December 18, 2015 

MEMORANDUM 

To: File 

From: Greg Schaner, Attorney Adviser, U.S. EPA 

Re: Summary of Changes Made to EPA’s Proposed Municipal Separate Storm Sewer System 

General Permit Remand Rule 

This memorandum includes a summary of changes made to EPA’s proposed Municipal 

Separate Storm Sewer System (MS4) General Permit Remand Rule in response to comments 

received during Inter-Agency review. The proposed rule was submitted to the Office of 

Management & Budget (OMB) on October 15, 2015. OMB closed its review on December 12, 

2015. 

The following includes a part-by-part summary of noteworthy changes made to the 

proposed rule. This list does not include changes initiated by EPA during Inter-Agency review to 

improve clarity or consistency, or to correct errors. 

Section II.B

 Included the following edits: Like the Phase I rule, the Phase II rule requires regulated 

small MS4s to develop and implement SWMPs. 40 CFR 122.34(a) requires that SWMPs 

be designed to reduce pollutants discharged from the MS4 “to the maximum extent 

practicable (MEP), to protect water quality, and to satisfy the appropriate water quality 

requirements of the Clean Water Act,” and requires that the SWMPs include a minimum 

of six program elements called “minimum control measures.” 

 Included the following edits: EPA anticipated that under the first two or three rounds of 

issuing small MS4 permits permit cycles, whether individual permits or general permits, 

BMP-based SWMPs implementing the six minimum control measures would, if properly 

implemented, “be sufficiently stringent to protect water quality, including water quality 

standards, so that additional, more stringent and/or more prescriptive water quality based 

effluent limitations will be unnecessary.” (64 FR 68753, December 8, 1999). 

Section V.C

 Included the following edits: EPA clarifies that if, upon promulgation of the final rule, a 

state is already implementing an approach that is consistent with the final rule EPA 

would not expect that the permitting authority would need to make any changes to its 

current approach. Similarly, it is EPA’s intention that permitting authorities that only 

issue individual permits to small MS4s (e.g., EPA Region 10 in Idaho, Delaware, 

Michigan, and Oregon) would not need to make any changes because the process for 

issuing individual permits already encompasses the necessary permitting attributes found 
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missing in the Phase II regulations by the Ninth Circuit (i.e., permitting authority 

determination, public notice, and opportunity to request a hearing). 

Section VI.B

 Included description of regulatory changes that are envisioned for the Procedural 

Approach and State Choice Approach: The following regulatory modifications are 

envisioned if the procedural approach is selected for the final rule: 

 Include additional language indicating that to the extent that the permitting authority 

chooses to rely on the MS4 operator to describe in its NOI the BMPs, measurable 

goals, schedules, and other activities in its SWMP that it plans to implement to reduce 

pollutant discharges to the MEP, to protect water quality, and to satisfy the 

appropriate water quality requirements of the CWA, the permitting authority will 

need to incorporate these as enforceable elements of the permit in accordance with 

the procedures for public notice, the opportunity to request a hearing, and permitting 

authority final determination in 40 CFR part 124. 

 With respect to determining the appropriate 40 CFR part 124 procedures to follow, 

one model that EPA could utilize in crafting applicable rule language for procedural 

aspects of Option 3 is the regulatory procedures in 40 CFR 122.23(h) for CAFO 

general permits. While the CAFO and MS4 programs differ fundamentally from one 

another in many ways, there are some aspects of the CAFO general permit procedures 

that could be modified in a manner that would make them suitable to small MS4 

general permits. Thus, based on some of the key elements of the CAFO general 

permit procedures in 40 CFR 122.23(h), EPA is considering including the following 

provisions in revised 40 CFR 122.33(b)(1) as subparagraphs (i) – (iii): 

- At a minimum, the operator must include in the NOI the BMPs that it 

proposes to implement to comply with the permit, the measurable goals for 

each BMP, the person or persons responsible for implementing the SWMP, 

and any additional information required in the NOI by the general permit. 

- The Director must review the NOI to ensure that it includes adequate 

information to determine if the proposed BMPs, timelines, and any other 

actions are adequate to reduce the discharge of pollutants from the MS4 to the 

maximum extent practicable, to protect water quality, and to satisfy the 

appropriate water quality requirements of the Clean Water Act. When the 

Director finds that additional information is necessary to complete the NOI or 

clarify, modify, or supplement previously submitted material, the Director 

may request such additional information from the MS4 operator. 

- If the Director makes a preliminary determination that the NOI contains the 

required information and that the proposed BMPs, schedules, and any other 

actions necessary to reduce the discharge of pollutants from the MS4 to the 

maximum extent practicable, to protect water quality, and to satisfy the 

appropriate water quality requirements of the Clean Water Act, the permitting 

authority must notify the public of its proposal to authorize the MS4 to 

discharge under the general permit and, consistent with 40 CFR 124.10, make 

available for public review and comment and opportunity for public hearing 

the NOI, and the specific BMPs, milestones, and schedules from the NOI that 
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the Director proposes to be incorporated into the permit as enforceable 

requirements. The process for submitting public comments and hearing 

requests, and the hearing process if a hearing is granted, must follow the 

procedures applicable to draft permits in 40 CFR 124.11-13. The permitting 

authority must respond to significant comments received during the comment 

period, as provided in 40 CFR 124.17, and, if necessary revise the proposed 

BMPs and/or timelines to be included as terms of the permit.. 

- When the Director authorizes coverage for the MS4 to discharge under the 

general permit, the specific elements identified in the NOI are incorporated as 

terms and conditions of the general permit for that MS4. The permitting 

authority must, consistent with 40 CFR 124.15, notify the MS4 operator and 

inform the public that coverage has been authorized and of the elements from 

the NOI that are incorporated as terms and conditions of the general permit 

applicable to the MS4. 

 To accompany the above regulatory changes, EPA is also considering specifying 

what specific information the MS4 will need to provide as part of the NOI in order to 

obtain coverage under a general permit that will use a procedural approach, such as 

the approach described above. The MS4 would need to provide the same information 

as is required for an application for an individual permit under proposed 40 CFR 

122.33(b)(2)(ii). This includes general background information as specified in 

122.21(f) as well as the information currently required by 40 CFR 122.34(d), and any 

other information requested by the permitting authority. 

 If the final rule includes Option 2 or allows for a hybrid approach under Option 3, 

authorized states would need to revise their approved programs to include the 

option(s) chosen by the permitting authority and to establish or reference the public 

notice and comment, hearing request, and other procedures necessary to implement 

the chosen option(s).

 Added the following sentence for clarification: For both the Procedural Approach and 

State Choice Approach (see Section VI.C below), the Agency chose to describe the 

regulatory changes that would accompany these options if promulgated as opposed to 

providing line-by-line rule text changes as it has for the Traditional General Permit 

Approach. In EPA’s view, presenting the rule language in this way will aid in the 

public’s review of the three different options as compared to presenting three different 

sets of line-by-line changes.

Section VI.C

 Added the following clarification: If EPA adopts this option as part of the final rule, the 

following rule changes would be necessary: 

 Adopt the rule changes proposed in today’s notice associated with the Traditional 

General Permit Approach, as modified pursuant to public comment; and 

 Adopt the rule changes described in the discussion above under Option 2.

 Added the following request for comment: EPA also requests comment on whether 

under Option 3, EPA should consider establishing which permit requirements must 
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be developed using the Traditional General Permit Approach (Option 1), and which 

may be developed using the Procedural Approach (Option 2). For instance, EPA is 

interested in finding out whether there is support for requiring permitting authorities to 

use Option 1 to develop permit conditions implementing the minimum control measures 

in 40 CFR 122.34(b), while providing the permitting authority with the choice of whether 

to use an Option 2 approach to establish any more stringent effluent limitations, such as 

those based on an approved TMDL. Using this approach, the general permit would 

define the specific actions, performance requirements, and implementation schedules 

considered necessary to reduce pollutant discharges to the MEP, to protect water quality, 

and to satisfy the water quality requirements of the CWA. However, this approach would 

provide the permitting authority the additional flexibility to allow the MS4 to propose in 

its NOI the specific components of a TMDL implementation plan in order to comply with 

permit requirements based on applicable wasteload allocation(s). To ensure that the 

specific actions and timelines of the TMDL plan are properly incorporated as elements of 

the permit, the permitting authority would then be required to review and approve the 

small MS4’s proposed plan using the process required by the Procedural Approach 

(Option 2). Additionally, with respect to this concept of specifying which aspects of 

the small MS4 regulations must be incorporated into permits using the Option 1 

approach, while allowing some permit conditions to be developed using the Option 2 

approach, EPA requests comment on which permit requirements should be 

required to be established using Option 1 and which should be given the flexibility 

to be established using Option 2.