(c)(4)(iii)(G)). State representatives
have suggested that requirements for
State storm water management under
section 402 (p) (6) could derive from, and
be developed through, these water
quality management provisions of Part
130. EPA is not proposing any
amendments to the Part 130 regulations
at this time, but is inviting comment on
how the existing Part 130 regulations
could be used to support the proposed
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
State alternative program described in
this proposal.
TMDL analyses include estimates of
loadings from storm water discharges.
Load reductions obtained through the
implementation of BMPs required in the
NPDES program for storm water should
be reflected in the TMDL analysis.
Through the TMDL analysis, the relative
contribution of storm water discharges
within a watershed will be determined.
EPA has formed a Federal Advisory
Committee to provide advice to EPA on
identifying water quality-limited
waterbodies, establishing TMDLs for
them as appropriate, and developing
appropriate watershed protection
programs for these impaired waters in
accordance with section 303 (d). The
committee operates under the auspices
of the National Advisory Council for
Environmental Policy and Technology
(NACEPT).
3. Anti-Backsliding
In general, the term "anti-
backsliding" refers to statutory and
regulatory provisions at CWA sections
303(d)(4) and 402(o) and 40 CFR
122.44(1) that prohibit the renewal,
reissuance, or modification of an
existing NPDES permit to contain
effluent limits, permit terms, limitations
and conditions, or standards that are
less stringent than those established in
the previous permit. There are,
however, exceptions to this prohibition
(known as "antibacksliding
exceptions"), which are also presented
in sections 303 (d) (4), 402 (o) and 40 CFR
122,440).
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 antibacksliding
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.
4. Monitoring
EPA encourages States to provide a
multiyear monitoring strategy in their
CWA section 106 grant application to
provide the framework for State/EPA
agreement on the States' annual work
plans. The strategy should include both
ambient and program-specific
monitoring activities for nonpoint
sources, lakes, estuaries, wetlands, and
wet weather surveys. States should also
include monitoring for NPDES, TMDL,
and section 305 (b) activities. Finally,
the State should describe how these
activities were integrated to provide all
information necessary to support the
State water quality management
programs. Specific elements
recommended for State monitoring
program work plans include
identification of indicators to be used to
measure progress toward goals and
reference conditions for baselines;
identification of methods used;
identification of water quality problems;
sampling and laboratory analytical
support with a field manual and quality
assurance/quality control (QA/QC)
plans; provisions for data storage,
management, and sharing; training and
support for all involyed persons,
including volunteer reporting through
the section 305 (b) process; and annual
program evaluation.
As part of EPA's efforts to further
implementation of urban wet weather
programs using a watershed approach,
the Agency is working to develop a
practical approach to monitoring that
would provide meaningful results.
Under today's approach, assessment,
evaluation, and recordkeeping
requirements beyond those required by
the NPDES regulations would be left to
the discretion of the NPDES permitting
authority. The NPDES permitting
authority (EPA or the authorized State
or Tribe) would determine monitoring
requirements in accordance with State
or Tribe monitoring plans appropriate to
the watershed. For purposes of today's
proposal, EPA recommends that, in
general, small municipalities not be
required to conduct in the first permit
term any additional monitoring beyond
any they may be already performing. In
the second and subsequent permit
terms, EPA expects that some limited
ambient monitoring might be
appropriately required for perhaps half
of the regulated small municipal
separate storm sewer systems. However,
EPA encourages participation in
monitoring programs appropriate to
watershed protection. The permitting
authority may wish to consult the
recommendations made in the report
prepared by the Intergovernmental Task
Force on Monitoring Water Qualify
(ITFM). For further discussion regarding
monitoring activities and the ITFM
report, see Section II.H.3.C, Evaluation
and Assessment.
EPA and the FACA Committee have
developed a paper entitled "Watershed
Assessment:A Critical Tool for
Stakeholders" (November 7, 1997)
which is intended to supplement a draft
watershed-based policy statement
entitled "A Watershed Alternative. "The
policy approach described in the
Watershed Alternative would promote a
watershed-based assessment as an
essential element of watershed-based
programs for protecting water quality.
The Watershed Assessment paper
amplifies this element, describing
varying levels of resources and
stakeholder needs for developing
watershed assessment plans. It also
acknowledges the importance of
designing each assessment plan to
address specific stakeholder interests.
The paper states that each plan should
include unique assessment goals and
objectives, selected baseline, sampling
methods, procedures for analysis, record
keeping and reporting, and schedules
for periodic evaluation. Additionally,
the paper sets out the various roles and
responsibilities of stakeholders. Also, it
contains an expansive bibliography that
gives resource managers suggested
references to aid them in carrying out
each stage of the watershed assessment
plan.
III. Paperwork Reduction Act
The information collection
requirements in this proposed rule have
been submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act, 44 U.S.C. 3501 erseg. EPA
prepared an Information Collection
Request (ICR) document (ICR
No. 1820.01), a copy of which may be
obtained from Sandy Farmer, OPPE
Regulatory Information Division; U.S.
Environmental Protection Agency
(2137); 401 M Street, S.W.; Washington,
D.C. 20460, or by calling (202) 260-
2740.
Information collection requirements
under this proposed rule would include
requirements to submit an NPDES
permit application or notice for
coverage under an NPDES general
permit, as well as to comply with
applicable recordkeeping and reporting
requirements. Under the proposed rule,
certain construction sites under 5 acres
and small regulated municipal separate
storm sewer systems would be required
to retain records of data used to
complete their NPDES permit
applications or NOIs. In addition, small
regulated municipal separate storm
sewer systems would be required to
submit annual reports in the first permit
term and reports in years 2 and 4 in
subsequent permit terms.
Under the proposed rule, the owners
or operators of regulated small
municipal separate storm sewer systems
would be required to submit reports
containing information which the
permitting authority could use to assess
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1597
the effectiveness of individual storm
water programs. This information could
be further used at the time of permit
' renewal to ensure that appropriate
measures would be taken by the owner
or operator'to revise its storm water
program as needed. Information that
might be contained in the reports
includes monitoring data, and a self-
, assessment of progress, to ward pollutant
reduction or programmatic goals which
were established as permit conditions.
Compliance with the applicable.
information collection requirements
imposed under this proposed rule
would be mandatory, pursuant to
section 402. x
.. Exhibit 3 presents annual arid average
total burden and cost estimates for
Phase II respondents (for 3 years under
the Paperwork Reduction Act). Burden •
means the total time, effort, or financial
resources expended by persons to
generate, maintain, retain, or 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 3.—ANNUAL AND AVERAGE ANNUAL TOTAL BURDEN ESTIMATES FOR PHASE II RESPONDENTS
" [For 3 years under the Paperwork Reduction Act] <•
Activity
1. Construction Sources:
Notice of Intent '.
Development of SWPPPs
Individual Application '. :
Recordkeeping '. .
Notice of Termination ,
Annual Subtotal !.....
II. Small Regulated Municipalities: . - .
Notice of Intent
Individual Application :.......,
Co-Applicant Application
Retention of Records ;
Annual Report Preparation and Submittal
Year 1 Subtotal •. .' •
Years 2 and 3 Annual Subtotal (i.e., not including applications)2 ....
Average Annual Burden and Cost3 ...'.
Average Annual Program Total4
Projected
respondents
per year
95 889
95 889
0
95889
95,889
4 154
0
0
4,154
4,154
.-..
Estimated
burden hours
per
respondent
1 0
14 6
91
0 1
05
40
882
146
1
21
Projected an-
nual burden
(Hrs)1
95 889
1 399 979
0
9589
47 945
' 1 ,554,361
166 160
0
0
4154
87234
257 548
91 388
146775
1,701,135
Projected an-
nual cost ($)1
$2 876 670
47 33 -j 3Q3
0
'211 243
765 674
51,214,890
4 341 761
0
0
108544
2 279 424
6 729 729
2 387 968
3 835 222
55,050,112
1 Totals may not add because of rounding.
2Retention of Records (4,154) + Annual Report Preparation and.Submittal (87,234) = Years 2 and 3 Annual Subtotal (91,388).
3 Average annual cost for the municipal component of the program is calculated by taking the year 1 subtotal (i.e., applications plus retention of
records and annual report preparation and submittal; $6,729,729) plus the average total for each of the years 2 and 3 (recordkeeping plus an-
nual report preparation and submittal, i.e., 2 x $2,387,968), which equals $11,505,665. This is divided by 3 (the number of years the ICR is valid)
to equal $3,835,222.
4 Burden total calculated as the sum of the construction source annual subtotal plus the municipal average annual burden^ Cost total calculated
as the sum of the construction source annual subtotal and the municipal average annual cost. •
Given the requirements of today's
proposed regulation, there would be no
capital and no operations and ,
maintenance costs associated with
information collection requirements of
the rule. Similarly, there would be no
capital/startup or operating and
maintenance costs associated with the
information collection requirements of
the rule.
The government burden associated
with the proposed extension of the
existing storm water program would
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 acting as the NPDES permitting
authority in States, Tribes, and
Territories that are not authorized to
administer the NPDES program. As of
May 1997, 42 States and the Virgin
Islands had NPDES authority. EPA
estimates that 96,962 construction starts
and 3,749 small municipal separate
storm sewer systems would be regulated
within authorized governmental
entities. EPA'estimates that 18,815
construction starts and 405 small ••
municipal separate storm sewer systems
would be regulated in non-authorized
States, Tribes, and Territories.
The estimated burden that would be
imposed upon authorized governmental
entities and the Federal government is
estimated to be 241,282 hours for
authorized States and 38,933 for the
Federal government, for a total of
280,215. This estimate is based on the
average time that governments would
expend to carry out the following
activities; review, respond to, and enter
a construction NOI into a data base (1
hour); review and enter a Notice of
Termination (NOT) into a data base (0.5
hours); process permit applications from
owners or operators of regulated small
municipal separate storm sewer systems
using the NOI (4 hours); issue permits
to regulated small municipal separate
storm sewer systems (160 hours); and
review annual reports submitted by
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
regulated small municipal separate
storm sewer systems (30 hours).
Today's proposed rule also would
include a conditional exemption from
the existing storm water permit
application requirements for industrial
facilities that can certify that their
industrial materials or activities have no
exposure to storm water. This
exemption would be conditioned upon
the owner or operator certifying that
their facility meets the no exposure
requirements. Because the information
collection burden associated with this
certification, as well as the reduced
information collection requirements
associated with becoming exempt from
the existing storm water permit
regulations, are being developed at this
time but are most appropriately
considered as part of the existing storm
water regulations, the incremental
change in information collection burden •
associated with the no exposure
requirements has been estimated in a
separate section of the economic
analysis accompanying today's
proposed storm water rule.
The proposed no exposure provision
would expand the applicability of the
"no exposure" exemption to more
industrial entities than currently
contemplated. Under the existing rule,
permit application requirements are
reserved for storm water discharges
associated with light industrial
materials and activities identified under
§ 122.26(b)(14)(xi) if those materials and
activities have no exposure to storm
water. Today's proposed rule would
expand the applicability of the "no
exposure" exemption to include all
industrial activity regulated under
§ 122.26(b)(I4) (except category (x),
construction). The proposed no
exposure provision would be applied
through the use of a written certification
process, thus representing a slight
burden increase for "light" industries
with no exposure. There would be both
new costs and cost savings. The new
costs would relate to the certification
requirement and State and Federal
implementation costs. The new cost
savings would be based on relief from
all existing compliance requirements for
those industrial facilities that qualify.
The net impact of the proposed no
exposure provision for regulated
industrial facilities would be an annual
net savings ranging from $89 million to
$2,499 million. The total cost to Federal
and State governments would range
from $0.6 to $1.1 million annually.
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.
Comments are requested on the
Agency's need for this information, the
accuracy of the provided burden
estimates, and any suggested methods
for minimizing respondent burden,
including the use of automated
collection techniques. Comments are
specifically requested on the potential
to shorten the recordkeeping period for
construction activity less than 5 acres to
less than the proposed 3 years. Send
comments on the ICR to "ATTN: Storm
Water Proposed Rule ICR Comment
Clerk—W-97-15, Water Docket, Mail
Code 4101, EPA; 401 M Street, SW,
Washington, D.C. 20460" and to the
Office of Information and Regulatory
Affairs, Office of Management and
Budget, 725 17th Street, NW,
Washington, D.C. 20503, marked
"Attention: Desk Officer for EPA."
Include the ICR number in any
correspondence. Because OMB is
required to make a decision concerning
the ICR between 30 and 60 days after
January 9, 1998, a comment to OMB is
best assured of having its full effect if
OMB receives it by February 9, 1998.
The final rule will respond to any OMB
or public comments on the information .
collection requirements contained in
this proposal.
IV. Executive Order 12866
Under Executive Order 12866 of
September 30, 1993: Regulatory
Planning and Review, (5 8 FR 51735,
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" because it could have an annual
effect on the economy of $100 million
. or more. 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.
EPA developed detailed cost
estimates for the incremental
requirements imposed under today's
proposed regulation and the regulatory
options considered and applied these
estimates to the potentially regulated
universe of storm water sources
designated under today's proposal.
These estimates, including descriptions
of the methodology and assumptions
used, are described in detail in the
Economic Analysis of the Storm Water
Phase II Proposed Rule, which is
included in the record of this
rulemaking. Exhibit 4 summarizes the
low-high cost range associated with the
basic elements of the proposed rule.
EXHIBIT 4.—COMPARISON OF ANNUAL COMPLIANCE COST ESTIMATES
[Millions of 1997 Dollars]
Construction
Municipal
Industrial
Total Cost
No regula-
tion of
phase II
sources N
$0
0
0
0
August 7, 1 995,
final rule
$278-$976
701-3 085
1 218-74 824
2 197-78 885
Plan B
$261 $914
388—2 236
0
649-3 1 50
September 30,
1996 draft pro-
posed rule
"R177 "RRR^
23—393
• 4fi— ? R^P
246—3 708
February 1 3,
1997 draft pro-
posed rule
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1599
In interpreting these costs, a number
of caveats should be born in mind. The
primary component of the municipal
costs is the implementation of the six
minimum measures. These were
estimated from a sample of 21 permit
applications for Phase I municipalities.
Cost categories from these applications
corresponding to the six required Phase
II minimum measures were identified
and used to calculate, for each measure,
the percent of municipalities that would
incur costs for that measure, and for •
those that would, a range of per capita
costs. Municipalities that did not show
. costs for a particular measure on their
permit application were assumed to
already have programs in place to
comply with that measure, and thus
incur no additional costs. Also, per
capita costs that were more than two
standard deviations above or one
standard deviation below the mean were
dropped because they were not
representative of most cities. This
evaluation was done separately for the
first permit cycle and the second and
third permit cycles. In'estimating the
costs for the second and third permit
cycles, cost elements were dropped that
would be expected to occur only once,
such as development of municipal
ordinances, or assessment of
appropriate O&M requirements for
municipal operations. The first, second,
and third permit cycle costs were then
combined to get an average annual cost
over the first 15 years of the program.
The estimated percentages of affected
municipalities and the range of per
capita costs for each of the six minimum
measures are presented in Exhibit 5.
EXHIBIT 5.—PERCENTAGE OF MUNICIPALITIES AFFECTED AND RANGE OF PER CAPITA COSTS FOR Six MINIMUM
MEASURES
Measure
First Permit Cycle:
Public Education '.
Public Involvement '. :
Illicit Discharge D&E ..
Const Site SW Runoff Control ;....... :
Post Construction SW Mgt ..-. '.
PP/GH of Municipal Ops ...:
2nd and 3rd Permit Cycles: '
Public Education -.
Public Involvement ; .V
Illicit Discharge D&E
Const Site SW Runoff Control . .. .
Post Construction SW Mgt i
PP/GH of Municipal Ops t
Percent of
municipali-
ties ex-
pected to
incur costs
(percent)
39
100
90
83
, 4
71
39
100
•73
80
4
67
Low. end of
range of per
, capita costs
- $002,
0 19'
004
004
1-09
001
001
012
004
001
' 1 09
001
High end of
range of per
capita costs
'$0 34
020
261
1 59
1 09
2.00
034
0 12
2 17
083
1 09
1 08
Concerns have been raised that using
data from Phase I permit applications to
calculate Phase II costs may lead to
either an understatement or
overstatement of these costs.' Since
Phase II communities are smaller and
less densely populated, they will
probably have fewer structures to
maintain, systems to map, and
connections to inspect for illicit
discharges than Phase I municipalities,
although whether this is also true on a
per capita basis is not clear. They may
also be able to coordinate with nearby
Phase I programs for some measures,
such as public education. However, to
the extent that there are significant fixed
costs and economies of scale associated
with implementation of the measures,
the per capita costs for Phase II
municipalities may be higher than those
for Phase I municipalities. Also, it is not
clear whether the costs listed on permit
applications represent the entire
compliance costs for the Phase I
municipalities sampled. EPA requests
comment on its methodology of using .
estimated costs from Phase I permit
applications to project per capita costs
for Phase II municipalities. EPA
especially requests any data that might
provide a better indication of actual
compliance costs for these types of
measures for smaller municipalities.
EPA also requests comment on its
projection that compliance costs will be
lower in the 2nd and 3rd permit cycles.
This projection is based on the fact that
some program elements, such as
development of municipal ordinances
and identification of illicit connections,
will only have to be done once, in the
first permit cycle. However, concern has
been raised that there may be
counteracting tendencies for subsequent
permit cycle costs to be higher, such as •
population growth and more areas being
classified as urbanized areas.
Concern has also, been expressed that
,it may not be appropriate to apply the
percentages of Phase I municipalities
that apparently incurred costs for
implementation of each measure to the
estimation of Phase II costs. Because
Phase II municipalities are smaller, they
may be less likely than Phase I
municipalities to already have adequate
storm water programs in place and thus
be more likely to incur additional costs
as a result of this rule. As a sensitivity
analysis, EPA has estimated the
municipal costs under the assumption
that 100 percent of covered Phase n
municipalities would incur costs for /
each measure. Under this assumption
the municipal costs for the first permit
cycle would range from $110 million to
$ 690 million with a mean of $ 238
million; second and third permit cycles
would range from $98 million to $494
million with a mean of $209 million.
EPA requests comment on its.
projections of the percentage of Phase II
municipalities expected to inpur costs
for each measure, and any data that
might help refine these estimates for the
final rule. ' •
To estimate costs to owner/operators
of small construction sites, EPA first
gathered national data on building
permits issued over 15 years. Over the
period from 1980 to 1994, there was a
1.3 percent average annual increase, in
the number of building permits issued.
This growth rate was used to project
total building starts through the year
2015. To estimate what percentage of
these starts would be between 1 and 5
acres, EPA used more detailed data from
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
Prince George's County, Maryland to
determine for each category of building
permit (residential, commercial, etc.)
what percentage was between 1 and 5
acres and applied these percentages to
the national totals. Of the projected
645,709 building sites for the year 2000,
EPA estimated that 22 percent, or
140,485 would be between 1 and 5
acres, based on the Prince George's
County (PGC) data. EPA recognizes that
PGC may not be representative of the
entire country and requests any data
that commenters may have that might be
used to develop a better estimate of the
number of construction sites between 1
and 5 acres.
EPA next estimated the number of
sites located in States that already
require permits for sites between 1 and
5 acres, and removed these from its cost
calculations because sites in these States
would not be expected to incur
additional costs, beyond those already
involved in State permitting. This
removed 19 percent of the estimated
sites between 1 and 5 acres, leaving a
projected 111,357 sites in the year 2000
that would be expected to incur
incremental costs as a result of this rule.
Finally, EPA estimated the percentage of
these sites that are already subject to
local sediment and erosion control
(SEC) requirements. Based on a survey
of 113 localities, EPA estimated that 37
percent of sites between 1 and 5 acres,
or 41,202 in the year 2000, would
already be subject to local controls and
would thus not incur incremental costs
to implement SEC measures. EPA
estimates that these sites would incur
costs for the preparation of Notices of
Intent, Notices of Termination, and
Storm Water Pollution Prevention Plans
only, while the remaining 70,155 sites
would incur costs for implementation of
SEC controls as well. EPA notes that
sites in coastal areas subject to the
Coastal Zone Act Reauthorization
Amendments of 1990 (CZARA) would
be required to implement sediment and
erosion controls even without the
proposed rule. SEC costs for sites in
those areas should thus not be
considered incremental costs of this
rule. However, because EPA is not sure
how much overlap exists between
coastal zone areas, States that already
have permitting programs for small
construction sites, and localities that
already have SEC requirements, EPA
did not remove additional sites from the
rule costs specifically because-they were
located in areas subject to CZARA (note,
for example, that most State permitting
programs are in such areas). EPA
requests comment on its procedure for
adjusting the number of sites subject to
incremental costs to account for
programs and requirements already in
place.
The proposed rule would allow the
NPDES permitting authority to waive
applicability of requirements to storm
water discharges from small
construction sites based on three
different criteria. In the economic
analysis the Agency has projected that
15 percent of the construction sites that
would be covered by today's proposal
would be eligible to receive such
waivers. Based on an informal survey of
individuals familiar with the
construction industry, EPA believes the
percentage of sites eligible for waivers
would probably fall between 5 and 25
percent. If the number of sites eligible
for waivers were 25 percent, rather than
the 15 percent used in the EA, projected
compliance costs for small construction
sites would be correspondingly lower.
Similarly, if only 5 percent of sites
turned out to be eligible for waivers,
compliance costs would be
correspondingly higher. The
construction cost analysis does not
include any costs for the preparation
and submission of waiver applications,
but the agency believes these costs will
be negligible. EPA solicits comments
and data on its assumptions regarding
construction waivers..
Because today's proposed rule
provides a significant degree of
flexibility to the NPDES permitting
authority and designated sources
proposed for regulation, the actual costs
of implementing today's proposed storm
water rule depend greatly on how the
NPDES permitting authority and
regulated sources implement the
program. To some extent, this flexibility
is reflected in the broad ranges of costs.
EPA believes that because of the
significant flexibility provided by the
proposed rule, the low to middle ranges
of costs are most representative of the
actual costs likely to be incurred..
Estimates of monetized benefits
associated with today's proposed
regulation were derived using an
aggregate, "top-down" approach. Under
this approach, the underlying data and
assumptions were geared to a national
scale (e.g., national value of the
commercial fishery and nationwide
beach visit data). EPA chose this
approach because research indicated
that, given the variability of local
situations and the scarcity of data on
both local conditions and on
extrapolation methods, a bottom-up
approach was not deemed to be feasible
at this time. Nevertheless, information
from more geographically confined
studies provided important data that
support such a monetized benefit
analysis. In addition, local and regional
experiences also verified some of the
impacts and benefits that EPA had
estimated at a national level.
The basic methodology for the top-
down approach was as follows. For each
of the various categories of financial,
recreational, and health benefits, EPA
first estimated the total value if all
surface waters of the United States were
cleaned up to a level that supported
their designated uses. Next, using
information on the degree and causes of
water quality impairment from EPA's
1994 and 1996 Section 305 (b) National
Water Quality Inventory Report to
Congress, EPA estimated the portion of
total impairment (and thus total
benefits) attributable to storm water
runoff. Although it varied by benefit
category, generally between 5 and 10
percent of total water quality
impairment was found to be attributable
to either urban or construction storm
water runoff. Finally, EPA determined
the share of storm water benefits that
should be attributed to the Phase II rule
specifically.
One consequence of the approach
used to estimate monetized benefits is
that, unlike the cost analysis, the
benefits analysis only provides
monetized estimates of the benefits
associated with today's proposed
regulatory alternative. To account for
the fact that any storm water control
may not be 100-percent effective, EPA
estimated the effectiveness of the storm
water BMPs proposed in today's rule
and applied these estimates to the total
monetized benefits of the proposal. Due
to the uncertainty regarding
effectiveness of different BMPs, as well •
as that regarding the appropriate share
of storm water benefits to allocate to
each of EPA's wet weather programs,
EPA developed three scenarios to
estimate proposal benefits. In Scenario 1
(high benefits scenario), it was assumed
that Phase II BMPs would be 90 percent
effective in controlling pollution from
storm water runoff, that 5h of health •
benefits should be allocated to storm
water programs (Phases I and II) and 2/7
should be allocated to EPA's sanitary
sewer overflow (SSO) program, and that
most municipal storm water benefits
should be allocated 50 percent to Phase
I and 50 percent to Phase II. The
exceptions were benefits for avoided
costs of building or replacing water
storage capacity, 75 percent of which
were to be allocated to Phase II, and
benefits for avoided costs of freshwater
navigational dredging, 25 percent of
which were allocated to Phase II. In
Scenario 2 (medium benefits scenario),
it was assumed that Phase II BMPs
would be 80 percent effective, that all
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1601
health benefits should be allocated to
storm water programs, and again, that
most municipal storm water benefits
should be allocated evenly between
Phases I and II, with the'saute two
exceptions. In Scenario 3 (low benefits
scenario), it was assumed that Phase E
BMPs would be only 60 percent
effective, that all health benefits should
be allocated to storm water programs, ,
and that all municipal storm water
benefits, including those for avoided
costs of building or replacing water
storage capacity and freshwater
navigational dredging, should be
allocated evenly between Phases I and
II. In Scenario 1, all water storage
replacement and navigational dredging
costs were allocated to storm water
programs (Phases I and fl), while in
Scenarios 2 and 3, 96 percent of these
benefits were allocated to storm Water
programs and 4 percent to other wet
weather programs. In all three scenarios,
40 percent of storm water construction
benefits were allocated to Phase II. The
Economic Analysis document
accompanying today's action provides a
detailed description of the basis
rationale for each of these scenarios.
Exhibit 6 summarizes annual benefits
attributed to the proposed Phase II rule.
> EXHIBIT 6.—SUMMARY OF TOTAL ANNUAL MONETIZED BENEFITS FROM IMPLEMENTATION OF THE PROPOSED STORM
• WATER RULE .
[Millions of 1997 Dollars]
Benefits category
Municipal Benefits
Construction Benefits .
Total ; .".
Scenario 1
annual
value
$114-$379
61-1 9£j
175-574
Scenario 2
, annual
value
$100-$333
53-169
153-502
Scenario 3 •
annual
value
$66-$222
40-127
106-349
EPA was able to develop a partial
monetary estimate of expected benefits
for today's storm water proposed rule
for municipal and construction benefits.
Summing the, monetized benefits for
each of the scenarios across these
categories results in total benefits
ranging from approximately $106 .
million to $574 million (1997 $),
annually for the proposed rule.
EPA is requesting comment on several
aspects of its benefits estimation
methodology. The largest single
category of estimated benefits is avoided
costs of building or replacing water
storage capacity (reservoirs) lost to
sediment deposition. EPA estimates that
an average of 820,000 acre feet of storage
capacity is lost to pollution sources each
year. EPA further estimates that Vb of
this capacity will be replaced by
building new reservoirs, at a cost of
$420 to $1500 per acre foot, and % of
this capacity will be restored by
dredging, at a cost of roughly $3,500 to
$ 11,000 per acre foot. This yields
annual water storage replacement cos&
of $2 to $6 billion annually. 'EPA
estimates that roughly 8 percent of these
costs (or $ 170 to $ 510 million) are
attributable to storm water runoff. EPA
allocated 75 percent of the benefits from
avoiding these costs in Scenarios 1 and
2 to Phase II, because it believes that
most reservoirs are likely to be outside
of densely populated Phase I areas. In
Scenario 3, these benefits are allocated
evenly between Phases I and II. Concern
has been expressed that these benefits
estimates may be too high, especially
given that the total amount actually
spent on navigational dredging
attributable to pollution sources
annually is only $180 million (to
remove 83 million cubic yards),
compared to the $2 to- $6 billion that
EPA estimates would be required to
replace the estimated 1.3 billion cubic
yards of water storage capacity lost to .
pollution sources annually. On the other
hand, the temporary nature and
intermittent frequency of reservoir
dredging and the frequent need to
deploy and remove heavy equipment
and dispose of spoil often in confined
areas, may elevate costs on a per cubic
yard basis for reservoirs versus
navigational dredging. EPA has no data
on the actual amount s'pent on water
storage capacity replacement. EPA thus .
requests comment on its methodology
for.estimating these avoided costs, on its
allocation of these avoided costs
between Phases I and II, and any data
that would, allow it to refine these
estimates for the final rule. EPA also
requests comment on whether it would
be appropriate to discount these
benefits, and by how much, given that
much of the actual replacement of lost
storage capacity may not occur for
several decades. EPA further notes that
many other.categories of benefits may
also entail significant lags and requests
comment on the appropriateness of
discounting benefits to account for these
lags generally. '
EPA is also requesting comment on its .
methodology for estimating marine
recreational and commercial benefits for
fishing and swimming. Specifically, the
current estimates are based on the
degree of estuarine impairment
attributable to storm water, although
EPA recognizes that a significant share
of marine fishing and swimming occurs
• in open coastal waters rather than
estuaries. EPA has assumed that full
restoration of these resources would
result in a 20 percent increase in their
value, based roughly on the degree of
estuarine impairment. A concern has
been raised that the degree of
impairment in open coastal waters may
be significantly different than that of
estuaries, and the value of full
restoration of open coastal resources
correspondingly changed. Concern has
also been raised that the current
estimates do not account for the
substitutability of resources, but rather
assume that the total amount of current
marine fishing and swimming is limited
by the availability of unimpaired
estuarine and coastal areas. EPA
requests comment on its methodology
for estimating these, benefits,, and any
data, especially on the degree of
impairment of open coastal waters or
the fraction of marine fishing and
swimming that occurs in such waters,
that would allow it to refine these '
estimates for the final rule.
As a sensitivity analysis, EPA also
performed an alternative benefits
estimate using a different "bottoms-up"
approach based on its Clean Water Act
Effects Model. The modeling approach
examined impacts of all wet weather
events together: SSOs, CSOs (Combined
Sewer Overflows) and storm water
Phase I and II. This would provide an
upper bound estimates for storm water
control. (For this analysis, it was
possible to break out CSOs as separate
data exists for these events.)
Changes in water quality relate to
changes in how humans use the
resource. This analysis estimated
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Federal Register / Vol. 63, No. 6 / Friday/January 9, 1998 / Proposed Rules
changes to water quality based on
assumptions about the level of control
EPA would expect from the CWA's wet
weather programs. Next, the Agency
estimated the changes in human use and
enjoyment of the resource. The Agency
applied "willingness-to-pay (WTP)"
values from Mitchell/Carson (1993)
contingent valuation survey results,
which estimates the amount of money
people are willing to pay for water
quality improvement. (Mitchell/Carson
estimates include values for recreation
use as well as nonuse values.)
The model examined three different
wet-weather programs under three
loadings reduction scenarios based on
differences in such factors as average
annual rainfall in different hydrologic
regions and changes in removals. For
each of these scenarios EPA further
estimated low, medium and high values
to account for wide ranges in variability.
The following discussion of results is
based on medium values in these three
scenarios.
The results of this analysis show a
range of monetized benefit of $1 to $7
billion for all urban wet weather
programs. The results of the modeling
did not split out storm water impacts
from SSO impacts. Applying the
percentages used in the top down
approach (sfy storm water, 2/V SSO), EPA
derived an estimate for storm water
Phase II. Using the medium results,
averaged between the low and the high
estimates, benefit estimates for the
proposed rule fall within a range of
S526 million to $3.56 billion. The wide
range of these estimates is due to the
very flexible nature of the proposal,
which would provide communities with
a wide range of options to consider for
control of storm water.
There are additional benefits to storm
water control that cannot be quantified
or monetized. The estimate of
monetized benefits presented here may
thus understate the true value of storm
water controls because it may omit
additional numerous mechanisms 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, option
existence values, cultural values, and
biodiversity benefits. The estimates of
freshwater recreational benefits
included in the monetized benefits
analysis are based on the Mitchell/
Carson "willingness-to-pay" study.
Mitchell/Carson estimates the value
people are willing to pay to restore all
of the nation's waters to fishable/
swimmable quality, and thus
presumably already includes associated
"non-use" values. However, EPA
believes there are non-use values that
are not captured in the Mitchell/Carson
estimates and thus .not included in the
monetized benefits estimates.
These environmental and health
benefits are also' important. Another
benefit that EPA did not specifically
monetize is the benefits of flood control
to the extent that Phase II storm water
controls reduce downstream flooding. In
addition, the Agency relied on a
geographically-limited data set (Santa
Monica Bay, California) to measure the
benefits of illness avoided due to storm
water controls.
A significant category of benefits that
the Agency could not specifically
monetize is ecological benefits.
Urbanization can adversely affect water
quality by increasing the amount of
sediment, nutrients, metals and other
pollutants associated with land
disturbance and development. No.t only
is there a dramatic increase in the
volume of water runoff but there may
also be a substantial decrease in that
water's quality due to stream scour,
runoff and dispersion of toxic
pollutants, and oversiltation. The higher
flow volumes in the tributary streams
and channels create a "domino" effect
of ecological impacts. Erosion of stream
banks and incision of the stream floor
result in sediment movement and
eventually buildup in downstream
environments. Sediment covers the
stream bed, smothers fish eggs and
spawning grounds, interferes with
hatching, and can clog the gills and
filter systems of fish and aquatic
invertebrates. This latter effect can
result in retarded growth, systemic
disfunction, or asphyxiation.
Subsequent loss of aquatic life has a
ripple effect up the food chain.
High nutrient levels often lead to
eutrophication of the aquatic system.
This entails the blue/green surface algae
bloom, water discoloration, and
depressed levels of dissolved oxygen.
Heavy metals can have toxic effects on
aquatic life. Heavy metals in the water
column and sediments have been
connected with respiratory problems in
fish and often destroy or infect the
insect populations which serve as the
primary food source for many fish
species. High bacteria levels from
animal excrement and carcasses, septic
runoff or illegal dumping by motor
homes and others affect critical
estuarine habitats which are the nation's
most productive finfish, oyster, clam
and shrimp fisheries. EPA requests
comment on the extent to which
additional consideration of these
ecological benefits is needed and
appropriate methodologies for
quantifying and monetizing them.
Exhibit 7 compares the estimated
national annual monetized total benefits
associated with the proposed storm
water regulations with the monetized
costs associated with the proposed
regulation. Because EPA is uncertain of
the exact monetized benefit, the benefits
for each scenario have been compared to
costs. The net total benefits (social
benefits less social costs) for the three
benefits scenarios range from positive
$34 million in Scenario 1 to negative
$531 million in Scenario 3.
EXHIBIT 7.—COMPARISON OF TOTAL ANNUAL MONETIZED BENEFITS TO TOTAL ANNUAL COSTS FOR THE PROPOSED
PHASE I! STORM WATER RULE
[Millions of 1997 Dollars]
Benefit categories
Financial Benefits
Recreational Benefits . "
Health Benefits
Cost categories
Compliance Costs
Administration Costs
Total Monetized Costs
Net Monetized Benefits
Scenario 1 value
$93-$267
$81 -$304
$1-$3
$175-$574
Value
$34-$(306)
Scenario 2 value
$80-$228
$72-$271
$1-$3
$153-$502
(Low-High)
$138-$869
$3-$11
$141 -$880
$12-$(378)
Scenario 3 value
$51-$144
$54-$203
' $1-$2
$106-$349
$35-$(531)
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1GO3
The proposed storm water rule
includes a provision that would allow
owners or operators of facilities with
existing discharges associated with
industrial activity to certify that if
significant materials or industrial
activities are not exposed to storm water
the owners or operators Could apply for
an exemption from the requirements of
the NPDES permitting program. This
provision is included in today's
proposed storm water rule but would
only apply to sources regulated under
existing rules. Therefore, EPA has
decided not to factor the costs savings >
associated with this exemption into the
costs analysis for today's proposed rule.
Rather, the cost savings associated with
this exemption is addressed separately
in the Economic Analysis.
V. Unfunded Mandates Reform Act/
Executive Order 12875
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Pub= L.
104-4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, Tribal,
and local governments and the private
sector: Under UMRA section 202, 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, Tribal,
and local 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
written statement is needed, UMRA
section 205 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. Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect small
governments, including Tribal
governments, it must have developed
under UMRA section 203 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
proposed rule contains a Federal
mandate that may result in expenditures
of $100 million or more for State, Tribal,
and local governments, in the aggregate,
or the private sector in any 1 year.
Accordingly, under UMRA section 202,
EPA has prepared a written statement,
which is summarized below.
A. UMRA Section 202 Written
Statement
EPA proposes today's storm water
regulation pursuant to the specific
mandate of Clean Water Act § 402 (p) (6),
as well as sections 301, 308, 402, and '
501. (33 U.S.'C. §§ 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 a
separate document in the administrative
record, EPA describes the qualitative
and monetized benefits associated with
the proposed storm water rule and then
compares the monetized benefits with
the estimated costs for the proposed
rule. The Agency also developed a
partial monetary estimate of expected
benefits for the proposed rule for
financial .benefits, recreational benefits,
and health benefits. Summing the
monetized benefits, for each of the
scenarios, across these categories results
in total benefits ranging from
approximately $ 106 million to $574
million (1997 $) annually for the
proposed rule. Because EPA is uncertain
of the exact monetized benefit, three
benefit scenarios were created and
compared to costs for the proposed
regulation.
In that document, EPA reviewed the
potential for this proposed rule to have .
a significant effect on the economy or
upon unemployment and determined
that the unemployment impacts will be
minimal, if any at all.
First, the proposed rule does not '
address industries involved in
production, but rather small municipal
separate storm sewer systems and
construction sites under 5 acres.
Second, flexibility within the proposed
rule would allow municipalities to
tailor proposed individual municipal
storm water program requirements to
their needs and financial position.
Finally, discussions with
representatives within the construction
industry indicate that construction costs
would likely be passed on to consumers.
EPA believes that these same reasons
would result in the proposed rule , •
having minimal or no unemployment
impacts. EPA also assessed the social
costs of the proposed regulation and
estimates the total social costs of the
proposed rule to range from , ,
approximately $141 million to $878
million annually (1997 $). The proposed
rule would not have the potential to ,.
increase costs for industrial
manufacturers and producers because
the proposed rule does address storm
water discharges from other types of
industrial facilities. • ; •
B. Description of Intergovernmental
Consultation
Consistent with the intergovernmental
consultation provisions of section 204 of
the UMRA and Executive Order 12875,
Enhancing the Intergovernmental
Partnership, EPA consulted with elected
representatives of various levels of
government in a variety of ways. First,
EPA provided States, local, and tribal
governments and the private sector with
the opportunity to comment on •
alternative approaches to the proposed
regulations through publishing a notice
requesting information and public
comment on the approach for the CWA
section 402(p) (6) regulations in the
Federal Register on September 9, 1992
(57 FR 41344). This notice presented a
full range of regulatory alternatives
under each issue in an attempt to
illustrate, and obtain input on, the
regulation of unregulated sources to
protect water quality. Approximately 43
percent of the more than 130 comments
received came from municipalities and
24 percent from State or Federal
agencies. These comments provided the
genesis for many of the provisions in the
proposed storm water rule, including ,
reliance on the NPDES program
framework (including general permits), •.
providing State and local governments
flexibility in selecting additional
sources requiring regulation on a
localized basis, focusing on high
priority polluters and providing certain
exemptions for facilities that do not
pollute, focusing on pollution
prevention and best management
practices, and incorporating watershed-
based concerns in targeting. •
Second, 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 again
allowed participants an opportunity to
provide input into the CWA section
402 (p) (6) program development process.
The proposed rule reflects several of the
key concerns identified in these groups,
including provisions that provide
flexibility to the States and to other
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permitting authorities to select sources
to be controlled in a manner consistent
with criteria developed by EPA.
Finally, EPA established the Urban
Wet Weather Flows Advisory
Committee (FACA), including a Storm
Water Phase II Subcommittee.
Consistent with the Federal Advisory
Committee Act, the membership of the
Storm Water Phase n 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. The Storm Water Phase n
Subcommittee met approximately every
other month between September 1995
and June 1997. In addition to meetings,
conference calls, and correspondence,
Subcommittee members were provided
three opportunities to comment in
writing on preliminary draft approaches
and actual drafts of the proposed rule
and preamble. Ultimately, the 32
Subcommittee members recommended
many of the portions making up the
regulatory framework in the proposed
rule.
C. Selection of the Least Costly, Most
Cost-Effective or Least Burdensome
Alternative That Achieves the
Objectives of the Statute
The proposed regulation is based on
a "flexible" NPDES program alternative.
This alternative evolved over time and
incorporates aspects of each of the other
alternatives in order to respond to
concerns presented by the various
interests represented in the Storm Water
Phase II Subcommittee. A primary
characteristic of the proposed rule is the
flexibility it offers both the permitting
authority and the sources proposed for
regulation (small MS4s and small
construction sites), such as general
permits, best management practices
suited to specific locations, and
allowing MS4s to develop their own
program goals. EPA developed detailed
cost estimates for the incremental
requirements imposed under the
proposed regulation, and for each of the
alternatives, and applied these estimates
to the potentially regulated universe of
remaining unregulated point sources of
storm water. The Agency compared the
estimated annual range of costs imposed
under the proposed regulation and other
major options considered. The range of
values for each option included the
costs for compliance including
paperwork requirements for the owners
and operators of small construction
sites, industrial facilities, and MS4s and
administrative costs for State and
Federal NPDES permitting authorities.
Because the proposed rule provides a
significant degree of flexibility to the
permitting authority and sources
proposed for regulation, the actual costs
of implementing the proposed storm
water rule are highly dependent on how
the program is implemented by the
permitting authority and the sources
proposed for regulations. To some
extent, this flexibility is reflected in the
broad ranges of costs. EPA believes that
because of the significant flexibility
provided by the proposed rule, the low
to middle ranges of costs are most
representative of the actual costs likely
to be incurred. In the administrative
record supporting today's proposal, EPA
estimated ranges of costs associated
with six different options for today's
proposal. For each option, EPA estimate
a cost range. From the highest of the
high estimates to the lowest of the low,
the cost range varied between no cost
and $79 billion dollars. The least costly,
most cost-effective or least burdensome
option is the "no regulation" option.
This option, however, would not
achieve the objectives of CWA section
402 (p) (6) because remaining
unregulated point sources of storm
water need to be regulated to protect
water quality. The remaining option that
is both the least costly, most cost-
effective or least burdensome and
accomplishes the objectives of the rule
is the proposed rule in its current form.
Today's proposal represents the lowest
cost range option (between $106 million
to $574 million dollars).
Although Congress did not establish a
fund to fully finance implementation of
the proposed extension of the existing
NPDES storm water program under
section 402(p)(6), numerous Federal
financing programs (administered by
EPA and other Federal agencies) could
provide some financial assistance.
These programs include CWA section
106 grant program CWA section
104(b)(3) grant program, State surface
and ground water management
programs under the Safe Drinking Water
Act, the environmental quality
incentives program, the conservation
reserve program, the wetlands reserve
program, and the estuary management
and Federal monitoring programs. Also,
the Natural Resources Conservation
Service (NRCS) has some grants
available to assist in projects related to
erosion and sediment controls.
D. Small Government Agency Plan
In developing the proposed rule, EPA
consulted with small governments
pursuant to its interim plan established
under UMRA section 203 to address
impacts of regulatory requirements in
the rule that might significantly or
uniquely affect small governments.
Though today's proposal would expand
the NPDES program (with
modifications) to certain municipal
separate storm sewer systems serving
populations below 100,000 people and
though many systems are owned by
small governments, EPA does not think
the proposed rule might significantly or
uniquely affect small governments. As
explained in the Regulatory Flexibility
Act section of the preamble, EPA today
certifies that the proposed rule will not
have a significant impact on small
governmental jurisdictions. In addition,
the proposed requirements would not
have a unique impact on small
governments because larger
governments would also be affected.
Notwithstanding this finding, the
Agency sought to provide elected
officials of small governments (and their
representatives) with an opportunity for
early and meaningful participation
through FACA process. In addition, EPA
is committed to providing guidance for
the operators of the municipal separate
storm sewer systems (which would
likely include small governments)
developed in conjunction with the
Storm Water Phase II FACA
Subcommittee.
As mentioned previously, 43 percent
of the comments received on the
September 9, 1992, notice were from
municipal governments. In addition, the
following groups participated as
members of the Storm/Water Phase II
FACA Subcommittee: the Conference of
Mayors, the National League of Cities,
the National Association of Towns and
Townships, the National Association of
Counties, the CSO Partnership, the
Water Environment Federation, and the
Association of Metropolitan Sewerage
Agencies. Through such participation
and exchange, EPA notified potentially
affected small governments of
requirements under consideration,
allowed officials of affected small
governments to have meaningful and
timely input into the development of
regulatory proposals, and will inform,
educate, and advise small governments
on compliance with the regulatory
requirements. The Agency is also
undertaking efforts t;o develop a "tool
box" of aids (e.g., fact sheets, guidance,
information clearinghouse, training,
education, research, and pilot programs)
to be made available to regulated
entities and permitting authorities to
facilitate implementation of today's
proposed regulation.
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VI. Executive Order 12898
Executive Order 12898 established a
Federal policy for incorporating
environmental justice into Federal
agency missions by directing agencies to
identify and address in their programs,
policies, and activities, as appropriate,
the disproportionately high and adverse
human health or environmental effects
on minority and low-income
populations. EPA ensured proper
consideration of environmental justice
concerns during the section 402 (p) (6)
rulemaking by selecting a balanced
FACA membership and specifically
inviting a representative of the
Environmental Justice Information
Center to participate on the Storm Water
Phase II FACA Subcommittee. EPA
examined the potential impact of
today's proposed storm water rule on
minority and low-income populations
and worked to develop a proposed rule
that would address environmental
justice concerns. Discussions with the
Storm Water Phase E FACA
Subcommittee contributed to these
efforts. , . -
Three aspects of today's proposed
storm water regulation would support
environmental justice objectives. First,
the proposed rule would result in
improvements in water quality in the
areas around small municipalities and
certain industries that impact water
quality. These improvements would
benefit all persons living in or using
these areas, including minority
populations and low-income
populations. Second, the proposed rule
would provide a high degree of
flexibility to the NPDES permitting
authority to address high priority
contaminated storm water discharges
based on community input and public
participation. This ability to focus
program requirements on priority needs
or areas should serve as an additional
tool to address environmental justice
concerns. Third, the proposed rule
specifies that public education and
outreach programs required of small
municipal separate storm sewer systems
should be tailored to address the
concerns of all communities,
particularly minority and disadvantaged
communities, as well as children. The
proposed rule also specifies that
compliance with required public
involvement and participation
requirements should include efforts to
engage all economic and ethnic groups.
In addition, partly in consideration of
the executive order, EPA proposes to
exempt Tribes in urbanized areas with
populations of less than 1,000 from the
requirements of today's proposed rule.
VH. Regulatory Flexibility Act
Under the Regulatory Flexibility Act
. (RFA), 5 U.S.C. 601 et seq., as amended
by the. Small Business Regulatory
Enforcement Fairness Act (SBREFA),
whenever EPA is required to publish
notice of general rulemaking, EPA must
prepare an initial regulatory flexibility
analysis (IRFA) describing the economic
impact of the proposal on small entities,
unless the Administrator certifies that a
proposed rule will'not have a
"significant economic impact on a
substantial number of small entities."
After consideration of the economic
impacts of today's proposed rule on
small entities, trie Administrator :
certifies that the proposed rule will not
have a significant economic impact on
a substantial number of small entities.
Notwithstanding today's certification,
EPA has prepared an IRFA. In addition,
prior to determining that today's
proposal should be certified, EPA
convened a Small Business Advocacy
Review Panel under the. RFA, as
amended by the Small Business
Regulatory Fairness Act (SBREFA), to
evaluate and minimize the potential
impacts of the proposed rule on small
entities.
A. Economic Impact on Small Entities
EPA assessed the potential economic
impact of today's proposed storm water
regulation on small entities. As the first
step in its evaluation, EPA identified
those small entities potentially affected
by the proposal. In identifying these
small entities, EPA used the definitions
of small businesses, small governmental
jurisdictions (e.g., municipalities), and
small organizations (e.g., nonprofit'
organizations) established by the RFA.
Based on data from the 1990 U.S.
Census, EPA estimated that a total of
3,614 small governmental jurisdictions
(specifically, municipalities) would be
affected by the proposed rule. In
addition, 11 Indian Tribes, as small
governmental jurisdictions who own/
operate municipal separate storm sewer
systems, would also be affected. Next,
EPA estimated that 187,610
construction firms in Standard
Industrial Classification (SIC) Code 15
would be subject to the proposal, if
adopted. EPA recognizes, however, that
this number may over-estimate the
number of small businesses subject to
the proposal. The data do not permit the
Agency to distinguish between smalt
construction firms whose activities '
include land clearing and site
preparation—the proposal's
requirements would apply to such
operations—and those small
construction firms that do not prepare
sites. Finally, the proposed rule would
not apply to any small not-for-profit
organizations. ,
In the next step of the Agency's
evaluation, EPA analyzed the potential
economic impact of the proposed rule
on the small entities it had identified .as
likely to be subject to the proposed rule.
In the case of those small municipalities
that would be affected if the proposal is
adopted, EPA evaluated the potential
impact using a "revenue test." Under
this test, EPA looked at the total annual
cost of complying with the proposed
requirements in relation to total annual
municipal revenues. EPA calculated
total annual compliance cost based on
mean costs ($2.67 per capita and $555
per municipality) and the population
.reported in the 1990 Census. EPA
estimated annual revenues based on
data 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).
Based on this evaluation, the-•
Administrator certifies that today's
proposed storm water rule will not have
a significant economic impact on a
substantial number of small
municipalities. Estimated compliance
costs represent more than 1 percent of
estimated revenues for only 62
municipalities of die affected small
municipalities—approximately 1.7
percent of small municipalities—and
less than 3 percent of estimated
revenues for all but 4 municipalities—
approximately 0.1 percent of affected
small municipalities. In both absolute
and relative terms, the impact is not , •
significant.
,EPA also assessed the potential
impact of the rule on Indian Tribes
using the same revenue test applied to
municipalities. However, revenue per
capita for tribal governments was not
available. Therefore, EPA used the
State-specific municipal per capita '
revenue estimates by size category and
adjusted these estimates downward
based on the ratio of per capita income
on the reservation to per capita income
for the State. EPA then multiplied the
adjusted estimates of per capita revenue
by the reservation population and
conducted the screening analysis in the
same manner as for municipalities
(assuming annual compliance costs of
$2.67 per capita and $555 per
reservation). EPA assumed that all
Tribes with populations between 1,000
and 100,000 would have to comply with
the rule and Tribes in Oklahoma would
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not be regulated.5 Estimated compliance
costs represent more than 1 percent of
total estimated revenues for only 2
Indian Tribes. The remaining 9 Indian
Tribes have compliance costs less than
I percent of estimated revenues. The
Administrator therefore certifies that
this rule will not have a significant
economic impact on a substantial
number of small governmental
jurisdictions regardless of whether the
municipal and tribal impacts are
analyzed separately or combined.
For small businesses, in most
instances, EPA evaluates the potential
Impact by using a "sales test." Under a
sales test. EPA compares the cost of
complying with proposed requirements
to a small business' total annual sales.
In developing the inputs to this test,
EPA calculated the compliance costs
based on "unit costs" (i.e., compliance
costs per single-family home) rather
than costs per developer/contractor
because of the uncertainties associated
with estimating how many units an
"average" developer/contractor might
develop or build in a typical year.
Therefore, EPA's analysis was not
exactly a "sales test," but was
developed to derive the kind of results
that are comparable to results from a
sales test. EPA approximated the sales
test by estimating compliance costs for
single-family homes under various
scenarios and comparing those costs
with the median sales price of a single-
family home. The results of this
approximation show that the cost of
complying with the proposed rule will
not exceed 1 percent of the average sales
price of a single family home for an
array of the most likely economic and
regulatory scenarios. EPA reached this
conclusion after controlling for sites of
different size and the changes in
compliance costs per site (i.e., single
family home) that depend upon the
need to implement erosion and
sediment controls as a result of the
proposed rule.
Because of the absence of data to
specifically assess compliance costs per
developer/contractor as a percentage of
total annual sales (i.e., a very direct
estimate of the impact on potentially
affected small businesses), EPA
performed additional market analysis to
examine the ability of potentially
affected firms to pass along regulatory
sThe determination of applicability to Oklahoma
Tribes would be done on a case-by-case basis. In
authorization of the Oklahoma NPDES program,
EPA retained jurisdiction to regulate discharges in
Indian Country (61 FR 65049, 12/10/96). However,
EPA believes it is unlikely that large populations of
Oklahoma Tribes would fall within areas that
would be determined to be a Federal Indian
Reservation, and thus, subject to regulation (see
preamble).
costs to buyers for single-family homes
constructed using the storm water
control program proposed today.
Obviously, if the small construction
companies that would be subject to the
proposal are able to pass the costs of
compliance, either completely or
partially, on to their purchasers, then
the proposed rule's impact is
significantly reduced. EPA conducted
this supplemental analysis using
available data and published economic
literature. The analysis evaluated the
potential effects of complying with this
proposed rule on the market for single-
family houses for both the short and
long term including potential changes in
the price and sales of single-family
homes. The Agency assessed the effect
on average monthly mortgage rates for a
range of potential interest rates. EPA has
concluded that the costs to site
developers and 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
including most potentially affected
small firms that are actively
participating in this market. EPA's
analysis projects the impact of the rule
on small site developers and building
contractors will be minimal because
these companies are expected to pass
regulatory costs on to home buyers
without a significant impact on sales.
Based on this assessment, the
Administrator also certifies that the
proposal will not have a significant
economic impact on a substantial
number of small businesses.
B. SBREFA Panel Process
As previously explained earlier in the
preamble, EPA has conducted an
extensive outreach effort in developing
today's storm water proposal. EPA held
a number of public'and expert meetings
to assist in preparing the proposal, and
the Agency established a FACA
Committee specifically to provide a
forum for addressing storm water issues.
EPA also convened a Small Business
Advocacy Review Panel ("Panel"), as
described in RFA section 609, in June
1997. Because EPA's economic
assessment was incomplete, the Agency
was not initially certain whether the
proposed rule would have a significant
economic impact on a substantial
number of small entities. A number of
small entity representatives were
actively involved with EPA through the
FACA process, and were, therefore,
broadly knowledgeable about the
proposal under development. 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 this group (as well as
to representatives from the Office of
Management and Budget and the Small
Business Administration) and also
conducted two telephone conference
calls and an all-day meeting at EPA
Headquarters in May of 1997. With this
preliminary work complete, in June
1997, EPA formally convened the
interagency Panel, comprising
representatives from the Office of
Management and Budget, the Small
Business Administration, EPA's Office
of Water and EPA's Small Business
Advocacy Chair. The Panel received
written comments from representatives
based on their involvement in the
earlier meetings, and invited additional
comments to be submitted during the
term of the Panel itself.
Consistent with RFA requirements,
the Panel evaluated the assembled
materials and small-entity comments on
issues related to: (1) a description and
number of small entities to which the
proposed rule would apply; (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 proposed
rule; and (4) regulatory alternatives that
would minimize any significant
economic impact of the proposed rule
on small entities that would also
accomplish 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.
The Report noted that, because of the
extensive outreach conducted by the
Agency, and due to the Agency's
responsiveness in addressing
stakeholder concerns, small entity
representatives raised fewer concerns
than might otherwise have been
expected. A copy of the Report is
included in the docket for this proposed
rule. Notwithstanding today's
certification that the proposed rule will
not have a significant economic impact
on a substantial number of small
entities, the Agency has incorporated'
many of the Panel's recommendations
into today's proposal.
The Panel acknowledged and
commended EPA's efforts prior to its
Report to work with stakeholders,
including small entities, through the
Storm Water Phase II FACA
Subcommittee. As discussed in the
Background section of this preamble
(Section I.F. The FACA Committee
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16O7
Effort) the subcommittee provided
extensive input in the development of
today's proposal. The Agency also
provided FACA members with copies of
the Economic Analysis of the proposal,
which includes the initial regulatory
flexibility analysis. EPA has sought to
build upon the recommendations made
by members of the federal advisory
committee and has responded to
numerous issues raised by them
concerning the scope, method, and
timing of the program outlined in
today's proposal. The SBREFA Panel
stated that, because of the extensive
outreach conducted by the Agency and
the Agency's 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
Storm Water Phase II FACA
Subcommittee, as well as the Panel
Report, the proposal includes a number
of provisions designed to minimize any
significant impact of the proposed rule
on small entities as explained below
and in Appendix 5 of today's notice.
Municipal representatives commented
to the Panel that small municipal
separate storm sewers systems in
urbanized areas serving less than 1,000
people might lack the capacity to certify
that their discharges do not have
significant adverse water quality
impacts. EPA responded that the
technical basis for such certification
would generally be produced by the
permitting authority, in the form of a
TMDL or watershed plan. The Panel
was concerned, however, that in the
absence of a TMDL or watershed plan
developed by other parties (i.e., States
or EPA), municipalities under 1,000
would have difficulty taking advantage .
of this waiver provision. The Panel
recommended that EPA invite comment
on this issue, and EPA has done so
(Section II.G.3, NPDES Permitting
Authority's Role—Provide Waivers).
Municipal representatives also
suggested to,the,Panel that small
municipal separate storm sewer systems
serving less than 1,000 people in
urbanized areas should be automatically
exempt, just as EPA is proposing to
exempt systems operated by Tribes of
less than 1,000. As further explained in
Section F., Tribal Role, EPA believes
that the situations of very small Tribes
are not comparable to those of small '
municipalities because Tribes cannot
generally rely on administrative support
fronra State permitting authority in the
way municipalities can. Based on the
positions taken by OMB and SBA in the
Report, however, EPA has agreed to
request comment on this issue as well. -:
Other small business representatives
also questioned the Panel about the
proposed comprehensive program to
regulate construction activities that
result in the land disturbance of 1 acre
up to 5 acres. The Panel recommended
that EPA revise the preamble to the
proposed rule to invite comment on
alternatives to the proposed
requirements, including a discussion of
the concerns expressed by small entity
representatives and their specific
suggestions for addressing them. The
Agency has included the suggested
alternatives in its discussion of
construction requirements in this
preamble, in Section II. I. Other
Designated Storm Water Discharges.
Both municipal and industrial
representatives commented to the Panel
that, to avoid redundance, requirements
for construction activities undertaken by
municipalities or industrial facilities
should be incorporated within their
respective permits (provided that the
permits detail sediment and erosion
controls). Similarly, municipal
representatives commented that
requirements for industrial facilities
operated by municipalities should be
covered under municipal storm water
permits. The Panel recommended that
EPA explore and request comment on
these ideas in the preamble of the
proposed rule. The Panel reported that
these options may be appropriate for
municipalities or industrial facilities
with individually-issued NPDES
permits, but may be difficult to
administer under NPDES general
permits. The Agency has discussed and
solicited comment on the first two of
these options—condensing construction
requirements into a single municipal or
industrial storm water permit—as part
of the preamble discussion of
construction requirements, in Section
H.I. Other Designated Storm Water
Discharges. The Agency has discussed
and solicited comment on the third of
these options—condensing industrial
storm water requirements for
municipally owned or operated
•industrial facilities into a single
municipal storm water permit—in .the
preamble as part of the discussion of
industrial requirements, in Section
ILLS. Other Sources.
The Panel also received comments on
a preliminary draft of the revisions to
the existing storm water rules providing
relief to parties certifying "no exposure"
to rainfall events that could produce
storm water runoff. Commenters
indicated that, as drafted, the provision
would preclude such certification (and
thus deny appropriate exemption from
permitting requirements) to certain
deserving facilities. Such facilities
include those that Undergo a "temporary
operational change" or that maintain
vehicles outdoors without generating
.pollution. The Panel recommended that
the Agency discuss these comments
with the Urban Wet Weather Flows
FACA Committee and revise the
proposal as far as possible to allow all
facilities preventing-the actual discharge
of pollutants to make use of the "no
exposure" EPA complied with that
recommendation as well.
In addition to looking for ways to
redesign today's proposal to limit its
impacts on small entities, the Agency
has been working witttthe Storm Water
Phase II Subcommittee to develop
considerable support for
implementation through the "tool box"
. approach discussed in the Section
ILA.5. of this preamble. The tool box
would include fact sheets, guidances, an
information clearinghouse, training and
outreach efforts, technical research, and
support for demonstration projects.
EPA's outreach to small entities,
covered by this proposal and its
accommodation of their legitimate
needs have been aggressive and highly
responsive. The Agency actively invites
comments on all aspects of the proposal
and its impacts on small entities so that
the final rule will reflect the most
auspicious balance between necessary
environmental protection and
appropriate respect for the genuine
limitations of small entities in
understanding and complying with
applicable requirements.
.VEIL National Technology Transfer and
Advancement Act
Under § 12 (d) of the National
Technology Transfer and Advancement
Act, the Agency is required 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, business practices,
management systems, practices, etc.) that
. are developed or adopted by voluntary
consensus standard bodies. Where
available and potentially applicable
voluntary consensus standards are not
used by EPA, the Act requires the
Agency to provide Congress, through
the Office of Management and Budget,'
an explanation of the reasons for not
using such standards.
Today's proposed rule would not
even prescribe nationally applicable
substantive control standards, either for
construction site storm water or
municipal storm sewers. Such control
standards would be developed on a
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1608
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
State or local basis. Thus, as a threshold
matter, the concept of "technical
standards" would not apply to the
regulatory activities proposed today.
EPA requests comment on these
findings. If a commenter believes that
today's rule relies on technical
standards, the Agency also solicits
information about the identification and
possible use of any potentially
applicable voluntary consensus
standards for the final rule.
List of Subjects in 40 CFR Parts 122 and
123
Environmental protection,
Administrative procedure, Water
pollution control.
Dated: December 15, 1997.
Carol M. Browner,
Administrator.
Appendices to the Preamble
APPENDIX 1 TO PREAMBLE—FEDERALLY-RECOGNIZED AMERICAN INDIAN AREAS LOCATED IN BUREAU OF THE CENSUS
URBANIZED AREAS
[Based on 1990 Census data]
State
American Indian area
Urbanized area
AZ
AZ
AZ
CA
CA
CA
CA.
FL ,
FL ,
ID .,
ME
MN
NM
NV.
NV.
OK
OK
OK
OK
OK
OK
OK
TX .
WA
WA
WA
Wl .
Pascua Yacqui Reservation (pt.), Pascua Yacqui Tribe of Arizona
Salt River Reservation (pt), Salt River Pima-Maricopa Indian Community of the Salt River Res-
ervation, California.
San Xavier Reservation (pt), Tohono O'odham • Nation of Arizona (formerly known as the
Papago Tribe of the Sells, Gila Bend & San Xavier Reservation).
Augustine Reservation, Augustine Band of Cahuilla Mission of Indians of the Augustine Res-
ervation, CA.
Cabazon Reservation, Cabazon Band of Cahuilla Mission Indians of the Cabazon Reservation,
CA.
Fort Yuma (Quechan) (pt), Quechan Tribe of the Fort Yuma Indian Reservation, California and
Arizona.
Redding Rancheria, Redding Rancheria of California
Hollywood Reservation, Seminole Tribe
Seminole Trust Lands, Seminole Tribe of Florida, Dania, Big Cypress and Brighton Reserva-
tions.
Fort Hall Reservation and Trust Lands, Shosone-Bannock Tribes of the Fort Hall Reservation of
Idaho.
Penobscot Reservation and Trust Lands (pt.), Penobscot Tribe of Maine
Shakopee Community, Shakopee Mdewakanton Sioux Community of Minnesota (Prior Lake) ....
Sandia Pueblo (pt), Pueblo of Sandia, New Mexico ...'
Las Vegas Colony, Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada
Reno-Sparks Colony, Reno-Sparks Indian Colony, Nevada
Osage Reservation (pt), Osage Nation of Oklahoma
Absentee Shawnee-CitizensBand of Potawatomi TJSA (pt.), Absentee-Shawnee Tribe of Indi-
ans of Oklahoma, Citizen Potawatomi Nation, Oklahoma.
Cherokee TJSA 9 (pt), Cherokee Nation of Oklahoma, United Keetoowah Band of Cherokee
Indians of Oklahoma.
Cheyenne-Arapaho TJSA (pt), Cheyenne-Arapaho Tribes of Oklahoma
Chootaw TJSA (pt), Choctaw Nation of Oklahoma
Creek TJSA (pt), Alabama-Quassarte 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.
Kiowa-Comanche-Apache-Ft. Sill Apache, Apache Tribe of Oklahoma, Comanche Indian Tribe,
Oklahoma, Fort Sill Apache Tribe of Oklahoma, Kiowa Indian Tribe of Oklahoma.
Ysleta del Sur Reservation, Ysleta Del Sur Pueblo of Texas
Muckleshoot Reservation and Trust Lands (pt.), Muckleshoot Indian Tribe of the Muckleshoot
Reservation.
Puyallup Reservation and Trust Lands (pt), Puyallup Tribe of the Puyallup Reservation, WA ....
Yakima Reservation (pt.), Confederated Tribes and Bands of the Yakama Indian Nation of the
Yakama Reservation, WA.
Oneida (West) (pt), Oneida Tribe of Wisconsin
Tuscon, AZ (Phase I).
Phoenix, AZ (Phase I).
Tucson, AZ (Phase I).
Indio-Coachella, CA (Phase I).
Indio-Coachella, CA (Phase I).
Yuma, AZ-CA.
Redding, CA.
Fort Lauderdale, FL (Phase I).
Fort Lauderdale, FL (Phase I).
Pocatello, ID.
Bangor, ME.
Minneapolis-St Paul, MN (Phase
I)-
Albuquerque, NM (Phase I).
Las Vegas, NV (Phase I).
Reno, NV (Phase I).
Tulsa, OK (Phase I).
Oklahoma City, OK (Phase I).
Ft. Smith, AR-OK; Tulsa, OK
(Phase I).
Oklahoma City, OK (Phase I).
Ft. Smith, AR-OK (Phase I).
Tulsa, OK (Phase I).
Lawton, OK.
El Paso, TX-NM (Phase I).
Seattle, WA (Phase I).
Tacoma, WA (Phase I).'
Yakima, WA.
Green Bay, Wl.
Please Note:
"(pt.)" indicates that the American Indian Area (AIA) listed is only partially located within the referenced urbanized area.
"(Phase I)" indicates that the urbanized area includes a medium or large MS4 currently regulated under the existing NPDES storm water pro-
gram (i.e. Phase I).
The first line under "American Indian Area" is the name of the reservation/colony/rancheria as it appears in the Bureau of the Census data.
Under this first line, the names of the tribes included in the AIA are listed as they appear on the Bureau of Indian Affairs' list of Federally Recog-
nized Indian Tribes. [Federal Register: Nov. 13, 1996, Vol. 66, No. 220, pgs. 58211-58216]
Information for Tribal Jurisdiction Statistical Areas (TSJAs) in Oklahoma was also included in the table. These areas 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.
Sources: Mike Radcliffe, Geography Division, Bureau of the Census.
1990 Census of Population and Housing, Summary Population and Housing Characteristics, United States. Tables 9 & 10. [1990 CPH-1-1].
Federal Register: Nov. 13, 1996, Vol. 66, No. 220, pgs. 58211-58216.
BILLING CODE 6560-55-P
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Federal Register / Vol. 63, No. 6 / Friday, January'9, 1998 / Proposed Rules
Appendix 3 to Preamble—Urbanized Areas
of the United States and Puerto Rico (based
on 1990 Census data)
Denver
Fort Collins
Grand Junction
Anniston . . '
Auburn—Opelika
Birmingham
Columbus, GA—AL
Decatur
Dothan
Florence
Gadsden
Huntsvillff
Mobile
Montgomery
Tuscaloosa v
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—Sanjacinto
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 . • ' . ' "
Sari Luis Obispo
Santa Barbara
Santa Cruz
Santa Maria ..
Santa Rosa
Seaside—Monterey
Simi Valley • . • '
Stockton
Vacaville
Visalia
Watsonville
YubaCity
Yuma
Colorado
Boulder ,
Colorado Springs
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—Pompario
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
Davenports-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 . •
Slidell
Maine
Bangor
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Federal Register / Vol. 63, No. 6 / Friday, January 9. 1998 / Proposed Rules
1611
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
Plttsfield
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
Saglnaw
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
Mlssoula
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, RI
Providence—Pawtucket, RI—MA
South Carolina
Anderson
Augusta, GA—SC
Charleston
Columbia
Florence
Greenville
Myrtle Beach
Rock Hill
Spaitanburg
Sumter
South Dakota
Rapid City
Sioux City, IA—NE—SD
Sioux Falls
Tennessee
Bristol, TN—Bristol, VA
Chattanooga, TN—GA
Clarksville, TN—KY
Jackson
Johnson City
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Federal Register / Vol. 63, No.. 6 / Friday, January 9, 1998 / Proposed Rules
Kingsport, TN—VA
Knoxville :
Memphis," TN—AR—MS
Nashville
Texas
Abilene ,
Amarillo
'Austin
Beaumont
Brownsville
Bryan—College Station
Corpus Christ!
Dallas—Fort Worth
Denton
El Paso, TX—MM
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 .
Roahoke
Washington, DC—MD—VA
Washington '
Bellingham
Bremerton
Longview, WA—OR
1 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 r
Caguas '
Cayey
Humacao
Mayaguez
Ponce: ...
San Juan
Vega Baja—Manati
Appendix 4 to Preamble
Checklist for No-Exposure Certification for
NPDES Storm Water Permitting
Instructions—EPA Form XXX-X
Who May File a No-Exposure Certification
In accordance with the Clean Water Act, all
industrial facilities that discharge storm
water meeting the definition of storm water
associated with industrial activity must
apply for coverage under a National Pollutant
Discharge Elimination System (NPDES)
permit. However, permit coverage is not
required at facilities that can certify a "no-
exposure" condition exists. This document
may be used to certify that at the facility
described herein, a condition of no-exposure
exists. This certification is under the
auspices of the EPA only and must be made
at least once every five years. Should the
industrial activity change such that a
condition of no-exposure no longer exists,
this certification is no longer valid and
coverage under an NPDES storm'water
permit must be sought.
Definition of No-Exposure
No-exposure exists at an industrial facility
when all industrial materials or activities,
including, but not limited to, material
handling equipment, industrial machinery,
raw materials, intermediate products, by-
products or waste products, however
packaged, are protected by a storm-resistant
shelter, so as not to be exposed to rain, snow,
snowmelt, or runoff. Adequately maintained
mobile equipment (trucks, automobiles,
trailers or other such general purpose
vehicles found at the industrial site which
themselves are not industrial machinery or
material handling equipment and which are
not leaking'contaminants'pr.are not
otherwise a source of industrial pollutants)
may be exposed to precipitation or runoff.
Completing the Form
You must type or print in the spaces
provided only. One form must be completed
for each facility or site for which you are
seeking to certify no-exposure.
Section I. Facility Operator Information
'- Provide the legal name (no colloquial
names) of the person, firm, public
organization, or any other entity that operates
the facility or site described in this
certification. The name of the operator may
. or may not be the same as the name of the
facility. The operator is the legal entity that
controls the facility's operation, rather than
the plant or site manager. Enter the complete
address (P.O. Box numbers OK) and
telephone number of the operator.
Section II. Facility/Site Location Information
Enter the facility's or site's official or legal
name and complete street address
(directional address OK if no .street address
exists). Do not provide a P.O. Box number as
the street address. In addition, provide the
latitude and longitude of the facility to the
nearest 15 seconds of the approximate center
of the site (if you do not know your site's
latitude and longitude, call 1-800-USA-
MAPS).
Section IE. Exposure Checklist
Circle "Yes" or "No" as appropriate to
describe conditions at your facility. For the
purposes of this document, "material" is
defined as any raw material, intermediate
product, finished product, by-product or
waste product, however packaged. "Material
handling activities", by definition, include
storage, loading and/or unloading, •
transportation or conveyance of a raw
material, intermediate product, finished
product, by-product or waste product,
Interpretation of Results
If you answer "Yes" to ANY of questions
a. through r. in Section in, a potential for
exposure exists at your site and you, cannot
certify a no-exposure condition exists. You
must obtain (or already have) coverage under
an NPDES Stprm Water permit. After
obtaining permit coverage; you can institute
modifications to eliminate the potential for a
discharge of storm water exposed to
industrial activity, and then claim no-
exposure and terminate coverage under the
existing permit.
Section IV. Certification
. Federal statutes provide for severe
penalties for submitting false information on
this application form. Federal regulations .
require this application to be signed as
follows: ,
For a corporation: by a responsible
corporate officer, which means: (i) president,
secretary, treasurer, or vice-president of the
corporation in charge of a principal business
function, or any other person who performs
similar policy or decision making functions,
or (ii) the manager of one or more
manufacturing, production,, or operating
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
1613
facilities employing more than 250 persons
or having gross annual sales or expenditures
exceeding S25 million (in second-quarter
1980 dollars) if authority to sign documents
has been assigned or delegated to the
manager in accordance with corporate
procedures [note, wording subject to change
as a result of NPDES streamlining, rnd. EQ;
For a partnership or sole proprietorship: by
a general partner or the proprietor; or
For a municipality, State, Federal, or other
public facility: by either a principal executive
officer or ranking elected official.
Where To File This Form
Mail the completed form to:
XXXXXXXXXXXXXXX
XXXXXXXXXXXXXXX
U.S: Environmental Protection Agency (42Q3)
401MSI.SW
Washington, DC 20460
BILLING CODE 6560-50-P
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1614
Federal Register / Vol. 63. No. 6 / Friday, January 9, 1998 / Proposed Rules
^Mllfc^lklJ..^
^,m
I. Facility Operator Information " ,
Name: , . • Phone:
Address: ,
City: . State:
U /^cBf^SiteLoc^onMorWfibn . .' "V"
Zip Code:
, - f " V ' ^ J
Facility Name: ' •
Facility Address: ' .. , .
City- State:
County Name: . Latitude: Longitu
in. Exposure Checklist
Zip Code:
de: ' '
<' „ . , ' " "
Are any of the following items exposed to precipitation, now or in the foreseeable future, AND is the drainage from these areas
discharged from the site to surface waters of me US or to a municipal separate storm sewer system?
a. vehicles used in material handling (excepting adequately maintained mobile equipment)
b. industrial machinery or equipment
c. residue from the cleaning of machinery or equipment
d. materials associated with vehicular maintenance, cleaning or fueling
e. materials or products 'during loading/unloading or transporting activities
f . materials or products at uncovered loading docks
g. materials or products stored outdoors (excepting products intended for outside use, e.g.
Yes
Yes
. Yes
Yes
Yes
' Yes
, cars) Yes
h. materials or products handled/stored on roads or railways owned or maintained by the certifier ' Yes
i. materials or spill/leak residues accumulated in storm water inlets
Yes
! j. residuals on the ground from spills/leaks (including subsurface residuals from percolation) Yes
k. materials contained in open or deteriorated storage tanks/drums/containers
1. industrial activities conducted outdoors ,
m. materials or products from past outdoor industrial activity
n. waste material '
o. process wastewater disposed of outdoors (unless otherwise permitted)
P- psrticulfite matter from roof stacks/vents not otherwise regulated (i e under an air out
permit) and in quantities detectable in the storm water outflow. •
q. visible deposits of residuals near roof or side vents . ' '
r. spills/leaks resulting from maintenance of stacks or air exhaust systems
Yes
Yes
Yes
Yes
Yes
dity control Yes
Yes
Yes
No
No
No
No
No
No
No
No
No
No
No
.No
No
No
No
No .
No '
No
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
1615
Have you paved or roofed over a large, formerly exposed, pervious area in order to qualify for no-exposure?
Please indicate approximately how much area was paved or roofed over from the choices below. (Computing this
question does not influence your qualifying for the no exposure exemption and is for informational purposes.)
Yes
No
none
less than one acre
one to five acres
more than five acres
Certification
I certify that there are no discharges of storm water contaminated by exposure to industrial activities or materials from the
facility identified in this document.
I understand that I am obligated to make this certification once every five years to the NPDES permitting authority and, if
requested, to the municipality (or other local government) in which this facility is located providing the facility discharges
storm water into the local municipal separate storm sewer system (MS4). I understand that I must seek coverage under an
NPDES storm water permit prior to any point-source discharge of exposed storm water from the facility. I understand that
I must allow the permitting authority, or municipality where the discharge is into the MS4, to perform inspections to confirm
the condition of no-exposure and to make such inspection reports publicly available upon request.
Additionally, I certify under penalty of law this document was prepared under my direction and that qualified personnel
gathered and evaluated the information submitted. Based upon my knowledge of the personnel directly involved in gathering
the information, the information is true, accurate and complete. I am aware there are significant penalties for providing false
information, including the possibility of fine and imprisonment.
Signed:
Date:
Print Name and Title:
DItUNG CODE 6S60-SO-C
Appendix 5 to Preamble—Regulatory
Flexibility for Small Entities
A. Regulatory Flexibility for Municipal Storm
Sewer Systems (MS4s)
Different Compliance, Reporting, or
Timetables That Are Responsive to Resources
of Small Entities
NPDES permitting authority would issue
general permits instead of requiring
individual permits. This flexibility would
avoid the high application costs and
administrative burden associated with
individual permits.
NPDES permitting authority could specify
a time period of up to five years for small
MS4s to fully develop and implement their
program.
Analytic monitoring would not be
required.
After the first permit term and subsequent
permit terms, submittal of a summary report
would only be required in years two and
four. Phase I municipalities are currently
required to submit a detailed report each
year.
Brief reporting format encouraged to
facilitate compiling and analyzing data from
submitted reports. EPA would develop a
model form for this purpose.
Clarifying, Consolidating, or Simplifying
Compliance and Reporting Requirements
The proposed rule would avoid
duplication in permit requirements by
allowing the NPDES permitting authority to
incorporate by reference State, Tribal, or
local programs under a NPDES general
permit. Compliance with these programs
would be considered compliance with the
NPDES general permit.
The proposed rule would allow the NPDES
permitting authority to recognize existing
responsibilities among different municipal
entities to satisfy obligations for the
minimum control measures. For example, a
State program may address construction site
storm water runoff. Municipalities would be
relieved of that obligation and would only be
responsible for the remaining minimum
control measures.
The proposed rule would allow 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 would need to be met:
1. The particular control measure (or
component thereof) is equivalent to what the
NPDES permit requires,
2. The other entity is implementing the
control measure, and
3. The small MS4 has requested, and the
other entity has agreed to accept
responsibility for implementation of the
control measure on your behalf and to satisfy
your permit obligation.
The proposed rule would allow a covered
small MS4 to "piggy-back" on to the storm
water management program of an adjoining
Phase IMS4. A small MS4 would be waived
from the application requirements of
•§ 122.26(d)(l)(iii), (iv) and (d)(2)(iii)
[discharge characterization] and may satisfy
the requirements of § 122.26(d)(l)(v) and
(d)(2)(iv) [identifying a management plan] by
referencing the adjoining Phase I MS4's
storm water management plan.
The proposed rule would accommodate the
use of the watershed approach through
NPDES general permits that could be issued
on a watershed basis. A municipality could
develop measures that are tailored to meet
their watershed requirements.
Municipalities' storm water management
program could tie into watershed-wide plans.
Performance Rather Than Design Standards
for Small Entities
Small governmental jurisdictions whose
MS4s are covered by this proposed rule
would be 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.
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Appendix 2 to Preamble
Urbanized Area Illustration
fcjSijS) Central Place
('•'•J Incorporated Place
Federal Indian Reservation (FIR)
Unincorporated "Urbanized Area"
Portion of a County
Urbanized Area
BILLING CODE 6560-50-C
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4. Construction site storm water runoff
control for sites of one or more acre.
5. Post-construction storm water
management in new development and
redevelopment for sites of one or more acre.
6. Pollution prevention/good housekeeping
for municipal operations.
EPA would provide guidance and would
recommend, but not mandate, certain BMPs
for some of the minimum control measures
listed above.
Small governmental jurisdictions would
Identify the measurable goals for each of the
minimum control measures listed above. In
their reports to the NPDES permitting
authority, the small MS4s would need to
evaluate their progress towards achievement
of their identified measurable goals.
Waivers for Small Entities From Coverage
The proposed rule would waiver from
coverage Indian Tribes located within an
urbanized area and whose population is less
than or equal to 1,000 people.
The proposed rule would allow the
permitting authority to waive from coverage
MS4s owned or operated by small
governmental jurisdictions located within an
urbanized area and serving a population less
than or equal to 1,000 people where the
permitting authority determines:
1, Implementation of a TMDL that
addresses the pollutants of concern, or
2. Implementation of a comprehensive
watershed plan for the water body.
B. Regulatory Flexibility for Construction
Activities
Different Compliance, Reporting, or
Timetables That Are Responsive to Resources
of Small Entities
The proposed rule would give the relevant
Director of the NPDES permitting program
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.
Currently, all construction sites disturbing
greater than 5 acres must submit an NOI.
Clarifying, Consolidating, or Simplifying
Compliance and Reporting Requirements
The proposed rule would avoid
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 would be considered
compliance with the NPDES general permit.
Performance Rather Than Design Standards
for Small Entities
The operator of a covered construction
activity would select 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 the revised Universal Soil Loss Equation.
Universal Soil Loss Equation (LISLE)
(A) Defqult/Low-Risk Exemption: When
rainfall energy factor (R from Universal Soil
Loss Equation) is less than 2 during periods
of construction activity, a permit would not
be required.
(B) Case-by-Case Determination: A permit
would not be required for sites having an
annual soil loss less than 2 tons/acre/year.
The NPDES permitting authority could
waive from coverage construction activities
disturbing from 1 acre up to 5 acres of land
where the permitting authority determines
that storm water controls are not needed
based on:
1. Implementation of a TMDL that
addresses the pollutants of concern, or
2. Implementation of a comprehensive
watershed plan for the water body.
C. Regulatory Flexibility for Industrial/
Commercial Facilities
Waivers for Small Entities From Coverage
The proposed rule would provide a "no-
exposure" waiver provision for Phase I
industrial/commercial facilities. Those
facilities seeking this provision would simply
need to complete a self-certification form.
Appendix 6 of Preamble—Incorporated
Places and Counties Proposed To Be
Automatically Designated Under the Storm
Water Phase II Proposed Rule (From the
1990 Census of Population and Housing—
U.S. Census Bureau)
(This List May Change With the Decennial
Census)
AL Anniston
AL Attalla
AL Auburn
AL Autauga County
AL Blue Mountain
AL Calhoun County
AL Colbert County
AL Dale County
AL Decatur
AL Dothan
AL Etowah County
AL Flint City
AL Florence
AL Gadsden
AL Glencoe
AL Grimes
AL Hartselle
AL Hobson City
AL Hokes Bluff
AL Houston County
AL Kinsey
AL Lauderdale County
AL Lee County
AL Madison County
AL Midland City
AL Montgomery County
AL Morgan County
AL Muscle Shoals
AL Napier Field
AL Northport
AL Opelika
AL Oxford
AL Phenix City
AL Prattville
AL Priceville
AL Rainbow City
AL Russell County
AL Sheffield
AL Southside
AL Sylvan Springs
AL Talladega County
AL Tuscaloosa
AL Tuscaloosa County
AL Tuscumbia
AL Weaver
AZ Apache Junction
AZ Chandler
AZ El Mirage
AZ Gilbert
AZ Guadalupe
AZ Maricopa County
AZ Oro Valley
AZ Paradise Valley
AZ Peoria
AZ Final County
AZ South Tucson
AZ Surprise
AZ Tolleson
AZ Youngtown
AZ Yuma
AZ Yuma County
AR Alexander
AR Barling
AR Benton County
AR Cammack Village
AR Crawford County
AR Crittenden County
AR Farmington
AR Fayetteville
AR Fort Smith
AR Greenland
AR Jacksonville
AR Jefferson County
AR Johnson
AR Marion
AR Miller County
AR North Little Rock
AR Pine Bluff
AR Pulaski County
AR .Saline County
AR Shannon Hills
AR Sherwood
AR Springdale
AR Sunset
AR Texarkana
AR Van Buren
AR Washington County
AR West Memphis
AR White Hall
CA Apple Valley
CA Belvedere
CA Benicia
CA Brentwood
CA Butte County
CA Capitola
CA Carmel-by-the-Sea
CA Carpinteria
CA Ceres
CA Chico
CA Compton
CA Corte Madera
CA Cotati
CA Davis
CA Del Rey Oaks
CA Fairfax
CA Hesperia
CA Imperial County
CA Lakewood
CA Lancaster
CA.' Larkspur
CA Lodi
CA Lompoc
CA Marin County
CA Marina
CA Marysville
CA Merced
CA Merced County
CA Mill Valley '
CA Monterey
CA .MontereyCounty
CA Morgan Hill
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CA Napa
CA Napa County '
CA Novato
CA Pacific Grove
CA Palm Desert
CA Palmdale
CA Piedmont
CA Redding
CA Rocklin
CA RohnertPark
CA Roseville
CA Ross
CA San Anselmo
CA San Buenaventura (Ventura)
CA San Francisco
CA San Joaquin County
CA San Luis Obispo
CA San Luis Obispo County
CA San Rafael
CA Sand City
CA Santa Barbara
CA Santa Barbara County
CA Santa Cruz
CA Santa Cruz County
CA Santa Maria
CA Sausalito
, CA Scotts Valley
CA Seaside
CA Shasta County
CA Solano County
CA Sonoma County
CA Stanislaus County
CA Sutter County
CA Tiburon
CA Tulare County
CA Vacaville
CA Victorville
CA Villa Park
CA Visalia
CA Watsonville
CA .West Sacramento
CA Yolo County
CA Yuba City
CA Yuba County
CO Adams County
CO Arvada .
CO Boulder
CO Boulder County
CO Bow Mar
CO Broomfield
CO Cherry Hills Village '
CO Columbine Valley
CO Commerce City
CO Douglas County
CO Edgewater
CO El Paso County
CO Englewood
CO Evans
CO Federal Heights
CO Fort Collins
CO Fountain
CO Garden City1
CO Glendale
CO Golden
CO Grand Junction
CO Greeley
CO Greenwood Village
' CO Jefferson County
CO LaSalle
CO Lakeside
CO Larimer County
' CO Littleton
CO Longmont • ' - '
CO; ManitouSprings
CO Mesa County -
CO Mountain View
CO Northglenn
CO Pueblo
CO Pueblo County
CO Sheridan
CO Thornton
CO Weld County
CO Westminster
'CO Wheat Ridge
•CT Ansonia
CT Bridgeport
CT Bristol
CT Danbury
CT Derby
CT Fairfield County
CT Groton
CT Hartford
CT Hartford County
' CT Litchfield County
CT Meriden
CT Middlesex County
CT Middletown
CT Milford
CT Naugatuck,
CT New Britain
CT New Haven
CT New Haven County
CT New London
CT New London County
CT Norwalk
CT, Norwich
CT Shelton \
CT Tolland County
CT Waterbury
CT West Haven
CT Windham County
CT Woodmont
DE Camden
DE Dover
DE Kent County
DE Newark
DE Wyoming
FL Alachua County
FL Baldwin
FL Bay County
FL Belleair Shore
FL Biscayne Park
FL Brevard County
FL Callaway
FL Cape Canaveral
FL Cedar Grove
FL Charlotte County
FL Cinco Bayou
FL Clay County
FL Cocoa
FL Cocoa Beach
FL Collier County
FL Daytona Beach
FL Daytona Beach Shores
FL Destin
FL Edgewater
FL El Portal
,FL FLoridaCity
FL Fort Pierce
FL Fort Walton Beach
FL Gainesville
FL Gulf Breeze
FL Hernando County
FL Hillsboro Beach -
FL Holly Hill
FL Indialantic
FL Indian Harbour Beach
FL Indian River County
FL Indian River Shores
FL Indian Shores
FL Kissimme'e
FL Lazy Lake
FL Lynn Haven
FL Malabar
FL, Marion County
, FL Martin County
FL Mary Esther
FL Melbourne
FL Melbourne Beach
, FL Melbourne Village
FL Naples
FL New Smyrna Beach
FL Niceville
FL Ocala
FL Ocean Breeze Park
FL Okalposa County
FL Orange Park
FL Ormond Beach
FL Osceola County
FL Palm Bay
FL Panama City
FL Parker
FL Ponce Inlet
FL Port Orange
FL Port-St. Lucie
FL PuntaGorda
FL Rockledge
FL Santa Rosa County
FL Satellite Beach
FL Sewall's Point
FL Shalimar
FL South Daytona
FL Springfield
FL St. Johns County
FL St. Lucie
FL St. Lucie County
FL Stuart
FL Sweetwater
FL Titusville
FL Valparaiso
FL Vero Beach
FL Virginia Gardens
FL Volusia County
FL Walton County
FL WeekiWachee
FL West Melbourne
FL Windermere
GA Albany
GA Athens
GA Bartow County
GA Bibb City
GA Brunswick
GA Catoosa County
GA Centerville
GA Chattahobchee County
GA Cherokee County
GA Chickamauga
GA Clarke County
GA Columbia County
GA Columbus
GA Conyers
GA Dade County
GA Dougherty County
GA Douglas County
GA Douglasville
GA Fayette County
GA Floyd County
GA Fort Oglethorpe
GA Glynn County
GA Grovetown
GA Henry County
GA Houston County
GA Jones County
GA Lee County
,GA Lookout Mountain
GA Mountain Park
GA Oconee County
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GA Payne
GA Rockdale County
GA Rome
GA Rossville
GA Stockbridge
GA Vernonburg
GA Walker County
GA Warner Robins
GA Winterville
GA Woodstock
ID Ada County
ID Ammon
ID Bannock County
ID Bonnevllle County
ID Chubbuck
ID Garden City
ID IDaho Falls
ID lona
ID Pocatello
IL Addison
IL Algonquin
IL Alorton
EL Alsip
IL Alton
IL Antioch
IL Arlington Heights
IL Aroma Park
IL Aurora
IL Bannockburn
IL Harrington
IL Bartlett
IL Bartonville
IL Batavia
IL Beach Park
IL Bedford Park
IL Belleville
IL Bellevue
IL Bellwood
IL Bensenville
IL Berkeley
IL Berwyn
IL Bethalto
IL Bloomingdale
IL Bloomington
IL Blue Island
IL Bolingbrook
IL Bourbonnais
IL Bradley
IL Bridgeview
IL Broadview
IL Brookfield
IL Brooklyn
IL Buffalo Grove
IL Burbank
IL Bumham
IL Burr Ridge
IL Cahokia
IL Calumet City
IL Calumet Park
IL Carbon Cliff
IL Carol Stream
IL Carpentersville
IL Cary
IL Caseyville
IL Centreville
IL Champaign
IL Champaign County
IL Cherry Valley
IL Chicago
IL Chicago Heights
IL Chicago Ridge
IL Cicero
IL Clarendon Hills
IL Coal Valley
IL Collinsville
IL Colona
IL Columbia
IL Cook County
IL Country Club Hills
. IL Countryside
EL Crest Hill
IL Crestwood
EL Crete
IL Creve Coeur
EL Crystal Lake
EL Darien
EL Decatur
IL Deer Park
IL Deerfield
IL Des Plaines
EL Dixmoor
IL Dolton
IL Downers Grove
EL Dupo
EL DuPage County
IL East Alton
IL East Dubuque
IL East Dundee
IL East Hazel Crest
EL East Moline
EL EastPeoria
IL East St. Louis
IL Edwardsville
IL Elgin
IL Elk Grove Village
EL Elmhurst
EL Elmwood Park
IL Evanston
EL Evergreen Park
IL Fairmont City
IL Fairview Heights
IL Flossmoor
IL Ford Heights
IL Forest Park
IL Forest View
IL Forsyth
IL Fox Lake
IL Fox River Grove
IL Frankfort
IL Franklin Park
IL Geneva
IL Gilberts
IL Glen Carbon
IL Glen Ellyn
IL Glencoe
IL Glendale Heights
IL Glenview
IL Glenwood
IL Golf
IL Grandview
IL Granite City
IL Grayslake
IL Green Oaks
IL Green Rock
EL Gurnee
IL Hainesville
EL Hampton •
IL Hanover Park
IL Harristown
IL Hartford
EL Harvey
IL Harwood Heights
IL Hawthorn Woods
IL Hazel Crest
IL He.nry County
IL Hickory Hills
IL Highland Park
IL Highwood
IL Hillside
IL Hinsdale
IL • Hodgkins
IL Hoffman Estates
IL Hometown
IL Homewood
IL Indian Creek
IL Indian Head Park
IL Inverness
EL Itasca
IL Jerome
IL Jo Daviess County
IL Joliet
IL Justice
IL Kane County
IL Kankakee
IL Kankakee County
IL Kendall County
IL Kenilworth
IL Kildeer
IL La Grange
IL La Grange Park
IL Lake in the Hills
IL Lake Barrington
IL Lake Bluff
IL Lake County
IL Lake Forest
IL Lake Villa
IL Lake Zurich
IL Lakemoor
EL Lakewood
IL Lansing
IL Leland Grove
IL Libertyville
EL Lincolnshire
EL Lincolnwood
IL Lindenhurst
IL Lisle
IL Lockport
EL Lombard
EL Long Grove
IL Loves Park
IL Lynwood
IL Lyons
IL Machesney Park
IL Macon County
IL Madison
IL Madison County
IL Markham
IL Marquette Heights
IL Maryville
IL Matteson
EL Maywood
IL McCook
IL McCullom Lake
IL McHenry
IL McHenry County
IL McLean County
IL Melrose Park
IL Merrionette Park
IL Midlothian
IL Milan
IL Moline
IL Monroe County
IL Montgomery
IL Morton
IL Morton Grove
IL Mount Prospect
IL Mount Zion
IL Mundelein
IL Naperville
IL National City
IL New Lenox
IL NewMillford
IL Niles
IL Normal
IL Norridge
IL. North Aurora
IL North Barrington
IL North Chicago
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IL North Pekin
IL North Riverside
IL Northbrook
IL Northfield
IL Northlake
IL Norwood
IL O'Fallon
IL Oak Brook
IL Oak Forest
IL Oak Grove
IL Oak Lawn
IL Oak Park
IL Oakbrook, Terrace
IL Oakwood Hills
IL Olympia Fields
IL Orland Hills
IL Orland Park
IL Oswego
IL Palatine
IL Palos Heights
IL Palos Hills
IL Palos Park
IL Park City
IL Park Forest
.IL Park Ridge
IL Pekin
IL Peoria
IL Peoria County
IL Peoria Heights
IL Phoenix
IL Plainfield
' IL Pontoon Beach
IL Posen
IL Prospect Heights
IL Richton Park
IL River Forest
IL River Grove
IL Riverdale
IL Riverside
IL Riverwoods
IL Robbins
IL Rock Island
IL Rock Island County
IL Rockdale
IL Rockton
IL Rolling Meadows
IL Romeoville
IL Roscoe
IL Roselle
IL Rosemont
IL Round Lake
IL Round Lake Beach • .
IL Round Lake Heights .
IL Round Lake Park
IL Roxana
IL Sangamon County
IL' Sauget •.
IL Sauk Village-
IL Savoy
IL Schaumburg
IL Schiller Park
IL Shiloh
IL Shorewood
IL Silvis
-IL Skokie
IL Sleepy Hollow
IL South Beloit
IL South Chicago Heights '
IL South Elgin
IL South Holland
IL South Roxana
IL Southern View
IL Springfield
IL St. Charles
IL St. Clair County
IL Steger
IL Stickney;
IL Stone Park
IL Streamwood
IL Summit
IL Sunnyside
IL Swansea
IL Tazewell County
IL Thornton'
IL TinleyPark
IL Tower Lakes.
IL Troy
IL University Park
IL Urbana
IL , Venice
IL Vernon Hills
IL -VillaPark
IL Warrenville
IL Washington
IL Washington Park
IL 'Waukegan
IL West Chicago
IL West Dundee
IL Westchester
IL Western Springs .
IL Westmoiit
IL Wheaton ,
IL Wheeling -
IL Will-County
IL Willow Springs
IL Willowbrook
IL Wilmette
IL Winfield
IL Winnebago County
IL Winnetka
IL Winthrop Harbor
IL Wood Dale
IL Wood River
IL Woodridge
IL Worth
IL Zion
IN Allen County
IN Anderson
IN Beech Grove
IN Bloomington
IN Boone County
IN Carmel
IN Castleton
IN Chesterfield
IN Chesterton
IN Clark County
IN Clarksville
IN Clermont
IN Country Club Heights
IN Crown Point , .
IN Crows Nest
IN Cumberland '
IN Daleville
IN Delaware County
IN Dyer
IN. East Chicago
IN Edgewood
IN Elkhart
IN Elkhart County
IN Evansville
IN Fishers
IN Floyd County
IN Gary
IN 'Goshen ,
IN Greenwood
IN Griffith
IN Hamilton County"
IN Hammond
IN Hancock County
IN Hendricks County
IN Highland
IN Hobart
IN Homecraft
'IN Howard'County
IN Indian Village
IN Jeffersonville
IN Johnson County
IN Kokomo
IN Lafayette
IN Lake County
,IN Lake Station
IN Lawrence
IN Madison County
IN Meridian Hills
IN Merrillville
IN Mishawaka
IN Monroe County
IN Muncie
IN Munster
IN New Albany
IN New Chicago
IN New Haven
IN New Whiteland
•IN Newburgh
IN North Crows Nest
IN Ogden Dunes
IN Osceola
IN Portage
IN Porter
IN Porter County
IN River Forest
IN Rocky Ripple
IN Roseland
IN Schererville
- IN Seelyville
IN Seliersburg
IN Selma
IN South Bend
IN Southport
IN Speedway ' •
IN Spring Hill
'IN St. John
IN St. Joseph County
IN TenVHaute
IN Tippecanoe County
IN Vanderburgh County
IN Vigo County ' .
IN Warren Park
IN Warrick County
IN West Lafayette
IN West Terre Haute
IN Westfield '
IN Whiteland
IN Whiting
IN Williams Creek
IN Woodlawn Heights
IN Wynnedale
IN Yorktown
IN Zionsville
IA Altoqna
IA Asbury
1A Bettendorf •
IA Black Hawk County
IA Buffalo
IA Carter Lake
IA Cedar Falls
IA Cliye
IA Coralville
IA Council Bluffs
IA Dubuque
IA Dubuque County
IA Elk Run Heights
IA Evansdale
IA Hiawatha
IA Iowa City
1IA Johnson County
IA Johnston
IA Le.Claire
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IA Linn County
IA Marion
IA Norwalk
IA Panorama Park
IA Pleasant Hill
IA Polk County
IA Pottawattamie County
IA Raymond
IA Riverdale
IA Robins
IA Scott County
IA Sergeant Bluff
IA Sioux City
IA University Heights
IA Urbandale
IA Warren County
IA Waterloo
IA West Des Moines
IA Windsor Heights
KS BelAire
KS Countryside
KS Doniphan County
KS Douglas County
KS Eastborough
KS Elwood
KS Fairway
KS Haysville
KS Johnson County
KS Kechi
KS Lake Quivira
KS Lawrence
KS Leawood
KS Lenexa
KS Merriam
KS Mission
KS Mission Hills
KS Mission Woods
KS Olathe
KS Park City
KS Prairie Village
KS Roeland Park
KS Sedgwick County
KS Shawnee
KS Shawnee County
KS Westwood
KS Westwood Hills
KY Alexandria
KY Anchorage
KY Ashland
KY Audubon Park
KY Bancroft
KY Barbourmeade
KY Beechwood Village
KY Bellefonte
KY Bellemeade
KY Bellevue
KY Bellewood
KY Blue Ridge Manor
KY Boone County
KY Boyd County
KY Briarwood
KY Broad Fields
KY Broeck Pointe
KY Bromley
KY Brownsboro Farm
KY Brownsboro Village
KY Bullitt County
KY Cambridge
KY Campbell County
KY Catlettsburg
KY Chenywood Village
KY Christian County
KY Cold Spring
KY Covington
KY Creekside
KY Crescent Park
KY Crescent Springs
KY Crestview
KY Crestview Hills '
KY Crossgate
KY Daviess County
KY Dayton
KY Douglass Hills
KY Druid Hills
• KY Edgewood
KY Elsmere
KY Erlanger
KY Fairmeade
KY Fairview
KY Flatwoods
KY Florence
KY Forest Hills
KY Fort Mitchell
KY Fort Thomas
KY Fort Wright
KY Fox Chase
KY Glenview
KY Glenview Hills
KY Glenview Manor -
KY Goose Creek
KY Graymoor-Devondale
KY Green Spring
KY Greenup County
KY Hebron Estates
KY Henderson .
KY Henderson County
KY Hickory Hill
KY Highland Heights
KY Hills and Dales
KY Hillview
KY Hollow Creek
KY Hollyvilla
KY Houston Acres
KY Hunters Hollow
KY Hurstbourne
KY Hurstbourne Acres
KY Independence
KY Indian Hills
KY Indian Hills Cherokee Section
KY Jeffersontown
KY Jessamine County
KY Keeneland
KY Kenton County
KY Kenton Vale
KY Kingsley
KY Lakeside Park
KY Langdon Place
KY Latonia Lakes '
KY Lincolnshire
KY Ludlow
KY Lyndon
KY Lynnview
KY Manor Creek
KY Maryhill Estates
KY Meadow Vale
KY Meadowbrook Farm
KY Meadowview Estates
KY Melbourne
KY Middletown
KY Minor Lane Heights
KY Mockingbird Valley
KY Moorland
KY Murray Hill
KY Newport
KY Norbourne Estates
KY Northfield
KY Norwood
KY Oak Grove
KY Old Brownsboro Place
KY Owensboro
KY Park Hills
KY Parkway Village
KY Pioneer Village
KY Plantation
KY Plymouth Village
KY Poplar Hills
KY Prospect
KY Raceland
KY Richlawn
KY Riverwood
KY Robinswood
KY Rolling Fields
KY Rolling Hills
KY Russell
KY Seneca Gardens
KY Shively
KY Silver Grove
KY South Park View
KY Southgate
KY Spring Mill
KY Spring Valley
KY Springlee
KY St. Matthews
KY St. Regis Park
KY Strathmoor Gardens
KY Strathmoor Manor
KY Strathmoor Village
KY Sycamore
KY Taylor Mill
KY Ten Broeck
KY Thornhill
KY Villa Hills
KY Watterson Park
KY Wellington
KY WestBuechel .
KY Westwood
KY Whipps Millgate
KY Wilder
KY Wildwood
KY Winding Falls
KY Windy Hills
KY Woodland Hills
KY Woodlawn
,KY Woodlawn Park
KY Worthington
KY Wurtland
LA Alexandria
LA Baker
LA Ball
LA Bossier City
LA Bossier Parish
LA Broussard
LA Caddo Parish
LA Calcasieu Parish
LA Carencro
LA Denham Springs
LA East Baton Rouge Parish
LA Houma
LA Lafayette
LA Lafayette Parish
LA Lafourche Parish
LA Lake Charles
LA Livingston Parish
LA Monroe
LA Ouachita Parish
LA Pineville
LA Plaquemines Parish
LA Port Allen
LA Rapides Parish
LA Richwood
LA Scott
LA Slidell
LA St. Bernard Parish
LA St. Charles Parish
LA St. Tammany Parish
LA Sulphur
LA Terrebonne Parish
LA West Baton Rouge Parish
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LA West Monroe
LA Westlake
LA Zachary
ME Androscoggin County
' ME Auburn
ME Bangor
ME Brewer
ME Cumberland County
ME Lewiston
ME Old Town
ME Penobscot County
ME Portland
ME South Portland
ME Westbrook
ME York County
MD Allegany County
MD Annapolis
MD Bel Air
MD Berwyn Heights
MD .Bladensburg
MD Bowie
MD Brentwood
MD Brookeville
MD Capitol Heights
MD Cecil County
MD Cheverly
MD Chevy Chase
MD Chevy Chase Section Five
MD Chevy Chase Section Three
MD Chevy Chase Village
MD College Park
MD Colmar Manor •
MD Cottage City
MD Cumberland
MD District Heights
MD .Edmonston
MD Elkton
MD Fairmount Heights-
MD Forest Heights
MD Frederick
MD Frostburg
MD Furikstown
MD Gaithersburg
MD Garrett Park
MD Glen Echo
MD Glenarden
MD Greenbelt
MD Hagerstowh
MD Highland Beach •
MD Hyattsville
MD Kensington
MD Landover Hills
MD Laurel
MD Martin's Additions
MD Morningside
MD Mount Rainier
MD New Carrollton
MD North Brentwood
MD Riverdale
MD Rockville
MD Seat Pleasant
MD.. Smithsburg
MD Somerset
MD Takoma Park
MD University Park •
MD Walkersville
MD Washington Grove .
MD Williamsport , '
MA Attleboro
MA Barnstable County
MA Berkshire County .
MA Beverly '
MA Bristol County
MA Brockton
MA Cambridge'
MA Chelsea
MA Chicopee ,
MA Essex County
MA Everett
MA Fall River
MA Fitchburg
MA Gloucester
MA' Hampden County
MA Hampshire County
MA Haverhill
MA . Holyoke ,
MA Lawrence
MA Leominster
MA Lowell •
MA 'Lynn
MA .Maiden
MA Marlborough
MA Medford
MA Melrose
MA Middlesex County
MA New Bedford
MA Newton
MA Norfolk County
MA Northampton
MA Peabody
MA Piitsfield ,
MA Plymouth County
MA Quincy
MA Revere
MA Salem
MA Somefville
MA Springfield
MA Suffolk County
MA Taunton
MA Waltham
MA Westfield
MA Woburn
MA Worcester County
MI Allegan County •
MI Allen Park
MI Auburn Hills
MI Battle Creek
MI Bay City
MI Bay County
MI Belleville
MI Benton Harbor .
MI Berkley
MI Berrien County
MI Beverly Hills
MI Bingham Farms
MI Birmingham
MI Bloomfield Hills
MI Burton
MI Calhoun County
MI Cass County
MI Center Line
MI Clarkston
MI Clawson
MI Clinton County
MI Clio
MI Davison
MI Dearborn
MI Dearborn Heights
MI Detroit
MI East Detroit
MI " East Grand Rapids
MI East Lansing
MI Eaton County
MI Ecorse
MI Essexyille
MI Farmington
MI Farmington Hills
MI Ferndale
MI Flat Rock
MI Flushing
MI Franklin
MI Fraser
MI Garden City
MI Genesee County
MI Gibraltar
MI Grand Blanc
MI Grandville
MI Grosse Pointe
MI Grosse Pointe Farms
MI Grosse Pointe Park
MI Grosse Pointe Shores
MI Grosse Pointe Woods
MI Hamtramck
MI Harper Woods
MI Hazel Park ,
MI Highland Park
MI Holland
MI Hudsonville
MI Huntington Woods
MI Ingham County
MI Inkster
MI Jackson
MI Jackson County .'
MI Kalamazoo
MI Kalamazoo County
MI Keego Harbor'
MI Kent County
MI Kentwood
MI Lake Angelus
MI Lansing
MI Lathrup Village
MI Lincoln Park
MI Livonia
MI Macomb County .
MI Madison Heights
MI . Marysville
MI Melvindale
MI Monroe County
MI' Mount Clemens
MI Mount Morris
• MI Muskegon
MI Muskegon County
MI " Muskegon Heights'
MI New Baltimore
, MI Niles
• MI North Muskegon
MI Northville
MI Norton Shores
MI Novi
MI Oak Park '
MI Oakland County
MI Orchard Lake Village
MI Ottawa County
MI Parchment
MI Pleasant Ridge
MI- -Plymouth
MI Pontiac
MI Port Huron
MI Portage
MI River Rouge
MI Riverview
MI Rochester
MI Rochester Hills
MI Rockwood
MI Romulus
MI Roosevelt Park
MI Roseville' .
MI Royal Oak
MI Saginaw
MI Saginaw County
MI Shoreham
MI South Rockwood
.MI Southfield
MI Southgate • -. .
MI Springfield
MI St. Clair
MI St. Clair County
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MI St. Clalr SKores
MI St. Joseph
MI Stevensville
MI Swartz Creek
MI Sylvan Lake
MI Taylor
MI Trenton
MI Troy
MI Utica
MI Walker
MI Walled Lake
MI Washtenaw County
MI Wayne
MI Wayne County
MI Westland
MI Wixom
MI Wolverine Lake
MI Woodhaven
MI Wyandotte
MI Wyoming
MI Ypsilanti
MI Zeeland
MI Zilwaukee
MN Andover
MN Anoka
MN Apple Valley
MN Arden Hills
MN Benton County
MN Birchwood Village
MN Elaine
MN Bloomlngton
MN Brooklyn Center
MN Brooklyn Park
MN BurnsviUe
MN Champlin
MN Chanhassen
MN Circle Pines
MN Clay County
MN Coon Rapids
MN Cottage Grove
MN Crystal
MN Dayton
MN Deephaven
MN Dilworth
MN Duluth
MN Eagan
MN East Grand Forks
MN Eden Prairie
MN Excelsior
MN Falcon Heights
MN Farmington
MN Fridley
MN Gem Lake
MN Golden Valley
MN Greenwood
MN Ham Lake
MN Hennepin County
MN Hermantown
MN Hilltop
MN Hopkins
MN Houston County
MN Inver GroVe Heights
MN La Crescent
MN Lake Elmo
MN Lakeville
MN Landfall
MN Lauderdale
MN Lexington
MN Lilydale
MN Lino Lakes
MN Little Canada
MN Long Lake
MN Loretto
MN Mahtomedi
MN Maple Grove
MN Maple Plain
MN Maplewood
MN Medicine Lake
MN Medina '
MN Mendota
MN Mendota Heights
MN Minnetonka
MN Minnetonka Beach
MN Minnetrista
MN Moorhead
MN Mound
MN Mounds View
MN New Brighton
MN New Hope
MN Newport
MN North Oaks
MN North St. Paul
MN Oakdale
MN Olmsted County
MN Orono
MN Osseo
MN Plymouth
MN Prior Lake
MN Proctor
MN Ramsey
MN Ramsey County
MN Robbinsdale
MN Rochester
MN Rosemount
MN Roseville
MN Sartell
MN Sauk Rapids
MN Savage
MN Scott County
MN Sherburne County
MN Shoreview
MN Shorewood
MN South St. Paul
MN Spring Lake Park
MN Spring Park '
MN St. Anthony
MN St. Cloud
MN St. Louis County
MN St. Paul Park
MN Stearns County
MN Sunfish Lake
MN Tonka Bay
MN Vadnais Heights
MN Victoria
MN WaitePark
MN WA County
MN Wayzata
MN West St. Paul
MN White Bear Lake
MN Willemie
MN Woodbury
MN Woodland
MS Bay St. Louis
MS Bilpxi
MS Brandon
MS Clinton
MS D'Iberville
MS DeSoto County
MS Flowood
MS Forrest County
MS Gautier
MS Gulfport
MS Hancock County
MS Harrison County
MS Hattiesburg
MS Hinds County
MS Horn Lake
MS Jackson County
MS Lamar County
MS Long Beach
MS Madison
MS Madison County
MS Moss Point
MS Ocean Springs
MS Pascagoula
MS Pass Christian
MS Pearl
MS Petal
MS Rankin County
MS Richland
MS Ridgeland
MS Southaven
MS Waveland
MO Airport Drive
MO Andrew County
MO Arnold
MO Avondale
MO Ballwin
MO Battlefield
MO Bel-Nor
MO Bel-Ridge
MO Bella Villa
MO Bellefontaine Neighbors
MO Bellerive
MO Belton
MO Berkeley
MO Beverly Hills
MO Birmingham
MO Blackjack
MO Blue Springs
MO Boone County
MO Breckenridge Hills
MO Brentwood
MO Bridgeton
MO Buchanan County
MO Calverton Park
MO Carl Junction
MO Carterville
MO Cass County
MO Charlack
MO Chesterfield
MO Clarkson Valley •
MO Claycomo
MO Clayton
MO Cliff Village
MO Columbia
MO Cool Valley
MO Cottleville
MO Country Club
MO Country Club Hills
MO Country Life Acres
MO Crestwood
MO Creve Coeur
MO Crystal Lake Park
MO Dellwood
MO Dennis Acres .
MO Des Peres
MO Duquesne
MO Edmundson
MO Ellisville
MO Fenton
MO Ferguson
MO Flordell Hills
MO Florissant
MO Frontenac
MO Gladstone
MO Glen Echo Park
MO Glenaire
MO Glendale
MO Grandview
MO Grantwood Village
MO Greendale
MO Greene County
MO Hanley Hills
MO Hazelwood
MO Hillsdale
MO Houston Lake
MO Huntleigh
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. MO Iron Gates
MO Jackson County
MO Jasper County
MO Jefferson County
MO Jennings
MO Joplin
MO Kimmswick
MO Kinloch
MO Kirkwood '•
MO Ladue
MO LakeStLouis
MO Lake Tapawingo
MO Lake Waukomis
MO Lakeshire
MO Leawood
MO Lee's Summit
MO Liberty ,
MO Mac Kenzie
MO Manchester
MO Maplewood
MO Marlfaorough
MO Maryland Heights
MO Moline Acres
,MO Normandy
MO North KS City
MO Northmoor
MO 'Northwoods
MO Norwood Court
MO O'Fallon
MO Oakland
MO Oakland Park
MO Oaks
. MO Oakview
MO Oakwood
MO Oakwood Park
MO Olivette
MO Overland
MO Pagedale -
' MO Parkdale
MO Parkville •
MO Pasadena Hills
"MO Pasadena Park
MO Pine Lawn
MO Platte County
MO Platte Woods
MO Pleasant Valley
MO Randolph
,MO Raymore
MO Raytown
MO Redings Mill
MO Richmond Heights
MO Riverside
MO Riverview -
MO Rock Hill
MO Saginaw
MO Shoal Creek Drive
MO Shrewsbury
,MO Silver Creek "' '
MO St. Ann
MO St. Charles
MO St. Charles County
MO St. George
MO St. John
MO • St. Joseph
MO St. Louis
MO St. Louis'County
MO St. Peters
MO Sugar Creek
MQ Sunset Hills
MO Sycamore Hills
MO Town and Country
MO Twin Oaks
MO Unity Village
MO University City
MO Uplands P;ark.
MO Valley Park
MO Velda Village
MO Velda Village Hills
MO VinitaPark •
MO Vinita Terrace
MO Warson Woods
MO Weatherby Lake
MO Webb City'
MO Webster Groves
MO Wellston
MO Westwood
MO Wilbur Park'
MO Winchester
MO Woodson Terrace, •
MT Billings
MT Cascade County
MT Great Falls
MT Missoula
MT Missoula County
MT Yellowstone County
,NE Bellevue
NE Boys Town
NE Dakota County
NE Douglas County
NE La Vista
NE Lancaster County
NE Papillion •
NE Ralston
NE Sarpy County
NE South Sioux City
NH Dover
NH Hillsborough County
NH Manchester
' NH Merrimack County
NH Nashua
NH "Portsmouth
NH Rochester
NH Rockingham County
NH Somersworth
NH Strafford County
NJ Absecon
NJ Allendale
NJ Alle.nhurst
NJ Alpha
NJ Alpine
NJ AsburyPark
NJ Atlantic City
NJ Atlantic County
NJ Atlantic Highlands
NJ Audubon
NJ Audubon Park
NJ Avon-by-the-Sea
NJ Barrington
NJ Bay Head
NJ Bayonne
NJ Beachwood
NJ Bellmawr
NJ Belmar
NJ Bergen County
NJ Bergenfield
NJ Berlin
NJ Bernardsville
NJ Beverly .
NJ Bloomingdale "
NJ Bogota
NJ Boonton
NJ Bordentown ,
NJ Bound Brook
NJ Bradley Beach
•NJ Brielle
NJ Brigantine
NJ Brooklawn
NJ Buena
NJ Burlington
NJ Burlington County
NJ Butler
NJ Camden
NJ Camden County
NJ Cape May County
NJ Carlstadt
NJ Carteret
NJ . Chatham
NJ Chesilhurst
NJ Clayton.
NJ Clementon
NJ Cliffside Park
NJ Clifton
NJ Closter
NJ Collingswood
NJ Cresskill
NJ Cumberland County '
NJ Deal
NJ Demarest
NJ Dover
NJ Dumont
NJ Dunellen
NJ East Newark •
NJ EastOrarige
NJ East Rutherford
NJ Eatontown
NJ Edgewater
NJ Elizabeth •
, NJ . Elmwood Park
NJ Emerson
NJ Englewood
NJ Englewood Cliffs
NJ Eriglishtown
NJ Essex County '
NJ Fair Haven
NJ Fair Lawn
, NJ Fairview
NJ Fanwood
NJ. Fieldsboro •
NJ Florham Park
NJ Fort Lee
NJ Franklin Lakes
NJ Freehold
NJ Garfield
NJ Garwood
NJ Gibbsboro
NJ Glassboro
NJ Glen Rock
NJ Gloucester City
NJ Gloucester County
NJ Guttenberg
NJ Hackensack
NJ Haddon Heights
NJ Haddonfield
NJ Haledon
NJ Harrington Park
NJ Harrison
NJ Hasfarouck Heights
NJ Haworth
NJ Hawthorne
NJ Helmetta
NJ Hi-Nella
NJ Highland Park -
NJ Highlands
NJ' Hillsdale
NJ Ho-Ho-Kus
NJ Hoboken
NJ Hopatcong
NJ Hudson County
NJ Hunterdon County
NJ Interlaken
NJ Island Heights
• NJ Jamesburg
NJ Jersey City
NJ Keansburg
NJ. Kearny.
NJ Kenilworth
NJ Keyport
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NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
Kinnelon
Lakehurst
Laurel Springs
Lavallette
Lawnside
Leonia
Lincoln Park
Linden
Lindenwold
Linwood
Little Ferry
Little Silver
Loch Arbour
Lodi
Long Branch
Longport
Madison
Magnolia
Manasquan
Mantoloking
Manville
Margate City
Matawan
Maywood
Medford Lakes
Mendham
Mercer County
Merchantville
Metuchen
Middlesex
Middlesex County
Midland Park
Millstone
Milltown
Millville
Monmouth Beach
Monmouth County
Montvale
Moonachie
Morris County
Morris Plains
Morristpwn
Mount Arlington
Mount Ephraim
Mountain Lakes
Mountainside
National Park
Neptune City
Netcong
New Brunswick
New Milford
New Providence
Newark
Newfield
North Arlington
North Haledon
North Plainfield
Northfield
Northvale
Norwood
Oakland
Oaklyn
Ocean City
Ocean County
Ocean Gate
Oceanport
Old Tappan
Oradell
Palisades Park
Palmyra
Paramus
Park Ridge
Passaic
Passaic County
Paterson
Paulsboro
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ.
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ.
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ,
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
NJ
Pennington
Penns Grove
Perth Amboy
Phillipsburg
Pine Beach
Pine Hill
Pine Valley
Pitman
Plainfield
Pleas antville
Point Pleasant
Point Pleasant Beach
Pompton Lakes
Prospect Park
Rahway
Ramsey
Raritan
Red Bank
Ridgefield
Ridgefield Park
Ridgewood
Ringwood
River Edge
Riverdale
Riverton
Rockaway
Rockleigh
Roseland
Roselle
Roselle Park
Rumson
Runnemede
Rutherford
Saddle River
Salem County
Sayreville
Sea Bright
Sea Girt
Seaside Heights
Seaside Park
Secaucus
Shrewsbury
Somerdale
Somers Point
Somerset County
Somerville
South Amboy
South Belmar
South Bound Brook
South Plainfield
South River
South Toms River
Spotswood
Spring Lake
Spring Lake Heights
Stanhope
Stratford
Summit
Sussex County
Tavistock
Tenafly
Teterboro
Tinton Falls
Totowa
Trenton
Union Beach
Union City
Union County
Upper Saddle River
Ventnor City
Victory Gardens
Vineland
Waldwick
Wellington ,
Wanaque
Warren County
NJ Watchung
NJ Wenonah
NJ West Long Branch
• NJ West NY
NJ West Paterson
NJ Westfield
NJ ,Westville
NJ Westwood
NJ Wharton
NJ Wood-Ridge
NJ Woodbury
NJ Woodbury Heights
NJ WoodcliffLake
NJ Woodlynne
NM Bernalillo County
NM Corrales
NM Dona Ana County
NM Las Cruces
NM Los Ranches de Albuquerque
NM Mesilla
NM Rio Rancho
NM Santa Fe
NM Santa Fe County
NM SunlandPark ' ,
NY Albany
NY Albany County
NY Amityville
NY Ardsley
NY Atlantic Beach
NY Babylon , " .
NY Baldwinsville
NY Baxter Estates
NY Bayville
NY' Belle Terre
NY Bellerose
NY Bellport ,
NY Binghamton •
NY Blasdell
NY Briarcliff Manor
NY Brightwaters
NY Bronxville
NY Brookville
NY Broome County
NY Buchanan
NY Buffalo
NY Camillus
NY Cayuga Heights
NY Cedarhurst
NY Chemung County
NY Chestnut Ridge
NY Clayville
NY Clinton
NY Cohoes
NY Colonie
NY Cornwall on Hudson
NY Croton-on-Hudson
NY Depew
NY Dobbs Ferry
NY Dutchess County
NY East Hills
NY East Rochester
NY East Rockaway
NY East Syracuse
NY East Williston .
NY Elmira
NY Elmira Heights
NY Elmsford
NY ' Endicott
. NY Erie County
NY Fairport
NY Farmingdale
NY Fayetteville
NY Fishkill
NY Floral Park
NY Flower Hill
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NY Fort Edward
NY Freeport "
•NY Garden City
NY Glen Cove
NY Glens Falls
NY Grand View-on-Hudson
NY Great Neck
NY Great Neck Estates
NY Great Neck Plaza
NY Green Island
NY Hamburg
NY Harrison
NY Hastings-on-Hudson.
NY Haverstraw
NY Hempstead
NY Herkimer County
NY Hewlett Bay Park
NY Hewlett Harbor
NY Hewlett Neck
NY Hillfaurn
NY Horseheads
NY Hudson Falls '
NY Huntington Bay
NY Irvington
' NY Island Park
NY Islandia
NY Ithaca
NY Johnson City
NY Kenmore
NY Kensington
NY Kings Point
NY Lackawanna
NY LakeGrove
NY . Lake Success
NY Lancaster
'NY Lansing
NY Larchmont
NY Lattingtown
NY Lawrence
NY Lewiston
'NY Lindenhurst
NY Liverpool
NY Lloyd Harbor • •
NY Long Beach
NY Lynbrook
NY- Malverrie
NY Mamaroneck
NY Manlius
NY Manorhaven
NY Massapequa Park
NY 'Matinecock
NY Me'nands :
NY Mill Neck
NY Mineola
NY Minoa
NY Monroe County
NY Montebello
NY Mount Kisco
NY. Mount Vernon
NY Munsey Park
NY Muttontown,
NY Nassau County
NY New Hartford
NY New Hempstead
NY New.HydePark
NY NewRochelle
NY New Square
NY' NYMills ' ..
NY Newburgh
NY Niagara County
NY Niagara Falls
NY . North Hills
NY North Syracuse
NY North Tarrytown
NY North Tonawanda
NY Northport
NY Nyack
NY Old Brookville
NY OldWestbury
NY Oneida County
NY Onondaga County
NY Orange County
NY Orchard Park
NY Oriskany
NY Ossining
NY Oswego County
NY Patchogue
NY Peekskill
NY Pelham
NY Pelham Manor .
NY Phoenix
NY Piermont
NY Pittsford
NY Plandome
NY Plandome Heights.
NY Plandome Manor
NY Pleasantville
NY Pomona
• NY Poquott
NY Port Chester
NY Port Dickinson
NY Port Jefferson
NY Port WA North
NY Poughkeepsie
• NY Putnam County
NY Rensselaer
NY Rensselaer County
NY Rochester
NY Rockland County
NY Rockville Centre
NY Rome
NY Roslyn
NY Roslyn Estates
NY Roslyn Harbor
NY Russell Gardens "
NY Rye
NY Rye Brodk
NY Saddle Rock
NY Sands Point
NY Saratoga County
NY Scarsdale
NY Schenectady
NY Schenectady County
NY Scotia
NY Sea Cliff
• NY Shoreham
NY Sloan
NY Sloatsburg
NY Solvay
NY South Floral Park
NY South Glens Falls
NY South Nyack
NY Spencerport
NY Spring Valley
NY Stewart Manor
NY Suffern
NY Suffolk County
NY Syracuse
NY Tarrytown
NY Thomaston
NY Tioga County " ,
NY Tompkins County
NY Tonawanda
NY Troy
NY Tuckahoe
NY Ulster County
NY Upper Brookville
NY Upper Nyack
NY Utica
NY Valley Stream
NY Village of the Branch
NY Wappingers Falls
NY Warren County
NY Washington County
NY Waterford'
NY Watervliet
NY Webster
NY Wesley Hills
NY West Haverstraw
NY Westbury
NY Westchester County
NY White Plains
NY Whitesboro
NY Williamsville
NY Williston Park
NY Woodsburgh
NY Ypnkers
NY Yorkville
NC Alamance County
NC Apex
NC Archdale
NC Asheville
NC Belmont
NC Belville
NC Bessemer City,
NC Biltmore Forest
NC ' Black Mountain
NC Brookford
NC Brunswick County
NC Buncombe County
NC Burke County
NC Burlington
NC Cabarrus County
NC Carrboro .
NC Gary
NC Catawba County
NC. Chapel Hill
NC China Grove
NC Clemmons
NC Concord
NC Conover .
NC Cramerton
NC ' Pallas
NC Davidson County
NC Durham County
"" NC Edgecombe County
NC Elon College
NC Fletcher
NC Forsyth County
NC Gamer'
NC Gaston County
NC Gastonia
NC Gibsonville
NC Goldsboro
NC Graham
NC Greenville ;
NC Guilford County
NC Harriett County
NC Haw River
NC Hickory
NC High Point •
NC Hildebran
NC Hope Mills
NC Indian Trail
NC Jacksonville
NC Jamestown
NC Kannapolis
NC Landis
NC Leland ' ,
NC Long View
NC Lowell
- NC Matthews
NC McAdenville
NC Mebane . '
NC Mecklenburg County
NC Mint Hill
NC Montreal
NC Mount Holly
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NC Nash County
NC New Hanover County
NC Newton
NC Onslow County
NC Orange County
NC Pineville
NC Pitt County
NC Randolph County
NC Ranlo
NC Rocky Mount
NC Rowan County
NC Rural Hall
NC Spring Lake
NC Stallings
NC Thornasville
NC Union County
NC Wake County
NC Walkertown
NC Wayne County
NC Weaverville
NC Wilmington
NC Winterville
NC Woodfin
NC WrightsviUe Beach
ND Bismarck
ND Burleigh County
ND Cass County
ND Fargo
ND Grand Forks
ND Grand Forks County
ND Lincoln
ND Mandan
ND Morton County
ND West Fargo
OH Addyston
OH Allen County
OH Amberley
OH Amelia
OH Amherst
OH Arlington Heights
OH Auglaize County
OH Aurora
OH Avon
OH Avon Lake
OH Barberton
OH Bay Village
OH Beachwood
OH Beavercreek
OH Bedford
OH Bedford Heights
OH Bellaire
OH Bellbrook
OH Belmont County
OH Belpre
OH Bentleyville
OH Berea
OH Bexley
OH Blue Ash
OH Brady Lake
OH Bratenahl
OH Brecksville
OH Brice
OH Bridgeport
OH Brilliant
OH Broadview Heights
OH Brook Park
OH Brooklyn
OH Brooklyn Heights
OH Brookside
OH Brunswick
OH Butler County
OH Campbell
OH Canfield
OH Canton
OH Carlisle
OH Centerville
OH Chagrin Falls
OH Chesapeake
OH Cheviot
OH Cincinnati
OH Clark County
OH Clermont County
OH Cleveland
OH Cleveland Heights
OH Cleves
OH Coal Grove
OH Cridersville
OH Cuyahoga County
OH Cuyahoga Falls
OH Cuyahoga Heights
OH Deer Park
OH Delaware County
OH Doylestown
OH Dublin
OH East Cleveland
OH Eastlake
OH, Elmwood Place
OH Elyria
OH Englewooci
OH Erie County
OH Euclid
OH Evendale
OH Fairborn
OH Fairfax
OH Fairfield
OH Fairfield County
OH Fairlawn
OH Fairport Harbor
OH Fairview Park
OH Forest Park
OH Fort Shawnee
OH Franklin
OH Franklin County
OH Gahanna
OH Garfield Heights
OH Geauga County
OH Girard
OH Glendale
OH Glenwillow
OH Golf Manor
OH Grand River
OH Grandview Heights
OH Green
OH Greene County
OH Greenhills
OH Grove City
OH Groveport
OH Hamilton
OH Hamilton County
OH Hanging Rock
OH Harbor View
OH Hartville
OH Heath
OH Highland Heights
OH Hilliard
OH Hills and Dales
OH Holland
OH Hubbard
OH Huber Heights
OH Hudson
OH Independence
OH Ironton
OH Jefferson County
OH Kent
OH Kettering
OH Kirtland
OH Lake County
OH Lakeline
OH Lakemore
OH Lakewood
OH Lawrence County
OH Lexington
OH' Licking County
OH Lima
OH Lincoln Heights
OH Linndale
OH Lockland
OH Lorain
OH Lorain County
OH Louisville
OH Loveland
OH Lowellville
OH Lucas County
OH Lyndhurst
OH Macedonia
OH Madeira
OH Mahoning County
OH Maineville '
OH Mansfield
OH Maple Heights
OH Marble Cliff
OH Mariemont
OH Martins Ferry
OH Mason
OH Massillon
OH Maumee
OH Mayfield
OH Mayfield Heights
OH McDonald
OH Medina County
OH Mentor
OH Mentor-on-the-Lake
OH Meyers Lake
OH Miami County
OH Miamisburg
OH Middleburg Heights
OH Middletown
OH Milford >
OH Millbury
OH Millville
OH Minerva Park
OH Mingo Junction
OH Mogadore
OH Monroe
OH Montgomery
OH Montgomery County
OH Moraine
OH Moreland Hills
OH Mount Healthy
OH Munroe Falls
OH New Miami
OH New Middletown
OH New Rome
OH Newark
OH Newburgh Heights
OH' Newtown
OH Niles
OH North Bend
OH North Canton
OH North College Hill
OH North Olmsted
OH North Randall
OH North Ridgeville
OH North Royalton
OH Northfield
OH Northwood
OH Norton,
OH Norwood
OH Oakwood
OH Oakwood
OH Obetz
OH Olmsted Falls
OH Ontario
OH Orange
OH Oregon
OH Ottawa County
OH Ottawa Hills
OH Painesville
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1627
OH Parma
OH Parma Heights
OH 'PepperPike
OH Perrysburg
OH Poland
OH Portage County
OH Powell
OH Proctorville ,
OH Ravenna
OH Reading
OH Reminderville
OH Reynoldsburg
OH Richfield
OH Richland County
OH Richmond Heights
OH Riverlea
'OH Riverside
OH Rocky River
OH Rossford
OH Seven Hills
OH Shadyside
OH Shaker Heights
OH Sharonville
OH Shawnee Hills
OH Sheffield
OH Sheffield Lake
OH Silver Lake
OH Silverton
OH Solon
OH South Amherst
OH South Euclid
OH South Point
OH South Russell
OH Springboro
OH Springdale
OH Springfield
OH St. Bernard
• OH -StarkCounty
OH Steubenville
OH Stow
OH Strongsville
OH Struthers
OH Sugar Bush Knolls
OH Summit County
OH Sylvania
OH Tallmadge
OH Terrace Park
OH The Village of Indian Hill
OH Timber-lake
OH Trenton
OH Trotwood
OH Trumbull County
OH Twinsburg
OH Union
OH University Heights
OH " Upper Arlington - -
OH Urbancrest
OH Valley View
OH Valleyview
OH Vandalia .
OH Vermilion
OH Wadsworth
OH Waite Hill
OH Walbridge
OH ' Walton Hills
OH Warren
OH Warren County '
OH Warrensville Heights
OH Washington County
OH Wayne County
OH West Carrollton City
OH West Milton
OH Westerville
OH Westlake
OH Whitehall
OH Wlckliffe
OH Willoughby
OH Willoughby Hills
OH Willowick
OH Wintersville
OH Wood County
OH Woodlawn
OH Woodmere.
OH Worthington
OH Wyoming
OH Youngstown
OK Arkoma "
OK Bethany >
OK Bixby * '
OK Broken Arrow
OK Canadian County
OK Catoosa
OK Choctaw
OK Cleveland County
OK Comanche County
OK Creek County
OK Del City
OK Edmond
OK Forest Park
OK Hall Park
OK Harrah
OK Jenks
OK Jones
OK Lake Aluma
OK Lawton
OK Logan County
OK Midwest City
OK Moffett
OK Moore
OK Mustang
OK Nichols Hills
OK NicomaPark
OK Norman
OK Oklahoma County
OK Rogers County
OK Sand Springs
OK Sequoyah County
OK Smith Village
OK Spencer
OK .The-Village
OK Tulsa County
OK Valley Brook
'OK Wagoner County
OK Warr Acres
OK Woodlawn Park
OK Yukon
OR Central Point. •
OR Columbia County
OR Durham
'.OR Jackson County
OR Keizer
OR King City
OR Lane County
OR Marion County
OR Maywood Park
OR Medford
OR Phoenix
OR Polk County
OR Rainier
OR Springfield
OR Troiitdale
OR Wood Village
PA Adamsburg
PA Alburtis
PA Aldan
PA Aliquippa
PA. Allegheny County
. PA Allenport
PA Altoona
PA Ambler
PA Ambridge • •
PA Archbald
PA Arnold
PA Ashley
PA Aspihwall
PA, Avalon
PA Avoca
PA Baden
PA Baldwin
PA Beaver .
' PA Beaver County
PA Beaver Falls
PA Bell Acres
PA Belle Vernon
PA Bellevue
PA Ben Avon
PA Ben Avon Heights
PA Berks County
PA Bethel Park
PA Bethlehem
PA Big Beaver
PA Birdsboro
PA. Blair County
PA Blakely
PA Blawnox
PA Boyertown
PA Brackenridge
• PA Braddock
PA Braddockl-Jills
PA Bradfordwoods
PA Brentwobd
PA Bridgeport
PA Bridgeville
PA Bridgewater
. PA Bristol
PA Brookhaven
PA Brownstown
PA Brownsville
PA BrynAthyn
PA Bucks County
PA California
PA Cambria County •
PA Camp Hill ,
PA Canonsburg
PA Carbondale
PA Carnegie
PA - Castle Shannon
PA Catasauqua
PA Centre County
PA Chalfant
PA Chalfont
PA Charleroi
PA. Chester.
PA Chester County
PA Chester Heights .
PA Cheswick
PA Churchill
PA Clairton '
PA Clarks Green
PA Clarks Summit
PA' Clifton Heights .
PA Coal Center
PA Coatesville
PA Collegeville
PA Collingdale
PA Columbia
PA Colwyn
PA Conshohocken
PA Conway
PA Coplay
PA Coraopolis
PA Courtdale
PA Crafton
PA Cumberland County
PA Daisytown
PA Dale
PA Dallas
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
PA Dallastown
PA Darby
PA Dauphin County
PA Delaware County
PA Delmont
PA Dickson City
PA Donora
PA Dormont
PA Dover
PA Downingtown
PA Doylestown
PA Dravosburg
PA Duboistown
PA Duncansville
PA Dunlevy
PA Dunmore
PA Dupont
PA Duquesne
PA Duryea
PA East Conemaugh
PA EastLansdowne
PA East McKeesport
PA East Petersburg
PA East Pittsburgh
PA East Rochester
PA East Washington
PA Easton
PA Eastvale
PA Economy
PA Eddystone
PA Edgewood
PA Edgeworth
PA Edwardsville
PA Elco
PA Elizabeth
PA Ellport
PA Ellwood City
PA Emmaus
PA Emsworth
PA Erie
PA Erie County
PA Etna
PA Exeter
PA Export
PA Fallston
PA Farrell
PA Fayette City
PA Fayette County
PA Ferndale
PA Finleyville
PA Folcroft
PA Forest Hills
PA Forty Fort
PA Fountain Hill
PA Fox Chapel
PA Franklin
PA Franklin County
PA Franklin Park
PA Freedom
PA Freemansburg
PA Geistown
PA Glassport
PA Glendon
PA Glenfield
PA Glenolden
PA Green Tree
PA Greensburg
PA Hallam
PA Harrisburg
PA Harveys Lake
PA Hatboro
PA Hatfield
PA Haysville
PA Heidelberg
PA Hellertown
PA Hermitage
PA Highspire
PA Hollidaysburg
PA Homestead
PA Homewood
PA Houston
PA Hughestown
PA Hulmeville
PA Hummelstown
PA Hunker
PA Ingram
PA Irwin
PA Ivyland
PA Jacobus '
PA Jeannette
PA Jefferson
PA Jenkintown
PA Jermyn
PA Jessup
PA Johnstown
PA Kenhorst
PA Kingston
PA Koppel
PA Lackawanna County
PA Laflin
PA Lancaster
PA Lancaster County
PA Langhorne
PA Langhorne Manor
PA Lansdale
PA Lansdowne
PA Larksville
"PA Laurel Run
PA Laureldale .
PA Lawrence County
PA Lebanon County
PA Leesport
PA Leetsdale
PA Lehigh County
PA Lemoyne.
PA Liberty
PA Lincoln
PA Lititz
PA Loganville
PA Lorain
PA Lower Burrell
PA Luzerne
PA Luzerne County
PA Lycoming County
PA Macungie
PA Madison
PA Malvern
PA Manor
PA Marcus Hook
PA Maiysville
PA Mayfield
PA McKees Rocks
PA McKeesport
PA Mechanicsburg
PA Media
PA Mercer County
PA Middletown
PA Millboume
PA Millersville
PA MUlvale
PA Modena
PA Mohnton
PA Monaca
PA Monessen
PA Monongahela
PA Montgomery County
PA Montoursville
PA Moosic
'PA Morrisville
PA Morton
PA Mount Oliver
PA Mount Perm
PA Mountville
PA Munhall
PA Municipality of Monroeville
PA Municipality of Murrysville
PA Nanticoke
PA Narberth
PA New Brighton
PA New Britain
PA New Cumberland
PA New Eagle
PA New Galilee
PA New Kensington
PA NewStanton
PA Newell
PA Newtown
PA Norristown
PA North Belle Vernon
, PA North Braddock '
PA North Catasauqua
PA North Charleroi
PA North Irwin
PA North Wales
PA North York
PA Northampton
PA Northampton County
PA Norwood
PA Oakmont
PA Old Forge
PA Olyphant
PA Osborne
PA Paint
PA Palmyra
PA, Parkside
PA Patterson Heights
PA Paxtang
PA Penbrook
PA Penn
PA Penndel
PA Pennsbury Village
PA Phoenixville
PA Pitcairn
PA .Pittsburgh
PA Pittston
PA Pleasant Hills
PA Plum
PA Plymouth
PA Port Vue
PA Pottstown
PA Pringle
PA Prospect Park
PA Rankin
PA Reading
PA Red Lion
PA Ridley Park
PA Rochester
PA Rockledge
PA Roscoe
PA Rose Valley
PA Rosslyn Farms
PA Royalton
PA Royersford
PA Rutledge.
PA Scalp Level
PA Schwenksville
PA Scranton
PA Sewickley
PA Sewickley Heights
PA Sewickley Hills
PA Sharon
PA Sharon Hill
PA Sharpsburg
PA Sharpsville
PA Shillirigton
PA Shiremanstown
PA Sinking Spring
PA Somerset County <
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PA Souderton
1 PA South Coatesville •
PA South Greensburg
PA South Heights
PA South Williamsport
PA Southmont
PA Southwest Greensburg
PA Speers
PA Spring City
PA Springdale
PA St. Lawrence
PA State College.
PA Steelton
PA Stockdale
PA Sugar Notch
PA Swarthmore
PA Swissvale
PA Swoyersville
PA Tarentum
PA Taylor
PA Telford
PA Temple
PA Thomburg
PA Throop
PA Trafford
PA Trainer
PA Trappe
PA Tullytown
PA Turtle Creek
PA Upland
PA Verona
PA Versailles
PA Wall
PA Warrior Run
PA Washington
PA Washington County .
PA Wernersville •
PA Wesleyville
PA West Brownsville
,PA West Chester
PA West Conshohbcken
PA West Easton
PA West Elizabeth
PA • West Fairview
PA West Homestead
PA West Lawn
PA WestMayfield >
'-PA'WestMiddlesex
PA WestMifflin
PA West Newton
PA West Pittston
PA West Reading
PA West View
PA West Wyoming
PA 'West York
PA Westmont
PA Westmoreland County
PA Wheatland
PA- Whitaker
PA White Oak
PA . Wilkes-Barre
PA Wilkinsburg
PA Williamsport
PA Wilmerding
PA Wilson
PA Windber
PA .Windsor
PA Wormleysburg ,
PA Wrightsville
PA Wyoming
PA Wyomissing
PA Wyomissing Hills
PA Yardley
PA Yatesville
PA Yeadon
PA Yoe '
PA York
PA York County
PA Youngwood
PR Aguada Municipio
PR Aguadilla Municipio
PR Aguas Buenas Municipio
PR Aibonito Municipio
• PR . Ahasco Municipio
PR Arecibo Municipio
PR Bayamon Municipio
PR Cabo Rojo Municipio
PR Caguas Municipio
PR Camuy Municipio
PR Canovanas Municipio '
PR Carolina Municipio
PR Catano Municipio
PR Cayey Municipio
PR Cidra Municipio
PR Dorado Muhicipio
PR Guaynabo Municipio
PR Gurabo Municipio
PR Hatillo Municipio
PR Hormigueros Municipio
PR Humacao Municipio
PR Juncos Municipio
PR Las Piedras Municipio
PR Loiza Municipio
PR Manati Municipio
PR Mayaguez Municipio
PR Moca Municipio
PR Naguabo Municipio
PR Naranjito Municipio
PR Penuelas Municipio
PR Ponce Municipio
PR Rio Grande Municipio
PR San German Municipio
PR San Juan Municipio
PR San Lorenzo Muhicipio
PR Toa Alta Municipio
PR Toa Baja Municipio
PR Trujillo Alto Municipio
PR Vega Alta Municipio
PR Vega Baja Municipio .
PR Yabucoa Municipio
RI Bristol County
RI Central Falls
RI Cranston
RI East Providence
RI Kent County .
RI Newport
RI Newport County
RI Pawtucket
RI Providence
. RI Providence County
RI Warwick
RI Washington County
RI Woonsocket
SC Aiken
SC Aiken County
SC Anderson
SC Anderson County
SC Arcadia Lakes
SC Berkeley County
SC. Burnettown
SC Cayce
SC .Charleston '
SC Charleston County
SC ' Columbia
SC Cowpens
SC Darlington County
SC Dorchester County
SC Florence
SC Florence County
SC Folly Beach
SC Forest Acres
SC Fort Mill .
SC Georgetown County
SC Goose Creek
SC Hanahan
SC Horry County
SC Irmo
SC Isle of Palms
SC Lexington County
SC Lincolhville
SC Mount Pleasant
SC Myrtle Beach
SC North Augusta
SC North Charleston
SC Pickens County
SC Pineridge
SC Quinby
SC Rock Hill
SC South Congaree
SC Spartanburg
SC Spartanburg County
SC Springdale
SC Sullivan's Island
SC Summerville
SC Sumter
SC Sumter County
SC Surfside Beach
SC West Columbia .
SC York County
SD Minnehaha County
SD North Sioux City
SD Pennington County
SD Rapid City
TN Alcoa
TN Anderson County
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TX Allen
TX Azle
TX Balch Springs
TX Balcones Heights
TX Bayou Vista •
TX Baytown
TX Bedford
TX Bell County
TX Bellaire
TX Bellmead
TX Belton
TX Benbrook
TX Beverly Hills
TX Bexar County
TX Blue Mound
TX Bowie County
TX Brazoria County
TX Brazos County
TX Brookside Village
TX Brownsville
TX Bryan
TX Buckingham
TX Bunker Hill Village
TX Cameron County
TX Carrollton
TX Castle Hills
TX Cedar Hill
TX Cedar Park
TX Cibolo
TX Clear Lake Shores
TX Clint
TX CockrellHill
TX College Station
TX Colleyville
TX Collin County
TX Combes
TX Converse
TX Copperas Cove
TX Corinth
TX Coryell County
TX Crowley
TX Dallas County
TX Dalworthington Gardens
TX Deer Park
TX Denison
TX Denton
TX Denton County
TX DeSoto
TX Dickinson
TX Donna
TX Double Oak
TX Duncanville
TX EctorCpunty
TX EdgeclifF
TX Edinburg
TX ElLago
TX El Paso County
TX Euless
TX Everman
TX Farmers Branch
TX Flower Mound
TX Forest Hill
TX Fort Bend County
TX Friendswood
TX Galena Park
TX Galveston
TX Galveston County
TX Grand Prairie
TX Grapevine
TX Grayson County
TX Gregg County
TX Groves
TX Guadalupe County
TX Haltom City
TX Hardin County
TX Harker Heights
TX Harlingen
TX Hedwig Village
TX Hewitt
TX Hickory Creek
TX Hidalgo County
TX Highland Park
TX Highland Village
TX Hill Country Village
TX Hilshire Village
TX Hitchcock
TX Hollywood Park
TX Howe
TX Humble
TX Hunters Creek Village
TX Hurst
TX Hutchins
TX Impact
TX Jacinto City
TX Jefferson County
TX Jersey Village
TX Katy •
TX Keller
TX Kemah
TX Kennedale
TX "Killeen
TX Kirby
TX La Marque
TX La Porte
TX Lacy-Lakeview
TX Lake Dallas
TX Lake Worth
TX Lakeside
TX Lakeside City
TX Lancaster
TX League City
TX Leander
TX Leon Valley
TX Lewisville
TX Live Oak
TX Longview
TX Lubbock County
TX Lumberton
TX McAllen
TX McLennan County
TX Meadows
TX Midland
TX Midland County
TX Mission
TX Missouri City
TX Montgomery County
TX Morgan's Point
TX Nash
TX Nassau Bay
TX Nederland
TX Nolanville
TX North Richland Hills
TX Northcrest
TX Nueces County
TX Odessa
TX Olmos Park
TX Palm Valley
TX Palmview
TX Pantego
TX Pearland
TX Pflugerville
TX Pharr
TX Piney Point Village
TX Port Arthur
TX Port Neches
TX Portland
TX Potter County
TX Primera
TX Randall County
TX Richardson
TX Richland Hills
TX River Oaks
TX Robinson
TX Rockwall
TX Rockwall County
TX Rollingwood
TX Rose Hill Acres
TX Rowlett
TX Sachse
TX Saginaw
TX SanAngelo
TX San Benito
TX San Juan
TX San Patricio County
TX Sansom Park
TX Santa Fe
TX Schertz
TX Seabrook
TX Seagoville
TX Selma
TX Shavano Park
TX Sherman
TX Shoreacres
TX Smith County .
TX Socorro
TX South Houston
TX Southside Place
TX Spring Valley
TX Stafford
TX Sugar Land
TX Sunset Valley
TX Tarrant County
TX Taylor County
TX Taylor Lake Village
TX Temple
TX Terrell Hills
TX Texarkana
TX Texas City
TX Tom Green County
TX Travis County
TX Tye
TX Tyler
TX Universal City
TX University Park
,TX Victoria
TX Victoria County
TX Wake Village
TX Watauga
TX Webb County
TX Webster
TX Weslaco
TX West Lake Hills
TX West University Place
TX Westover Hills
TX Westworth
TX White Oak
TX White Settlement
TX Wichita County
TX Wichita Falls
TX Williamson County
TX Wilmer
TX Windcrest
TX Woodway
UT American Fork
UT Bluffdale
UT Bountiful
UT Cache County
UT Cedar Hills
UT Centerville
UT Clearfield
UT Clinton
UT Davis County
UT Draper
UT Farmingtpn
UT Farr West
UT Fruit Heights
UT Harrisville
UT Highland
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1631
UT Hyde Park
UT Kaysville
UT Layton
UT Lehi
UT Lindon
UT Logan
UT Mapleton
UT Midvale
UT Millville
UT Murray
UT North Logan
UT North Ogden
UT North Salt Lake .
UT Osden
UT Orem
UT Pleasant Grove
UT Pleasant View
UT Providence
UT Provo
UT River Heights
UT Riverdale
UT Riverton
UT Roy
UT Smithfield
UT South Jordan
UT South Ogden
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
WI Greenfield
WI Hales Corners
WI Holmen
WI Howard
WI Janesville
WI Kaukauna
WI Kenosha
WI Kenosha County
WI Klmberly
WI Kohler
WI La Crosse
WI La Crosse County
WI Lannon
WI Little Chute
WI Maple Bluff
WI Marathon County
WI McFarland
WI Menasha
WI Menomonee Falls
WI Mequon
WI Middleton
WI Monona
WI Muskego
WI Neenah
WI New Berlin
WI North Bay
WI Oak Creek
WI Onalaska
WI Oshkosh
WI Outagamie County
WI Ozaukee County
WI Pewaukee
WI Pleasant Prairie
WI Racine
WI Racine County
WI River Hills
WI Rock County
WI Rothschild
WI Schofield
WI Sheboygan
WI Sheboygan County
WI Sheboygan Falls
WI Shorewood
WI Shorewood Hills
WI South Milwaukee
WI St. Francis
WI Sturtevant
WI Superior
WI Superior
WI Sussex
WI Thiensville
WI Washington County
WI Waukesha
WI Waukesha County
WI Wausau
WI Wauwatosa
WI WestAllis
WI West Milwaukee
WI Whitefish Bay
WI Wind Point
WI Winnebago County
WY Casper
WY Cheyenne
WY Evansville
WY Laramie County
WY Mills
WY Natrona County
Appendix 7 of Preamble — Incorporated
Places and Counties Potentially Designated
(Outside Urbanized Areas)1 Under the Storm
Water Phase n Proposed Rule
[Proposed to be Examined by the Permitting
Authority Under §123.35(b)(2)]
(From the 1990 Census of Population and,
Housing— U.S. Census Bureau)
(This List May Change With the Decennial
Census)
AL Jacksonville
AL Selma
AZ Douglas
AK Arkadelphia
AK Benton
AK Blytheville
AK Conway
AK El Dorado
AK Hot Springs
AK Magnolia
AK Rogers
AK Searcy
AK Stuttgart
CA Arcata
CA Arroyo Grande
CA Atwater
CA Auburn
CA Brawley
CA Calexico
CA Clearlake
CA Corcoran
CA Delano
CA Dinuba
CA Dixon
CA El Centre
CA El Paso De Robles
CA Eureka
CA Gilroy
CA Grover City
CA Hanford
CA Hollister
CA Lemoore
CA Los Banos
CA Madera
CA Manteca
CA Oakdale
CA Oroville
CA Paradise
CA Petaluma
CA Porterville
CA Red Bluff
CA Reedley
CA Ridgecrest
CA Sanger
CA Selma
CA Tracy
PA Tularo
^f\ 1 UloT c
PA Tin-l^i^L-
OA. 1 UrtOCK
PA TTloah
\-tfL l_IJlicUl
CA Wasco
CA Woodland
CO Canon City
CO Durango
CO Lafayette
CO Louisville
CO Loveland
CO Sterling
FL De Land
4 1 Listed incorporated places have at least 10,000
population and 1,000 population density. Please
note that no counties meet the 10,000/1,000
threshold.
FL Eustis
FL Key West
FL Leesburg ,
FL Palatka
FL St. Augustine
FL St. Cloud
GA Americus
GA Carrollton
GA Cordele
GA Dalton
GA Dublin
riA Oiffin
\jr\ xjrlllilll
GA Hinesville
GA Moultrie
GA Newnan
GA Statesboro
GA Thomasville
GA Tifton
GA Valdosta
GA Waycross
ID Caldwell
ID CoeurD'alene
ID Lewiston
ID Moscow
ID Nampa
ID Rexburg
ID Twin Falls
IL Belvidere
IL Canton
IL Carbondale
IL Centralia
IL Charleston
IL Danville
IL DeKalb
IL Dixon
IL Effingham
IL Freeport
IL Galesburg
IL Herrin
IL Jacksonville
IL Kewanee
IL Lincoln
IL Macomb
IL Marion
IL Mattoon
IL Morris
IL Mount Vernon
IL Ottawa
IL Pontiac
IL Quincy
IL Rantoul
IL Sterling
IL Streator
IL Taylorville
IL Woodstock
IN Bedford
IN Columbus
IN Connersville
IN Crawfordsville
IN Frankfort
IN Franklin
IN Greenfield
IN Huntington
IN Jasper
IN La Porte
IN Lebanon
IN Logansport
IN Madison
IN Marion j '
IN Martinsville
IN Michigan City
IN Newcastle ' t
IN Noblesville
IN Peru
IN Plainfield
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1633
IN > Richmond
IN Seymour
IN Shelbyyille
IN Valparaiso
IN Vincennes
IN Wabash
IN Warsaw
IN Washington
IA Ames
IA Ankeny •
IA Boone
IA Burlington
IA Fort Dodge
IA Fort Madison
IA Indianola
IA Keokuk
... I A Marshalltown
IA , Mason City
IA Muscatine
IA Newton
IA Oskaloosa
IA Ottumwa
IA Spencer
. KS Arkansas City "
KS Atchison
KS Coffeyville
KS Derby
KS Dodge City
KS El Dorado
KS Emporia
KS Garden City
KS 'Great Bend
• KS Hays
KS Hutchinson
KS Junction City
KS Leavenworth
KS Liberal
KS Manhattan
KS Mcpherson
KS Newton
KS Ottawa
KS Parsons
KS Pittsburg '
KS Salina
KS Winfield
KY Bowling Green
KY Danville
KY Frankfort
KY Georgetown
KY Glasgow
KY Hopkinsville
KY Madisonville
KY Middlesfaorough
KY Murray
KY Nicholasville
KY Paducah
KY Radcliff
KY Richmond
KY Somerset
KY Winchester
LA Abbeville
LA Bastrop
LA Bogalusa
LA Crowley
LA Eunice
LA Hammond
LA Jennings
LA Minden
LA Morgan City
LA ' Natchitoches
LA New Iberia
LA Opelousas
T A "Rn^tnn
J-if^. JA-UoLLJIl .
LA Thibodaux
ME 'Waterville '•
MD 'Aberdeen
MD Cambridge
MD Salisbury
MD Westminster '"-•
MA 'Newburyport ,
MI Adrian
MI Albion
MA 1
Alpena
MI Big Rapids
MI Cadillac •
MI Escanaba .
MI Grand Haven
MI Marquette
MI Midland "
X fT TL t
MI Monroe
MI Mount Pleasant
MI Owosso
MI Sturgis.
MI Traverse City
MN Albert Lea
MN Austin
MN Bemidji
MN Brainerd
MN Faribault
'MN Fergus Falls
MN Hastings
MN Hutchinson
MN Mankato
MN Marshall
MN NewUlm
MN North Mankato
MN Northfield
MN- Owatonna
MN Stillwater
MN Willmar
MN Winona _
, MS Brookhaven •
MS Canton '
MS Clarksdale
' . MS Cleveland
MS Columbus
MS Greenville •
MS Greenwood
MS Grenada
MS Indianola
MS Laurel ,
MS Mccomb
MS Meridian
MS Natchez
MS. Starkville
.MS Vicksburg
MS Yazoo City • . '
MO Cape Girardeau
MO Carthage
MO Excelsior Springs
MO Farmington
MO Hannibal
MO Jefferson City •
,MO Kennett
MO Kirksville
. MO ' •Marshall
MO Maryville
MO Mexico
MO Moberly
MO Poplar Bluff
MO Rolla
MO Sedalia
MO Sikeston
MO Warrensburg
MO Washington
MT Bozeman
MT Havre . .
MT Helena
•MT Kaiispell
NE Beatrice
NE Columbus
NE Fremont ., ' '
: NE Grand Island
•NE Hastings
NE Kearney • •
NE Norfolk
NE North Platte
'NE Scottsbiuff
NV Elko
NJ Bridgeton
NJ Princeton Borough
NM Alamogordo
NM Artesia •
NM Clovis
NM Deming
NM ' Farmington
••. NM Gallup
NM Hobbs
. NM Las Vegas ,
- NM Portales
NM Roswell
NM Silver City
. NY Amsterdam
NY Auburn
NY Batavia
NY Canandaigua
NY Corning
• NY Cortland
NY Dunkirk
NY Fredonia
NY Fulton
NY Geneva •
'. NY Gloversville
NY Jamestown
NY Kingston •
NY Lockport •
NY Massena
NY Middletown
, NY Ogdensburg
NY Olean
NY Oneonta
NY Oswego
• NY Pittsburgh
NY Potsdam
NY Watertown
NC Albemarle
NC Asheboro
NC Boone •
NC Eden
NC Elizabeth City
NC Havelock " . ' '
NC Henderson •> •
NC Kernersville'
NC ..Kinston
NC Laurinburg
NC Lenoir
NC Lexington )
NC Lumberton
NC Monroe
NC New Bern
NC Reidsville
NC Roanoke Rapids
NC Salisbury
NC Sanford
NC Shelby ,
NC Statesville
, NC Tarboro • . . . •
NC Wilson
ND Dickinson
ND Jamestown
ND Minot ' . .
ND Williston ,
OH Alliance '
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
OH Ashland
OH Ashtabula
OH Athens
OH Bellefontaine
OH Bowling Green
OH Bucyrus
OH Cambridge
OH Chillicothe
OH Circleville
OH Coshocton
OH Defiance
OH Delaware
OH Dover
OH East Liverpool
OH Findlay
OH Fostoria
OH Fremont
OH Gallon
OH Greenville
OH Lancaster
OH Lebanon
OH Marietta
OH Marion
OH Medina
OH Mount Vemon
OH New Philadelphia
OH Norwalk
OH Oxford
OH Piqua
OH Portsmouth
OH Salem
OH Sandusky
OH Sidney
OH Tiffin
OH Troy
OH Urbana
OH VanWert
OH Washington
OH Wilmington
OH Wooster
OH Xenia
OH Zanesville
OK Ada
OK Altus
OK Bartlesville
OK Chickasha
OK Claremore
OK Mcalester
OK Miami
OK Muskogee
OK Okmulgee
OK Ovvasso
OK Ponca City
OK Stillwater
OK Tahlequah
OK Weatherford
OR Albany
OR Ashland
OR Astoria
OR Bend
OR City of the Dalles
OR Coos Bay
OR Corvallis
OR Grants Pass
OR Hermiston
OR Klamath Falls
OR La Grande
OR Lebanon
OR Mcminnville
OR Newberg
OR Pendleton
OR Roseburg
OR Woodbum
PA Berwick Borough
PA Bloomsburg
PA
PA
PA
PA
PA
PA
PA
PA
PA
PA
PA
PA
PA
PA
SC
SC
SC
SC
SC
SC
SD
SD
SD
SD
SD
SD
.TN
TN
TN
TN
TN
TN
TN
TN
TN
TN
TN
TN
TN
TN
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
• TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
Butler
Carlisle Borough
Chambersburg Borough
Ephrata Borough
Hazleton
Indiana Borough
Lebanon
Meadville
New Castle
Oil City
Pottsville
Sunbury
Uniontown
Warren
Clemson
Easley
Gaffney
Greenwood
Newberry
Orangeburg
Aberdeen
Brookings
JnLuron
Mitchell
Vermillion
Watertown
Yankton
Brownsville
Cleveland
Collierville
Cookeville
, Dyersburg
Greeneville
Lawrenceburg
Mcminnville
Millington
Morristown
Murfreesboro
Shelbyville
Springfield
Union City
Alice
Alvin
Andrews
Angleton
Bay City
Beeville
Big Spring
Borger
Brenham
Brownwood
Burkburnett
Canyon
Cleburne
Conroe
Coppell
Corsicana
Del Rio
Dumas
Eagle Pass
El Campo
Gainesville
Gatesville
Georgetown
Henderson
Hereford
Hunts ville
Jacksonville
Kerrville
Kingsville
Lake Jackson
LaYnesa
Levelland
Lufkin
Mercedes
TX Mount Pleasant
TX Nacogdoches
TX New Braunfels
TX Palestine
TX Pampa
TX Pecos
TX Plainview
TX PortLavaca
TX Robstown
TX Rosenberg
TX Round Rock
TX San Marcos
TX Seguin
TX Snyder
TX Stephenville
TX Sweetwater
TX Taylor
TX The Colony
TX Uvalde
TX Vernon
TX Vidor i
UT Brigham City
UT Cedar City
UT Spanish Fork
UT Tooele
VT Rutland
VA Blacksburg
VA Christiansburg
VA Front Royal
VA Harrisonburg
VA Leesburg
VA Martinsville
VA Radford
VA Staunton
, VA Waynesboro
VA Winchester
W/L Aberdeen
WA Anacortes
WA Centralia
WA Ellensburg
WA Moses Lake
WA Mount Vernon
WA Oak Harbor
WA Port Angeles
WA Pullman
WA Sunnyside
WA Walla Walla
WA Wenatchee
WV Beckley
WV Bluefield
WV Clarksburg
WV Fairmont
WV Martinsburg
WV Morgantown
WI Beaver Dam
WI Fond du Lac
WI Fort Atkinson
WI Manitowoc
WI Marinette
WI Marshfield
WI Menomonie
WI Monroe
WI Oconomowoc
WI River Falls
WI Stevens Point
WI Sun Prairie
WI Two Rivers
WI Watertown
WI West Bend
WI Whitewater
WI Wisconsin Rapids
WY Evanston
WY Gillette
WY Green River
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Federal Register / Vol. 63. No. 6 / Friday, January 9, 1998 J Proposed Rules
1635
WY Laramie •• •
WY' Rock Springs
WY Sheridan •
For the reasons set forth in the
preamble, chapter I of title 40 of the
Code of Federal Regulations is proposed
to be amended as follows:
PART 122— EPA ADMINISTERED
PERMIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1 . The authority citation for part, 1 22
continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C.
1251 etseq.
2. In § 122.26, revise paragraphs (a)(9),
,,, ,
introductory text, (b)(14)(xi); redesignate'
paragraph (b) ( 1 5) as .paragraph (b) (1 7)
and add new paragraphs (b)(15) and
(b)(16); revise paragraph (c) heading,
paragraphs (c)(l) introductory text first
sentence, (c)(l)(i) introductory text,
(c) (1) (i) (C) first sentence, (c) (1) (i) (E)
introductory' text, (c)(l)(ii) first sentence
of introductory text, (e) (1) (ii) ; add
paragraph (e)(l)(iii); revise paragraphs
(f) (4) , (f) (5) . and (g) to read as follows:
§122.26 Storm water discharges
(applicable to State NPDES programs, see
§123.25).
(a)*** . .
(9)(i) On and after October 1, 1994,for
discharges composed entirely of storm
water, that are not otherwise already
required by paragraph (a)(l) of this
section to obtain a permit, owners or
operators shall be required to obtain a
NPDES permit if : ;_
(A) The discharge is from a small
municipal separate storm sewer system
required to be regulated pursuant to
§122.32;
(B) The discharge is a storm water
discharge associated with other activity
pursuant to paragraph (b)(15) of this
section; '
(C) The Director determines that
storm water controls are needed for the
discharge based on:
F (1) Wasteload allocations that are part
of "total maximum daily loads"
(TMDLs) that address the pollutants of
concern; or
(2) A comprehensive watershed plan,
implemented for the waterbody, that
includes the equivalents of TMDLs, and
addresses the pollutants of concern; or
(D) The Director determines that the
discharge contributes to a violation of a
water quality standard or is a significant
contributor of pollutants to waters of the
United States.
(ii) Owners or operators of municipal
separate storm sewer systems
designated pursuant to paragraphs
(a)(9)(i)(A), (a)(9)(i)(C), and (a)(9)(i)(D) of
this section, shall seek coverage under
an NPDES permit in accordance with
§§ 122.33 through 122.35. Owners or
operators of non-municipal sources
designated pursuant to paragraphs
(a)(9)(i)(B), (a)(9)(i)(C), and (a)(9)(i)(D) of
this section, shall seek coverage under
an NPDES permit in accordance with
paragraph (c)(l) of this section.
(iii) Owners or operators of storm
water discharges designated pursuant to
paragraphs (a)(9)(i)(C) and (a)(9)(i)(D) of
this section, shall apply to the Director
for a permit within 180 days of receipt
of notice, unless permission for a later
date is granted by the Director (see
§ 124.52(c) of this chapter),
* '*' * * * '
ft,)***
(4) * * * - , - • . • '
(i) Located in an incorporated place
with a population of 250,000 or more as
. determined by the 1990 Decennial
, Census by the Bureau of the Census
(appendix F of this part); or
***** '
(7)***
(i) Located in an incorporated place -
with a population of 100,000 or more
but less than 250,000, as determined by
the 1990 Decennial Census by the ,
Bureau of the Census (appendix G of
this part); or
* * . * * * '
(8)***
(i) Owned or operated by the United
States, a State, city, town, borough,
county, parish,1 district, association, or
other public body (created by or
pursuant to State law) having
jurisdiction over disposal of sewage,
industrial wastes, storm water, or other
wastes, including special districts under
State law such as a sewer district, flood
control district or drainage district, or
similar entity, or an Indian tribe or an
authorized Indian tribal organization, or
a designated and approved management
agency under section 208 of the CWA
that discharges to waters of-the United
States;
* * *"* *
(14) For the categories of industries
identified in this section, the term '
includes, but is not limited to, storm •
water discharges from industrial plant
yards; immediate access roads and .rail
lines used or traveled by carriers of raw
materials, manufactured products, waste
material, or by-products used or created
by the facility; material handling sites;
refuse sites; sites used for the
application or disposal of process waste
waters (as defined'at-40 CFRpart 401);
sites used for the storage and
maintenance of material handling
equipment; sites used for residual
treatment, storage, or disposal; shipping
and receiving areas; manufacturing
buildings; storage areas (including tank
farms) for raw materials, and
intermediate and finished products; and
areas where industrial activity has taken
place in the past and significant
materials remain and are exposed to
storm water. The term excludes areas
located on plant lands separate from the
plant's industrial activities, such as
office buildings and accompanying
parking lots as long as the drainage from
the excluded areas is not mixed with
storm water drained from the above
described areas.
* * * * *
(xi) Facilities under Standard
Industrial Classifications 20, 21, 22, 23,
,2434, 25, 265, 267, 27, 283, 285, 30, 31
(except 311), 323, 34 (except 3441), 35,
36, 37 (except 373), 38, 39, 4221-25;
* * * . * *
(15) Storm water discharges
associated with other, activity means the
discharge from any conveyance used for
collecting and conveying storm water
that needs-to be regulated to protect ,
water quality. For the categories of
facilities-identified in this paragraph,
the term includes the entire facility
except areas located at the facility
' separated from the plant's operational
activities. Such separated areas may
include office buildings and
accompanying parking lots, as long as
the drainage from the separated areas is
not mixed with storm water drained
from the plant's operational activities.
The following types of facilities or
activities are sources of "storm water
discharges associated with other
activity" for the purposes of this
paragraph:
(i) Construction activities. (A)
Construction activities including
clearing, grading, and excavating
activities that result in land disturbance
of equal to or greater than one acre and
less than five acres. Sites disturbing less
than one acre are included if they are
part of a larger common plan of
development or sale with a planned
disturbance of equal to or greater than
one and less than five acres. The NPDES
permitting authority may waive the
otherwise applicable-'requirements for a
storm water discharge from construction
activities that disturb less than five
acres where:
(1) The rainfall erosivity factor ("R" in
the Revised Universal Soil Loss
Equation) is less than two during the
period of construction activity. The
owner/operator must certify that
construction activity will take place
during the period when the rainfall
erosivity factor is less than two;
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
(2) On a case-by-case basis the annual
soil loss for a site will be less than two
tons/acre/year. The owner or operator
must certify that the annual soil loss for
their site will be less than two tons/
acre/year through the use of the Revised
Universal Soil Loss Equation, assuming
the constants of no ground cover and no
runoff controls in place; or
(3) Storm water controls are not
needed based on:
(J) Wasteload allocations that are part
of "total maximum daily loads"
(TMDLs) that address the pollutants of
concern. The owner or operator must
certify that the construction activity will
take place, and storm water discharges
will occur, within an area covered by
the TMDLs; or
(if) A comprehensive watershed plan,
implemented for the waterbody, that
includes the equivalents of TMDLs, and
addresses the pollutants of concern. The
owner or operator must certify that the
construction activity will take place,
and storm water discharges will occur,
within an area covered by the watershed
plan.
(B) Any other construction activity
designated by the NPDES permitting
authority 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.
(ii) Any other discharges, except
municipal separate storm sewer
systems, designated by the NPDES
permitting authority pursuant to
paragraph (a) (9) of this section.
EXHIBIT 1 TO §122.26(b)(15).—SUMMARY OF COVERAGE OF "STORM WATER DISCHARGES ASSOCIATED WITH OTHER
ACTIVITY"* UNDER THE NPDES STORM WATER PROGRAM
['See definition in § 122.26(b)(15)]
Automatic Designation:
Required Nationwide Coverage ,
Potential Designation:
Optional Evaluation and Designation by the
Permitting Authority.
Automatic Designation:
Required nationwide Coverage
Potential Waiver:
Waiver from Requirements as Determined
by the Permitting Authority.
Construction activities that result in a land disturbance of equal to or greater than one acre
and less than five acres. Sites disturbing less than one acre are included if part of a larger
common plan of development or sale, (see § 122.26(b)(15)(i)(A)).
(1) Construction activities that result in a land disturbance of less than one acre based, on the
potential for adverse impact on water quality or for significant contribution of pollutants, (see
§122.26(b)(15)(i)(B)).
(2) Any other non-municipal storm water discharges, (see § 122.26(b)(15)(ii)).
Construction activities that result in a land disturbance of equal to or greater than one acre
and less than five acres. Sites disturbing less than one acre are included if part of a larger
common plan of development or sale, (see § 122.26(b)(15)(i)(A)).
Any automatically designated construction activity where the owner/operator certifies:
(1) A rainfall erosivity factor of less than two, or
(2) An annual soil loss of less than two tons/acre/year, or
(3) That the activity will occur within an area where controls are not needed based on "waste
load allocations" that are part of total maximum daily loads (TMDLs), or a comprehensive
watershed plan, (see §122.26(b)(15)(i)(A)).
(16) Small municipal separate storm
sewer system means all municipal
separate storm sewer systems that are
not designated as "large" or "medium"
municipal separate storm sewer systems
pursuant to paragraphs (b)(4) and (b)(7)
of this section; or designated under
paragraph (a)(l)(v) of this section.
*****
(c) Application requirements for storm
water discharges associated with
industrial activity or storm water
discharges associated with other
activity—
(1) Individual application.
Dischargers of storm water associated
with Industrial or other activity are
required to apply for an individual
permit, apply for a permit through a
group application, or seek coverage
under a promulgated storm water
general permit. * * *
(I) Except as provided in
§ 122.26(c)(l)(ii) through (c)(l)(iv), the
operator of a storm water discharge
associated with industrial or other
activity subject to this section shall
provide:
.* * * * *
(C) A certification that all outfalls that
should contain storm water discharges
associated with industrial or other
activity have been tested or evaluated
for the presence of non-storm water
discharges which are not covered by a
NPDES permit; tests for such non-storm
water discharges may include smoke
tests, fluorometric dye tests, analysis of
accurate schematics, as well as other
appropriate tests. * * *
*****,
(E) Quantitative data based on
samples collected during storm events
and collected in accordance with
§ 122.21 from all outfalls containing a
storm water discharge associated with
industrial or other activity for the
following parameters:
*****
(ii) The operator of an existing or new
storm water discharge that is associated
with industrial activity solely under
paragraph (b)(14)(x) of this section or is
associated with other activity solely
under paragraph (b)(15)(i) of this
section, is exempt from the
requirements of § 122.2 l(g) and
paragraph (c) (1) (i) of this section. * * *
*****
(e) * * *
(1) * * *
(ii) For any storm water discharge
associated with industrial activity from
a facility that is owned or operated by
a municipality with a population of less
than 100,000 that is not authorized by
a general or individual permit, the
permit application must be submitted to
the Director by August 7, 2001.
(iii) For any storm water discharge
associated with other activity identified
in paragraph (b)(15) of this section that
is not authorized by a general or
individual permit, the permit
application made under paragraph (c) of
this section must be submitted to the
Director by {insert date 3 years and 90
days from date of publication of final
rule in the Federal Register}.
* # * * ' *
(f) * * *
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
1637
(4) Any person may petition the
Director for the designation of a large,
medium, or small municipal separate
sewer system as defined by paragraphs
(b)(4)(iv), (b)(7)(iv), or (b)(16) of this"
section.
• (5) The Director shall make a final
determination on any petition received
under this section within 90 days after
receiving the petition with the :
exception of petitions to designate a
small municipal separate storm sewer
system in which case' the Director shall
make a final determination on the
petition within 180 days after its % .
receipt.
(g) Conditional exemption for "no
exposure" of industrial activities and
'materials to storm water. Discharges
composed entirely of storm water do not
1 require an NPDES permit if the owner •
or operator of the facility satisfies the
conditions of this paragraph concerning
"no exposure." For purposes of this
section, "no exposure" means all
industrial materials or activities are
protected by a storm resistant shelter so
that they are riot exposed to rain, snow,
snowmelt, or runoff. Industrial materials
or activities include, but are not limited
to, material handling equipment,
industrial machinery, raw materials,
intermediate products, by-products, or
waste products, however packaged. This
exemption does not apply to storm.
water discharges from facilities
identified in paragraphs (b)(14)(x) and
(b) (15) (i) of this section and sources
individually designated under
paragraphs (a)(l)(v); (a)(9)(i)(B),(C)&(D)
and (g)(3) of this section. Actions taken
to qualify for this provision shall not
interfere with the attainment or
maintenance of water quality standards,
including designated uses. To establish
that the facility meets the definition of
no exposure described in this _
paragraph, an owner or operator must
submit a written certification to the
NPDES permitting authority once every
five years.
(1) Any owner or operator claiming
the no exposure exemption must:
(i) Notify the NPDES permitting
authority at the beginning of each
permit term or prior to commencing
discharges during a permit term;
(ii) Allow the permitting authority, or .
the municipality where the facility
discharges into a municipal separate /
storm sewer system, to inspect the
facility and allow the permitting
authority or the municipality to make
such inspection reports publicly
available upon request;
(iii) Upon request, also submit a copy
of the certification to the municipality
in which the facility is located; and
(iv) Sign and certify the certification
in accordance with § 122.22.
(2) If there is a change in
circumstances which causes exposure of
industrial activities or materials to
storm water, the owner or operator must
comply immediately with all the
requirements of the storm water
program including applying for and
obtaining coverage under an NPDES
permit.
(3) Even if an owner or operator
certifies to no exposure under paragraph
(g) (1) of this section, the NPDES
permitting authority still retains the
authority to require the owner or
operator of a facility to apply for an
individual or general permit if the
permitting authority has determined
that the discharge: ,
. (i) Is, or may reasonably be, causing
or contributing to the violation of a
water quality standard; or
(ii) Is, or may reasonably be,
interfering with the attainment or
maintenance of water quality standards,
including designated uses.
3. Revise § 122.28(b)(2)(v) to read as
follows:
§ 122.28 General permits (applicable to
State NPDES programs, see § 123.25).
(2)*** , .
(v) Discharges other than discharges ,
from publicly owned treatment works,
combined sewer overflows, municipal
separate storm sewer systems, primary .
industrial facilities, and storm water
discharges associated with industrial
activity, may, at the discretion of the
Director, be authorized to discharge
under a general permit without
submitting a notice of intent where the
Director finds that a notice of intent
requirement would be inappropriate.
*.##*#
4. Add Undesignated centerheadings
and §§ 122.30 through 122.37 to subpart
B to read as follows: ' •
General Purpose of the CWA Section
402 (p) (6) Storm Water Program
§ 122.30 What is the purpose of the CWA
section 402(p)(6) storm water regulations?
(a) Under the statutory mandate in
section 402'(p)(6) of the Clean Water Act,
the purpose of this portion of the storm
water program is to designate additional
sources that need to be regulated to
protect water quality and to establish a
comprehensive storm water program to
regulate these sources. (Since the storm
water program is part of the National
Pollutant Discharge Elimination System
(NPDES) Program, you should also refer
to § 122.1 which addresses'the broader
purpose of the NPDES program.)
(b) Storm water runoff continues to
harm the nation's waters. Runoff from
lands modified by human activities can
harm surface water resources in two
ways: by changing natural hydrologic
patterns and by elevating pollutant
concentrations and loadings. Storm
water runoff may contain or mobilize
high levels of contaminants, such as
sediment, suspended solids, nutrients,- ,
heavy metals, pathogens, toxins,
oxygen-demanding substances, and
floatables.
(c) EPA strongly encourages
partnerships and the watershed
approach as the management framework
for efficiently, effectively, and
consistently protecting and restoring
. aquatic ecosystems and protecting
public health.
Tribal Role for the CWA Section
402 (p) (6)' Storm Water Program
§ 122.31 As a Tribe, what is my role under
the CWA section 402(p)(6) storm water
program?
As a Tribe you may:
(a) Be authorized to operate the
NPDES program including the storm
water program, after EPA determines
that you "are eligible for treatment in the
same manner asna State under §§ 123.31
through 123.34 of this chapter. (If you
do not have an authorized NPDES
program, EPA generally will implement
the program on your reservation as well
as other Indian country.);
(b) Be classified as an owner or
operator of a regulated small municipal
separate storm sewer system, as defined
in § 122.32, to the extent the population
within the urbanized area of the
reservation is greater than or equal to
1,000 persons. (Designation of your
Tribe as an owner or operator of a small
municipal separate storm sewer system
for purposes of this part is an approach
that is consistent with EPA's 1984
Indian Policy of operating on a
government-to-government basis with
EPA looking to Tribes as the lead
governmental authorities to address
environmental issues on their
reservations as appropriate. If you
operate a separate storm sewer system
that meets the definition of a regulated
small municipal separate storm sewer
system, your reservation would be
subject to the requirements under
§§ 122.33 through 122.35. If you are not
designated as a regulated small
municipal separate storm sewer system,
you may ask EPA to designate you as
such for the purposes of this part. Being
regulated as a small municipal separate
storm sewer system and having coverage
under an NPDES permit may benefit
you by enhancing your ability to
establish and enforce certain
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
requirements for facilities that discharge
storm water into your separate storm
sewer system.); or
(c) Be a discharger of storm water
associated with industrial or other
activity under §§ 122.26(b)(14) or
(b) (15), in which case you must meet the
applicable requirements. Within Indian
country, the NPDES permitting
authority generally would be EPA,
unless you are authorized to administer
the NPDES program.'
Municipal Role for the CWA Section
402 (p) (6) Storm Water Program
EXHIBIT 1 TO SL/BPART B.—SUMMARY OF COVERAGE OF SMALL MUNICIPAL SEPARATE STORM SEWER SYSTEMS* UNDER
THE NPDES STORM WATER PROGRAM
['See definition at § 122.26(b)(16)]
Who is Designated/Covered Under This Part?
Automatic Designation
Required Nationwide Coverage
Potential Designation:
Required Evaluation by the Permitting Au-
thority for Coverage.
Potential Designation:
Optional Evaluation by the Permitting Au-
thority for Coverage.
All owners or operators of small municipal separate storm sewer systems (MS4s) located with-
in an "urbanized area." (see § 122.32(a)(1)).
All owners or operators of small MS4s located outside of an "urbanized area" with a popu-
lation of at least 10,000 and a population density of at least 1,000. (see §§ 122.32(a)(2) and
123.35(b)(2)).
All owners or operators of small MS4s that contribute substantially to the storm water pollutant
loadings of a physically interconnected MS4 that is regulated by the NPDES storm water
program, (see §§ 122.32(a)(2) and 123.35(b)(4)).
Owners and operators of small MS4s located outside of an "urbanized area" with a population
of less than 10,000 ora density of less than 1,000. (see §§122.32(a)(2) and 123.35(b)(3)).
Who is Eligible for a Waiver or an Exemption From the Small MS4 Permit Requirements?
Potential Waiver:
Locally-Based Waiver from Requirements
as Determined by the Permitting Author-
ity.
Exemption:
Not Defined as a Regulated Small MS4
Owners or operators of small MS4s, located within an "urbanized area," with a jurisdiction of
less than 1,000 persons and a system that is not contributing substantially to the pollutant
loadings of a physically interconnected MS4 may certify that storm water controls are not
needed based on:
(1) Waste load allocations that are part of "total maximum daily loads" (TMDLs) that address
the pollutants of concern; or
(2) A comprehensive watershed plan, implemented for the waterbody, that includes the
equivalents of TMDLs, and addresses the pollutants of concern.
Federal Indian reservations where the population within the "urbanized area" portion of the
reservation is less than 1,000 persons.
§ 122.32 As an owner or operator of a
small municipal separate storm sewer
system, am I regulated under the CWA
section 402(p)(6) municipal storm water
program?
(a) You are a regulated small
municipal separate storm sewer system
if you are the owner or operator of a
small municipal separate storm sewer
system, including but not limited to
systems owned or operated by local
governments, State departments of
transportation, and State, Tribal, and
Federal facilities; and you meet the
following definition. Regulated small
municipal separate storm sewer systems
are defined as all small municipal
separate storm sewer systems that are
located in:
(1) An incorporated place, county
(only the portion located in an
urbanized area), or other place under
the jurisdiction of a governmental
entity, including but not limited to
Tribal or Territorial governments,
located in an urbanized area as
determined by the latest Decennial
Census by the Bureau of the Census,
except for Federal Indian reservations
where the population within the
urbanized area of the reservation is
under 1,000 persons;
(2) An incorporated place, county, or
other place under the jurisdiction of a
governmental entity other than those
described in paragraph (a)(l) of this
section that is designated by the NPDES
permitting authority, including where
the designation is pursuant to
§§ 123.35(b)(2) and (b)(4) of this chapter,
or is based upon a petition under •
§ 122.26®.
(b) You may be the subject of a
petition, by any person, to the NPDES
permitting authority to require an
NPDES permit for a discharge which is
composed entirely of storm water which
contributes to a violation of a water
quality standard or is a significant .
contributor of pollutants to waters of the
United States. Upon a final
determination by the NPDES permitting
authority, you would be required to
comply with §§ 122.33 through 122.35.
(c) If you receive a waiver under
§ 122.33(b), you may subsequently be
designated back into the municipal
storm water program by the NPDES
permitting authority if circumstances
change. (See also § 123.35(b) of this
chapter.)
§ 122.33 If I am an owner or operator of a
regulated small municipal separate storm
sewer system, must I apply for an NPDES
permit? If so, by when do I have to seek
coverage under an NPDES permit? If so,
who is my NPDES permitting authority?
(a) If you are the owner or operator of
a regulated small municipal separate
storm sewer system under § 122.32, you
must seek coverage under a general or
individual NPDES permit, unless
waived under paragraph (b) of this
section, as follows:
(1) If you are seeking coverage under
a general permit, you must submit a
Notice of Intent (NOI). The general
permit will explain the steps necessary
to attain coverage.
(2) If you are seeking coverage under
an individual permit, you must submit
an individual application to your
NPDES permitting authority that
includes the information required under
§ 122.21(f) and the following
information:
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1639
(i) Estimate of square mileage served
by your separate storm sewer system,
and . . •
• (ii) Any additionalmformation'that
your NPDES permitting authority
requests.
(3) If there is an adjoining
municipality or other governmental
entity with an issued NPDES storm
water permit that is willing to have you
participate in its storm water program,
you may jointly with that adjoining
municipality or other governmental
entity seek a permit modification to
include your municipality or other
governmental entity in the relevant
portions of that NPDES permit. If you
choose this option you will need to
comply with the permit application
requirements of § 122.26, in lieu of the
requirements of § 122.34. You do not
need to comply with the specific
application requirements of
§ 122.26(d)(l)(iii) and (iv) and (d)(2)(iii) ,
(discharge characterization). You may
satisfy the requirements in § 122.26
(d)(l)(v) and (d)(2)(iv) (identifying a
management plan) by referring to the
adjoining municipality's storm water
management plan. (In referencing an
adjoining municipality's storm water
management plan, you should briefly
describe how the existing plan will
address discharges from your municipal
separate storm sewer system or would
need to be supplemented in order to
adequately address your discharges,
explain the role you will play in
coordinating storm water activities in
your jurisdiction, and detail the
resources available to you to accomplish
the plan.)
(b) The NPDES permitting authority
may waive the requirements otherwise
applicable to you if you are an owner or
operator of a regulated small .municipal
separate storm sewer system, as defined
in § 122.32(a)(l), the jurisdiction served
by your system includes a population of
less than 1,000 ersons, your system is
not contributing substantially to the
storm water pollutant loadings of a
physically interconnected regulated
municipal separate storm sewer system
(see § 123.35(b)(4) of this chapter), and,
you have certified that storm water
controls are not needed based on:
(1) Wasteload allocations that are part
of "total maximum daily loads"
(TMDLs) that address the pollutants of
concern; or ' -
(2) A comprehensive watershed plan,
implemented for the waterbody, that
includes the equivalents of TMDLs, and
addresses the pollutants of concern.
(c) If you are an owner or operator of
a regulated small municipal separate
storm sewer system:,
(1) Designated under § 122.32(a)(l),
you must apply for coverage under an •
NPDES permit, or apply for a
modification of an existing NPDES
permit under paragraph (a) (3) of this
section, by {insert date 3 years and 90
days from date of publication of final
rule}. .
(2) Designated under §'122.32(a) (2),
you must apply for coverage under an
NPDES permit, or apply for a '".
modification of an existing NPDES
permit under paragraph (a) (3) of this
section, within, 60.days of notice, unless
the NPDES permitting authority grants a
later date.
(d) If you are located in an NPDES
authorized State, Tribe, or Territory,
then that State, Tribe, or Territory is
your NPDES permitting authority.
Otherwise, your NPDES permitting
authority is the EPA Regional Office.
(You should call your EPA Regional
Office to find out who your NPDES
permitting authority is.)
§ 122.34 As an owner or operator of a
regulated small municipal separate storm
sewer system, what will my NPDES
municipal storm water permit require?
''f(a) Your NPDES. municipal storm
water permit will, at a minimum,
require you to develop, implement, and
enforce a storm water management
program designed to reduce the
discharge of pollutants from your
municipal separate storm sewer system
to the maximum extent practicable
(MEP) and protect water quality. Your
storm water management program must
include the minimum control measures.
described in paragraph (b) of this'
section. For purposes of this section,
narrative effluent limitations requiring
implementation of best management
practices (BMPs), are generally the most.
appropriate form of effluent limitations
when designed to satisfy technology
requirements, including reductions of
pollutants to the maximum extent
.practicable, and water quality-based
requirements of the Clean Water Act.
Implementation of the best management
practices consistent with the provisions
of the storm water management program
required pursuant to this section and
the provisions of the permit required
pursuant to § 122.33 will constitute
compliance with the standard of
"reducing pollutants to the maximum ;
extent practicable." Your NPDES
permitting authority will specify a time
period of up to 5 years from the date of
permit issuance for you to develop and
implement your program.
(b) Minimum control measures. (1)
Public education and outreach on storm
water impacts. YOU must implement a
public education program to distribute
educational materials to the community
or conduct equivalent outreach
activities about the impacts of storm
water discharges on water bodies and
the steps that can be taken to reduce
storm water pollution. (You may use"'
storm water educational materials
provided by your State, Tribe, EPA, or,
subject to the approval of the local
government, environmental or other
public interest or trade organizations.
The materials or outreach programs ,
should inform individuals and
households about the steps they can
take, such as ensuring proper septic
•system maintenance, limiting the use
arid runoff of garden chemicals,
becoming involved in local stream
restoration activities that are .
coordinated by youth service and
conservation corps and other citizen
groups, and participating in storm drain
stenciling, to reduce storm water
pollution. In addition, some of the
materials or outreach programs should
be directed toward targeted groups of
commercial, industrial, and institutional
entities likely to have significant storm
water impacts. For example,
information to restaurants on the impact
of grease clogging storm drains and to
garages on the impact of oil discharges.
You are encouraged,to tailor your
outreach program to address the
viewpoints and concerns of all
communities, particularly minority and
disadvantaged communities, as well as
children.)
(2) Public involvement/participation..
YOU must comply with State, Tribal and
local public notice requirements. (You
should include the public in
developing, implementing, and
reviewing your storm water
management program. The, public
participation process should make
efforts to reach out and engage all
economic and ethnic groups. You may
consider impanelling a group of citizens
to participate in your decision-making
process, hold public hearings, or work •
with volunteers.)
(3) Illicit discharge detection and
elimination. You must: -
(i) Develop, if not already completed,
a storm sewer system map, ,or
equivalent, showing the location of
major pipes, outfalls, and topography. In
addition, if data already exist, show •
areas of concentrated activities likely to
be a source of storm water pollution;
(ii) To the extent allowable under
State or Tribal law, effectively prohibit,
through ordinance, order, or similar
means, illicit discharges into your storm
sewer system and implement
appropriate enforcement procedures
and actions; ,
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(iii) Implement a plan to detect and
address illicit discharges, including
illegal dumping, to your system; and
(iv) Inform public employees,
businesses, and the general public of
hazards associated with illegal
discharges and improper disposal of
waste. (Actions may include storm drain
stenciling, a program to promote,
publicize, and facilitate public reporting
of illicit connections or discharges, and
distribution of outreach materials.)
(4) Construction site storm water
runoff control. You must develop,
implement, and enforce a program to
reduce pollutants in storm water runoff
to your municipal separate storm sewer
system from construction activities that
result in land disturbance of greater
than or equal to one acre. You must use
an ordinance or other regulatory
mechanism that controls erosion and
sediment to the maximum extent
practicable and allowable under State or
Tribal law. Your program must control
other waste at the construction site that
may adversely impact water quality,
such as discarded building materials,
concrete truck washout, and sanitary
waste. Your program also must include,
at a minimum, requirements for
construction site owners or operators to
implement appropriate BMPs,
provisions for pre-construction review
of site management plans, procedures
for receipt and consideration of
information submitted by the public,
regular inspections during construction,
and penalties to ensure compliance.
(See § 122.44(s))
(5) Post-construction storm water
management in new development and
redevelopment. You must develop,
implement, and enforce a program to
address storm water runoff from new
development and redevelopment
projects that result in land disturbance
of greater than or equal to one acre and
that discharge into your municipal
separate storm sewer system. Your
program must include a plan to
implement site-appropriate and cost-
effective structural and non-structural
best management practices (BMPs) and
ensure adequate long-term operation
and maintenance of such BMPs. Your
program must ensure that controls are in
place that would prevent or minimize
water quality impacts. Of the involved
parties consider water quality impacts
from the beginning stages of projects,
new development and potentially
redevelopment allow opportunities for
water quality sensitive projects. EPA
recommends that municipalities
establish requirements for the. use of
cost-effective BMPs that minimize water
quality impacts and attempt to maintain
pre-development runoff conditions. In
other words, post-development
conditions should not be different from
pre-development conditions in a way
that adversely affects water quality. The
municipal program should include
structural and/or non-structural BMPs.
EPA encourages locally-based
watershed planning and the use of
preventative measures, including non-
structural BMPs, which are generally
lower in cost than structural BMPs, to
minimize water quality impacts. Non-
structural BMPs are preventative actions
that involve management and source
controls. Examples of non-structural
BMPs include policies and ordinances
that result in protection of natural
resources and prevention of runoff.
These include requirements to limit
growth to identified areas, protect
sensitive areas such as wetlands and
riparian areas, minimize
imperviousness, maintain open space,
and minimize disturbance of soils and
vegetation. Examples of structural BMPs
include storage practices (wet ponds
and extended-detention outlet
structures), filtration practices (grassed
swales, sand filters and filter strips), and
infiltration practices (infiltration basins,
infiltration trenches, and porous
pavement). Storm water technologies
are constantly being improved, and EPA
recommends that municipal
requirements be responsive to these
changes.)
(6) Pollution prevention/good
housekeeping for municipal operations.
You must develop and implement a
cost-effective operation and
maintenance program with the ultimate
goal of preventing or reducing pollutant
runoff from municipal operations. Using
training materials that are available from
EPA, your State, or Tribe, or from other
organizations whose materials are ,
approved by the local government, your
program must include local government
employee training to prevent and reduce
storm water pollution from government
operations, such as park and open space
maintenance, fleet maintenance,
planning, building oversight, and storm
water system maintenance. (EPA
recommends that, at a minimum, you
consider the following in developing
your program: maintenance activities,
maintenance schedules, and long-term
inspection procedures for structural and
other storm water controls to reduce
floatables and other pollutants
discharged from your separate storm
sewers; controls for reducing or
eliminating the discharge of pollutants
from streets, roads, highways, municipal
parking lots, maintenance and storage
yards, and waste transfer stations;
procedures for properly disposing of
waste removed from the separate storm
sewer systems and areas listed above
(such as dredge spoil, accumulated
sediments, floatables, and other debris);
and ways to ensure that new flood
management projects assess the impacts
on water quality and examine existing
projects for incorporating additional
water quality protection devices or
practices. In general, the requirement to
develop and implement an operation
and maintenance program, including
local government employee training, is
meant to ensure that municipal
activities are performed in the most
appropriate way to minimize
contamination of storm water
discharges, rather than requiring the
municipality to undertake new
activities.)
(c) The NPDES permitting authority
may include permit provisions in your
NPDES permit that incorporate by
reference qualifying local, State or
Tribal municipal storm water
management program requirements that
address one or more of the minimum
controls of § 122.34(b). Qualifying local,
State or Tribal program requirements
must impose, at a minimum, the
relevant requirements of paragraph (b)
of this section.
(d) You must identify and submit to
your NPDES permitting authority either
in your notice of intent or in your
permit application (see § 122.33) the
following information: best management
practices (BMPs) to be implemented and
the measurable goals for each of the
storm water minimum control measures
at paragraphs (b)(l) through (b)(6) of this
section, the month and year in which
you will start and aim to complete each
of the measures or indicate the
frequency of the action, and the person
or persons responsible for implementing
or coordinating your storm water
management program. Measurable goals
to satisfy minimum control measures in
paragraphs (b)(3) through (b)(6) of this
section identified in a notice of intent
will not constitute a condition of the
permit, unless EPA or your State or
Tribe has provided or issued a menu of
regionally appropriate and field-tested •
BMPs that EPA or your State or Tribe
believes to be cost-effective. (EPA will
provide guidance on developing BMPs
and measurable goals a'nd modify, •
update, and supplement such guidance
based on the assessments of the NPDES
municipal storm water program and
research conducted by (date 13 years
from effective date of final rule).
(e) You must comply with other
applicable NPDES permit requirements,
standards and conditions established in
the individual or general permit,
developed consistent with the
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1641
provisions of §§ 122.41 through 122.49,
as appropriate.
(f) Evaluation and assessment (1),
Evaluation. You must evaluate program
compliance, the appropriateness of your-
identified best management practices,
and progress towards achieving your
identified measurable goals. (The
NPDES permitting authority may
determine monitoring' requirements for
you in accordance with State/Tribal
monitoring plans appropriate to your
watershed. Participation in a group
monitoring program is encouraged.)
(2) Record keeping. You must keep
records required by the NPDES permit
for at least 3 years. You must submit
your, records to the NPDES permitting
authority only when specifically asked
to do so. You must make your records,
including your storm water management
program, available to the public at
reasonable times during regular
business hours (see § 122.7 for
confidentiality provision). (You may
assess a reasonable charge for copying.
You may require a member of the public
to provide advance notice, not to exceed
two working days.)
(3) Reporting. You must submit
annual reports to the NPDES permitting
authority for your first permit term. For
subsequent permit terms, you'must
submit reports in year two and four
unless the NPDES permitting authority
requires more frequent reports.' Your
report must include:
(i) The status of compliance with
permit conditions, an assessment of the
appropriateness of your identified best
management practices and progress
towards achieving your identified
measurable goals for each of the
minimum control measures;
(ii) Results of information collected
and analyzed, including monitoring
data, if any, during the reporting period;
(iii) A summary of the storm water ,
activities you plan to undertake during
the next reporting cycle; and
(iv) A change in any identified
measurable goals that apply to the
program elements. •
§ 122.35 As an owner or operator of a
regulated small municipal separate storm
sewer system, what if another
governmental or other entity is already
implementing a minimum control measure
in my jurisdiction?
(a) You may rely on another entity to
satisfy your NPDES permit obligations
to implement a minimum control
measure if: the other entity is
implementing the control measure; the
particular control measure, or
component thereof, is at least as
stringent as the corresponding NPDES
permit requirement; and you have
requested, and the other entity has
agreed to accept responsibility for
implementation of the control measure
on your behalf to satisfy your permit
obligation. You must note in your
§ 122.34(f)(3) reports when you are
relying on another entity to satisfy your
permit obligations. You remain
responsible for compliance with your
permit obligations if the other entity
fails to implement the control measure
(or component thereof). Therefore, EPA
encourages you to enter into a legally
binding agreement with that entity if
you want to minimize any uncertainty
about compliance with your permit.
. (b) Where appropriate, the NPDES
permitting authority may recognize
existing responsibilities among
governmental entities for the minimum
control measures in your NPDES permit.
(For example, a State or Tribe may be ,
responsible for addressing construction
site runoff and municipalities may be
responsible for the remaining minimum
control measures. You are not required
to provide notice to the other
governmental entity when your NPDES
permit recognizes the entity and its
existing responsibilities.) Where the
permitting authority recognizes an
existing responsibility for one or more
of the minimum control measures in
your permit, your responsibility to
include such minimum control
measure, or measures, in your storm
water management program is waived
so long as the other governmental entity
implements the measure consistent with
the requirements of § 122.34(b).
§ 122.36 As an owner or operator of a
regulated small municipal separate storm
sewer system, what happens if I don't
comply with the application or permit
requirements in §§122.33 through 122.35?
NPDES permits are federally
.enforceable. Violators may be subject to
the enforcement actions and penalties
described in Clean Water Act sections
309 (b), (c), and (g) and 505, or under
applicable State or local law.
Compliance with a permit issued
pursuant to section 402 of the Clean
Water Act would be deemed
compliance, for purposes of sections
309 and 505, with sections 301, 302,
306, 307, and 403, except any standard
imposed under section 307 for toxic
pollutants injurious to human health.
§ 122.37 Will the municipal storm water
program regulations at §§ 122.32 through
122.36 and § 123.35 of this chapter change
in the future?
EPA will evaluate the municipal
storm water regulations at §§ 122.32 '
through'122.36 and § 123.35 of this
chapter after {insert date 13 years from
date of publication of final rule in the
Federal Register} and make any
necessary revisions. (EPA will conduct
an enhanced research effort and compile
a comprehensive evaluation of the
NPDES municipal storm water program.
EPA strongly recommends that no
additional requirements beyond the
minimum control measures be imposed
on regulated small municipal separate
storm sewer systems without the
agreement of the owner or operator of
the affected municipal separate storm
sewer system, except where adequate
information exists in approved TMDLs
or equivalents of TMDLs to develop
more specific measures to protect water
quality, or until EPA's comprehensive-
evaluation is completed. EPA will
.evaluate the regulations based on data
from the NPDES municipal storm water
program, from research on receiving
water impacts from storm water, and the
effectiveness of best management
practices (BMPs).)
5. Add § 122.44(s) to read as follows: '
§ 122.44 Establishing limitations,
standards, and other permit conditions
(applicable to State NPDES programs, see
§123.25)
• * * '* '* *
(s) (1) For storm water discharges from
construction sites identified in
§ 122.26(b)(15)(i), the Director may '
include permit provisions that
incorporate by reference qualifying
State, Tribal, or local sediment and
erosion control program requirements.
A qualifying State, Tribal, or local
sediment and erosion control program is
one that meets the requirements of a
municipal NPDES separate storm sewer .
permit or a program otherwise approved
by the Director. For the Director to
approve such programs, the program
must meet the minimum program
requirements established under
§122.34(b)(4).
(2) For storm water discharges
identified in § 122.26(b)(14)(x),'the
Director may include by reference State,
Tribal or local requirements that meet
the standard of "best available
technology" (BAT) as defined, for ,
example, in the storm water general
permit.
PART 123—STATE PROGRAM
REQUIREMENTS
1. The authority citation for part 123
continues to read as follows: •
Authority: The Clean Water Act, 33 U.S.C.
I251etseq.
2. Section 123.25 is amended by '
adding paragraphs (a) (3 9) through
(a) (46) to read as follows:
§ 123.25 Requirements for permitting.
(a) * * *
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(39) § 122.30 (What is the purpose of
the CWA section 402(p) (6) storm water
regulations?);
(40) § 122.31 (For Indian Tribes only)
(As a Tribe, what is my role under the
CWA section 402 (p) (6) storm water
program?)
(41) § 122.32 (As an owner or operator
of a small municipal separate storm
sewer system, am I regulated under the
CWA section 402 (p) (6) municipal storm
water program?);
(42) § 122.33 (If I am an owner or
operator of a regulated small municipal
separate storm sewer system, must I
apply for an NPDES permit? If so, by
when do I have to seek coverage under
an NPDES permit? If so, who is my
NPDES permitting authority?);
(43) § 122.34 (As an owner or operator
of a regulated small municipal separate
storm sewer system, what will my
NPDES municipal storm water permit
require?);
(44) § 122.35 (As an owner or operator
of a regulated small municipal separate
storm sewer system, what if another
governmental or other entity is already
implementing a minimum control
measure in my jurisdiction?);
(45) § 122.36 (As an owner or operator
of a regulated small municipal separate
storm sewer system, what happens if I
don't comply with the application or
permit requirements in §§ 122.33
through 122.35?);
(46) § 122.37 (Will the municipal
storm water program regulations at §§
122.32 through 122.36 and § 123.35 of
this chapter change in the future?);
*****
3. Add an undesignated
centerheading and § 123.35 to subpart B
to read as follows:
NPDES Permitting Authority Role for
the CWA section 402 (p) (6) Municipal
Program
§123.35 As the NPDES Permitting
Authority for regulated small municipal
separate storm sewer systems, what is my
role?
(a) You must comply with the
requirements for all NPDES permitting
authorities under parts 122, 123, 124,
and 125 of this chapter. (This section is
meant only to supplement those
requirements and discuss specific issues
related to the small municipal storm
water program.)
(b) You must develop a process, as
well as criteria, to designate
incorporated places, counties, or other
places under the jurisdiction of a
governmental entity, other than those
described in § 122.32(a)(l) of this
chapter, as regulated small municipal
separate storm sewer systems to. be
covered under the CWA section
402(p)(6) program. This process must
include the authority to designate a
small municipal separate storm sewer
system waived under paragraph (d) of
this section if circumstances change.
EPA may make designations under this
section if a State or Tribe fails to comply
with the requirements listed in this
paragraph. In making your designations,
you must:
(1) Develop criteria to evaluate
whether a storm water discharge results
in or has the potential to result in
exceedances of water quality standards,
including impairment of designated
uses, or other significant water quality
impacts, including habitat and
biological impacts. (EPA recommends as
guidance for determining other
significant water quality impacts a
balanced consideration of the following
designation criteria on a watershed or
other local basis: discharge to sensitive
waters, high growth or growth potential,
high population density, contiguity to
an urbanized area, significant
contributor of pollutants to waters of the
United States, and ineffective control of
water quality concerns by other
programs.);
(2) Apply such criteria, at a minimum,
to any incorporated place, county, or
other place under the jurisdiction of a
governmental entity located outside of
an urbanized area that has a population
density of at least 1,000 people per
square mile and a population of at least"
10,000;
(3) Designate any incorporated place,
county or other place under the
jurisdiction of a governmental entity
that meets the selected criteria by
{insert date three years and 90 days
from date of publication of final rule in
the FEDERAL REGISTER}. You may
have until {insert date five years from
date of publication of final rule in the
FEDERAL REGISTER} to apply the
designation criteria on a watershed basis
where there is a comprehensive
watershed plan. You may apply these
criteria to make additional designations
at any time, as appropriate; and
(4) Designate any incorporated place,
county, or other place under the
jurisdiction of a governmental entity
that contributes substantially to the
storm water pollutant loadings of a
physically interconnected municipal
separate storm sewer system that is
regulated by the NPDES storm water
program.
(c) You must make a final
determination within 180 days from
receiving a petition under § 122.32(b) of
this chapter (or analogous State or
Tribal law). If a State or Tribe fails to do
so, EPA may make a determination on
the petition.
(d) You must issue permits consistent
with §§ 122.32 through 122.35 of this
chapter to all regulated small municipal
separate storm sewer systems. You may
waive the requirements otherwise
applicable to regulated small municipal
separate storm sewer systems, as
defined in § 122.32(a)(l) of this chapter,
if the jurisdiction of the regulated small
municipal separate storm sewer system
includes a population of less than 1,000
persons, its discharges are not
contributing substantially to the storm
water pollutant loadings of a physically
interconnected regulated municipal
separate storm sewer system (see
paragraph (b)(4) of this section), and the
owner or operator of the regulated small
municipal separate storm sewer system
has certified that storm water controls
are not needed based on:
(1) Wasteload allocations that are part
of "total maximum daily loads"
(TMDLs) that address the pollutants of
concern; or
(2) A comprehensive watershed plan,
implemented for the waterbody, that
includes the equivalents of TMDLs, and
addresses the pollutants of concern.
(e) You must specify a time period of
up to 5 years from the date of permit "
issuance for owners or operators of
small municipal separate storm sewer
systems to fully develop and implement
their storm water program.
(f) You must include the requirements
in § 122.34 of this chapter including as
modified in accordance with
§§122.33(a)(3), 122.34(c), or 122.35(b)
of this chapter, in any permit issued for
regulated small municipal separate
storm sewer systems. (You may include
permit provisions in a regulated small
municipal separate storm sewer system
NPDES permit that incorporates by
reference qualifying local, State or
Tribal municipal storm water
management program requirements that
address one or more of the minimum
controls of § 122.34(b) of this chapter
(see § 122.34(c) of this chapter).
Qualifying local, State or Tribal program
requirements must impose, at a
minimum, the relevant requirements of
§ 122.34(b) of this chapter.)
(g) If you plan to issue a general
permit to authorize storm water
discharges from small municipal
separate storm sewer systems, you must
provide or issue by {insert 2 years from
date of publication of final rule in the
Federal Register} a menu of regionally
appropriate and field-tested BMPs that
you believe to be cost-effective from
which regulated small municipal
separate storm sewer systems can select.
Failure to issue the menu of BMPs
would not affect the legal status of the
general permit. If a State or Tribe fails
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Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules
1643
to provide or issue the menu, EPA may
do so. .
(h) You must incorporate additional
measures necessary to ensure effective
implementation of your State storm •
water program for regulated small
municipal separate storm sewer'
systems, (EPA recommends
consideration of the following:
(1) You are encouraged to use a
general permit for regulated small
municipal separate storm sewer
systems;
(2) To the extent that there is a
dedicated funding source, you should
play an active role in providing
financial assistance to owners and
operators of regulated small municipal
separate storm sewer systems;
(3) You should support local
programs by providing technical and
programmatic assistance, conducting
research projects, performing watershed
monitoring, and providing adequate
legal authority at the local level;
(4) You are encouraged to coordinate
and utilize the data collected under
several programs including water
quality, management programs, TMDL
programs, and water quality monitoring
programs;
(5) Where appropriate, you may
recognize existing responsibilities
among governmental entities for the
control measures in an NPDES small
municipal storm water permit (see
§ 122.35(b) of this chapter); and
(6) You are encouraged to use a brief
(e.g., two page) reporting format to
facilitate compiling and analyzing data
from submitted reports under
§ 122.34(f)(3) of this chapter. EPA will
develop a model form for. this purpose.)
[FRDoc. 98-180 Filed 1-8-98; 8:45 am]
BILLING CODE 6560-SO-P
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