68722 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 9, 122 , 123, and 124

[FRL—6470–8]

RIN 2040–AC82

National Pollutant Discharge

Elimination System—Regulations for

Revision of the Water Pollution Control

Program Addressing Storm Water

Discharges

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: Today’s regulations (Phase II)

expand the existing National Pollutant

Discharge Elimination System (NPDES)

storm water program (Phase I) to

address storm water discharges from

small municipal separate storm sewer

systems (MS4s) (those serving less than

100,000 persons) and construction sites

that disturb one to five acres. Although

these sources are automatically

designated by today’s rule, the rule

allows for the exclusion of certain

sources from the national program based

on a demonstration of the lack of impact

on water quality, as well as the

inclusion of others based on a higher

likelihood of localized adverse impact

on water quality. Today’s regulations

also exclude from the NPDES program

storm water discharges from industrial

facilities that have ‘‘no exposure’’ of

industrial activities or materials to

storm water. Finally, today’s rule

extends from August 7, 2001 until

March 10, 2003 the deadline by which

certain industrial facilities owned by

small MS4s must obtain coverage under

an NPDES permit. This rule establishes

a cost-effective, flexible approach for

reducing environmental harm by storm

water discharges from many point

sources of storm water that are currently

unregulated.

EPA believes that the implementation

of the six minimum measures identified

for small MS4s should significantly

reduce pollutants in urban storm water

compared to existing levels in a costeffective manner. Similarly, EPA

believes that implementation of Best

Management Practices (BMP) controls at

small construction sites will also result

in a significant reduction in pollutant

discharges and an improvement in

surface water quality. EPA believes this

rule will result in monetized financial,

recreational and health benefits, as well

as benefits that EPA has been unable to

monetize. Expected benefits include

reduced scouring and erosion of

streambeds, improved aesthetic quality

of waters, reduced eutrophication of

aquatic systems, benefit to wildlife and

endangered and threatened species,

tourism benefits, biodiversity benefits

and reduced costs for siting reservoirs.

In addition, the costs of industrial storm

water controls will decrease due to the

exclusion of storm water discharges

from facilities where there is ‘‘no

exposure’’ of storm water to industrial

activities and materials.

DATES: This regulation is effective on

February 7, 2000. The incorporation by

reference of the rainfall erosivity factor

publication listed in the rule is

approved by the Director of the Federal

Register as of February 7, 2000. For

judicial review purposes, this final rule

is promulgated as of 1:00 p.m. Eastern

Standard Time, on December 22, 1999

as provided in 40 CFR 23.2.

ADDRESSES: The complete

administrative record for the final rule

and the ICR have been established

under docket numbers W–97–12 (rule)

and W–97–15 (ICR), and includes

supporting documentation as well as

printed, paper versions of electronic

comments. Copies of information in the

record are available upon request. A

reasonable fee may be charged for

copying. The record is available for

inspection and copying from 9 a.m. to

4 p.m., Monday through Friday,

excluding legal holidays, at the Water

Docket, EPA, East Tower Basement, 401

M Street, SW, Washington, DC. For

access to docket materials, please call

202/260–3027 to schedule an

appointment.

FOR FURTHER INFORMATION CONTACT:

George Utting, Office of Wastewater

Management, Environmental Protection

Agency, Mail Code 4203, 401 M Street,

SW, Washington, DC 20460; (202) 260–

5816; sw2@epa.gov.

SUPPLEMENTARY INFORMATION: Entities

potentially regulated by this action

include:

Category Examples of regulated

entities

Federal, State,

Tribal, and

Local Governments.

Operators of small separate

storm sewer systems, industrial facilities that discharge storm water associated with industrial activity or construction activity

disturbing 1 to 5 acres.

Industry .......... Operators of industrial facilities that discharge storm

water associated with industrial activity.

Construction

Activity.

Operators of construction activity disturbing 1 to 5

acres.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

regulated by this action. This table lists

the types of entities that EPA is now

aware could potentially be regulated by

this action. Other types of entities not

listed in the table could also be

regulated. To determine whether your

facility or company is regulated by this

action, you should carefully examine

the applicability criteria in §§ 122.26(b),

122.31, 122.32, and 123.35 of the final

rule. If you have questions regarding the

applicability of this action to a

particular entity, consult the person

listed in the preceding FOR FURTHER

INFORMATION CONTACT section.

Table of Contents:

I. Background

A. Proposed Rule and Pre-proposal

Outreach

B. Water Quality Concerns/Environmental

Impact Studies and Assessments

1. Urban Development

a. Large-Scale Studies and Assessments

b. Local and Watershed-Based Studies

c. Beach Closings/Advisories

2. Non-storm Water Discharges Through

Municipal Storm Sewers

3. Construction Site Runoff

C. Statutory Background

D. EPA’s Reports to Congress

E. Industrial Facilities Owned or Operated

by Small Municipalities

F. Related Nonpoint Source Programs

II. Description of Program

A. Overview

1. Objectives EPA Seeks to Achieve in

Today’s Rule

2. General Requirements for Regulated

Entities Under Today’s Rule

3. Integration of Today’s Rule With the

Existing Storm Water Program

4. General Permits

5. Tool Box

6. Deadlines Established in Today’s Action

B. Readable Regulations

C. Program Framework: NPDES Approach

D. Federal Role

1. Develop Overall Framework of the

Program

2. Encourage Consideration of ‘‘Smart

Growth’’ Approaches

3. Provide Financial Assistance

4. Implement the Program in Jurisdictions

not Authorized to Administer the NPDES

Program

5. Oversee State and Tribal Programs

6. Comply with Applicable Requirements

as a Discharger

E. State Role

1. Develop the Program

2. Comply With Applicable Requirements

as a Discharger

3. Communicate with EPA

F. Tribal Role

G. NPDES Permitting Authority’s Role for

the NPDES Storm Water Small MS4

Program

1. Comply With Implementation

Requirements

2. Designate Sources

a. Develop Designation Criteria

b. Apply Designation Criteria

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68723

c. Designate Physically Interconnected

Small MS4s

d. Respond to Public Petitions for

Designation

3. Provide Waivers

4. Issue Permits

5. Support and Oversee the Local Programs

H. Municipal Role

1. Scope of Today’s Rule

2. Municipal Definitions

a. Municipal Separate Storm Sewer

Systems (MS4s)

b. Small Municipal Separate Storm Sewer

Systems

i. Combined Sewer Systems (CSS)

ii. Owners/Operators

c. Regulated Small MS4s

i. Urbanized Area Description

ii. Rationale for Using Urbanized Areas

d. Municipal Designation by the Permitting

Authority

e. Waiving the Requirements for Small

MS4s

3. Municipal Permit Requirements

a. Overview

i. Summary of Permitting Options

ii. Water Quality-Based Requirements

iii. Maximum Extent Practicable

b. Program Requirements—Minimum

Control Measures

i. Public Education and Outreach on Storm

Water Impacts

ii. Public Involvement/Participation

iii. Illicit Discharge Detection and

Elimination

iv. Construction Site Storm Water Runoff

Control

v. Post-Construction Storm Water

Management in New Development and

Redevelopment

vi. Pollution Prevention/Good

Housekeeping for Municipal Operations

c. Application Requirements

i. Best Management Practices and

Measurable Goals

ii. Individual Permit Application for a

§ 122.34(b) Program

iii. Alternative Permit Option/ Tenth

Amendment

iv. Satisfaction of Minimum Measure

Obligations by Another Entity

v. Joint Permit Programs

d. Evaluation and Assessment

i. Recordkeeping

ii. Reporting

iii. Permit-As-A-Shield

e. Other Applicable NPDES Requirements

f. Enforceability

g. Deadlines

h. Reevaluation of Rule

I. Other Designated Storm Water

Discharges

1. Discharges Associated with Small

Construction Activity

a. Scope

b. Waivers

i. Rainfall-Erosivity Waiver

ii. Water Quality Waiver

c. Permit Process and Administration

d. Cross-Referencing State, Tribal, or Local

Erosion and Sediment Control Programs

e. Alternative Approaches

2. Other Sources

3. ISTEA Sources

4. Residual Designation Authority

J. Conditional Exclusion for ‘‘No Exposure’’

of Industrial Activities and Materials to

Storm Water

1. Background

2. Today’s Rule

3. Definition of ‘‘No Exposure’’

K. Public Involvement/Public Role

L. Water Quality Issues

1. Water Quality Based Effluent Limits

2. Total Maximum Daily Loads and

Analysis to Determine the Need for

Water Quality-Based Limitations

3. Anti-Backsliding

4. Water Quality-Based Waivers and

Designations

III. Cost-Benefit Analysis

A. Costs

1. Municipal Costs

2. Construction Costs

B. Quantitative Benefits

1. National Water Quality Model

2. National Water Quality Assessment

a. Municipal Measures

i. Fresh Waters Benefits

ii. Marine Waters Benefits

b. Construction Benefits

c. Summary of Benefits From the National

Water Quality Assessment

C. Qualitative Benefits

D. National Economic Impact

IV. Regulatory Requirements

A. Paperwork Reduction Act

B. Executive Order 12866

C. Unfunded Mandates Reform Act

1. Summary of UMRA Section 202 Written

Statement

2. Selection of the Least Costly, Most CostEffective or Least Burdensome

Alternative That Achieves the Objectives

of the Statute

3. Effects on Small Governments

D. Executive Order 13132

E. Regulatory Flexibility Act

F. National Technology Transfer And

Advancement Act

G. Executive Order 13045

H. Executive Order 13084

I. Congressional Review Act

I. Background

A. Proposed Rule and Pre-Proposal

Outreach

On January 9, 1998 (63 FR 1536), EPA

proposed to expand the National

Pollutant Discharge Elimination System

(NPDES) storm water program to

include storm water discharges from

municipal separate storm sewer systems

(MS4s) and construction sites that were

smaller than those previously included

in the program. The proposal also

addressed industrial sources that have

‘‘no exposure’’ of industrial activities

and materials to storm water. Today,

EPA is promulgating a final rule to

implement most of the proposed

revisions with minor changes based on

public comments received on the

proposal. Today’s final rule also extends

the deadline by which certain industrial

facilities operated by municipalities of

less than 100,000 population must be

covered by a NPDES permit; the

deadline is changed from August 7,

2001 until March 10, 2003.

In 1972, Congress amended the

Federal Water Pollution Control Act

(commonly referred to as the Clean

Water Act (CWA)) to prohibit the

discharge of any pollutant to waters of

the United States from a point source

unless the discharge is authorized by an

NPDES permit. The NPDES program is

a program designed to track point

sources and require the implementation

of the controls necessary to minimize

the discharge of pollutants. Initial

efforts to improve water quality under

the NPDES program primarily focused

on reducing pollutants in industrial

process wastewater and municipal

sewage. These discharge sources were

easily identified as responsible for poor,

often drastically degraded, water quality

conditions.

As pollution control measures for

industrial process wastewater and

municipal sewage were implemented

and refined, it became increasingly

evident that more diffuse sources of

water pollution were also significant

causes of water quality impairment.

Specifically, storm water runoff

draining large surface areas, such as

agricultural and urban land, was found

to be a major cause of water quality

impairment, including the

nonattainment of designated beneficial

uses.

In 1987, Congress amended the CWA

to require implementation, in two

phases, of a comprehensive national

program for addressing storm water

discharges. The first phase of the

program, commonly referred to as

‘‘Phase I,’’ was promulgated on

November 16, 1990 (55 FR 47990).

Phase I requires NPDES permits for

storm water discharge from a large

number of priority sources including

municipal separate storm sewer systems

(‘‘MS4s’’) generally serving populations

of 100,000 or more and several

categories of industrial activity,

including construction sites that disturb

five or more acres of land.

Today’s rule, which is the second

phase of the storm water program,

expands the existing program to include

discharges of storm water from smaller

municipalities in urbanized areas and

from construction sites that disturb

between one and five acres of land.

Today’s rule allows certain sources to be

excluded from the national program

based on a demonstrable lack of impact

on water quality. The rule also allows

other sources not automatically

regulated on a national basis to be

designated for inclusion based on

increased likelihood for localized

adverse impact on water quality.

68724 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

Today’s rule also conditionally excludes

storm water discharges from industrial

facilities that have ‘‘no exposure’’ of

industrial activities or materials to

storm water. Today’s rule and the effort

that led to its development are

commonly referred to as ‘‘Phase II.’’ On

August 7, 1995, EPA promulgated a

final rule that required facilities to be

regulated under Phase II to apply for a

NPDES permit by August 7, 2001,

unless the NPDES permitting authority

designates them as requiring a permit by

an earlier date. (60 FR 40230). That rule

is referred to as ‘‘the Interim Phase II

Rule.’’ Today’s rule replaces the Interim

Phase II rule.

EPA performed extensive outreach

and worked with a variety of

stakeholders prior to proposing today’s

rule. On September 9, 1992, EPA

published a notice requesting

information and public comment on

how to prepare regulations under CWA

section 402(p)(6) (see 57 FR 41344). The

notice identified three sets of issues

associated with developing new NPDES

storm water regulations: (1) How should

EPA identify unregulated sources of

storm water to protect water quality, (2)

what types of control strategies should

EPA develop for these sources, and (3)

what are appropriate deadlines for

implementing new requirements. The

notice recognized that potential sources

for coverage under the section 402(p)(6)

regulations would fall into two main

categories: municipal separate storm

sewer systems and individual

(commercial and residential) sources.

EPA received more than 130 comments

on the September 9, 1992, notice. For

further discussion of the comments

received, see Storm Water Discharges

Potentially Addressed by Phase II of the

National Pollutant Discharge

Elimination System: Report to Congress

(EPA, 1995a), pp. 1–21 to 1–22, and

Appendix J (which provides a detailed

summary of the comments received as

they relate to the specific issues raised

in the notice).

In early 1993, the Rensselaerville

Institute and EPA held public and

expert meetings to assist in developing

and analyzing options for identifying

unregulated sources and possible

controls. The report on the 1993

meetings identified two options that

were favored by the various groups that

participated. One option was a program

that allowed States to select sources to

be controlled in a manner consistent

with criteria developed by EPA. A

second option was a tiered approach

under which EPA would select high

priority sources for control by NPDES

permits and States would select other

sources for control under a State water

quality program other than the NPDES

program. For additional details see the

‘‘Report on the EPA Storm Water

Management Program (Rensselaerville

Study),’’ Appendix I of Storm Water

Discharges Potentially Addressed by

Phase II of the National Pollutant

Discharge Elimination System: Report to

Congress (EPA, 1995a).

EPA also conducted outreach with

representatives of small entities in

conjunction with the convening of a

Small Business Advocacy Review Panel

under the Small Business Regulatory

Enforcement Fairness Act (SBREFA).

This process is discussed in section IV.E

of today’s preamble. For additional

background see the discussion in the

preamble to the proposal for today’s

rule.

To assist EPA by providing advice

and recommendations regarding the

urban municipal wet weather water

pollution control program, EPA

established the Urban Wet Weather

Flows Federal Advisory Committee

(hereinafter, ‘‘FACA Committee’’) under

the Federal Advisory Committee Act

(FACA). The Office of Management and

Budget approved the charter for the

FACA Committee on March 10, 1995.

The FACA Committee provided a forum

for identifying and addressing issues

associated with water quality impacts

from storm water sources.

The FACA Committee established two

subcommittees: the Storm Water Phase

II FACA Subcommittee and the Sanitary

Sewer Overflows (SSOs) FACA

Subcommittee. Consistent with the

requirements of FACA, the membership

of both the FACA Committee and the

subcommittees was balanced among

EPA’s various outside stakeholder

interests, including representatives from

municipalities, States, Indian Tribes,

EPA, industrial and commercial sectors,

agriculture, and environmental and

public interest groups.

The Storm Water Phase II FACA

Subcommittee (‘‘Subcommittee’’) met

fourteen times between September 1995

and June 1998. The 32 Subcommittee

members discussed possible regulatory

frameworks at these meetings as well as

during numerous other meetings and

conference calls. Members of the FACA

Committee provided views regarding

the development of the ‘‘no exposure’’

provision and other provisions in drafts

of the Phase II rule. EPA provided

Subcommittee members with four

successive drafts of the proposed rule

and preamble, outlines of the rule,

summaries of the written comments

received on each draft, and documents

identifying the changes made to each

draft. In the course of providing input

to the Committee, individual

Subcommittee members provided

significant input and advice that EPA

considered in the context of public

comments received. Ultimately, the

Subcommittee did not provide a written

report back to the FACA Committee,

and the FACA Committee did not

provide written advice and

recommendations to EPA. The Agency,

therefore, did not rely on group

recommendations in developing today’s

rule, but does consider the process to

have resulted in important public

outreach.

B. Water Quality Concerns/

Environmental Impact Studies and

Assessments

Storm water runoff from lands

modified by human activities can harm

surface water resources and, in turn,

cause or contribute to an exceedance of

water quality standards by changing

natural hydrologic patterns, accelerating

stream flows, destroying aquatic habitat,

and elevating pollutant concentrations

and loadings. Such runoff may contain

or mobilize high levels of contaminants,

such as sediment, suspended solids,

nutrients (phosphorous and nitrogen),

heavy metals and other toxic pollutants,

pathogens, toxins, oxygen-demanding

substances (organic material), and

floatables (U.S. EPA. 1992.

Environmental Impacts of Storm Water

Discharges: A National Profile. EPA

841–R–92–001. Office of Water.

Washington, DC). After a rain, storm

water runoff carries these pollutants

into nearby streams, rivers, lakes,

estuaries, wetlands, and oceans. The

highest concentrations of these

contaminants often are contained in

‘‘first flush’’ discharges, which occur

during the first major storm after an

extended dry period (Schueler, T.R.

1994. ‘‘First Flush of Stormwater

Pollutants Investigated in Texas.’’ Note

28. Watershed Protection Techniques

1(2)). Individually and combined, these

pollutants impair water quality,

threatening designated beneficial uses

and causing habitat alteration or

destruction.

Uncontrolled storm water discharges

from areas of urban development and

construction activity negatively impact

receiving waters by changing the

physical, biological, and chemical

composition of the water, resulting in an

unhealthy environment for aquatic

organisms, wildlife, and humans. The

following sections discuss the studies

and data that address and support this

finding.

Although water quality problems also

can occur from agricultural storm water

discharges and return flows from

irrigated agriculture, this area of

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68725

concern is statutorily exempted from

regulation as a point source under the

Clean Water Act and is not discussed

here. (See CWA section 502(14)). Other

storm water sources not specifically

identified in the regulations may be of

concern in certain areas and can be

addressed on a case-by-case (or

category-by-category) basis through the

NPDES designation authority preserved

by CWA section 402(p)(2)(6), as well as

today’s rule.

1. Urban Development

Urbanization alters the natural

infiltration capability of the land and

generates a host of pollutants that are

associated with the activities of dense

populations, thus causing an increase in

storm water runoff volumes and

pollutant loadings in storm water

discharged to receiving waterbodies

(U.S. EPA, 1992). Urban development

increases the amount of impervious

surface in a watershed as farmland,

forests, and meadowlands with natural

infiltration characteristics are converted

into buildings with rooftops, driveways,

sidewalks, roads, and parking lots with

virtually no ability to absorb storm

water. Storm water and snow-melt

runoff wash over these impervious

areas, picking up pollutants along the

way while gaining speed and volume

because of their inability to disperse and

filter into the ground. What results are

storm water flows that are higher in

volume, pollutants, and temperature

than the flows in less impervious areas,

which have more natural vegetation and

soil to filter the runoff (U.S. EPA, 1997.

Urbanization and Streams: Studies of

Hydrologic Impacts. EPA 841–R–97-009.

Office of Water. Washington, DC).

Studies reveal that the level of

imperviousness in an area strongly

correlates with the quality of the nearby

receiving waters. For example, a study

in the Puget Sound lowland ecoregion

found that when the level of basin

development exceeded 5 percent of the

total impervious area, the biological

integrity and physical habitat conditions

that are necessary to support natural

biological diversity and complexity

declined precipitously (May, C.W., E.B.

Welch, R.R. Horner, J.R. Karr, and B.W.

May. 1997. Quality Indices for

Urbanization Effects in Puget Sound

Lowland Streams, Technical Report No.

154. University of Washington Water

Resources Series). Research conducted

in numerous geographical areas,

concentrating on various variables and

employing widely different methods,

has revealed a similar conclusion:

stream degradation occurs at relatively

low levels of imperviousness, such as 10

to 20 percent (even as low as 5 to 10

percent according to the findings of the

Washington study referenced above)

(Schueler, T.R. 1994. ‘‘The Importance

of Imperviousness.’’ Watershed

Protection Techniques 1(3); May, C.,

R.R. Horner, J.R. Karr, B.W. Mar, and

E.B. Welch. 1997. ‘‘Effects Of

Urbanization On Small Streams In The

Puget Sound Lowland Ecoregion.’’

Watershed Protection Techniques 2(4);

Yoder, C.O., R.J. Miltner, and D. White.

1999. ‘‘Assessing the Status of Aquatic

Life Designated Uses in Urban and

Suburban Watersheds.’’ In Proceedings:

National Conference on Retrofits

Opportunities in Urban Environments.

EPA 625–R–99–002, Washington, DC;

Yoder, C.O and R.J. Miltner. 1999.

‘‘Assessing Biological Quality and

Limitations to Biological Potential in

Urban and Suburban Watersheds in

Ohio.’’ In Comprehensive Stormwater &

Aquatic Ecosystem Management

Conference Papers, Auckland, New

Zealand). Furthermore, research has

indicated that few, if any, urban streams

can support diverse benthic

communities at imperviousness levels

of 25 percent or more. An area of

medium density single family homes

can be anywhere from 25 percent to

nearly 60 percent impervious,

depending on the design of the streets

and parking (Schueler, 1994).

In addition to impervious areas, urban

development creates new pollution

sources as population density increases

and brings with it proportionately

higher levels of car emissions, car

maintenance wastes, pet waste, litter,

pesticides, and household hazardous

wastes, which may be washed into

receiving waters by storm water or

dumped directly into storm drains

designed to discharge to receiving

waters. More people in less space

results in a greater concentration of

pollutants that can be mobilized by, or

disposed into, storm water discharges

from municipal separate storm sewer

systems. A modeling system developed

for the Chesapeake Bay indicated that

contamination of the Bay and its

tributaries from runoff is comparable to,

if not greater than, contamination from

industrial and sewage sources (CohnLee, R. and D. Cameron. 1992. ‘‘Urban

Stormwater Runoff Contamination of

the Chesapeake Bay: Sources and

Mitigation.’’ The Environmental

Professional, Vol. 14).

a. Large-Scale Studies and Assessments

In support of today’s regulatory

designation of MS4s in urbanized areas,

the Agency relied on broad-based

assessments of urban storm water runoff

and related water quality impacts, as

well as more site-specific studies. The

first national assessment of urban runoff

characteristics was completed for the

Nationwide Urban Runoff Program

(NURP) study (U.S. EPA. 1983. Results

of the Nationwide Urban Runoff

Program, Volume 1—Final Report.

Office of Water. Washington, D.C.). The

NURP study is the largest nationwide

evaluation of storm water discharges,

which includes adverse impacts and

sources, undertaken to date.

EPA conducted the NURP study to

facilitate understanding of the nature of

urban runoff from residential,

commercial, and industrial areas. One

objective of the study was to

characterize the water quality of

discharges from separate storm sewer

systems that drain residential,

commercial, and light industrial

(industrial parks) sites. Storm water

samples from 81 residential and

commercial properties in 22 urban/

suburban areas nationwide were

collected and analyzed during the 5-

year period between 1978 and 1983. The

majority of samples collected in the

study were analyzed for eight

conventional pollutants and three heavy

metals.

Data collected under the NURP study

indicated that discharges from separate

storm sewer systems draining runoff

from residential, commercial, and light

industrial areas carried more than 10

times the annual loadings of total

suspended solids (TSS) than discharges

from municipal sewage treatment plants

that provide secondary treatment. The

NURP study also indicated that runoff

from residential and commercial areas

carried somewhat higher annual

loadings of chemical oxygen demand

(COD), total lead, and total copper than

effluent from secondary treatment

plants. Study findings showed that fecal

coliform counts in urban runoff

typically range from tens to hundreds of

thousands per hundred milliliters of

runoff during warm weather conditions,

with the median for all sites being

around 21,000/100 ml. This is generally

consistent with studies that found that

fecal coliform mean values range from

1,600 coliform fecal units (CFU)/100 ml

to 250,000 cfu/100 ml (Makepeace, D.K.,

D.W. Smith, and S.J. Stanley. 1995.

‘‘Urban Storm Water Quality: Summary

of Contaminant Data.’’ Critical Reviews

in Environmental Science and

Technology 25(2):93-139). Makepeace,

et al., summarized ranges of

contaminants from storm water,

including physical contaminants such

as total solids (76—36,200 mg/L) and

copper (up to 1.41 mg/L); organic

chemicals; organic compounds, such as

oil and grease (up to 110 mg/L); and

microorganisms.

68726 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

Monitoring data summarized in the

NURP study provided important

information about urban runoff from

residential, commercial, and light

industrial areas. The study concluded

that the quality of urban runoff can be

affected adversely by several sources of

pollution that were not directly

evaluated in the study, including illicit

discharges, construction site runoff, and

illegal dumping. Data from the NURP

study were analyzed further in the U.S.

Geological Survey (USGS) Urban Storm

Water Data Base for 22 Metropolitan

Areas Throughout the United States

study (Driver, N.E., M.H. Mustard, R.B.

Rhinesmith, and R.F. Middleburg. 1985.

U.S. Geological Survey Urban Storm

Water Data Base for 22 Metropolitan

Areas Throughout the United States.

Report No. 85–337 USGS. Lakewood,

CO). The USGS report summarized

additional monitoring data compiled

during the mid-1980s, covering 717

storm events at 99 sites in 22

metropolitan areas and documented

problems associated with metals and

sediment concentrations in urban storm

water runoff. More recent reports have

confirmed the pollutant concentration

data collected in the NURP study

(Marsalek, J. 1990. ‘‘Evaluation of

Pollutant Loads from Urban Nonpoint

Sources.’’ Wat. Sci. Tech. 22(10/11):23–

30; Makepeace, et al., 1995).

Commenters argued that the NURP

study does not support EPA’s

contention that urban activities

significantly jeopardize attainment of

water quality standards. One commenter

argued that the NURP study and the

1985 USGS study are seriously out of

date. Because they were issued 10 years

or more before the implementation of

the current storm water permit program,

the data in those reports do not reflect

conditions that exist after

implementation of permits issued by

authorized States and EPA for storm

water from construction sites, large

municipalities, and industrial activities.

In response, EPA notes that it is not

relying solely on the NURP study to

describe current water quality

impairment. Rather, EPA is citing NURP

as a source of data on typical pollutant

concentrations in urban runoff. Recent

studies have not found significantly

different pollutant concentrations in

urban runoff when compared to the

original NURP data (see Makepeace, et

al., 1995; Marsalek, 1990; and Pitt, et al.,

1995).

America’s Clean Water—the States’

Nonpoint Source Assessment

(Association of State and Interstate

Water Pollution Control Administrators

(ASIWPCA). 1985. America’s Clean

Water—The States’ Nonpoint Source

Assessment. Prepared in cooperation

with the U.S. EPA, Office of Water,

Washington, DC), a comprehensive

study of diffuse pollution sources

conducted under the sponsorship of the

Association of State and Interstate Water

Pollution Control Administrators

(ASIWPCA) and EPA revealed that 38

States reported urban runoff as a major

cause of designated beneficial use

impairment and 21 States reported

storm water runoff from construction

sites as a major cause of beneficial use

impairment. In addition, the 1996

305(b) Report (U.S. EPA. 1998. The

National Water Quality Inventory, 1996

Report to Congress. EPA 841–R–97–008.

Office of Water. Washington, DC),

provides a national assessment of water

quality based on biennial reports

submitted by the States as required

under CWA section 305(b) of the CWA.

In the CWA 305(b) reports, States,

Tribes, and Territories assess their

individual water quality control

programs by examining the attainment

or nonattainment of the designated uses

assigned to their rivers, lakes, estuaries,

wetlands, and ocean shores. A

designated use is the legally applicable

use specified in a water quality standard

for a watershed, waterbody, or segment

of a waterbody. The designated use is

the desirable use that the water quality

should support. Examples of designated

uses include drinking water supply,

primary contact recreation (swimming),

and aquatic life support. Each CWA

305(b) report indicates the assessed

fraction of a State’s waters that are fully

supporting, partially supporting, or not

supporting designated beneficial uses.

In their reports, States, Tribes, and

Territories first identified and then

assigned the sources of water quality

impairment for each impaired

waterbody using the following

categories: industrial, municipal

sewage, combined sewer overflows,

urban runoff/storm sewers, agricultural,

silvicultural, construction, resource

extraction, land disposal, hydrologic

modification, and habitat modification.

The 1996 Inventory, based on a

compilation of 60 individual 305(b)

reports submitted by States, Tribes, and

Territories, assessed the following

percentages of total waters nationwide:

19 percent of river and stream miles; 40

percent of lake, pond, and reservoir

acres; 72 percent of estuary square

miles; and 6 percent of ocean shoreline

waters. The 1996 Inventory indicated

that approximately 40 percent of the

Nation’s assessed rivers, lakes, and

estuaries are impaired. Waterbodies

deemed as ‘‘impaired’’ are either

partially supporting designated uses or

not supporting designated uses.

The 1996 Inventory also found urban

runoff/discharges from storm sewers to

be a major source of water quality

impairment nationwide. Urban runoff/

storm sewers were found to be a source

of pollution in 13 percent of impaired

rivers; 21 percent of impaired lakes,

ponds, and reservoirs; and 45 percent of

impaired estuaries (second only to

industrial discharges). In addition,

urban runoff was found to be the

leading cause of ocean impairment for

those ocean miles surveyed.

In addition, a recent USGS study of

urban watersheds across the United

States has revealed a link between urban

development and contamination of local

waterbodies. The study found the

highest levels of organic contaminants,

known as polycyclic aromatic

hydrocarbons (PAHs) (products of

combustion of wood, grass, and fossil

fuels), in the reservoirs of urbanized

watersheds (U.S. Geological Survey

(USGS). 1998. Research Reveals Link

Between Development and

Contamination in Urban Watersheds.

USGS news release. USGS National

Water-Quality Assessment Program).

Urban storm water also can contribute

significant amounts of toxicants to

receiving waters. Pitt, et. al. (1993),

found heavy metal concentrations in the

majority of samples analyzed. Industrial

or commercial areas were likely to be

the most significant pollutant source

areas (Pitt, R., R. Field, M. Lalor, M.

Brown 1993. ‘‘Urban stormwater toxic

pollutants: assessment, sources, and

treatability’’ Water Environment

Research, 67(3):260–75).

b. Local and Watershed-Based Studies

In addition to the large-scale

nationwide studies and assessments, a

number of local and watershed-based

studies from across the country have

documented the detrimental effects of

urban storm water runoff on water

quality. A study of urban streams in

Milwaukee County, Wisconsin, found

local streams to be highly degraded due

primarily to urban runoff, while three

studies in the Atlanta, Georgia, region

were characterized as being ‘‘the first

documentation in the Southeast of the

strong negative relationship between

urbanization and stream quality that has

been observed in other ecoregions’’

(Masterson, J. and R. Bannerman. 1994.

‘‘Impacts of Storm Water Runoff on

Urban Streams in Milwaukee County,

Wisconsin.’’ Paper presented at National

Symposium on Water Quality:

American Water Resources Association;

Schueler, T.R. 1997. ‘‘Fish Dynamics in

Urban Streams Near Atlanta, Georgia.’’

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68727

Technical Note 94. Watershed

Protection Techniques 2(4)). Several

other studies, including those

performed in Arizona (Maricopa

County), California (San Jose’s Coyote

Creek), Massachusetts (Green River),

Virginia (Tuckahoe Creek), and

Washington (Puget Sound lowland

ecoregion), all had the same finding:

runoff from urban areas greatly impair

stream ecology and the health of aquatic

life; the more heavily developed the

area, the more detrimental the effects

(Lopes, T. and K. Fossum. 1995.

‘‘Selected Chemical Characteristics and

Acute Toxicity of Urban Stormwater,

Streamflow, and Bed Material, Maricopa

County, Arizona.’’ Water Resources

Investigations Report 95–4074. USGS;

Pitt, R. 1995. ‘‘Effects of Urban Runoff

on Aquatic Biota.’’ In Handbook of

Ecotoxicology; Pratt, J. and R. Coler.

1979. ‘‘Ecological Effects of Urban

Stormwater Runoff on Benthic

Macroinvertebrates Inhabiting the Green

River, Massachusetts.’’ Completion

Report Project No. A–094. Water

Resources Research Center. University

of Massachusetts at Amherst.; Schueler,

T.R. 1997. ‘‘Historical Change in a

Warmwater Fish Community in an

Urbanizing Watershed.’’ Technical Note

93. Watershed Protection Techniques

2(4); May, C., R. Horner, J. Karr, B. Mar,

and E. Welch. 1997. ‘‘Effects Of

Urbanization On Small Streams In The

Puget Sound Lowland Ecoregion.’’

Watershed Protection Techniques 2(4)).

Pitt and others also described the

receiving water effects on aquatic

organisms associated with urban runoff

(Pitt, R.E. 1995. ‘‘Biological Effects of

Urban Runoff Discharges’’ In

Stormwater Runoff and Receiving

Systems: Impact, Monitoring, and

Assessment, ed. E.E Herricks, Lewis

Publishers; Crunkilton, R., J. Kleist, D.

Bierman, J. Ramcheck, and W. DeVita.

1999. ‘‘Importance of Toxicity as a

Factor Controlling the Distribution of

Aquatic Organisms in an Urban

Stream.’’ In Comprehensive Stormwater

& Aquatic Ecosystem Management

Conference Papers. Auckland, New

Zealand).

In Wisconsin, runoff samples were

collected from streets, parking lots,

roofs, driveways, and lawns. Source

areas were broken up into residential,

commercial, and industrial. Geometric

mean concentration data for residential

areas included total solids of about 500–

800 mg/L from streets and 600 mg/L

from lawns. Fecal coliform data from

residential areas ranged from 34,000 to

92,000 cfu/100 mL for streets and

driveways. Contaminant concentration

data from commercial and industrial

source areas were lower for total solids

and fecal coliform, but higher for total

zinc (Bannerman, R.T., D.W. Owens,

R.B. Dods, and N.J. Hornewer. 1993.

‘‘Sources of Pollutants in Wisconsin

Stormwater.’’ Wat. Sci. Tech. 28(3–

5):241–59).

Bannerman, et al. also found that

streets contribute higher loads of

pollutants to urban storm water than

any other residential development

source. Two small urban residential

watersheds were evaluated to determine

that lawns and streets are the largest

sources of total and dissolved

phosphorus in the basins (Waschbusch,

R.J., W.R. Selbig, and R.T. Bannerman.

1999. ‘‘Sources of Phosphorus in

Stormwater and Street Dirt from Two

Urban Residential Basins In Madison,

Wisconsin, 1994–95.’’ Water Resources

Investigations Report 99–4021. U.S.

Geological Survey). A number of other

studies have indicated that urban

roadways often contain significant

quantities of metal elements and solids

(Sansalone, J.J. and S.G. Buchberger.

1997. ‘‘Partitioning and First Flush of

Metals in Urban Roadway Storm

Water.’’ ASCE Journal of Environmental

Engineering 123(2); Sansalone, J.J., J.M.

Koran, J.A. Smithson, and S.G.

Buchberger. 1998. ‘‘Physical

Characteristics of Urban Roadway

Solids Transported During Rain Events’’

ASCE Journal of Environmental

Engineering 124(5); Klein, L.A., M.

Lang, N. Nash, and S.L. Kirschner. 1974.

‘‘Sources of Metals in New York City

Wastewater’’ J. Water Pollution Control

Federation 46(12):2653–62; Barrett, M.E,

R.D. Zuber, E.R. Collins, J.F. Malina, R.J.

Charbeneau, and G.H Ward., 1993. ‘‘A

Review and Evaluation of Literature

Pertaining to the Quantity and Control

of Pollution from Highway Runoff and

Construction.’’ Research Report 1943–1.

Center for Transportation Research,

University of Texas, Austin).

c. Beach Closings/Advisories

Urban wet weather flows have been

recognized as the primary sources of

estuarine pollution in coastal

communities. Urban storm water runoff,

sanitary sewer overflows, and combined

sewer overflows have become the largest

causes of beach closings in the United

States in the past three years. Storm

water discharges from urban areas not

only pose a threat to the ecological

environment, they also can substantially

affect human health. A survey of coastal

and Great Lakes communities reports

that in 1998, more than 1,500 beach

closings and advisories were associated

with storm water runoff (Natural

Resources Defense Council. 1999. ‘‘A

Guide to Water Quality at Vacation

Beaches’’ New York, NY). Other reports

also document public health, shellfish

bed, and habitat impacts from storm

water runoff, including more than 823

beach closings/advisories issued in 1995

and more than 407 beach closing/

advisories issued in 1996 due to urban

runoff (Natural Resources Defense

Council. 1996. Testing the Waters

Volume VI: Who Knows What You’re

Getting Into. New York, NY; NRDC.

1997. Testing the Waters Volume VII:

How Does Your Vacation Beach Rate.

New York, NY; Morton, T. 1997.

Draining to the Ocean: The Effects of

Stormwater Pollution on Coastal Waters.

American Oceans Campaign, Santa

Monica, CA). The Epidemiological

Study of Possible Adverse Health Effects

of Swimming in Santa Monica Bay

(Haile, R.W., et. al. 1996. ‘‘An

Epidemiological Study of Possible

Adverse Health Effects of Swimming in

Santa Monica Bay.’’ Final Report

prepared for the Santa Monica Bay

Restoration Project) concluded that

there is a 57 percent higher rate of

illness in swimmers who swim adjacent

to storm drains than in swimmers who

swim more than 400 yards away from

storm drains. This and other studies

document a relationship between

gastrointestinal illness in swimmers and

water quality, the latter of which can be

heavily compromised by polluted storm

water discharges.

2. Non-Storm Water Discharges Through

Municipal Storm Sewers

Studies have shown that discharges

from MS4s often include wastes and

wastewater from non-storm water

sources. Federal regulations

(§ 122.26(b)(2)) define an illicit

discharge as ‘‘* * * any discharge to an

MS4 that is not composed entirely of

storm water * * *,’’ with some

exceptions. These discharges are

‘‘illicit’’ because municipal storm sewer

systems are not designed to accept,

process, or discharge such wastes.

Sources of illicit discharges include, but

are not limited to: sanitary wastewater;

effluent from septic tanks; car wash,

laundry, and other industrial

wastewaters; improper disposal of auto

and household toxics, such as used

motor oil and pesticides; and spills from

roadway and other accidents.

Illicit discharges enter the system

through either direct connections (e.g.,

wastewater piping either mistakenly or

deliberately connected to the storm

drains) or indirect connections (e.g.,

infiltration into the MS4 from cracked

sanitary systems, spills collected by

drain outlets, and paint or used oil

dumped directly into a drain). The

result is untreated discharges that

contribute high levels of pollutants,

68728 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

including heavy metals, toxics, oil and

grease, solvents, nutrients, viruses and

bacteria into receiving waterbodies. The

NURP study, discussed earlier, found

that pollutant levels from illicit

discharges were high enough to

significantly degrade receiving water

quality and threaten aquatic, wildlife,

and human health. The study noted

particular problems with illicit

discharges of sanitary wastes, which can

be directly linked to high bacterial

counts in receiving waters and can be

dangerous to public health.

Because illicit discharges to MS4s can

create severe widespread contamination

and water quality problems, several

municipalities and urban counties

performed studies to identify and

eliminate such discharges. In Michigan,

the Ann Arbor and Ypsilanti water

quality projects inspected 660

businesses, homes, and other buildings

and identified 14 percent of the

buildings as having improper storm

sewer drain connections. The program

assessment revealed that, on average, 60

percent of automobile-related

businesses, including service stations,

automobile dealerships, car washes,

body shops, and light industrial

facilities, had illicit connections to

storm sewer drains. The program

assessment also showed that a majority

of the illicit discharges to the storm

sewer system resulted from improper

plumbing and connections, which had

been approved by the municipality

when installed (Washtenaw County

Statutory Drainage Board. 1987. Huron

River Pollution Abatement Program).

In addition, an inspection of urban

storm water outfalls draining into Inner

Grays, Washington, indicated that 32

percent of these outfalls had dry

weather flows. Of these flows, 21

percent were determined to have

pollutant levels higher than the

pollutant levels expected in typical

urban storm water runoff characterized

in the NURP study (U.S. EPA. 1993.

Investigation of Inappropriate Pollutant

Entries Into Storm Drainage Systems—

A User’s Guide. EPA 600/R–92/238.

Office of Research and Development.

Washington, DC). That same document

reports a study in Toronto, Canada, that

found that 59 percent of outfalls from

the MS4 had dry-weather flows.

Chemical tests revealed that 14 percent

of these dry-weather flows were

determined to be grossly polluted.

Inflows from aging sanitary sewer

collection systems are one of the most

serious illicit discharge-related

problems. Sanitary sewer systems

frequently develop leaks and cracks,

resulting in discharges of pollutants to

receiving waters through separate storm

sewers. These pollutants include

sanitary waste and materials from sewer

main construction (e.g., asbestos

cement, brick, cast iron, vitrified clay).

Municipalities have long recognized the

reverse problem of storm water

infiltration into sanitary sewer

collection systems; this type of

infiltration often disrupts the operation

of the municipal sewage treatment

plant.

The improper disposal of materials is

another illicit discharge-related problem

that can result in contaminated

discharges from separate storm sewer

systems in two ways. First, materials

may be disposed of directly in a catch

basin or other storm water conveyance.

Second, materials disposed of on the

ground may either drain directly to a

storm sewer or be washed into a storm

sewer during a storm event. Improper

disposal of materials to street catch

basins and other storm sewer inlets

often occurs when people mistakenly

believe that disposal to such areas is an

environmentally sound practice. Part of

the confusion may occur because some

areas are served by combined sewer

systems, which are part of the sanitary

sewer collection system, and people

assume that materials discharged to a

catch basin will reach a municipal

sewage treatment plant. Materials that

are commonly disposed of improperly

include used motor oil; household toxic

materials; radiator fluids; and litter,

such as disposable cups, cans, and fastfood packages. EPA believes that there

has been increasing success in

addressing these problems through

initiatives such as storm drain stenciling

and recycling programs, including

household hazardous waste special

collection days.

Programs that reduce illicit discharges

to separate storm sewers have improved

water quality in several municipalities.

For example, Michigan’s Huron River

Pollution Abatement Program found the

elimination of illicit connections caused

a measurable improvement in the water

quality of the Washtenaw County storm

sewers and the Huron River

(Washtenaw County Statutory Drainage

Board, 1987). In addition, an illicit

detection and remediation program in

Houston, Texas, has significantly

improved the water quality of Buffalo

Bayou. Houston estimated that illicit

flows from 132 sources had a flow rate

as high as 500 gal/min. Sources of the

illicit discharges included broken and

plugged sanitary sewer lines, illicit

connections from sanitary lines to storm

sewer lines, and floor drain connections

(Glanton, T., M.T. Garrett, and B.

Goloby. 1992. The Illicit Connection: Is

It the Problem? Wat. Env. Tech. 4(9):63–

8).

3. Construction Site Runoff

Storm water discharges generated

during construction activities can cause

an array of physical, chemical, and

biological water quality impacts.

Specifically, the biological, chemical,

and physical integrity of the waters may

become severely compromised. Water

quality impairment results, in part,

because a number of pollutants are

preferentially absorbed onto mineral or

organic particles found in fine sediment.

The interconnected process of erosion

(detachment of the soil particles),

sediment transport, and delivery is the

primary pathway for introducing key

pollutants, such as nutrients

(particularly phosphorus), metals, and

organic compounds into aquatic systems

(Novotny, V. and G. Chesters. 1989.

‘‘Delivery of Sediment and Pollutants

from Nonpoint Sources: A Water

Quality Perspective.’’ Journal of Soil

and Water Conservation, 44(6):568–76).

Estimates indicate that 80 percent of the

phosphorus and 73 percent of the

Kjeldahl nitrogen in streams is

associated with eroded sediment (U.S.

Department of Agriculture. 1989. ‘‘The

Second RCA Appraisal, Soil, Water and

Related Resources on Nonfederal Land

in the United States, Analysis of

Condition and Trends.’’ Cited in

Fennessey, L.A.J., and A.R. Jarrett. 1994.

‘‘The Dirt in a Hole: a Review of

Sedimentation Basins for Urban Areas

and Construction Sites.’’ Journal of Soil

and Water Conservation, 49(4):317–23).

In watersheds experiencing intensive

construction activity, the localized

impacts of water quality may be severe

because of high pollutant loads,

primarily sediments. Siltation is the

largest cause of impaired water quality

in rivers and the third largest cause of

impaired water quality in lakes (U.S.

EPA, 1998). The 1996 305(b) report also

found that construction site discharges

were a source of pollution in: 6 percent

of impaired rivers; 11 percent of

impaired lakes, ponds, and reservoirs;

and 11 percent of impaired estuaries.

Introduction of coarse sediment (coarse

sand or larger) or a large amount of fine

sediment is also a concern because of

the potential of filling lakes and

reservoirs (along with the associated

remediation costs for dredging), as well

as clogging stream channels (e.g.,

Paterson, R.G., M.I. Luger, E.J. Burby,

E.J. Kaiser, H.R. Malcolm, and A.C.

Beard. 1993. ‘‘Costs and Benefits of

Urban Erosion and Sediment Control:

North Carolina Experience.’’

Environmental Management 17(2):167–

78). Large inputs of coarse sediment into

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68729

stream channels initially will reduce

stream depth and minimize habitat

complexity by filling in pools (U.S.

EPA. 1991. Monitoring Guidelines to

Evaluate Effects of Forestry Activities on

Streams in the Pacific Northwest and

Alaska. EPA 910/9–91–001. Seattle,

WA). In addition, studies have shown

that stream reaches affected by

construction activities often extend well

downstream of the construction site. For

example, between 4.8 and 5.6

kilometers of stream below construction

sites in the Patuxent River watershed

were observed to be impacted by

sediment inputs (Fox, H.L. 1974.

‘‘Effects of Urbanization on the Patuxent

River, with Special Emphasis on

Sediment Transport, Storage, and

Migration.’’ Ph.D. dissertation. Johns

Hopkins University, Baltimore, MD. As

Cited in Klein, R.D. 1979. ‘‘Urbanization

and Stream Quality Impairment.’’ Water

Resources Bulletin 15(4): 948–63).

A primary concern at most

construction sites is the erosion and

transport process related to fine

sediment because rain splash, rills (i.e.,

a channel small enough to be removed

by normal agricultural practices and

typically less than 1-foot deep), and

sheetwash encourage the detachment

and transport of this material to

waterbodies (Storm Water Quality Task

Force. 1993. California Storm Water

Best Management Practice Handbooks—

Construction Activity. Oakland, CA:

Blue Print Service). Construction sites

also can generate other pollutants

associated with onsite wastes, such as

sanitary wastes or concrete truck

washout.

Although streams and rivers naturally

carry sediment loads, erosion from

construction sites and runoff from

developed areas can elevate these loads

to levels well above those in

undisturbed watersheds. It is generally

acknowledged that erosion rates from

construction sites are much greater than

from almost any other land use

(Novotny, V. and H. Olem. 1994. Water

Quality: Prevention, Identification, and

Management of Diffuse Pollution. New

York: Van Nostrand Reinhold). Results

from both field studies and erosion

models indicate that erosion rates from

construction sites are typically an order

of magnitude larger than row crops and

several orders of magnitude greater than

rates from well-vegetated areas, such as

forests or pastures (USDA. 1970.

‘‘Controlling Erosion on Construction

Sites.’’ Agriculture Information Bulletin,

Washington, DC; Meyer, L.D., W.H.

Wischmeier, and W.H. Daniel. 1971.

‘‘Erosion, Runoff and Revegetation of

Denuded Construction Sites.’’

Transactions of the ASAE 14(1):138–41;

Owen, O.S. 1975. Natural Resource

Conservation. New York: MacMillan. As

cited in Paterson, et al., 1993).

A recent review of the efficiency of

sediment basins indicated that inflows

from 12 construction sites had a mean

TSS concentration of about 4,500 mg/L

(Brown, W.E. 1997. ‘‘The Limits of

Settling.’’ Technical Note No. 83.

Watershed Protection Techniques 2(3)).

In Virginia, suspended sediment

concentrations from housing

construction sites were measured at

500–3,000 mg/L, or about 40 times

larger than the concentrations from

already-developed urban areas (Kuo,

C.Y. 1976. ‘‘Evaluation of Sediment

Yields Due to Urban Development.’’

Bulletin No. 98. Virginia Water

Resources Research Center, Virginia

Polytechnic Institute and State

University, Blacksburg, VA).

Similar impacts from storm water

runoff have been reported in a number

of other studies. For example, Daniel, et

al., monitored three residential

construction sites in southeastern

Wisconsin and determined that annual

sediment yields were more than 19

times the yields from agricultural areas

(Daniel, T.C., D. McGuire, D. Stoffel,

and B. Miller. 1979. ‘‘Sediment and

Nutrient Yield from Residential

Construction Sites’’ Journal of

Environmental Quality 8(3):304–08).

Daniel, et al., identified total storm

runoff, followed by peak storm runoff,

as the most influential factors

controlling the sediment loadings from

residential construction sites. Daniel, et

al., also found that suspended sediment

concentrations were 15,000–20,000 mg/

L in moderate events and up to 60,000

mg/L in larger events.

Wolman and Schick (Wolman, M.G.

and A.P. Schick. 1967. ‘‘Effects of

Construction on Fluvial Sediment,

Urban and Suburban Areas of

Maryland.’’ Water Resources Research

3(2): 451–64) studied the impacts of

development on fluvial systems in

Maryland and determined that sediment

yields in areas undergoing construction

were 1.5 to 75 times greater than

detected in natural or agricultural

catchments. The authors summarize the

potential impacts of construction on

sediment yields by stating that ‘‘the

equivalent of many decades of natural

or even agricultural erosion may take

place during a single year from areas

cleared for construction’’ (Wolman and

Schick, 1967).

A number of studies have examined

the effects of road construction on

erosion rates and sediment yields. A

highway construction project in West

Virginia disturbed only 4.2 percent of a

4.72-square-mile basin, but resulted in a

three-fold increase in suspended

sediment yields (Downs, S.C. and D.H.

Appel. 1986. Progress Report on the

Effects of Highway Construction on

Suspended-Sediment Discharge in the

Coal River and Trace Fork, West

Virginia, 1975–81. USGS Water

Resources Investigations Report 84–

4275. Charlestown, WV). During the

largest storm event, it was estimated

that 80 percent of the sediment in the

stream originated from the construction

site. As is often the case, the increase in

suspended sediment load could not be

detected further downstream, where the

drainage area was more than 50 times

larger (269 square miles).

Another study evaluated the effect of

290 acres of highway construction on

watersheds ranging in size from 5 to 38

square miles. Suspended sediment loads

in the smallest watershed increased by

250 percent, and the estimated sediment

yield from the construction area was 37

tons/acre during a 2-year period

(Hainly, R.A. 1980. The Effects of

Highway Construction on Sediment

Discharge into Blockhouse Creek and

Stream Valley Run, Pennsylvania. USGS

Water Resources Investigations Report

80–68. Harrisburg, PA). A more recent

study in Hawaii showed that highway

construction increased suspended

sediment loads by 56 to 76 percent in

three small (1 to 4 square mile) basins

(Hill, B.R. 1996. Streamflow and

Suspended-Sediment Loads Before and

During Highway Construction, North

Halawa, Haiku, and Kamooalii Drainage

Basins, Oahu, Hawaii, 1983–91. USGS

Water Resources Investigations Report

96–4259. Honolulu, HI). A 1970 study

determined that sediment yields from

construction areas can be as much as

500 times the levels detected in rural

areas (National Association of Counties

Research Foundation. 1970. Urban Soil

Erosion and Sediment Control. Water

Pollution Control Research Series,

Program #15030 DTL. Federal Water

Quality Administration, U.S.

Department of Interior. Washington, DC)

Yorke and Herb (Yorke, T.H., and W.J.

Herb. 1978. Effects of Urbanization on

Streamflow and Sediment Transport in

the Rock Creek and Anacostia River

Basins, Montgomery County, Maryland,

1962–74. USGS Professional Paper 1003,

Washington, DC) evaluated nine

subbasins in the Maryland portion of

the Anacostia watershed for more than

a decade in an effort to define the

impacts of changing land use/land cover

on sediment in runoff. Average annual

suspended sediment yields for

construction sites ranged from 7 to 100

tons/acre. Storm water discharges from

construction sites that occur when the

land area is disturbed (and prior to

68730 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

surface stabilization) can significantly

impact designated uses. Examples of

designated uses include public water

supply, recreation, and propagation of

fish and wildlife. The siltation process

described previously can threaten all

three designated uses by (1) depositing

high concentrations of pollutants in

public water supplies; (2) decreasing the

depth of a waterbody, which can reduce

the volume of a reservoir or result in

limited use of a water body by boaters,

swimmers, and other recreational

enthusiasts; and (3) directly impairing

the habitat of fish and other aquatic

species, which can limit their ability to

reproduce.

Excess sediment can cause a number

of other problems for waterbodies. It is

associated with increased turbidity and

reduced light penetration in the water

column, as well as more long-term

effects associated with habitat

destruction and increased difficulty in

filtering drinking water. Numerous

studies have examined the effect that

excess sediment has on aquatic

ecosystems. For example, sediment from

road construction activity in Northern

Virginia reduced aquatic insect and fish

communities by up to 85 percent and 40

percent, respectively (Reed, J.R. 1997.

‘‘Stream Community Responses to Road

Construction Sediments.’’ Bulletin No.

97. Virginia Water Resources Research

Center, Virginia Polytechnic Institute,

Blacksburg, VA. As cited in Klein, R.D.

1990. A Survey of Quality of Erosion

and Sediment Control and Storm Water

Management in the Chesapeake Bay

Watershed. Annapolis, MD: Chesapeake

Bay Foundation). Other studies have

shown that fine sediment (fine sand or

smaller) adversely affects aquatic

ecosystems by reducing light

penetration, impeding sight-feeding,

smothering benthic organisms, abrading

gills and other sensitive structures,

reducing habitat by clogging interstitial

spaces within a streambed, and

reducing the intergravel dissolved

oxygen by reducing the permeability of

the bed material (Everest, F.H., J.C.

Beschta, K.V. Scrivener, J.R. Koski, J.R.

Sedell, and C.J. Cederholm. 1987. ‘‘Fine

Sediment and Salmonid Production: A

Paradox.’’ Streamside Management:

Forestry and Fishery Interactions,

Contract No. 57, Institute of Forest

Resources, University of Washington,

Seattle, WA). For example, 4.8 and 5.6

kilometers of stream below construction

sites in the Patuxent River watershed in

Maryland were found to have fine

sediment amounts 15 times greater than

normal (Fox, 1974. As cited in Klein,

1979). Benthic organisms in the

streambed can be smothered by

sediment deposits, causing changes in

aquatic flora and fauna, such as fish

species composition (Wolman and

Schick, 1967). In addition, the primary

cause of coral reef degradation in coastal

areas is attributed to land disturbances

and dredging activities due to urban

development (Rogers, C.S. 1990.

‘‘Responses of Coral Reefs and Reef

Organizations to Sedimentation.’’

Marine Ecology Progress Series, 62:185–

202).

EPA believes that the water quality

impact from small construction sites is

as high as or higher than the impact

from larger sites on a per acre basis. The

concentration of pollutants in the runoff

from smaller sites is similar to the

concentrations in the runoff from larger

sites. The proportion of sediment that

makes it from the construction site to

surface waters is likely the same for

larger and smaller construction sites in

urban areas because the runoff from

either site is usually delivered directly

to the storm drain network where there

is no opportunity for the sediment to be

filtered out.

The expected contribution of total

sediment yields from small sites

depends, in part, on the extent to which

erosion and sedimentation controls are

being applied. Because current storm

water regulations are more likely to

require erosion and sedimentation

controls on larger sites in urban areas,

smaller construction sites that lack such

programs are likely to contribute a

disproportionate amount of the total

sediment from construction activities

(MacDonald, L.H. 1997. Technical

Justification for Regulating Construction

Sites 1–5 Acres in Size. Unpublished

report submitted to U.S. EPA,

Washington, DC). Smaller construction

sites are less likely to have an effective

plan to control erosion and

sedimentation, are less likely to

properly implement and maintain their

plans, and are less likely to be inspected

(Brown, W. and D. Caraco. 1997.

Controlling Storm Water Runoff

Discharges from Small Construction

Sites: A National Review. Submitted to

Office of Wastewater Management, U.S.

EPA, Washington, DC., by the Center for

Watershed Protection, Silver Spring,

MD). The proportion of sediment that

makes it from the construction site to

surface waters is likely the same for

larger and smaller construction sites in

urban areas because the runoff from

either site is usually delivered directly

to the storm drain network, where there

is no opportunity for the sediment to be

filtered out.

To confirm its belief that sediment

yields from small sites are as high as or

higher than the 20 to 150 tons/acre/year

measured from larger sites, EPA gave a

grant to the Dane County, Wisconsin

Land Conservation Department, in

cooperation with the USGS, to evaluate

sediment runoff from two small

construction sites. The first was a 0.34

acre residential lot and the second was

a 1.72 acre commercial office

development. Runoff from the sites was

channeled to a single discharge point for

monitoring. Each site was monitored

before, during, and after construction.

The Dane County study found that

total solids concentrations from these

small sites are similar to total solids

concentrations from larger construction

sites. Results show that for both of the

study sites, total solids and suspended

solids concentrations were significantly

higher during construction than either

before or after construction. For

example, preconstruction total solids

concentrations averaged 642 mg/L

during the period when ryegrass was

established, active construction total

solids concentrations averaged 2,788

mg/L, and post-construction total solids

concentrations averaged 132 mg/L (on a

pollutant load basis, this equaled 7.4 lbs

preconstruction, 35 lbs during

construction, and 0.6 lbs postconstruction for total solids). While this

site was not properly stabilized before

construction, after construction was

complete and the site was stabilized,

post-construction concentrations were

more than 20 times less than during

construction. The results were even

more dramatic for the commercial site.

The commercial site had one

preconstruction event, which resulted

in total solids concentrations of 138 mg/

L, while active construction averaged

more than 15,000 mg/L and postconstruction averaged only 200 mg/L

(on a pollutant load basis, this equaled

0.3 lbs preconstruction, 490 lbs during

construction, and 13.4 lbs postconstruction for total solids). The active

construction period resulted in more

than 75 times more sediment than either

before or after construction (Owens,

D.W., P. Jopke, D.W. Hall, J. Balousek

and A. Roa. 1999. ‘‘Soil Erosion from

Small Construction Sites.’’ Draft USGS

Fact Sheet. USGS and Dane County

Land Conservation Department, WI).

The total solids concentrations from

these small sites in Wisconsin are

similar to total solids concentrations

from larger construction sites. For

example, a study evaluating the effects

of highway construction in West

Virginia found that a small storm

produced a sediment concentration of

7,520 mg/L (Downs and Appel, 1986).

One important aspect of small

construction sites is the number of small

sites relative to larger construction sites

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68731

and total land area within the

watershed. Brown and Caraco surveyed

219 local jurisdictions to assess erosion

and sediment control (ESC) programs.

Seventy respondents provided data on

the number of ESC permits for

construction sites smaller than 5 acres.

In 27 cases (38 percent of the

respondents), more than three-quarters

of the permits were for sites smaller

than 5 acres; in another 18 cases (26

percent), more than half of the permits

were for sites smaller than 5 acres.

In addition, data on the total acreage

disturbed by smaller construction sites

have been collected recently in two

States (MacDonald, 1997). The most

recent and complete data set is the

listing of the disturbed area for each of

the 3,831 construction sites permitted in

North Carolina for 1994–1995 and

1995–1996. Nearly 61 percent of the

sites that were 1 acre or larger were

between 1.0 and 4.9 acres in size. This

proportion was consistent between

years. Data showed that this range of

sites accounted for 18 percent of the

total area disturbed by construction. The

values showed very little variation

between the 2 years of data. The total

disturbed area for all sites over this 2-

year period was nearly 33,000 acres, or

about 0.1 percent of the total area of

North Carolina.

EPA estimates that construction sites

disturbing greater than 5 acres disturb

2.1-million acres of land (78.1 percent of

the total) while sites disturbing between

1 and 5 acres of land disturb 0.5-million

acres of land (19.4 percent). The

remaining sites on less than 1 acres of

land disturb 0.07-million acres of land

(only 2.5 percent of the total). Given the

high erosion rates associated with most

construction sites, small construction

sites can be a significant source of water

quality impairment, particularly in

small watersheds that are undergoing

rapid development. Exempting sites

under 1 acre will exclude only about 2.5

percent of acreage from program

coverage, but will exclude a far higher

number of sites, approximately 25

percent.

Several studies have determined that

the most effective construction runoff

control programs rely on local plan

review and field enforcement (Paterson,

R. G. 1994. ‘‘Construction Practices: the

Good, the Bad, and the Ugly.’’

Watershed Protection Techniques 1(3)).

In his review, Paterson suggests that,

given the critical importance of field

implementation of erosion and sediment

control programs and the apparent

shortcomings that exist, much more

focus should be given to plan

implementation.

Several commenters disputed the data

presented in the proposed rule for storm

water discharges from smaller

construction sites. One commenter

stated that EPA has not adequately

explained the basis for permitting

construction activity down to 1

disturbed acre. Another commenter

stated that EPA did not present

sufficient data on water quality impacts

from construction sites disturbing less

than 5 acres.

EPA believes that the data presented

above sufficiently support nationwide

designation of storm water discharges

from construction activity disturbing

more than 1 acre. Based on total

disturbed land area within a watershed,

the cumulative effects of numerous

small construction sites can have

impacts similar to those of larger sites

in a particular area. In addition, waivers

for storm water discharges from smaller

construction activity will exclude sites

not expected to impair water quality.

EPA will continue to collect water

quality data on construction site storm

water runoff.

C. Statutory Background

In 1972, Congress enacted the CWA to

prohibit the discharge of any pollutant

to waters of the United States from a

point source unless the discharge is

authorized by an NPDES permit.

Congress added CWA section 402(p) in

1987 to require implementation of a

comprehensive program for addressing

storm water discharges. Section

402(p)(1) required EPA or NPDESauthorized States or Tribes to issue

NPDES permits for the following five

classes of storm water discharges

composed entirely of storm water

(‘‘storm water discharges’’) specifically

listed under section 402(p)(2):

(A) a discharge subject to an NPDES

permit before February 4, 1987

(B) a discharge associated with

industrial activity

(C) a discharge from a municipal

separate storm sewer system serving a

population of 250,000 or more

(D) a discharge from a municipal

separate storm sewer system serving a

population of 100,000 or more but less

than 250,000

(E) a discharge that an NPDES

permitting authority determines to be

contributing to a violation of a water

quality standard or a significant

contributor of pollutants to the waters of

the United States.

Section 402(p)(3)(A) requires storm

water discharges associated with

industrial activity to meet all applicable

provisions of section 402 and section

301 of the CWA, including technologybased requirements and any more

stringent requirements necessary to

meet water quality standards. Section

402(p)(3)(B) establishes NPDES permit

standards for discharges from municipal

separate storm sewer systems, or MS4s.

NPDES permits for discharges from

MS4s (1) may be issued on a system or

jurisdiction-wide basis, (2) must include

a requirement to effectively prohibit

non-storm water discharges into the

storm sewers, and (3) must require

controls to reduce pollutant discharges

to the maximum extent practicable,

including best management practices,

and other provisions as the

Administrator or the States determine to

be appropriate for the control of such

pollutants. At this time, EPA determines

that water quality-based controls,

implemented through the iterative

processes described today are

appropriate for the control of such

pollutants and will result in reasonable

further progress towards attainment of

water quality standards. See sections

II.L and II.H.3 of the preamble.

In CWA section 402(p)(4), Congress

established statutory deadlines for the

initial steps in implementing the NPDES

program for storm water discharges.

This section required development of

NPDES permit application regulations,

submission of NPDES permit

applications, issuance of NPDES

permits for sources identified in section

402(p)(2), and compliance with NPDES

permit conditions. In addition, this

section required industrial facilities and

large MS4s to submit NPDES permit

applications for storm water discharges

by February 4, 1990. Medium MS4s

were to submit NPDES permit

applications by February 4, 1992. EPA

and authorized NPDES States were

prohibited from requiring an NPDES

permit for any other storm water

discharges until October 1, 1994.

Section 402(p)(5) required EPA to

conduct certain studies and submit a

report to Congress. This requirement is

discussed in the following section.

Section 402(p)(6) requires EPA, in

consultation with States and local

officials, to issue regulations for the

designation of additional storm water

discharges to be regulated to protect

water quality. It also requires EPA to

extend the existing storm water program

to regulate newly designated sources. At

a minimum, the extension must

establish (1) priorities, (2) requirements

for State storm water management

programs, and (3) expeditious

deadlines. Section 402(p)(6) specifies

that the program may include

performance standards, guidelines,

guidance, and management practices

and treatment requirements, as

68732 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

appropriate. Today’s rule implements

this section.

D. EPA’s Reports to Congress

Under CWA section 402(p)(5), EPA, in

consultation with the States, was

required to conduct a study. The study

was to identify unregulated sources of

storm water discharges, determine the

nature and extent of pollutants in such

discharges, and establish procedures

and methods to mitigate the impacts of

such discharges on water quality.

Section 402(p)(5) also required EPA to

report the results of the first two

components of that study to Congress by

October 1, 1988, and the final report by

October 1, 1989.

In March 1995, EPA submitted to

Congress a report that reviewed and

analyzed the nature of storm water

discharges from municipal and

industrialacilities that were not already

regulated under the initial NPDES

regulations for storm water (U.S.

Environmental Protection Agency,

Office of Water. 1995. Storm Water

Discharges Potentially Addressed by

Phase II of the National Pollutant

Discharge Elimination System Storm

Water Program: Report to Congress.

Washington, D.C. EPA 833–K–94–002)

(‘‘Report’’). The Report also analyzed

associated pollutant loadings and water

quality impacts from these unregulated

sources. Based on identification of

unregulated municipal sources and

analysis of information on impacts of

storm water discharges from municipal

sources, the Report recommended that

the NPDES program for storm water

focus on the 405 ‘‘urbanized areas’’

identified by the Bureau of the Census.

The Report further found that a number

of discharges from unregulated

industrial facilities warranted further

investigation to determine the need for

regulation. It classified these

unregulated industrial discharges in two

groups: Group A and Group B. Group A

comprised sources that may be

considered a high priority for inclusion

in the NPDES program for storm water

because discharges from these sources

are similar or identical to already

regulated sources. These ‘‘look alike’’

storm water discharge sources were not

covered in the initial NPDES regulations

for storm water due to the language used

to define ‘‘associated with industrial

activity.’’ In the initial regulations for

storm water, ‘‘industrial activity’’ is

identified using Standard Industrial

Classification (SIC) codes. The use of

SIC codes led to incomplete

categorization of industrial activities

with discharges that needed to be

regulated to protect water quality.

Group B consisted of 18 industrial

sectors, which included sources that

EPA expected to contribute to storm

water contamination due to the

activities conducted and pollutants

anticipated onsite (e.g., vehicle

maintenance, machinery and electrical

repair, and intensive agricultural

activities).

EPA reported on the latter component

of the section 402(p)(5) study via

President Clinton’s Clean Water

Initiative, which was released on

February 1, 1994 (U.S. Environmental

Protection Agency, Office of Water.

1994. President Clinton’s Clean Water

Initiative. Washington, D.C. EPA 800–R–

94–001) (‘‘Initiative’’). The Initiative

addressed a number of issues associated

with NPDES requirements for storm

water discharges and proposed (1)

establishing a phased compliance with

a water quality standards approach for

discharges from municipal separate

storm sewer systems with priority on

controlling discharges from municipal

growth and development areas, (2)

clarifying that the maximum extent

practicable standard should be applied

in a site-specific, flexible manner, taking

into account cost considerations as well

as water quality effects, (3) providing an

exemption from the NPDES program for

storm water discharges from industrial

facilities with no activities or significant

materials exposed to storm water, (4)

providing extensions to the statutory

deadlines to complete implementation

of the NPDES program for the storm

water program, (5) targeting urbanized

areas for the requirements in the NPDES

program for storm water, and (6)

providing control of discharges from

inactive and abandoned mines located

on Federal lands in a more targeted,

flexible manner. Additionally, prior to

promulgation of today’s rule, section

431 of the Agency’s Appropriation Act

for FY 2000 (Departments of Veterans

Affairs and Housing and Urban

Development and Independent Agencies

Appropriations Act of 2000, Public Law

106–74, section 432 (1999)) directed

EPA to report on certain matters to be

covered in today’s rule. That report

supplements the study required by

CWA Section 402(p)(5). EPA is

publishing the availability of that report

elsewhere in this issue of the Federal

Register.

Several commenters asserted that the

Report to Congress is an inadequate

basis for the designation and regulation

of sources covered under today’s final

rule, specifically the nationwide

designation of small municipal separate

storm sewer systems within urbanized

areas and construction activities

disturbing between one and five acres.

EPA believes that it has developed an

adequate record for today’s regulation

both through the Report to Congress and

the Clean Water Initiative and through

more recent activities, including the

FACA Subcommittee process, regulatory

notices and evaluation of comments,

and recent research and analysis. EPA

does not interpret the congressional

reporting requirements of CWA section

402(p)(5) to be the sole basis for

determining sources to be regulated

under today’s final rule.

EPA’s decision to designate on a

national basis small MS4s in urbanized

areas is supported by studies that

clearly show a direct correlation

between urbanization and adverse water

quality impacts from storm water

discharges. (Schueler, T. 1987.

Controlling Urban Runoff: A Practical

Manual for Planning & Designing Urban

BMPs. Metropolitan Washington

Council of Governments). ‘‘Urbanized

areas’’—within which all small MS4s

would be covered—represent the most

intensely developed and dense areas of

the Nation. They constitute only two

percent of the land area but 63 percent

of the total population. See section I.B.1,

Urban Development, above, for studies

and assessments of the link between

urban development and storm water

impacts on water resources.

Commenters argued that the Report to

Congress does not address storm water

discharges from construction sites. They

further argued that the designation of

small construction sites per today’s final

rule goes beyond the President’s 1994

Initiative because the Initiative only

recommends requiring municipalities to

implement a storm water management

program to control unregulated storm

water sources, ‘‘including discharges

from construction of less than 5 acres,

which are part of growth, development

and significant redevelopment

activities.’’ They point out that the

Initiative provides that unregulated

storm water discharges not addressed

through a municipal program would not

be covered by the NPDES program.

Commenters assert that EPA has not

developed a record independent of its

section 402(p)(5) studies that

demonstrates the necessity of regulating

under a separate NPDES permit storm

water discharges from smaller

construction sites ‘‘to protect water

quality.’’ EPA disagrees.

EPA evaluated the nature and extent

of pollutants from construction site

sources in a process that was separate

and distinct from the development of

the Report to Congress. Today’s decision

to regulate certain storm water

discharges from construction sites

disturbing less than 5 acres arose in part

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68733

out of the 9th Circuit remand in NRDC

v. EPA, 966 F.2d 1292 (9th Cir. 1992).

In that case, the court remanded

portions of the Phase I storm water

regulations related to discharges from

construction sites. Those regulations

define ‘‘storm water discharges

associated with industrial activity’’ to

include only those storm water

discharges from construction sites

disturbing 5 acres or more of total land

area (see 40 CFR 122.26(b)(14)(x)). In its

decision, the court concluded that the 5-

acre threshold was improper because

the Agency had failed to identify

information ‘‘to support its perception

that construction activities on less than

5 acres are non-industrial in nature’’

(966 F.2d at 1306). The court remanded

the below 5 acre exemption to EPA for

further proceedings (966 F.2d at 1310).

In a Federal Register notice issued on

December 18, 1992, EPA noted that it

did not believe that the Court’s decision

had the effect of automatically

subjecting small construction sites to

the existing application requirements

and deadlines. EPA believed that

additional notice and comment were

necessary to clarify the status of these

sites. The information received during

the notice and comment process and

additional research, as discussed in

section I.B.3 Construction Site Runoff,

formed the basis for the designation of

construction activity disturbing between

one and five acres on a nationwide

basis. EPA’s objectives in today’s

proposal include an effort to (1) address

the 9th Circuit remand, (2) address

water quality concerns associated with

construction activities that disturb less

than 5 acres of land, and (3) balance

conflicting recommendations and

concerns of stakeholders.

One commenter noted that EPA’s

proposal would fail to regulate

industrial facilities identified as Group

A and Group B in the March 1995

Report to Congress. EPA is relying on

the analysis in the Report, which

provided that the recommendation for

coverage was meant as guidance and

was not intended to be an identification

of specific categories that must be

regulated under Section 402(p)(6).

Report to Congress, p. 4–1. The Report

recognized the existence of limited data

on which to base loadings estimates to

support the nationwide designation of

individual or categories of sources.

Report to Congress, p. 4–44.

Furthermore, during FACA

Subcommittee discussion, EPA

continued to urge stakeholders to

provide further data relating to

industrial and commercial storm water

sources, which EPA did not receive.

EPA concluded that, due to insufficient

data, these sources were not appropriate

for nationwide designation at this time.

E. Industrial Facilities Owned or

Operated by Small Municipalities

Congress granted extensions to the

NPDES permit application process for

selected classes of storm water

discharges associated with industrial

activity. On December 18, 1991,

Congress enacted the Intermodal

Surface Transportation Efficiency Act

(ISTEA), which postponed NPDES

permit application deadlines for most

storm water discharges associated with

industrial activity at facilities that are

owned or operated by small

municipalities. EPA and States

authorized to administer the NPDES

program could not require any

municipality with a population of less

than 100,000 to apply for or obtain an

NPDES permit for any storm water

discharge associated with industrial

activity prior to October 1, 1992, except

for storm water discharges from airports,

power plants, or uncontrolled sanitary

landfills. See 40 CFR 122.26(e)(1); 57 FR

11524, April 2, 1992 (reservation of

NPDES application deadlines for ISTEA

facilities).

The facilities exempted by ISTEA

discharge storm water in the same

manner (and are expected to use

identical processes and materials) as the

industrial facilities regulated under the

1990 Phase I regulations. Accordingly,

these facilities pose similar water

quality problems. The extended

moratorium for these facilities was

necessary to allow municipalities

additional time to comply with NPDES

requirements. The proposal for today’s

rule would have maintained the existing

deadline for seeking coverage under an

NPDES permit (August 7, 2001).

Today’s rule changes the permit

application deadline for such

municipally owned or operated

facilities discharging industrial storm

water to make it consistent with the

application date for small regulated

MS4s. Because EPA missed its March

1999 deadline for promulgating today’s

rule, and the deadline for MS4s to

submit permit applications has been

extended to three years and 90 days

from the date of this notice, the deadline

for permitting ISTEA sources has been

similarly extended. The permitting of

these sources is discussed below in

section ‘‘II.I.3. ISTEA Sources.’’

F. Related Nonpoint Source Programs

Today’s rule addresses point source

discharges of storm water runoff and

non-storm water discharges into MS4s.

Many of these sources have been

addressed by nonpoint source control

programs, which are described briefly

below.

In 1987, section 319 was added to the

CWA to provide a framework for

funding State and local efforts to

address pollutants from nonpoint

sources not addressed by the NPDES

program. To obtain funding, States are

required to submit Nonpoint Source

Assessment Reports identifying State

waters that, without additional control

of nonpoint sources of pollution, could

not reasonably be expected to attain or

maintain applicable water quality

standards or other goals and

requirements of the CWA. States are

also required to prepare and submit for

EPA approval a statewide Nonpoint

Source Management Program for

controlling nonpoint source water

pollution to navigable waters within the

State and improving the quality of such

waters. State program submittals must

identify specific best management

practices (BMPs) and measures that the

State proposes to implement in the first

four years after program submission to

reduce pollutant loadings from

identified nonpoint sources to levels

required to achieve the stated water

quality objectives.

State nonpoint source programs

funded under section 319 can include

both regulatory and nonregulatory State

and local approaches. Section

319(b)(2)(B) specifies that a combination

of ‘‘nonregulatory or regulatory

programs for enforcement, technical

assistance, financial assistance,

education, training, technology transfer,

and demonstration projects’ may be

used, as necessary, to achieve

implementation of the BMPs or

measures identified in the section 319

submittals.

Section 6217 of the Coastal Zone Act

Reauthorization Amendments (CZARA)

of 1990 provides that States with

approved coastal zone management

programs must develop coastal

nonpoint pollution control programs

and submit them to EPA and the

National Oceanic and Atmospheric

Administration (NOAA) for approval.

Failure to submit an approvable

program will result in a reduction of

Federal grants under both the Coastal

Zone Management Act and section 319

of the CWA.

State coastal nonpoint pollution

control programs under CZARA must

include enforceable policies and

mechanisms that ensure

implementation of the management

measures throughout the coastal

management area. EPA issued Guidance

Specifying Management Measures for

Sources of Nonpoint Pollution in

Coastal Waters under section 6217(g) in

68734 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

January 1993. The guidance identifies

management measures for five major

categories of nonpoint source pollution.

The management measures reflect the

greatest degree of pollutant reduction

that is economically achievable for each

of the listed sources. These management

measures provide reference standards

for the States to use in developing or

refining their coastal nonpoint

programs. A few management measures,

however, contain quantitative standards

that specify pollutant loading

reductions. For example, the New

Development Management Measure,

which is applicable to construction in

urban areas, requires (1) that by design

or performance the average annual total

suspended solid loadings be reduced by

80 percent and (2) to the extent

practicable, that the pre-development

peak runoff rate and average volume be

maintained.

EPA and NOAA published Coastal

Nonpoint Pollution Control Program:

Program Development and Approval

Guidance (1993). The document

clarifies that States generally must

implement management measures for

each source category identified in the

EPA guidance developed under section

6217(g). Coastal Nonpoint Pollution

Control Programs are not required to

address sources that are clearly

regulated under the NPDES program as

point source discharges. Specifically,

such programs would not need to

address small MS4s and construction

sites covered under NPDES storm water

permits (both general and individual).

II. Description of Program

A. Overview

1. Objectives EPA Seeks To Achieve in

Today’s Rule

EPA seeks to achieve several

objectives in today’s final rule. First,

EPA is implementing the requirement

under CWA section 402(p)(6) to provide

a comprehensive storm water program

that designates and controls additional

sources of storm water discharges to

protect water quality. Second, EPA is

addressing storm water discharges from

the activities exempted under the 1990

storm water permit application

regulations that were remanded by the

Ninth Circuit Court of Appeals in NRDC

v. EPA, 966 F.2d 1292 (9th Circuit,

1992). These are construction activities

disturbing less than 5 acres and socalled ‘‘light’’ industrial activities not

exposed to storm water (see discussion

of ‘‘no exposure’’ below). Third, EPA is

providing coverage for the so-called

‘‘donut holes’’ created by the existing

NPDES storm water program. Donut

holes are geographic gaps in the NPDES

storm water program’s regulatory

scheme. They are MS4s located within

areas covered by the existing NPDES

storm water program, but not currently

addressed by the storm water program

because it is based on political

jurisdictions. Finally, EPA also is trying

to promote watershed planning as a

framework for implementing water

quality programs where possible.

Although EPA had options for

different approaches (see alternatives

discussed in the January 9, 1998,

proposed regulation), EPA believes it

can best achieve its objectives through

flexible innovations within the

framework of the NPDES program.

Unlike the interim section 402(p)(6)

storm water regulations EPA

promulgated in 1995, EPA no longer

designates all of the unregulated storm

water discharges for nationwide

coverage under the NPDES program for

storm water. The framework for today’s

final rule is one that balances automatic

designation on a nationwide basis and

locally-based designation and waivers.

Nationwide designation applies to those

classes or categories of storm water

discharges that EPA believes present a

high likelihood of having adverse water

quality impacts, regardless of location.

Specifically, today’s rule designates

discharges from small MS4s located in

urbanized areas and storm water

discharges from construction activities

that result in land disturbance equal to

or greater than one and less than five

acres. As noted under Section I.B.,

Water Quality Concerns/Environmental

Impact Studies and Assessments, these

two categories of storm water sources,

when unregulated, tend to cause

significant adverse water quality

impacts. Additional sources are not

covered on a nationwide basis either

because EPA currently lacks

information indicating a consistent

potential for adverse water quality

impact or because EPA believes that the

likelihood of adverse impacts on water

quality is low, with some localized

exceptions. Additional individual

sources or categories of storm water

discharges could, however, be covered

under the program through a local

designation process. A permitting

authority may designate additional

small MS4s after developing designation

criteria and applying those criteria to

small MS4s located outside of an

urbanized area, in particular those with

a population of 10,000 or more and a

population density of at least 1,000.

Exhibit 1 illustrates the designation

framework for today’s final rule.

BILLING CODE 6560–50–P

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68735

BILLING CODE 6560–50–C

68736 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

The designation framework for

today’s final rule provides a significant

degree of flexibility. The proposed

provisions for nationwide designation of

storm water discharges from

construction and from small MS4s in

urbanized areas allowed for a waiver of

applicable requirements based on

appropriate water quality conditions.

Today’s final rule expands and

simplifies those waivers.

The permitting authority may waive

the requirement for a permit for any

small MS4 serving a jurisdiction with a

population of less than 1,000 unless

storm water controls are needed because

the MS4 is contributing to a water

quality impairment. The permitting

authority may also waive permit

coverage for MS4s serving a jurisdiction

with a population of less than 10,000 if

all waters that receive a discharge from

the MS4 have been evaluated and

discharges from the MS4 do not

significantly contribute to a water

quality impairment or have the potential

to cause an impairment. Today’s rule

also allows States with a watershed

permitting approach to phase in

coverage for MS4s in jurisdictions with

populations under 10,000.

Water quality conditions are also the

basis for a waiver of requirements for

storm water discharges from

construction activities disturbing

between one and five acres. For these

small construction sources, the rule

provides significant flexibility for

waiving otherwise applicable regulatory

requirements where a permitting

authority determines, based on water

quality and watershed considerations,

that storm water discharge controls are

not needed.

Coverage can be extended to

municipal and construction sources

outside the nationwide designated

classes or categories based on watershed

and case-by-case assessments. For the

municipal storm water program, today’s

rule provides broad discretion to NPDES

permitting authorities to develop and

implement criteria for designating storm

water discharges from small MS4s

outside of urbanized areas. Other storm

water discharges from unregulated

industrial, commercial, and residential

sources will not be subject to the NPDES

permit requirements unless a permitting

authority determines on a case-by-case

basis (or on a categorical basis within

identified geographic areas such as a

State or watershed) that regulatory

controls are needed to protect water

quality. EPA believes that the flexibility

provided in today’s rule facilitates

watershed planning.

2. General Requirements for Regulated

Entities Under Today’s Rule

As previously noted, today’s final rule

defines additional classes and categories

of storm water discharges for coverage

under the NPDES program. These

designated dischargers are required to

seek coverage under an NPDES permit.

Furthermore, all NPDES-authorized

States and Tribes are required to

implement these provisions and make

any necessary amendments to current

State and Tribal NPDES regulations to

ensure consistency with today’s final

rule. EPA remains the NPDES

permitting authority for jurisdictions

without NPDES authorization.

Today’s final rule includes some new

requirements for NPDES permitting

authorities implementing the CWA

section 402(p)(6) program. EPA has

made a significant effort to build

flexibility into the program while

attempting to maintain an appropriate

level of national consistency. Permitting

authorities must ensure that NPDES

permits issued to MS4s include the

minimum control measures established

under the program. Permitting

authorities also have the ability to make

numerous decisions including who is

regulated under the program, i.e., caseby-case designations and waivers, and

how responsibilities should be allocated

between regulated entities.

Today’s final rule extends the NPDES

program to include discharges from the

following: small MS4s within urbanized

areas (with the exception of systems

waived from the requirements by the

NPDES permitting authority); other

small MS4s meeting designation criteria

to be established by the permitting

authority; and any remaining MS4 that

contributes substantially to the storm

water pollutant loadings of a physically

interconnected MS4 already subject to

regulation under the NPDES program.

Small MS4s include urban storm sewer

systems owned by Tribes, States,

political subdivisions of States, as well

as the United States, and other systems

located within an urbanized area that

fall within the definition of an MS4.

These include, for example, State

departments of transportation (DOTs),

public universities, and federal military

bases.

Today’s final rule requires all

regulated small MS4s to develop and

implement a storm water management

program. Program components include,

at a minimum, 6 minimum measures to

address: public education and outreach;

public involvement; illicit discharge

detection and elimination; construction

site runoff control; post-construction

storm water management in new

development and redevelopment; and

pollution prevention and good

housekeeping of municipal operations.

These program components will be

implemented through NPDES permits.

A regulated small MS4 is required to

submit to the NPDES permitting

authority, either in its notice of intent

(NOI) or individual permit application,

the BMPs to be implemented and the

measurable goals for each of the

minimum control measures listed

above.

The rule addresses all storm water

discharges from construction site

activities involving clearing, grading

and excavating land equal to or greater

than 1 acre and less than 5 acres, unless

requirements are otherwise waived by

the NPDES permitting authority.

Discharges from such sites, as well as

construction sites disturbing less than 1

acre of land that are designated by the

permitting authority, are required to

implement requirements set forth in the

NPDES permit, which may reference the

requirements of a qualifying local

program issued to cover such

discharges.

The rule also addresses certain other

sources regulated under the existing

NPDES program for storm water. For

municipally-owned industrial sources

required to be regulated under the

existing NPDES storm water program

but exempted from immediate

compliance by the Intermodal Surface

Transportation Act of 1991 (ISTEA), the

rule revises the existing deadline for

seeking coverage under an NPDES

permit (August 7, 2001) to make it

consistent with the application date for

small regulated MS4s. (See section I.3.

below.) The rule also provides relief

from NPDES storm water permitting

requirements for industrial sources with

no exposure of industrial materials and

activities to storm water.

3. Integration of Today’s Rule With the

Existing Storm Water Program

In developing an approach for today’s

final rule, numerous early interested

stakeholders encouraged EPA to seek

opportunities to integrate, where

possible, the proposed Phase II

requirements with existing Phase I

requirements, thus facilitating a unified

storm water discharge control program.

EPA believes that this objective is met

by using the NPDES framework. This

framework is already applied to

regulated storm water discharge sources

and is extended to those sources

designated under today’s rule. This

approach facilitates program

consistency, public access to

information, and program oversight.

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68737

EPA believes that today’s final rule

provides consistency in terms of

program coverage and requirements for

existing and newly designated sources.

For example, the rule includes most of

the municipal donut holes, those MS4s

located in incorporated places,

townships or towns with a population

under 100,000 that are within Phase I

counties. These MS4s are not addressed

by the existing NPDES storm water

program while MS4s in the surrounding

county are currently addressed. In

addition, the minimum control

measures required in today’s rule for

regulated small MS4s are very similar to

a number of the permit requirements for

medium and large MS4s under the

existing storm water program. Following

today’s rule, permit requirements for all

regulated MS4s (both those under the

existing program and those under

today’s rule) will require

implementation of BMPs. Furthermore,

with regard to the development of

NPDES permits to protect water quality,

EPA intends to apply the August 1,

1996, Interim Permitting Approach for

Water Quality-Based Effluent

Limitations in Storm Water Permits

(hereinafter, ‘‘Interim Permitting

Approach’’) (see Section II.L.1. for

further description) to all MS4s covered

by the NPDES program.

EPA is applying NPDES permit

requirements to construction sites below

5 acres that are similar to the existing

requirements for those above 5 acres

and above. In addition, today’s rule

allows compliance with qualifying

local, Tribal, or State erosion and

sediment controls to meet the erosion

and sediment control requirements of

the general permits for storm water

discharges associated with construction,

both above and below 5 acres.

4. General Permits

EPA recommends using general

permits for all newly regulated storm

water sources under today’s rule. The

use of general permits, instead of

individual permits, reduces the

administrative burden on permitting

authorities, while also limiting the

paperwork burden on regulated parties

seeking permit authorization. Permitting

authorities may, of course, require

individual permits in some cases to

address specific concerns, including

permit non-compliance.

EPA recommends that general permits

for MS4s, in particular, be issued on a

watershed basis, but recognizes that

each permitting authority must decide

how to develop its general permit(s).

Permit conditions developed to address

concerns and conditions of a specific

watershed could reflect a watershed

plan; such permit conditions must

provide for attainment of applicable

water quality standards (including

designated uses), allocations of

pollutant loads established by a TMDL,

and timing requirements for

implementation of a TMDL. If the

permitting authority issues a State-wide

general permit, the permitting authority

may include separate conditions

tailored to individual watersheds or

urbanized areas. Of course, for a newly

regulated MS4, modification of an

existing individual MS4 permit to

include the newly regulated MS4 as a

‘‘limited co-permittee’’ also remains an

option.

5. Tool Box

During the FACA process, many

Storm Water Phase II FACA

Subcommittee representatives expressed

an interest, which was endorsed by the

full Committee, in having EPA develop

a ‘‘tool box’’ to assist States, Tribes,

municipalities, and other parties

involved in the Phase II program. EPA

made a commitment to work with Storm

Water Phase II FACA Subcommittee

representatives in developing such a

tool box, with the expectation that a tool

box would facilitate implementation of

the storm water program in an effective

and cost-efficient manner. EPA has

developed a preliminary working tool

box (available on EPA’s web page at

www.epa.gov/owm/sw/toolbox). EPA

intends to have the tool box fully

developed by the time of the first

general permits. EPA also intends to

update the tool box as resources and

data become available. The tool box will

include the following eight main

components: fact sheets; guidances; a

menu of BMPs for the six MS4

minimum measures; an information

clearinghouse; training and outreach

efforts; technical research; support for

demonstration projects; and compliance

monitoring/assistance tools. EPA

intends to issue the menu of BMPs, both

structural and non-structural, by

October 2000. In addition, EPA will

issue by October 2000 a ‘‘model’’ permit

and will issue by October 2001 guidance

materials on the development of

measurable goals for municipal

programs.

In an attempt to avoid duplication,

the Agency has undertaken an effort to

identify and coordinate sources of

information that relate to the storm

water discharge control program from

both inside and outside the Agency.

Such information includes research and

demonstration projects, grants, storm

water management-related programs,

and compendiums of available

documents, including guidances, related

directly or indirectly to the

comprehensive NPDES storm water

program. Based on this effort, EPA is

developing a tool box containing fact

sheets and guidance documents

pertaining to the overall program and

rule requirements (e.g., guidance on

municipal and construction programs,

and permitting authority guidance on

designation and waiver criteria); models

of current programs aimed at assisting

States, Tribes, municipalities, and

others in establishing programs; a

comprehensive list of reference

documents organized according to

subject area (e.g., illicit discharges,

watersheds, water quality standards

attainment, funding sources, and similar

types of references); educational

materials; technical research data; and

demonstration project results. The

information collected by EPA will not

only provide the background for tool

box materials, but will also be made

available through an information

clearinghouse on the world wide web.

With assistance from EPA, the

American Public Works Association

(APWA) developed a workbook and

series of workshops on the proposed

Phase II rule. Ten workshops were held

from September 1998 through May

1999. Depending on available funding,

these workshops may continue after

publication of today’s final rule. EPA

also intends to provide training to

enable regional offices to educate States,

Tribes, and municipalities about the

storm water program and the

availability of the tool box materials.

The CWA currently provides funding

mechanisms to support activities related

to storm water. These mechanisms will

be described in the tool box. Activities

funded under grant and loan programs,

which could be used to assist in storm

water program development, include

programs in the nonpoint source area,

storm water demonstration projects,

source water protection and wastewater

construction projects. EPA has already

provided funding for numerous research

efforts in these areas, including a

database of BMP effectiveness studies

(described below), an assessment of

technologies for storm water

management, a study of the

effectiveness of storm water BMPs for

controlling the impacts of watershed

imperviousness, protocols for wet

weather monitoring, development of a

dynamic model for wet weather flows,

and numerous outreach projects.

EPA has entered into a cooperative

agreement with the Urban Water

Resources Research Council of the

American Society of Civil Engineers

(ASCE) to develop a scientifically-based

management tool for the information

68738 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

needed to evaluate the effectiveness of

urban storm water runoff BMPs

nationwide. The long-term goal of the

National Stormwater BMP Database

project is to promote technical design

improvements for BMPs and to better

match their selection and design to the

local storm water problems being

addressed. The project team has

collected and evaluated hundreds of

existing published BMP performance

studies and created a database covering

about 75 test sites. The database

includes detailed information on the

design of each BMP and its watershed

characteristics, as well as its

performance. Eventually the database

will include the nationwide collection

of information on the characteristics of

structural and non-structural BMPs,

data collection efforts (e.g., sampling

and flow gaging equipment),

climatological characteristics, watershed

characteristics, hydrologic data, and

constituent data. The database will

continue to grow as new BMP data

become available. The initial release of

the database, which includes data entry

and retrieval software, is available on

CD–ROM and operates on Windows-

compatible personal computers. The

ASCE project team envisions that

periodic updates to the database will be

distributed through the Internet. The

team is currently developing a system

for Internet retrieval of selected database

records, and this system is expected to

be available in early 2000.

EPA and ASCE invite BMP designers,

owners and operators to participate in

the continuing database development

effort. To make this effort successful, a

large database is essential. Interested

persons are encouraged to submit their

BMP performance evaluation data and

associated BMP watershed

characteristics for potential entry into

the database. The software included in

the CD-ROM allows data providers to

enter their BMP data locally, retain and

edit the data as needed, and submit

them to the ASCE Database

Clearinghouse when ready.

To obtain a copy of the database,

please contact Jane Clary, Database

Clearinghouse Manager, Wright Water

Engineers, Inc., 2490 W. 26th Ave.,

Suite 100A, Denver, CO 80211; Phone

303–480–1700; E-mail

clary@wrightwater.com.

In addition, EPA requests that

researchers planning to conduct BMP

performance evaluations compile and

collect BMP reporting information

according to the standard format

developed by ASCE. The format is

provided with the database software and

is also available on the ASCE website at

www.asce.org/peta/tech/nsbd01.html.

6. Deadlines Established in Today’s

Action

Exhibit 2 outlines the various

deadlines established under today’s

final rule. EPA believes that the dates

allow sufficient time for completion of

both the NPDES permitting authority’s

and the permittee’s program

responsibilities.

EXHIBIT 2–STORM WATER PHASE II ACTIONS DEADLINES

Activity Deadline date

NPDES-authorized States modify NPDES program if no statutory

change is required.

1 year from date of publication of today’s rule in the Federal Register.

NPDES-authorized States modify NPDES program if statutory change

is required.

2 years from date of publication of today’s rule in the Federal Register.

EPA issues a menu of BMPs for regulated small MS4s ......................... October 27, 2000

ISTEA sources submit permit application ................................................ 3 years and 90 days from date of publication of today’s rule in the Federal Register.

Permitting authority issues general permit(s) (if this type of permit coverage is selected).3 years from date of publication of today’s rule in the Federal Register.

Regulated small MS4s submit permit application:

a. If designated under § 122.32(a)(1) unless the permitting authority has established a phasing schedule under § 123.35(d)(3).a. 3 years and 90 days from date of publication of today’s rule in the

Federal Register.

b. If designated under § 122.32(a)(2) or §§ 122.26(a)(9)(i) (C) or

(D).

b. Within 180 days of notice.

Storm water discharges associated with small construction activity submit permit application:

a. If designated under § 122.26(b)(15)(i) .......................................... a. 3 years and 90 days from date of publication of today’s rule in the

Federal Register

b. If designated under § 122.26(b)(15)(ii) .......................................... b. Within 180 days of notice.

Permitting authority designates small MS4s under § 123.35(b)(2) .......... 3 years from date of publication of today’s rule in the Federal Register

or 5 years from date of publication of today’s rule in the Federal

Register if a watershed plan is in place

Regulated small MS4s’ program fully developed and implemented ........ Up to 5 years from date of permit issuance.

Reevaluation of the municipal storm water rules by EPA ....................... 13 years from date of publication of today’s rule in the Federal Register

Permitting authority determination on a petition ...................................... Within 180 days of receipt.

Non-municipal sources designated under § 122.26(a)(9)(i) (C) or (D)

submit permit application.

Within 180 days of notice.

Submission of No Exposure Certification ................................................. Every 5 years.

B. Readable Regulations

Today, EPA is finalizing new

regulations in a ‘‘readable regulation’’

format. This reader-friendly, plain

language approach is a departure from

traditional regulatory language and

should enhance the rule’s readability.

These plain language regulations use

questions and answers, ‘‘you’’ to

identify the person who must comply,

and terms like ‘‘must’’ rather than

‘‘shall’’ to identify a mandate. This new

format, which minimizes layers of

subparagraphs, should also allow the

reader to easily locate specific

provisions of the regulation.

Some sections of today’s final rule are

presented in the traditional language

and format because these sections

amend existing regulations. The

readable regulation format was not used

in these existing provisions in an

attempt to avoid confusion or disruption

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68739

of the readability of the existing

regulations.

Most commenters supported EPA’s

use of plain language and agreed with

EPA that the question and answer

format makes the rule easier to

understand. Three commenters thought

that EPA should retain the traditional

rule format. The June 1, 1998,

Presidential memorandum directs all

government agencies to write

documents in plain language. Based on

the majority of the comments, EPA has

retained the plain language format used

in the January 9, 1998, proposal in

today’s final rule.

The proposal to today’s final rule

included guidance as well as legal

requirements. The word ‘‘must’’

indicates a requirement. Words like

‘‘should,’’ ‘‘could,’’ or ‘‘encourage’’

indicate a recommendation or guidance.

In addition, the guidance was set off in

parentheses to distinguish it from

requirements.

EPA received numerous comments

supporting the inclusion of guidance in

the text of the Code of Federal

Regulations (CFR), as well as comments

opposing inclusion of guidance.

Supporters stated that preambles and

guidance documents are often not

accessible when rules are implemented.

Any language not included in the CFR

is therefore not available when it may be

most needed. Commenters that opposed

including guidance in the CFR

expressed the concern that any language

in the rule might be interpreted as a

requirement, in spite of any clarifying

language. They suggested that guidance

be presented in the preamble and

additional guidance documents.

The majority of commenters on this

issue thought that the guidance should

be retained but the distinction between

requirements and guidance should be

better clarified. Suggestions included

clarifying text, symbols, and a change

from use of the word ‘‘should’’ to ‘‘EPA

recommends’’ or ‘‘EPA suggests’’. EPA

believes that it is important to include

the guidance in the rule and agrees that

the distinction between requirements

and EPA recommendations must be very

clear. In today’s final rule, EPA has put

the guidance in paragraphs entitled

‘‘Guidance’’ and replaced the word

‘‘should’’ with ‘‘EPA recommends.’’

This is intended to clarify that the

recommendations contained in the

guidance paragraphs are not legally

binding.

C. Program Framework: NPDES

Approach

Today’s rule regulates Phase II

sources using the NPDES permit

program. EPA interprets Clean Water

Act section 402(p)(6) as authorizing the

Agency to develop a storm water

program for Phase II sources either as

part of the existing NPDES permit

program or as a stand alone non-NPDES

program such as a self-implementing

rule. Under either approach, EPA

interprets section 402(p)(6) as directing

EPA to publish regulations that

‘‘regulate’’ the remaining unregulated

sources, specifically to establish

requirements that are federally

enforceable under the CWA. Although

EPA believes that it has the discretion

to not require sources regulated under

CWA section 402(p)(6) to be covered by

NPDES permits, the Agency has

determined, for the reasons discussed

below, that it is most appropriate to use

NPDES permits in implementing the

program to address the sources

designated for regulation in today’s rule.

As discussed in Section II.A,

Overview, EPA sought to achieve

certain goals in today’s final rule. EPA

believes that the NPDES program best

achieves EPA’s goals for today’s final

rule for the reasons discussed below.

Requiring Phase II sources to be

covered by NPDES permits helps

address the consistency problems

currently caused by municipal ‘‘donut

holes.’’ Donut holes are gaps in program

coverage where a small unregulated

MS4 is located next to or within a

regulated larger MS4 that is subject to

an NPDES permit under the Phase I

NPDES storm water program. The

existence of such ‘‘donut holes’’ creates

an equity problem because similar

discharges may remain unregulated

even though they cause or contribute to

the same adverse water quality impacts.

Using NPDES permits to regulate the

unregulated discharges in these areas is

intended to facilitate the development

of a seamless regulatory program for the

mitigation and control of contaminated

storm water discharges in an urbanized

area. For example, today’s rule allows a

newly regulated MS4 to join as a

‘‘limited’’ co-permittee with a regulated

MS4 by referencing a common storm

water management program. Such

cooperation should be further

encouraged by the fact that the

minimum control measures required in

today’s rule for regulated small MS4s

are very similar to a number of the

permit requirements for medium and

large MS4s under the Phase I storm

water program. The minimum control

measures applicable to discharges from

smaller MS4s are described with

slightly more generality than under the

Phase I permit application regulations

for larger MS4s, thus enabling

maximum flexibility for operators of

smaller MS4s to optimize efforts to

protect water quality.

Today’s rule also applies NPDES

permit requirements to construction

sites below 5 acres that are similar to the

existing requirements for those 5 acres

and above. In addition, the rule would

allow compliance with qualifying local,

Tribal, or State erosion and sediment

controls to meet the erosion and

sediment control requirements of the

general permits for storm water

discharges associated with construction,

both above and below 5 acres.

Incorporating the CWA section

402(p)(6) program into the NPDES

program capitalizes upon the existing

governmental infrastructure for

administration of the NPDES program.

Moreover, much of the regulated

community already understands the

NPDES program and the way it works.

Another goal of the NPDES program

approach is to provide flexibility in

order to facilitate and promote

watershed planning and sensitivity to

local conditions. NPDES permits

promote those goals in several ways.

NPDES general permits may be used to

cover a category of regulated sources on

a watershed basis or within political

boundaries. The NPDES permitting

process provides a mechanism for storm

water controls tailored on a case-by-case

basis, where necessary. In addition, the

NPDES permit requirements of a

permittee may be satisfied by another

cooperating entity. Finally, NPDES

permits may incorporate the

requirements of existing State, Tribal

and local programs, thereby

accommodating State and Tribes

seeking to coordinate the storm water

program with other programs, including

those that focus on watershed-based

nonpoint source regulation.

In promoting the watershed approach

to program administration, EPA believes

NPDES general permits can cover a

category of dischargers within a defined

geographic area. Areas can be defined

very broadly to include political

boundaries (e.g., county), watershed

boundaries, or State or Tribal land.

NPDES permits generally require an

application or a notice of intent(NOI) to

trigger coverage. This information

exchange assures communication

between the permitting authority and

the regulated community. This

communication is critical in ensuring

that the regulated community is aware

of the requirements and the permitting

authority is aware of the potential for

adverse impacts to water quality from

identifiable locations. The NPDES

permitting process includes the public

as a valuable stakeholder and ensures

68740 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

that the public is included and

information is made publicly available.

Another concern for EPA and several

stakeholders was that the program

ensure citizen participation. The NPDES

approach ensures opportunities for

citizen participation throughout the

permit issuance process, as well as in

enforcement actions. NPDES permits are

also federally enforceable under the

CWA.

EPA believes that the use of NPDES

permits makes a significant difference in

the degree of compliance with

regulations in the storm water program.

The NPDES program provides for public

participation in the development,

enforcement and revision of storm water

management programs. Citizen suit

enforcement has assisted in focusing

attention on adverse water quality

impacts on a localized, public priority

basis. Citizens frequently rely on the

NPDES permitting process and the

availability of NOIs to track program

implementation and help them enforce

regulatory requirements.

NPDES permits are also advantageous

to the permittee. The NPDES permit

informs the permittee about the scope of

what it is expected do to be in

compliance with the Clean Water Act.

As explained more fully in EPA’s April

1995 guidance, Policy Statement on

Scope of Discharge Authorization and

Shield Associated with NPDES Permits,

compliance with an NPDES permit

constitutes compliance with the Clean

Water Act (see CWA section 402(k)). In

addition, NPDES permittees are

excluded from duplicative regulatory

regimes under the Resource

Conservation and Recovery Act and the

Comprehensive Emergency Response,

Compensation and Liability Act under

RCRA’s exclusions to the definition of

‘‘solid waste’’ and CERCLA’s exemption

for ‘‘federally permitted releases.’’

EPA considered suggestions that the

Agency authorize today’s rule to be

implemented as a self-implementing

rule. This would be a regulation

promulgated at the Federal, State, or

Tribal level to control some or all of the

storm water dischargers regulated under

today’s rule. Under this approach, a rule

would spell out the specific

requirements for dischargers and

impose the restrictions and conditions

that would otherwise be contained in an

NPDES permit. It would be effective

until modified by EPA, a State, or a

Tribe, unlike an NPDES permit which

cannot exceed a duration of five years.

Some stakeholders believed that this

approach would reduce the burden on

the regulated community (e.g., by not

requiring permit applications), and

considerably reduce the amount of

additional paperwork, staff time and

accounting required to administer the

proposed permit requirements.

EPA is sensitive to the interest of

some stakeholders in having a

streamlined program that minimizes the

burden associated with permit

administration and maximizes

opportunities for field time spent by

regulatory authorities. Key provisions in

today’s rule address some of these

concerns by promoting a streamlined

approach to permit issuance by, for

example, using general permits and

allowing the incorporation of existing

programs. By adopting the NPDES

approach rather than a selfimplementing rule, today’s rule also

allows for consistent regulation between

larger MS4s and construction sites

regulated under the existing storm water

management rule and smaller sources

regulated under today’s rule.

EPA believes that it is most

appropriate to use NPDES permits to

implement a program to address the

sources regulated by today’s rule. In

addition to the reasons discussed above,

NPDES permits provide a better

mechanism than would a selfimplementing rule for tailoring storm

water controls on a case-by-case basis,

where necessary. One commenter

reasoned this concern could be

addressed by including provisions in

the regulation that allow site-specific

BMPs (i.e., case-by-case permits),

suggesting storm water discharges that

might require site-specific BMPs can be

identified during the designation

process of the regulatory authority. EPA

believes that, in addition to its

complexity, the commenter’s approach

lacks the other advantages of the NPDES

permitting process.

A self-implementing rule would not

ensure the degree of public participation

that the NPDES permit process provides

for the development, enforcement and

revision of the storm water management

program. A self-implementing rule also

might not have provided the regulated

community the ‘‘permit shield’’ under

CWA section 402(k) that is provided by

an NPDES permit. Based on all these

considerations, EPA declined to adopt a

self-implementing rule approach and

adopted the NPDES approach.

Some State representatives sought

alternative approaches for State

implementation of the storm water

program for Phase II sources. These

State representatives asserted that a

non-NPDES alternative approach best

facilitated watershed management and

avoided duplication and overlapping

regulations. These representatives

believed the NPDES approach would

undercut State programs that had

developed storm water controls tailored

to local watershed concerns. Finally, a

number of commenters expressed the

view that States implement a variety of

programs not based on the CWA that are

effective in controlling storm water, and

that EPA should provide incentives for

their implementation and improvement

in performance.

Throughout the development of the

rule, State representatives sought

alternatives to the NPDES approach for

State implementation of the storm water

program for Phase II sources.

Discussions focused on an approach

whereby States could develop an

alternative program that EPA would

approve or disapprove based on

identified criteria, including that the

alternative non-NPDES program would

result in ‘‘equivalent or better protection

of water quality.’’ The State

representatives, however, were unable

to propose or recommend criteria for

gauging whether a program would

provide equivalent protection. EPA also

did not receive any suggestions for

objective, workable criteria in response

to the Agency’s explicit request for

specific criteria (by which EPA could

objectively judge such programs) in the

preamble to the proposed rule.

EPA evaluated several existing State

initiatives to address storm water and

found many cases where standards

under State programs may be

coordinated with the Federal storm

water program. Where the NPDES

permit is developed in coordination

with State standards, there are

opportunities to avoid duplication and

overlapping requirements. Under

today’s rule, an NPDES permitting

authority may include conditions in the

NPDES permit that direct an MS4 to

follow the requirements imposed under

State standards, rather than the

requirements of § 122.34(b). This is

allowed as long as the State program at

a minimum imposes the relevant

requirements of § 122.34(b). Additional

opportunities follow from other

provisions in today’s rule.

Seeking to further explore the

feasibility of a non-NPDES approach,

the Agency, after the proposal, had

extensive discussions with

representatives of a number of States.

Discussions related specifically to

possible alternatives for regulations of

urban storm water discharges and MS4s

specifically. The Agency also sought

input on these issues from other

stakeholders.

As a result of these discussions, many

of the commenters provided input on

issues such as: whether or not the

Agency should require NPDES permits;

whether location of MS4s in urbanized

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68741

areas should be the basis for designation

or whether designation should be based

on other determinations relating to

water quality; whether States should be

allowed to satisfy the conditions of the

rule through the use of existing State

programs; and issues concerning timing

and resources for program

implementation.

In response, today’s rule still follows

the regulatory scheme of the proposed

rule, but incorporates additional

flexibility to address some of the

concerns raised by commenters.

In order to facilitate implementation

by States that utilize a watershed

permitting approach or similar approach

(i.e., based on a State’s unified

watershed assessments), today’s rule

allows States to phase in coverage for

MS4s in jurisdictions with a population

less than 10,000. Under such an

approach, States could focus their

resources on a rolling basis to assist

smaller MS4s in developing storm water

programs.

In addition, in response to concerns

that the rule should not require permit

coverage for MS4s that do not

significantly contribute to water quality

impairments, today’s rule provides

options for two waivers for small MS4s.

The rule allows permitting authorities to

exempt from the requirement for a

permit any MS4 serving a jurisdiction

with a population less than 1,000,

unless the State determines that the

MS4 must implement storm water

controls because it is significantly

contributing to a water quality

impairment. A second waiver option

applies to MS4s serving a jurisdiction

with a population less than 10,000. For

those MS4s, the State must determine

that discharges from the MS4 do not

significantly contribute to a water

quality impairment, or have the

potential for such an impairment, in

order to provide the exemption. The

State must review this waiver on a

periodic basis no less frequently than

once every five years.

Throughout the development of

today’s rule, commenters questioned

whether the Clean Water Act authorized

the use of the NPDES permit program,

pointing out that the text of CWA

402(p)(6) does not use the word

‘‘permit.’’ Based on the absence of the

word ‘‘permit’’ and the express mention

of State storm water management

programs, the commenters asserted that

Congress did not intend for Phase II

sources to be regulated using NPDES

permits.

EPA disagrees with the commenters’

interpretation of section 402(p)(6).

Section 402(p)(6) does not preclude use

of permits as part of the

‘‘comprehensive program’’ to regulate

designated sources. The language

provides EPA with broad discretion in

the establishment of the

‘‘comprehensive program.’’ Absence of

the word ‘‘permit’’ (a term that the

statute does not otherwise define) does

not preclude use of a permit, which is

a familiar and reasonably well

understood regulatory implementation

vehicle. First, section 402(p)(6) says that

EPA must establish a comprehensive

program that ‘‘shall, at a minimum,

establish priorities, establish

requirements for State stormwater

management programs, and establish

expeditious deadlines.’’ The ‘‘at a

minimum’’ language suggests that the

Agency may, and perhaps should,

develop a comprehensive program that

does more than merely attend to these

minimum criteria. Use of the term ‘‘at a

minimum’’ preserves for the Agency

broad discretion to establish a

comprehensive program that includes

use of NPDES permits.

Further, in the final sentence of the

section, Congress included additional

language to affirm the Agency’s

discretion. The final sentence clarifies

that the Phase II program ‘‘may include

performance standards, guidelines,

guidance, and management practices

and treatment requirements, as

appropriate.’’ Under existing CWA

programs, performance standards,

(effluent limitations) guidelines,

management practices, and treatment

requirements are typically implemented

through NPDES or dredge and fill

permits.

Although EPA believes that it had the

discretion to not require permits, the

Agency has determined that it is

reasonable to interpret section 402(p)(6)

to authorize permits. Moreover, for the

reasons discussed above, the Agency

believes that it is appropriate to use

NPDES permits in implementing today’s

rule.

D. Federal Role

Today’s final rule describes EPA’s

approach to expand the existing storm

water program under CWA section

402(p)(6). As in all other Federal

programs, the Federal government plays

an integral role in complying with,

developing, implementing, overseeing,

and enforcing the program. This section

describes EPA’s role in the revised

storm water program.

1. Develop Overall Framework of the

Program

The storm water discharge control

program under CWA section 402(p)(6)

consists of the rule, tool box, and

permits. EPA’s primary role is to ensure

timely development and

implementation of all components.

Today’s rule is a refinement of the first

step in developing the program. EPA is

fully committed to continuing to work

with involved stakeholders on

developing the tool box and issuing

permits. As noted in today’s rule, EPA

will assess the municipal storm water

program based on (1) evaluations of data

from the NPDES municipal storm water

program, (2) research concerning water

quality impacts on receiving waters

from storm water, and (3) research on

BMP effectiveness. (Section II.H,

Municipal Role, provides a more

detailed discussion of this provision.)

EPA is planning to standardize

minimum requirements for construction

and post-construction BMPs in a new

rulemaking under Title III of the CWA.

While larger construction sites are

already subject to NPDES permits (and

smaller sites will be subject to permits

pursuant to today’s rule), the permits

generally do not contain specific

requirements for BMP design or

performance. The permits require the

preparation of storm water pollution

prevention plans, but actual BMP

selection and design is at the discretion

of permittees, in conformance with

applicable State and local requirements.

Where there are existing State and local

requirements specific to BMPs, they

vary widely, and many jurisdictions do

not have such requirements.

In developing these regulations, EPA

intends to evaluate the inclusion of

design and maintenance criteria as

minimum requirements for a variety of

BMPs used for erosion and sediment

control at construction sites, as well as

for permanent BMPs used to manage

post-construction storm water

discharges. The Agency plans to

consider the merits and performance of

all appropriate management practices

(both structural and non-structural) that

can be used to reduce adverse water

quality impacts. EPA does not intend to

require the use of particular BMPs at

specific sites, but plans to assist

builders and developers in BMP

selection by publishing data on the

performance to be expected by various

BMP types. EPA would like to build

upon the successes of some of the

effective State and local storm water

programs currently in place around the

country, and to establish nation-wide

criteria to support builders and local

jurisdictions in appropriate BMP

selection.

2. Encourage Consideration of Smart

Growth Approaches

In the proposal, EPA invited comment

on possible approaches for providing

68742 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

incentives for local decision making that

would limit the adverse impacts of

growth and development on water

quality. EPA asked for comments on this

‘‘smart growth’’ approach.

EPA received comments on all sides

of this issue. A number of commenters

supported the idea of ‘‘smart growth’’

incentives but did not present concrete

ideas. Several commenters suggested

‘‘smart growth’’ criteria. States that have

adopted ‘‘smart growth’’ laws were

worried that EPA’s focus on urbanized

areas for municipal requirements could

encourage development outside of

designated growth areas. Today’s final

rule clearly allows States to expand

coverage of their municipal storm water

program outside of urbanized areas. In

addition, the flexibility of the six

municipal minimum measures should

avoid encouragement of development

into rural rather than urban areas. For

example, as part of the postconstruction minimum measure, EPA

recommends that municipalities

consider policies and ordinances that

encourage infill development in higher

density urban areas, and areas with

existing infrastructure, in order to meet

the measure’s intent.

EPA also received several comments

expressing concern that incorporating

‘‘smart growth’’ incentives threatened

the autonomy of local governments. One

commenter was worried that

‘‘incentives’’ could become more

onerous than the minimum measures.

EPA is very aware of municipal

concerns about possible federal

interference with local land use

planning. EPA is also cognizant of the

difficulty surrounding incentives for

‘‘smart growth’’ activities due to these

concerns. However, the Agency believes

it has addressed these concerns by

proposing a flexible approach and will

continue to support the concept of

‘‘smart growth’’ by encouraging policies

that limit the adverse impacts of growth

and development on water quality.

3. Provide Financial Assistance

Although Congress has not

established a fund to fully finance

implementation of the proposed

extension of the existing NPDES storm

water program under CWA section

402(p)(6), numerous federal financing

programs (administered by EPA and

other federal agencies) can provide

some financial assistance. The primary

funding mechanism is the Clean Water

State Revolving Fund (SRF) program,

which provides sources of low-cost

financing for a range of water quality

infrastructure projects, including storm

water. In addition to the SRF, federal

financial assistance programs include

the Water Quality Cooperative

Agreements under CWA section

104(b)(3), Water Pollution Control

Program grants to States under CWA

section 106, and the Transportation

Equity Act for the 21st Century (TEA–

21) among others. In addition, Section

319 funds may be used to fund any

urban storm water activities that are not

specifically required by a draft or final

NPDES permit. EPA will develop a list

of potential funding sources as part of

the tool box implementation effort. EPA

anticipates that some of these programs

will provide funds to help develop and,

in limited circumstances, implement the

CWA section 402(p)(6) storm water

discharge control program.

EPA received numerous comments

that requested additional funding.

Congress provided one substantial new

source of potential funding for

transportation related storm water

projects—TEA–21. The Department of

Transportation has included a number

of water-related provisions in its TEA–

21 planning. These include

Transportation Enhancements,

Environmental Restoration and

Pollution Abatement, and

Environmental Streamlining. More

information on TEA–21 is available at

the following internet sites:

www.fhwa.dot.gov/tea21/outreach.htm

and www.tea21.org.

4. Implement the Program in

Jurisdictions Not Authorized To

Administer the NPDES Program

Because today’s final rule uses the

NPDES framework, EPA will be the

NPDES permitting authority in several

States, Tribal jurisdictions, and

Territories. As such, EPA will have the

same responsibilities as any other

NPDES permitting authority—issuing

permits, designating additional sources,

and taking appropriate enforcement

actions—and will seek to tailor the

storm water discharge control program

to the specific needs in that State, Tribal

jurisdiction, or Territory. EPA also plans

to provide support and oversight,

including outreach, training, and

technical assistance to the regulated

communities. Section II.G. of today’s

preamble provides a separate discussion

related to the NPDES permitting

authority’s responsibilities for today’s

final rule.

5. Oversee State and Tribal Programs

Under the NPDES program, EPA plays

an oversight role for NPDES-approved

States and Tribes. In this role, EPA and

the State or Tribe work together to

implement, enforce, and improve the

NPDES program. Part of this oversight

role includes working with States and

Tribes to modify their programs where

programmatic or implementation

concerns impede program effectiveness.

This role will be vitally important when

States and Tribes make adjustments to

develop, implement, and enforce

today’s extension of the existing NPDES

storm water discharge control program.

In addition, States maintain a

continuing planning process (CPP)

under CWA section 303(e), which EPA

periodically reviews to assess the

program’s achievements.

In its oversight role, EPA takes action

to address States and Tribes who have

obtained NPDES authorization but are

not fulfilling their obligations under the

NPDES program. If an NPDESauthorized State or Tribe fails to

implement an adequate NPDES storm

water program, for example, EPA

typically enters into extensive

discussions to resolve outstanding

issues. EPA has the authority to

withdraw the entire NPDES program

when resolution cannot be reached.

Partial program withdrawal is not

provided for under the CWA except for

partial approvals.

EPA is also working with the States

and Tribes to improve nonpoint source

management programs and assessments

to incorporate key program elements.

Key nonpoint source program elements

include setting short and long term

goals and objectives; establishing public

and private partnerships; using a

balanced approach incorporating

Statewide and watershed-wide

abatement of existing impairments;

preventing future impairments;

developing processes to address both

impaired and threatened waters;

reviewing and upgrading all program

components, including program

revisions on a 5-year cycle; addressing

federal land management and activities

inconsistent with State programs; and

managing State nonpoint source

management programs effectively.

In particular, EPA works with the

States and Tribes to strengthen their

nonpoint source pollution programs to

address all significant nonpoint sources,

including agricultural sources, through

the CWA section 319 program. EPA is

working with other government

agencies, as well as with community

groups, to effect voluntary changes

regarding watershed protection and

reduced nonpoint source pollution.

In addition, EPA and NOAA have

published programmatic and technical

guidance to address coastal nonpoint

source pollution. Under Section 6217 of

the CZARA, States are developing and

implementing coastal nonpoint

pollution control programs approved by

EPA and NOAA.

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68743

6. Comply With Applicable

Requirements as a Discharger

Today’s final rule covers federally

operated facilities in a variety of ways.

These facilities are generally areas

where people reside, such as a federal

prison, hospital, or military base. It also

includes federal parkways and road

systems with separate storm sewer

systems. Today’s rule requires federal

MS4s to comply with the same

application deadlines that apply to

regulated small MS4s generally. EPA

believes that all federal MS4s serve

populations of less than 100,000.

EPA received several comments that

asked if individual buildings like post

offices are considered to be small MS4s

and thereby regulated in today’s rule if

they are in an urbanized area. Most of

these buildings have at most a parking

lot with runoff or a storm sewer that

connects with a municipality’s MS4.

EPA does not intend that individual

federal buildings be considered to be

small MS4s. This is discussed in section

II.H.2.b. of today’s preamble.

Federal facilities can also be included

under requirements addressing storm

water discharges associated with small

construction activities. In any case,

discharges from these facilities will

need to comply with all applicable

NPDES requirements and any additional

water quality-related requirements

imposed by a State, Tribal, or local

government. Failure to comply can

result in enforcement actions. Federal

facilities can act as models for

municipal and private sector facilities

and implement or test state-of-the-art

management practices and control

measures.

E. State Role

Today’s final rule sets forth an NPDES

approach for implementing the

extension of the existing storm water

discharge control program under CWA

section 402(p)(6). State assumption of

the NPDES program is voluntary,

consistent with the principles of

federalism. Because most States are

approved to implement the NPDES

program, they will tailor their storm

water discharge control programs to

address their water quality needs and

objectives. While today’s rule

establishes the basic framework for the

section 402(p)(6) program, States as well

as Tribes (see discussion in section II.F)

have an important role in fine-tuning

the program to address the water quality

issues within their jurisdictions. The

basic framework allows for adjustments

based on factors that vary

geographically, including climate

patterns and terrain.

Where States do not have NPDES

authority, they are not required to

implement the storm water discharge

control program, but they may still

participate in water quality protection

through participation in the CWA

section 401 certification process (for any

permits) and through development of

water quality standards and TMDLs.

1. Develop the Program

In expanding the existing NPDES

program for storm water discharges,

States must evaluate whether revisions

to their NPDES programs are necessary.

If so, modifications must be made in

accordance with § 123.62. Under

§ 123.62, States must revise their NPDES

programs within 1 year, or within 2

years if statutory changes are necessary.

Some States and departments of

transportation (DOTs) commented that

this timeframe is too short, anticipating

that the State legislative process and the

modification of regulations combined

would take beyond 2 years. The

deadline language in § 123.62 is not new

language for the storm water discharge

control program; it applies to all NPDES

programs. EPA believes the vast

majority of States will meet the deadline

and will work with States in those cases

where there may be difficulty meeting

this deadline due to the timing of

legislative sessions and the regulatory

development process.

An authorized State NPDES program

must meet the requirements of CWA

section 402(b) and conform to the

guidelines issued under CWA section

304(i)(2). Today’s final rule under

§ 123.25 adds specific cross references

to the storm water discharge control

program components to ensure that

States adequately address these

requirements.

2. Comply With Applicable

Requirements as a Discharger

Today’s final rule covers State

operated separate storm sewer systems

in a variety of ways. These systems

generally drain areas where people

reside, such as a prison, hospital, or

other populated facility. These systems

are included under the definition of a

regulated small MS4, which specifically

identifies systems operated by State

departments of transportation.

Alternatively, storm water discharges

from State activities may be regulated

under the section addressing storm

water discharges associated with small

construction activities. In any case,

discharges from these facilities must

comply with all applicable NPDES

requirements. Failure to comply can

result in enforcement actions. State

facilities can act as models for

municipal and private sector facilities

and implement or test state-of-the-art

management practices and control

measures.

3. Communicate With EPA

Under approved NPDES programs,

States have an ongoing obligation to

share information with EPA. This

dialogue is particularly important in the

CWA section 402(p)(6) storm water

program where these governments

continue to develop a great deal of the

guidance and outreach related to water

quality.

F. Tribal Role

The proposal to today’s final rule

provides background information on

EPA’s 1984 Indian Policy and the

criteria for treatment of an Indian Tribe

in the same manner as a State. Today’s

final rule extends the existing NPDES

program for storm water discharges to

two types of dischargers located in

Indian country. First, the final rule

designates storm water discharges from

any regulated small MS4, including

Tribal systems. Second, the final rule

regulates discharges associated with

construction activity disturbing between

one and five acres of land, including

sites located in Indian country.

Operators in each of these categories of

regulated activity must apply for

coverage under an NPDES permit by 3

years and 90 days from the date of

publication of today’s final rule. Under

existing regulations, however, EPA or an

authorized NPDES Tribe may require a

specified storm water discharger to

apply for NPDES permit coverage before

this deadline based on a determination

that the discharge is contributing to a

violation of a water quality standard

(including designated uses) or is a

significant contributor of pollutants.

Under today’s rule, a Tribal

governmental entity may regulate storm

water discharges on its reservation in

two ways—as either an NPDESauthorized Tribe or as a regulated MS4.

If a Tribe is authorized to operate the

NPDES program, the Tribe must

implement today’s final rule for the

NPDES program for storm water for

covered dischargers located within the

EPA recognized boundaries. Otherwise,

EPA is generally the permitting/program

authority within Indian country.

Discussions about the State Role in the

preceding section also apply to NPDES

authorized Tribes. For additional

information on the role and

responsibilities of the permitting

authority in the NPDES storm water

program, see § 123.35 (and Section II.G.

of today’s preamble) and § 123.25(a).

68744 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

Under today’s final rule, if the Indian

reservation is located entirely or

partially within an ‘‘urbanized area,’’ as

defined in § 122.32(a)(1), the Tribe must

obtain an NPDES permit if it operates a

small MS4 within the urbanized area

portion. Tribal MS4s located outside an

urbanized area are not automatically

covered, but may be designated by EPA

pursuant to § 122.32(a)(2) of today’s rule

or may request designation as a

regulated small MS4 from EPA. A Tribe

that is a regulated MS4 for NPDES

program purposes is required to

implement the six minimum control

measures to the extent allowable under

Federal law.

The Tribal representative on the

Storm Water Phase II FACA

Subcommittee asked EPA to provide a

list of the Tribes located in urbanized

areas that would fall within the NPDES

storm water program under today’s final

rule. In December 1996, EPA developed

a list of federally recognized American

Indian Areas located wholly or partially

in Bureau of the Census-designated

urbanized areas (see Appendix 1).

Appendix 1 not only provides a listing

of reservations and individual Tribes,

but also the name of the particular

urbanized area in which the reservation

is located and an indication of whether

the urbanized area contains a medium

or large MS4 that is already covered by

the existing Phase I regulations.

Some of the Tribes listed in Appendix

1 are only partially located in an

urbanized area. If the Tribe’s MS4 serves

less than 1,000 people within an

urbanized area, the permitting authority

may waive the Tribe’s MS4 storm water

requirements if it meets the conditions

of § 122.32(c). EPA does not have

information on the Tribal populations

within the urbanized areas, so it can not

identify the Tribes that are eligible for

a waiver. Therefore, a Tribe that

believes it qualifies for a waiver should

contact its permitting authority.

G. NPDES Permitting Authority’s Role

for the NPDES Storm Water Small MS4

Program

As noted previously, the NPDES

permitting authority can be EPA or an

authorized State or an authorized Tribe.

The following discussion describes the

role of the NPDES permitting authority

under today’s final rule.

1. Comply With Implementation

Requirements

NPDES permitting authorities must

perform certain duties to implement the

NPDES storm water municipal program.

Section 123.35(a) of today’s final rule

emphasizes that permitting authorities

have existing obligations under the

NPDES program. Section 123.35 focuses

on specific issues related to the role of

the NPDES authority to support

administration and implementation of

the municipal storm water program

under CWA section 402(p)(6).

2. Designate Sources

Section 123.35(b) of today’s final rule

addresses the requirements for the

NPDES permitting authority to

designate sources of storm water

discharges to be regulated under

§§ 122.32 through 122.36. NPDES

permitting authorities must develop a

process, as well as criteria, to designate

small MS4s. They must also have the

authority to designate a small MS4 if

and when circumstances that support a

waiver under § 122.32(c) change. EPA

may make designations if an NPDESapproved State or Tribe fails to do so.

NPDES permitting authorities must

examine geographic jurisdictions that

they believe should be included in the

storm water discharge control program

but are not located in an ‘‘urbanized

area’’. Small MS4s in these areas are not

designated automatically. Discharges

from such areas should be brought into

the program if found to have actual or

potential exceedances of water quality

standards, including impairment of

designated uses, or other adverse

impacts on water quality, as determined

by local conditions or watershed and

TMDL assessments. EPA’s aim is to

address discharges to impaired waters

and to protect waters with the potential

for problems. EPA encourages NPDES

permitting authorities, local

governments, and the interested public

to work together in the context of a

watershed plan to address water quality

issues, including those associated with

municipal storm water runoff.

EPA received comments stating that

the process of developing criteria and

applying it to all MS4s outside an

urbanized area serving a population of

10,000 or greater and with a density of

1,000 people per square mile is too

time-consuming and resource-intensive.

These commenters believe that the

permitting authority should decide

which MS4s must be brought into the

storm water discharge control program

and that population and density should

not be an overriding criteria. One

suggested way of doing so was to only

designate MS4s with demonstrated

contributions to the impairment of

water quality uses as shown by a TMDL.

EPA disagrees with this suggestion. The

TMDL process is time-consuming. MS4s

outside of urbanized areas may cause

water quality problems long before a

TMDL is completed.

EPA believes that permitting

authorities should consider the

potential water quality impacts of storm

water from all jurisdictions with a

population of 10,000 or greater and a

density of 1,000 people per square mile.

EPA is using data summarized in the

NURP study and in the CWA section

305(b) reports to support this approach

for targeted designation outside of

urbanized areas. EPA is not mandating

which criteria are to be used, but has

provided examples of criteria that may

be useful in evaluating potential water

quality impacts. EPA believes that the

flexibility provided in this section of

today’s final rule allows the permitting

authority to develop criteria and a

designation process that is easy to use

and protects water quality. Therefore,

the provisions of § 123.35(b) remain as

proposed.

a. Develop Designation Criteria

Under § 123.35(b), the NPDES

permitting authority must establish

designation criteria to evaluate whether

a storm water discharge results in or has

the potential to result in exceedances of

water quality standards, including

impairment of designated uses, or other

significant water quality impacts,

including adverse habitat and biological

impacts.

EPA recommends that NPDES

permitting authorities consider, in a

balanced manner, certain locallyfocused criteria for designating any MS4

located outside of an urbanized area on

the basis of significant water quality

impacts. EPA recommends

consideration of criteria such as

discharge to sensitive waters, high

growth or growth potential, high

population density, contiguity to an

urbanized area, significant contribution

of pollutants to waters of the United

States, and ineffective control of water

quality concerns by other programs.

These suggested designation criteria are

intended to help encourage the

permitting authority to use an objective

method for identifying and designating,

on a local basis, sources that adversely

impact water quality. More information

about these criteria and the reasons why

they are suggested by EPA is included

in the January 9, 1998, proposal (63 FR

1561) for today’s final rule.

The suggested criteria are meant to be

taken in the aggregate, with a great deal

of flexibility as to how each should be

weighed in order to best account for

watershed and other local conditions

and to allow for a more tailored case-bycase analysis. The application of criteria

is meant to be geographically specific.

Furthermore, each criterion does not

have to be met in order for a small MS4

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68745

to qualify for designation, nor should an

MS4 necessarily be designated on the

basis of one or two criteria alone.

EPA believes that the application of

the recommended designation criteria

provides an objective indicator of real

and potential water quality impacts

from urban runoff on both the local and

watershed levels. EPA encourages the

application of the recommended criteria

in a watershed context, thereby allowing

for the evaluation of the water quality

impacts of the portions of a watershed

outside of an urbanized area. For

example, situations exist where the

urbanized area represents a small

portion of a degraded watershed, and

the adjacent nonurbanized areas of the

watershed have significant cumulative

effects on the quality of the receiving

waters.

EPA received numerous suggestions

of additional criteria that should be

added and reasons why some of the

criteria in the proposal to today’s final

rule were not appropriate. EPA

developed its suggested designation

criteria based on findings of the NURP

study and other studies that indicate

pollutants of concern, including total

suspended solids, chemical oxygen

demand, and temperature. These criteria

were the subject of considerable

discussion by the Storm Water Phase II

FACA Subcommittee. EPA developed

them in response to recommendations

from the subcommittee during

development of the proposed rule. The

listed criteria are only suggestions.

Permitting authorities are required to

develop their own criteria. EPA has not

found any reason to change its

suggested list of criteria and the

suggestions remain as proposed.

b. Apply Designation Criteria

After customizing the designation

criteria for local conditions, the

permitting authority must apply such

criteria, at a minimum, to any MS4

located outside of an urbanized area

serving a jurisdiction with a population

of at least 10,000 and a population

density of 1,000 people per square mile

or greater (see § 123.35(b)(2)). If the

NPDES permitting authority determines

that an MS4 meets the criteria, the

permitting authority must designate it as

a regulated small MS4. This designation

must occur within 3 years of publication

of today’s final rule. Alternatively, the

NPDES authority can designate within 5

years from the date of final regulation if

the designation criteria are applied on a

watershed basis where a comprehensive

watershed plan exists (a comprehensive

watershed plan is one that includes the

equivalents of TMDLs) (see

§ 123.35(b)(3)). The extended 5 year

deadline is intended to provide

incentives for watershed-based

designations. If an NPDES-authorized

State or Tribe does not develop and

apply designation criteria within this

timeframe, then EPA has the

opportunity to do so in lieu of the

authorized State or Tribe.

NPDES permitting authorities can

designate any small MS4, including one

below 10,000 in population and 1,000 in

density. EPA established the 10,000/

1,000 threshold based on the likelihood

of adverse water quality impacts at these

population and density levels. In

addition, the 1,000 persons per square

mile threshold is consistent with both

the Bureau of the Census definition of

an ‘‘urbanized area’’ (see Section II.H.2.

below) and stakeholder discussions

concerning the definition of a regulated

small MS4.

One commenter requested that EPA

develop interim deadlines for

development of designation criteria.

EPA believes that the designation

deadline identified in today’s final rule

at § 123.35(b)(3) provides States and

Tribes with a flexibility that allows

them to develop and apply the criteria

locally in a timely fashion, while at the

same time establishing an expeditious

deadline.

c. Designate Physically Interconnected

Small MS4s

In addition to applying criteria on a

local basis for potential designation, the

NPDES permitting authority must

designate any MS4 that contributes

substantially to the pollutant loadings of

a physically interconnected municipal

separate storm sewer that is regulated by

the NPDES program for storm water

discharges (see § 123.35(b)(4)). To be

‘‘physically interconnected,’’ the MS4 of

one entity, including roads with

drainage systems and municipal streets,

is physically connected directly to the

municipal separate storm sewer of

another entity. This provision applies to

all MS4s located outside of an

urbanized area. EPA added this section

in recognition of the concerns of local

government stakeholders that a local

government should not have to shoulder

total responsibility for a storm water

program when storm water discharges

from another MS4 are also contributing

pollutants or adversely affecting water

quality. This provision also helps to

provide some consistency among MS4

programs and to facilitate watershed

planning in the implementation of the

NPDES storm water program. EPA

recommended physical

interconnectedness in the existing

NPDES storm water regulations as a

factor for consideration in the

designation of additional sources.

Today’s final rule does not include

interim deadlines for identifying

physically interconnected MS4s.

However, consistent with the deadlines

identified in § 123.35(b)(3) of today’s

final rule, EPA encourages the

permitting authority to make these

determinations within 3 years from the

date of publication of the final rule or

within 5 years if the permitting

authority is implementing a

comprehensive watershed plan.

Alternatively, the affected jurisdiction

could use the petition process under 40

CFR 122.26(f) in seeking to have the

permitting authority designate the

contributing jurisdiction.

Several commenters expressed

concerns about who could be designated

under this provision (§ 123.35(b)(4)).

One commenter requested that the word

‘‘substantially’’ be deleted from the rule

because they believe any MS4 that

contributes at all to a physically

interconnected municipal separate

storm sewer should be regulated. EPA

believes that the word ‘‘substantially’’

provides necessary flexibility to the

permitting authorities. The permitting

authority can decide if an MS4 is

contributing discharges to another

municipal separate storm sewer in a

manner that requires regulation. If the

operator of a regulated municipal

separate storm sewer believes that some

of its pollutant loadings are coming

from an unregulated MS4, it can

petition the permitting authority to

designate the unregulated MS4 for

regulation.

d. Respond to Public Petitions for

Designation

Today’s final rule reiterates the

existing opportunity for the public to

petition the permitting authority for

designation of a point source to be

regulated to protect water quality. The

petition opportunity also appears in

existing NPDES regulations at 40 CFR

122.26(f). Any person may petition the

permitting authority to require an

NPDES permit for a discharge composed

entirely of storm water that contributes

to a violation of a water quality standard

or is a significant contributor of

pollutants to the waters of the United

States (see § 123.32(b)). The NPDES

permitting authority must make a final

determination on any petition within

180 days after receiving the petition (see

§ 123.35(c)). EPA believes that a 180 day

limit balances the public’s need for a

timely final determination with the

NPDES permitting authority’s need to

prioritize its workload. If an NPDESapproved State or Tribe fails to act

68746 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

within the 180-day timeframe, EPA may

make a determination on the petition.

EPA believes that public involvement is

an important component of the NPDES

program for storm water and feels that

this provision encourages public

participation. Section II.K, Public

Involvement/Public Role, further

discusses this topic.

3. Provide Waivers

Today’s rule provides two

opportunities for the NPDES permitting

authority to exempt certain small MS4s

from the need for a permit based on

water quality considerations. See

§§ 122.32(d) and (e). The two waiver

opportunities have different size

thresholds and take different

approaches to considering the water

quality impacts of discharges from the

MS4.

In the proposal, EPA requested

comment on the option of waiving

coverage for all MS4s with less than

1,000 people unless the permitting

authority determined that the small

MS4 should be regulated based on

significant adverse water quality

impacts. A number of commenters

supported this option. They expressed

concern that compliance with the rule

requirements and certification of one of

the waiver provisions were both costly

for very small communities. They stated

that the permitting authority should

identify a water quality problem before

requiring compliance. Today’s rule

essentially adopts this alternative

approach for MS4s serving a population

under 1,000.

The final rule has expanded the

waiver provision that EPA proposed for

small MS4s with a population less than

1,000. The proposed rule would have

required a small MS4 operator to certify

that storm water controls are not needed

based on either wasteload allocations

that are part of TMDLs that address the

pollutants of concern, or a

comprehensive watershed plan

implemented for the waterbody that

includes the equivalents of TMDLs and

addresses the pollutant(s) of concern.

Commenters noted that the proposed

waivers would be unattainable if a

TMDL or equivalent analysis was

required for every pollutant that could

possibly be present in any amount in

discharges from an MS4 regardless of

whether the pollutant is causing water

quality impairment. Commenters asked

that EPA identify what constitutes the

‘‘pollutant(s) of concern’’ for which a

TMDL or its equivalent must be

developed. For example, § 122.30(c)

indicates that the MS4 program is

intended to control ‘‘sediment,

suspended solids, nutrients, heavy

metals, pathogens, toxins, oxygendemanding substances, and floatables.’’

Commenters asked whether TMDLs or

equivalent analyses have to address all

of these.

EPA has revised the proposed waiver

in response to these concerns. Under

today’s rule, NPDES permitting

authorities may waive the requirements

of today’s rule for any small MS4 with

a population less than 1,000 that does

not contribute substantially to the

pollutant loadings of a physically

interconnected MS4, unless the small

MS4 discharges pollutants that have

been identified as a cause of impairment

of the waters to which the small MS4

discharges. If the small MS4 does

discharge pollutants that have been

identified as impairing the water body

into which the small MS4 discharges,

the NPDES permitting authority may

grant a waiver only if it determines that

storm water controls are not needed

based on an EPA approved or

established TMDL that addresses the

pollutant(s) of concern.

Unlike the proposed rule, § 122.32(d)

does not allow the waiver for MS4s

serving a population under 1,000 to be

based on ‘‘the equivalent of a TMDL.’’

Because § 122.32(d) requires a pollutant

specific analysis only for a pollutant

that has been identified as a cause of

impairment, a TMDL is required for

such pollutant before the waiver may be

granted. Once a pollutant has been

identified as the cause of impairment of

a water body, the State should develop

a TMDL for that pollutant for that water

body. Thus, § 122.32(d) takes a different

approach than that taken for the waiver

in § 122.32(e) for MS4s serving a

population under 10,000, which can be

based upon an analysis that is ‘‘the

equivalent of a TMDL.’’ This is because

§ 122.32(d) requires an analysis to

support the waiver for MS4s under

1,000 only if a waterbody to which the

MS4 discharges has been identified as

impaired. The § 122.32(e) waiver, on the

other hand, would be available for larger

MS4s but only after the State

affirmatively establishes lack of

impairment based upon a

comprehensive analysis of smaller

urban waters that might not otherwise

be evaluated for the purposes of CWA

section 303. Since § 122.32(e) requires

the analysis of waters that have not been

identified as impaired, an actual TMDL

is not required and an analysis that is

the equivalent of a TMDL can suffice to

support the waiver.

Where a State is the NPDES

permitting authority, the permitting

authority is responsible for the

development of the TMDLs as well as

the assessment of the extent to which a

small MS4’s discharge contributes

pollutants to a neighboring regulated

system. In States where EPA is the

permitting authority, EPA will use a

State’s TMDLs to determine whether

storm water controls are required for the

small MS4s.

The proposed rule would have

required the operator of the small MS4

serving a population under 1,000 to

certify that its discharge was covered

under a TMDL that indicated that

discharges from its particular system

were not having an adverse impact on

water quality (i.e., it was either not

assigned wasteload allocations under

TMDLs or its discharge is within an

assigned allocation). Many commenters

expressed concerns that MS4 operators

serving less than 1,000 persons may lack

the technical capacity to certify that

their discharges are not contributing to

adverse water quality impacts. These

commenters thought that the permitting

authority should make such a

certification. Today’s rule provides

flexibility as to how the waiver is

administered. Permitting authorities are

ultimately responsible for granting the

waiver, but are free to determine

whether or not to require small MS4

operators that are seeking waivers to

submit information or a written

certification.

Under § 122.32(e) a State may grant a

waiver to an MS4 serving a population

between 1,000 and 10,000 only if the

State has made a comprehensive effort

to ensure that the MS4 will not cause or

contribute to water quality impairment.

To grant a § 122.32(e) waiver, the

NPDES permitting authority must

evaluate all waters of the U.S. that

receive a discharge from the MS4 and

determine that storm water controls are

not needed. The permitting authority’s

evaluation must be based on wasteload

allocations that are part of an EPA

approved or established TMDL or, if a

TMDL has not been developed or

approved, an equivalent analysis that

determines sources and allocations for

the pollutant(s) of concern. The

pollutants of concern that the permitting

authority must evaluate include

biochemical oxygen demand (BOD),

sediment or a parameter that addresses

sediment (such as total suspended

solids, turbidity or siltation), pathogens,

oil and grease, and any other pollutant

that has been identified as a cause of

impairment of any water body that will

receive a discharge from the MS4.

Finally, the permitting authority must

have determined that future discharges

from the MS4 do not have the potential

to result in exceedances of water quality

standards, including impairment of

designated uses, or other significant

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68747

water quality impacts, including habitat

and biological impacts.

Although EPA did not propose this

specific approach, the Agency did

request comment on whether to increase

the proposed 1,000 population

threshold for a waiver. The § 122.32(e)

waiver was developed in response to

comments, including States’ concerns

that they needed greater flexibility to

focus their efforts on MS4s that were

causing water quality impairment.

Several commenters thought that the

threshold should be increased from

1,000 to 5,000 or 10,000. Others

suggested additional ways of qualifying

for a waiver for MS4s that discharge to

waters that are not covered by a TMDL

or watershed plan. EPA carefully

considered all the options for expanding

the waiver provisions and has decided

to expand the waiver only in the very

narrow circumstances described above

where a comprehensive analysis has

been undertaken to demonstrate that the

MS4 is not causing water quality

impairment.

The NPDES permitting authority can,

at any time, mandate compliance with

program requirements from a previously

waived small MS4 if circumstances

change. For example, a waiver can be

withdrawn in circumstances where the

permitting authority later determines

that a waived small MS4’s storm water

discharge to a small stream will cause

adverse impacts to water quality or

significantly interfere with attainment of

water quality standards. A ‘‘change in

circumstances’’ could involve receipt of

new information. Changed

circumstances can also allow a

regulated small MS4 operator to request

a waiver at any time.

Some commenters expressed concerns

about allowing any small MS4 waivers.

One commenter stated that storm water

pollution prevention plans are

necessary to control storm water

pollution and should be required from

all regulated small MS4s. For the

reasons stated in the Background

section above, EPA agrees that the

discharges from most MS4s in

urbanized areas should be addressed by

a storm water management program

outlined in today’s rule. For MS4s

serving very small areas, however, the

TMDL development process provides an

opportunity to determine whether an

MS4 serving a population less than

1,000 is having a negative impact on any

receiving water that is impaired by a

pollutant that the MS4 discharges. MS4s

serving populations up to 10,000 may

receive a waiver only if a

comprehensive analysis of its impact on

receiving water has been performed.

Other commenters said that waivers

should not be allowed for small MS4s

that discharge into another regulated

MS4. These commenters stated that the

word ‘‘substantially’’ should be

removed from § 122.32(d)(i) so that a

waiver would not be allowed for any

system ‘‘contributing to the storm water

pollutant loadings of a physically

interconnected regulated MS4.’’ As

previously mentioned under the

designation discussion of section

II.G.2.c, EPA believes that the word

‘‘substantially’’ provides needed

flexibility to the permitting authorities.

It is important to note that this is only

one aspect that the permitting authority

must consider when deciding on the

appropriateness of a waiver.

4. Issue Permits

NPDES permitting authorities have a

number of responsibilities regarding the

permit process. Sections 123.35(d)

through (g) ensure a certain level of

consistency for permits, yet provide

numerous opportunities for flexibility.

NPDES permitting authorities must

issue NPDES permits to cover municipal

sources to be regulated under § 122.32,

unless waived under § 122.32(c). EPA

encourages permitting authorities to use

general permits as the vehicle for

permitting and regulating small MS4s.

The Agency notes, however, that some

operators may wish to take advantage of

the option to join as a co-permittee with

an MS4 regulated under the existing

NPDES storm water program.

Today’s final rule includes a

provision, § 123.35(f), that requires

NPDES permitting authorities to either

include the requirements in § 122.34 for

NPDES permits issued for regulated

small MS4s or to develop permit limits

based on a permit application submitted

by a small MS4. See Section II.H.3.a,

Minimum Control Measures, for more

details on the actual § 122.34

requirements. See Section II.H.3.c for

alternative and joint permitting options.

In an attempt to avoid duplication of

effort, § 122.34(c) allows NPDES

permitting authorities to include permit

conditions that direct an MS4 to meet

the requirements of a qualifying local,

Tribal, or State municipal storm water

management program. For a local,

Tribal, or State program to ‘‘qualify,’’ it

must impose, at a minimum, the

relevant requirements of § 122.34(b). A

regulated small MS4 must still follow

the procedural requirements for an

NPDES permit (i.e., submit an

application, either an individual

application or an NOI under a general

permit) but will instead follow the

substantive pollutant control

requirements of the qualifying local,

Tribal, or State program.

Under § 122.35(b), NPDES permitting

authorities may also recognize existing

responsibilities among governmental

entities for the minimum control

measures in an NPDES small MS4 storm

water permit. For example, the permit

might acknowledge the existence of a

State administered program that

addresses construction site runoff and

require that the municipalities only

develop substantive controls for the

remaining minimum control measures.

By acknowledging existing programs,

this provision is meant to reduce the

duplication of efforts and to increase the

flexibility of the NPDES storm water

program.

Section 123.35(e) of today’s final rule

requires permitting authorities to

specify a time period of up to 5 years

from the issuance date of an NPDES

permit for regulated small MS4

operators to fully develop and

implement their storm water programs.

As discussed more fully below,

permitting authorities should be

providing extensive support to the local

governments to assist them in

developing and implementing their

programs.

In the proposed rule, EPA stated that

the permitting authority would develop

the menu of BMPs and if they failed to

do so, EPA would develop the menu.

Commenters felt that EPA should

develop a menu of BMPs, rather than

just providing guidance. In the

settlement agreement for seeking an

extension to the deadline for issuing

today’s rule, EPA committed to

developing a menu of BMPs by October

27, 2000. Permitting authorities can

adopt EPA’s menu or develop their own.

The menu itself is not intended to

replace more comprehensive BMP

guidance materials. As part of the tool

box efforts, EPA will provide separate

guidance documents that discuss the

results from EPA-sponsored nationwide

studies on the design, operation and

maintenance of BMPs. Additionally,

EPA expects that the new rulemaking on

construction BMPs may provide more

specific design, operation and

maintenance criteria.

5. Support and Oversee the Local

Programs

NPDES permitting authorities are

responsible for supporting and

overseeing the local municipal

programs. Section 123.35(h) of today’s

final rule highlights issues associated

with these responsibilities.

To the extent possible, NPDES

permitting authorities should provide

financial assistance to MS4s, which

68748 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

often have limited resources, for the

development and implementation of

local programs. EPA recognizes that

funding for programs at the State and

Tribal levels may also be limited, but

strongly encourages States and Tribes to

provide whatever assistance is possible.

In lieu of actual dollars, NPDES

permitting authorities can provide costcutting assistance in a number of ways.

For example, NPDES permitting

authorities can develop outreach

materials for MS4s to distribute or the

NPDES permitting authority can

actually distribute the materials.

Another option is to implement an

erosion and sediment control program

across an entire State (or Tribal land),

thus alleviating the need for the MS4 to

implement its own program. The

NPDES permitting authority must

balance the need for site-specific

controls, which are best handled by a

local MS4, with its ability to offer

financial assistance. EPA, States, Tribes,

and MS4s should work as a team in

making these kinds of decisions.

NPDES permitting authorities are

responsible for overseeing the local

programs. Permitting authorities should

work with the regulated community and

other stakeholders to assist in local

program development and

implementation. This might include

sharing information, analyzing reports,

and taking enforcement actions, as

necessary. NPDES permitting authorities

play a vital role in supporting local

programs by providing technical and

programmatic assistance, conducting

research projects, and monitoring

watersheds. The NPDES permitting

authority can also assist the MS4

permittee in obtaining adequate legal

authority at the local level in order to

implement the local component of the

CWA section 402(p)(6) program.

NPDES permitting authorities are

encouraged to coordinate and utilize the

data collected under several programs.

States and Tribes address point and

nonpoint source storm water discharges

through a variety of programs. In

developing programs to carry out CWA

section 402(p)(6), EPA recommends that

States and Tribes coordinate all of their

water pollution evaluation and control

programs, including the continuing

planning process under CWA section

303(e), the existing NPDES program, the

CZARA program, and nonpoint source

pollution control programs.

In addition, NPDES permitting

authorities are encouraged to provide a

brief (e.g., two-page) reporting format to

facilitate compilation and analysis of

data from reports submitted under

§ 122.34(g)(3). EPA intends to develop a

model form for this purpose.

H. Municipal Role

1. Scope of Today’s Rule

Today’s final rule attempts to

establish an equitable and

comprehensive four-pronged approach

for the designation of municipal

sources. First, the approach defines for

automatic coverage the municipal

systems believed to be of highest threat

to water quality. Second, the approach

designates municipal systems that meet

a set of objective criteria used to

measure the potential for water quality

impacts. Third, the approach designates

on a case-by-case basis municipal

systems that ‘‘contribute substantially to

the pollutant loadings of a physicallyinterconnected [regulated] MS4.’’

Finally, the approach designates on a

case-by-case basis, upon petition,

municipal systems that ‘‘contribute to a

violation of a water quality standard or

are a significant contributor of

pollutants.’’

Today’s final rule automatically

designates for regulation small MS4s

located in urbanized areas, and requires

that NPDES permitting authorities

examine for potential designation, at a

minimum, a particular subset of small

MS4s located outside of urbanized

areas. Today’s rule also includes

provisions that allow for waivers from

the otherwise applicable requirements

for the smallest MS4s that are not

causing impairment of a receiving water

body. Qualifications for the waivers

vary depending on whether the MS4

serves a population under 1,000 or a

population under 10,000. See

§§ 122.32(d) and (e). These waivers are

discussed further in section II.G.3. Any

small MS4 automatically designated by

the final rule or designated by the

permitting authority under today’s final

rule is defined as a ‘‘regulated’’ small

MS4 unless it receives a waiver.

In today’s final rule, all regulated

small MS4s must establish a storm

water discharge control program that

meets the requirements of six minimum

control measures. These minimum

control measures are public education

and outreach on storm water impacts,

public involvement participation, illicit

discharge detection and elimination,

construction site storm water runoff

control, post-construction storm water

management in new development and

redevelopment, and pollution

prevention/good housekeeping for

municipal operations.

Today’s rule allows for a great deal of

flexibility in how an operator of a

regulated small MS4 is authorized to

discharge under an NPDES permit, by

providing various options for obtaining

permit coverage and satisfying the

required minimum control measures.

For example, the NPDES permitting

authority can incorporate by reference

qualifying State, Tribal, or local

programs in an NPDES general permit

and can recognize existing

responsibilities among different

governmental entities for the

implementation of minimum control

measures. In addition, a regulated small

MS4 can participate in the storm water

management program of an adjoining

regulated MS4 and can arrange to have

another governmental entity implement

a minimum control measure on their

behalf.

2. Municipal Definitions

a. Municipal Separate Storm Sewer

Systems (MS4s)

The CWA does not define the term

‘‘municipal separate storm sewer.’’ EPA

defined municipal separate storm sewer

in the existing storm water permit

application regulations to mean, in part,

a conveyance or system of conveyances

(including roads with drainage systems

and municipal streets) that is ‘‘owned or

operated by a State, city, town borough,

county, parish, district, association, or

other public body * * * designed or

used for collecting or conveying storm

water which is not a combined sewer

and which is not part of a Publicly

Owned Treatment Works as defined at

40 CFR 122.2’’ (see § 122.26(b)(8)(i)).

Section 122.26 contains definitions of

medium and large municipal separate

storm sewer systems but no definition of

a municipal separate storm sewer

system, even though the term MS4 is

commonly used. In today’s rule, EPA is

adding a definition of municipal

separate storm sewer system and small

municipal separate storm sewer system

along with the abbreviations MS4 and

small MS4.

The existing municipal permit

application regulations define

‘‘medium’’ and ‘‘large’’ MS4s as those

located in an incorporated place or

county with a population of at least

100,000 (medium) or 250,000 (large) as

determined by the latest Decennial

Census (see §§ 122.26(b)(4) and

122.26(b)(7)). In today’s final rule, these

regulations have been revised to define

all medium and large MS4s as those

meeting the above population

thresholds according to the 1990

Decennial Census.

Today’s rule also corrects the titles

and contents of Appendices F, G, H,& I

to Part 122. EPA is adding those

incorporated places and counties whose

1990 population caused them to be

defined as a ‘‘medium’’ or ‘‘large’’ MS4.

All of these MS4s have applied for

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68749

permit coverage so the effect of this

change to the appendices is simply to

make them more accurate. They will not

need to be revised again because today’s

rule ‘‘freezes’’ the definition of

‘‘medium’’ and ‘‘large’’ MS4s at those

that qualify based on the 1990 census.

EPA received several comments

supporting and opposing the proposal to

‘‘freeze’’ the definitions based on the

1990 census. Commenters who

disagreed with EPA’s position cited the

unfairness of municipalities that reach

the medium or large threshold at a later

date having fewer permitting

requirements compared to those that

were already at the population

thresholds when the existing storm

water regulations took effect. EPA

recognizes this disparity but does not

believe it is unfair, as explained in the

proposed rule. The decision was based

on the fact that the deadlines from the

existing regulations have lapsed, and

because the permitting authority can

always require more from operators of

MS4s serving ‘‘newly over 100,000’’

populations.

b. Small Municipal Separate Storm

Sewer Systems

The proposal to today’s final rule

added ‘‘the United States’’ as a potential

owner or operator of a municipal

separate storm sewer. This addition was

intended to address an omission from

existing regulations and to clarify that

federal facilities are, in fact, covered by

the NPDES program for municipal storm

water discharges when the federal

facility is like other regulated MS4s.

EPA received a comment that this

change would cause federal facilities

located in Phase 1 areas to be

considered Phase 1 dischargers due to

the definition of medium and large

MS4s. All MS4s located in Phase 1

cities or counties are defined as Phase

1 medium or large MS4s. EPA believes

that all federal facilities serve a

population of under 100,000 and should

be regulated as small MS4s. Therefore,

in § 122.26(a)(16) of today’s final rule,

EPA is adding federal facilities to the

NPDES storm water discharge control

program by changing the proposed

definition of small municipal separate

storm sewer system. Paragraph (i) of this

section restates the definition of

municipal separate storm sewer with

the addition of ‘‘the United States’’ as a

owner or operator of a small municipal

separate storm sewer. Paragraph (ii)

repeats the proposed language that

states that a small MS4 is a municipal

separate storm sewer that is not medium

or large.

Most commenters agreed that federal

facilities should be covered in the same

way as other similar MS4s. However,

EPA received several comments asking

whether individual federal buildings

such as post offices or urban offices of

the U.S. Park Service must apply for

coverage as regulated small MS4s. Most

of these buildings have, at most, a

parking lot with runoff or a storm sewer

that connects with a municipality’s

MS4. In § 122.26(a)(16)(iii), EPA

clarifies that the definition of small MS4

does not include individual buildings.

These buildings may have a municipal

separate storm sewer but they do not

have a ‘‘system’’ of conveyances. The

minimum measures for small MS4s

were written to apply to storm sewer

‘‘systems’’ providing storm water

drainage service to human populations

and not to individual buildings. This is

true of municipal separate storm sewers

from State buildings as well as from

federal buildings.

There will likely be situations where

the permitting authority must decide if

a federal or State complex should be

regulated as a small MS4. A federal

complex of two or three buildings could

be treated as a single building and not

be required to apply for coverage. In

these situations, permitting authorities

will have to use their best judgment as

to the nature of the complex and its

storm water conveyance system.

Permitting authorities should also

consider whether the federal or State

complex cooperates with its

municipality’s efforts to implement

their storm water management program.

Along with the questions about

individual buildings, EPA received

many questions about how various

provisions of the rule should be

interpreted for federal and State

facilities. EPA acknowledges that

federal and State facilities are different

from municipalities. EPA believes,

however, that the minimum measures

are flexible enough that they can be

implemented by these facilities. As an

example, DOD commenters asked about

how to interpret the term ‘‘public’’ for

military installations when

implementing the public education

measure. EPA agrees with the suggested

interpretation of ‘‘public’’ for DOD

facilities as ‘‘the resident and employee

population within the fence line of the

facility.’’

EPA also received many comments

from State departments of transportation

(DOTs) that suggested the ways in

which they are different from

municipalities and should therefore be

regulated differently. Storm water

discharges from State DOTs in Phase 1

areas should already be regulated under

Phase I. The preamble to Phase 1 clearly

states that ‘‘all systems within a

geographical area including highways

and flood control districts will be

covered.’’ Many permitting authorities

regulated State DOTs as co-permittees

with the Phase 1 municipality in which

the highway is located. State DOTs that

are already regulated under Phase I are

not required to comply with Phase II.

State DOTs that are not already

regulated have various options for

meeting the requirements of today’s

rule. These options are discussed in

Section II.H.3.c.iv below. Several DOTs

commented that some of the minimum

measures are outside the scope of their

mission or that they do not have the

legal authority required for

implementation. EPA believes that the

flexibility of the minimum measures

allows them to be implemented by most

MS4s, including DOTs. When a DOT

does not have the necessary legal

authority, EPA encourages the DOT to

coordinate their storm water

management efforts with the

surrounding municipalities and other

State agencies. Under today’s rule,

DOTs can use any of the options of

§ 122.35 to share their storm water

management responsibilities. DOTs may

also want to work with their permitting

authority to develop a State-wide DOT

storm water permit.

There are many storm water

discharges from State DOTs and other

State MS4s located in Phase 1 areas that

were not regulated under Phase 1.

Today’s rule adds many more State

facilities as well as all federal facilities

located in urbanized areas. All of these

State and federal facilities that fit the

definition of a small MS4 must be

covered by a storm water management

program. The individual permitting

authorities must decide what type of

permit is most applicable.

The existing NPDES storm water

program already regulates storm water

from federally or State-operated

industrial sources. Federal or State

facilities that are currently regulated

due to their industrial discharges may

already be implementing some of

today’s rule requirements.

EPA received comments that

questioned the apparent inconsistency

between regulating a federal facility

such as a hospital and not regulating a

similar private facility. Normally, this

type of private facility is regulated by

the MS4. EPA believes that federal

facilities are subject to local water

quality regulations, including storm

water requirements, by virtue of the

waiver of sovereign immunity in CWA

section 313. However, there are special

problems faced by MS4s in their efforts

to regulate federal facilities that have

not been encountered in regulating

68750 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

similar private facilities. To ensure

comprehensive coverage, today’s rule

merely clarifies the need for permit

coverage for these federal facilities.

i. Combined Sewer Systems (CSS).

The definition of small MS4s does not

include combined sewer systems. A

combined sewer system is a wastewater

collection system that conveys sanitary

wastewater and storm water through a

single set of pipes to a publicly-owned

treatment works (POTW) for treatment

before discharging to a receiving

waterbody. During wet weather events

when the capacity of the combined

sewer system is exceeded, the system is

designed to discharge prior to the

POTW treatment plant directly into a

receiving waterbody. Such an overflow

is a combined sewer overflow or CSO.

Combined sewer systems are not subject

to existing regulations for municipal

storm water discharges, nor will they be

subject to today’s regulations. EPA

addresses combined sewer systems and

CSOs in the National Combined Sewer

Overflow (CSO) Control Policy issued

on April 19, 1994 (59 FR 18688). The

CSO Control Policy contains provisions

for developing appropriate, site-specific

NPDES permit requirements for

combined sewer systems. CSO

discharges are subject to limitations

based on the best available technology

economically achievable for toxic

pollutants and based on the best

conventional pollutant control

technology for conventional pollutants.

MS4s are subject to a different

technology standard for all pollutants,

specifically to reduce pollutants to the

maximum extent practicable.

Some municipalities are served by

both separate storm sewer systems and

combined sewer systems. If such a

municipality is located within an

urbanized area, only the separate storm

sewer systems within that municipality

is included in the NPDES storm water

program and subject to today’s final

rule. If the municipality is not located

in an urbanized area, then the NPDES

permitting authority has discretion as to

whether the discharges from the

separate storm sewer system is subject

to today’s final rule. The NPDES

permitting authority will use the same

process to designate discharges from

portions of an MS4 for permit coverage

where the municipality is also served by

a combined sewer system.

EPA recognizes that municipalities

that have both combined and separate

storm sewer systems may wish to find

ways to develop a unified program to

meet all wet weather water pollution

control requirements more efficiently. In

the proposal to today’s final rule, EPA

sought comment on ways to achieve

such a unified program. Many

municipalities that are served by CSSs

and MS4s commented that it is

inequitable to force them to comply

with Phase II at this time because

implementation of the CSO Control

Policy through their NPDES permits

already imposes a significant financial

burden. They requested an extension of

the implementation time frame. They

did not provide ideas on how to unify

the two programs. EPA encourages

permitting authorities to work with

these municipalities as they develop

and begin implementation of their CSO

and storm water management programs.

If both sets of requirements are carefully

coordinated early, a cost-effective wet

weather program can be developed that

will address both CSO and storm water

requirements.

ii. Owners/Operators. Several

commenters mentioned the difference

between the existing storm water

application requirement for municipal

operators and the proposed municipal

requirement for owners or operators to

apply. They felt that this inconsistency

is confusing. The preamble to the

existing regulations makes numerous

references to owner/operator so there

was no intent to make a clear distinction

between Phase I and Phase II. Section

122.21(b) states that when the owner

and operator are different, the operator

must obtain the permit. MS4s often have

several operators. The owner may be

responsible for one part of the system

and a regional authority may be

responsible for other aspects. EPA

proposed the ‘‘owner or operator’’

language to convey this dual

responsibility. However, when the

owner is responsible for some part of a

storm water management plan, it is also

an operator.

EPA has revised the regulation

language to clarify that ‘‘an operator’’

must apply for a permit. When

responsibilities for the MS4 are shared,

all operators must apply.

c. Regulated Small MS4s

In today’s final rule, all small MS4s

located in an urbanized area are

automatically designated as ‘‘regulated’’

small MS4s provided that they were not

previously designated into the existing

storm water program. Unlike medium

and large MS4s under the existing storm

water regulations, not all small MS4s

are designated under today’s final rule.

Therefore, today’s rule distinguishes

between ‘‘small’’ MS4s and ‘‘regulated

small’’ MS4s.

EPA’s definition of ‘‘regulated small

MS4s’’ in the proposal to today’s rule

included mention of incorporated

places and counties. Along with the

definition, EPA included Appendices 6

and 7 to assist in the identification of

areas that would probably require

coverage as ‘‘automatically designated’’

(Appendix 6) or ‘‘potentially

designated’’ (Appendix 7). The

definition and the appendices raised

many questions about exactly who was

required to comply with the proposed

requirements. Commenters raised issues

about the definition of ‘‘incorporated

place’’ and the status of towns,

townships, and other places that are not

considered incorporated by the Census

Bureau. They also asked about special

districts, regional authorities, MS4s

already regulated, and other questions

in order to clarify the rule’s coverage.

EPA has revised § 122.32(a) to clarify

that discharges are regulated under

today’s rule if they are from a small MS4

that is in an urbanized area and has not

received a waiver or they are designated

by the permitting authority. Today’s

rule does not regulate the county, city,

or town. Today’s rule regulates the MS4.

Therefore, even though a county may be

listed in Appendix 6, if that county does

not own or operate the municipal storm

sewer systems, the county does not have

to submit an application or develop a

storm water management program. If

another entity does own or operate an

MS4 within the county, for example, a

regional utility district, that other entity

needs to submit the application and

develop the program.

Some commenters suggested that EPA

should change the rule language to

specifically allow regional authorities to

be the permitted entity and to allow

small MS4s to apply as co-permittees.

EPA believes that the best way to clarify

that regional authorities can be the

primary permitted entity is the change

to § 122.32(a) and the explanation

above. Because EPA assumes that

today’s regulation will be implemented

through general permits, MS4s will not

be co-permittees under a general permit

in the same manner as under individual

permits. EPA has added § 122.33(a)(4)

and made a minor change to § 122.35(a)

to clarify that small MS4s can work

together to share the responsibilities of

a storm water management program.

This is discussed further in Section

II.H.3.c.iv below.

The proposed rule stated that when a

county or Federal Indian reservation is

only partially included in an urbanized

area, only MS4s in the urbanized

portion of the county or Federal Indian

reservation would be regulated. In the

rare cases when an incorporated place is

only partially included in the urbanized

area, the entire incorporated place

would be regulated. EPA received

comments asking about towns and

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68751

townships, because they were not

considered to be incorporated areas

according to the Census Bureau’s

definition. Would the whole town/

township be covered or only the part of

the town/township in the urbanized

area? States use many different types of

systems in their geographical divisions.

Some towns are similar to incorporated

cities and others are large areas that are

more similar to counties. Some

commenters thought that the urbanized

area boundary was arbitrary, and if part

of a town or county was covered, it all

should be covered. Other commenters

noted that some townships and counties

encompass very large areas of which

only a small portion is urbanized. Due

to the great variety of situations, EPA

has decided that for all geographical

entities, only MS4s in the urbanized

area are automatically designated. The

population densities associated with the

Census Bureau’s designation of

urbanized areas provide the basis for

designation of these areas to protect

water quality. This focused designation

provides for consistency and allows for

flexibility on the part of the MS4 and

the permitting authority. In those

situations where an incorporated place

or a town is not all in an ‘‘urbanized

area’’, there is a good possibility that it

is served by more than one MS4. In

those cases where the area is served by

the same MS4, it makes sense to

develop a storm water program for the

whole area. Permitting authorities may

also decide to designate all MS4s within

a county or township, if they believe it

is necessary to protect water quality.

Most operators of MS4s will not need

to independently determine the status of

coverage under today’s rule. EPA has

revised the proposed Appendices 6 and

7 to include towns and townships.

Therefore, these appendices will alert

most MS4s as to whether they are likely

to be covered under today’s rule.

However, each permitting authority

must make the decision as to who

requires coverage. Most likely, an

illustrative list of the regulated areas

will be published with the general

permit. If not, the operator can contact

its permitting authority or the Bureau of

the Census to find out if their separate

storm sewer systems are within an

urbanized area.

i. Urbanized Area Description. Under

the Bureau of the Census definition of

‘‘urbanized area,’’ adopted by EPA for

the purposes of today’s final rule, ‘‘an

urbanized area (UA) comprises a place

and the adjacent densely settled

surrounding territory that together have

a minimum population of 50,000

people.’’ The proposal to today’s rule

provided the full definition and case

studies to help explain the census

category of ‘‘urbanized area.’’ Appendix

2 is a simplified urbanized area

illustration to help demonstrate the

concept of urbanized areas in relation to

today’s final rule. The ‘‘urbanized area’’

is the shaded area that includes within

its boundaries incorporated places, a

portion of a Federal Indian reservation,

portions of two counties, an entire town,

and portions of another town. All small

MS4s located in the shaded area are

covered by the rule, unless and until

waived by the permitting authority. Any

small MS4s located outside of the

shaded area are subject to potential

designation by the permitting authority.

There are 405 urbanized areas in the

United States that cover 2 percent of

total U.S. land area and contain

approximately 63 percent of the nation’s

population (see Appendix 3 for a listing

of urbanized areas of the United States

and Puerto Rico). These numbers

include U.S. Territories, although

Puerto Rico is the only territory to have

Census-designated urbanized areas.

Urbanized areas constitute the largest

and most dense areas of settlement. The

purpose of determining an ‘‘urbanized

area’’ is to delineate the boundaries of

development and map the actual builtup urban area. The Bureau of the Census

geographers liken it to flying over an

urban area and drawing a line around

the boundary of the built-up area as

seen from the air.

Using data from the latest decennial

census, the Census Bureau applies the

urbanized area definition nationwide

(including U.S. Tribes and Territories)

and determines which places and

counties are included within each

urbanized area. For each urbanized area,

the Bureau provides full listings of who

is included, as well as detailed maps

and special CD-ROM files for use with

computerized mapping systems (such as

GIS). Each State’s data center receives a

copy of the list, and some maps,

automatically. The States also have the

CD–ROM files and a variety of

publications available to them for

reference from the Bureau of the Census.

In addition, local or regional planning

agencies may have urbanized area files

already. New listings for urbanized

areas based on the 2000 Census will be

available by July/August 2001, but the

more comprehensive computer files will

not be available until late 2001/early

2002.

Additional designations based on

subsequent census years will be

governed by the Bureau of the Census’

definition of an urbanized area in effect

for that year. Based on historical trends,

EPA expects that any area determined

by the Bureau of the Census to be

included within an urbanized area as of

the 1990 Census will not later be

excluded from the urbanized area as of

the 2000 Census. However, it is

important to note that even if this

situation were to occur, for example,

due to a possible change in the Bureau

of the Census’ urbanized area definition,

a small MS4 that is automatically

designated into the NPDES program for

storm water under an urbanized area

calculation for any given Census year

will remain regulated regardless of the

results of subsequent urbanized area

calculations.

ii. Rationale for Using Urbanized

Areas. EPA is using urbanized areas to

automatically designate regulated small

MS4s on a nationwide basis for several

reasons: (1) studies and data show a

high correlation between degree of

development/ urbanization and adverse

impacts on receiving waters due to

storm water (U.S. EPA, 1983; Driver et

al., 1985; Pitt, R.E. 1991. ‘‘Biological

Effects of Urban Runoff Discharges.’’

Presented at the Engineering

Foundation Conference: Urban Runoff

and Receiving Systems; An

Interdisciplinary Analysis of Impact,

Monitoring and Management, August

1991. Mt. Crested Butte, CO. American

Society of Civil Engineers, New York.

1992.; Pitt, R.E. 1995. ‘‘Biological Effects

of Urban Runoff Discharges,’’ in Storm

water Runoff and Receiving Systems:

Impact, Monitoring, and Assessment.

Lewis Publishers, New York.; Galli, J.

1990. Thermal Impacts Associated with

Urbanization and Storm water

Management Best Management

Practices. Prepared for the Sediment

and Storm water Administration of the

Maryland Department of the

Environment.; Klein, 1979), (2) the

blanket coverage within the urbanized

area encourages the watershed approach

and addresses the problem of ‘‘donutholes,’’ where unregulated areas are

surrounded by areas currently regulated

(storm water discharges from donut hole

areas present a problem due to their

contributing uncontrolled adverse

impacts on local waters, as well as by

frustrating the attainment of water

quality goals of neighboring regulated

communities), (3) this approach targets

present and future growth areas as a

preventative measure to help ensure

water quality protection, and (4) the

determination of urbanized areas by the

Bureau of the Census allows operators

of small MS4s to quickly determine

whether they are included in the NPDES

storm water program as a regulated

small MS4.

Urbanized areas have experienced

significant growth over the past 50

years. According to EPA calculations

68752 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

based on Census data from 1980 to

1990, the national average rate of growth

in the United States during that 10-year

period was more than 4 percent. For the

same period, the average growth within

urbanized areas was 15.7 percent and

the average for outside of urbanized

areas was just more than 1 percent. The

new development occurring in these

growing areas can provide some of the

best opportunities for implementing

cost-effective storm water management

controls.

EPA received many comments on the

proposal to designate discharges based

on location within urbanized areas. EPA

considered numerous other approaches,

several of which are discussed in the

proposal to today’s final rule. Several

commenters wanted designation to be

based on proven water quality problems

rather than inclusion in an urbanized

area. One commenter proposed an

approach based on the CWA 303(d)

listing of impaired waters and the

wasteload allocation conducted under

the TMDL process. (See section II.L. on

the section 303(d) and TMDL process).

The commenter’s proposal would

designate small MS4s on a case-by-case

basis, covering only those discharges

where receiving streams are shown to

have water quality problems,

particularly a failure to meet water

quality standards, including designated

uses. The commenter further described

a non-NPDES approach where a State

would require cost-effective measures

based on a proportionate share under a

waste load allocation, equitably

allocated among all pollutant

contributors. These waste load

allocations would be developed with

input from all stakeholders, and

remedial measures would be

implemented in a phased manner based

on the probability of results and/or

economic feasibility. The States would

then periodically reassess the receiving

streams to determine whether the

remedial measures are working, and if

not, require additional control measures

using the same procedure used to

establish the initial measures. What the

commenter describes is almost a TMDL.

EPA considered a remedial approach

based on water quality impairment and

rejected it for failure to prevent almost

certain degradation caused by urban

storm water. EPA’s main concern in

opting not to take a case-by-case

approach to designation was that this

approach would not provide controls for

storm water discharges in receiving

streams until after a site-specific

demonstration of adverse water quality

impact. The commenter’s suggestion

would do nothing to prevent pollution

in waters that may be meeting water

quality standards, including supporting

designated uses. The approach would

also rely on identifying storm water

management programs following

comprehensive watershed plans and

TMDL development. In most States,

water quality assessments have

traditionally been conducted for

principal mainstream rivers and their

major tributaries, not all surface waters.

The establishment of TMDLs

nationwide will take many years, and

many States will conduct additional

monitoring to determine water quality

conditions prior to establishing TMDLs.

In addition, a case-by-case approach

would not address the problem of

‘‘donut holes’’ within urbanized areas

and a lack of consistency among

similarly situated municipal systems

would remain commonplace. After

careful consideration of all comments,

EPA still believes that the approach in

today’s rule is the most appropriate to

protect water quality. Protection

includes prevention as well as

remediation.

d. Municipal Designation by the

Permitting Authority

Today’s final rule also allows NPDES

permitting authorities to designate MS4s

that should be included in the storm

water program as regulated small MS4s

but are not located within urbanized

areas. The final rule requires, at a

minimum, that a set of designation

criteria be applied to all small MS4s

within a jurisdiction that serves a

population of at least 10,000 and has a

population density of at least 1,000.

Appendix 7 to this preamble provides

an illustrative list of places that the

Agency anticipates meet this criteria. In

addition, any small MS4 may be the

subject of a petition to the NPDES

permitting authority for designation. See

Section II.G, NPDES Permitting

Authority’s Role for more details on the

designation and petition processes. EPA

believes that the approach of combining

nationwide and local designation to

determine municipal coverage balances

the potential for significant adverse

impacts on water quality with local

watershed protection and planning

efforts.

e. Waiving the Requirements for Small

MS4s

Today’s final rule includes some

flexibility in the nationwide coverage of

all small MS4s located in urbanized

areas by providing the NPDES

permitting authority with the discretion

to waive the otherwise applicable

requirements of the smallest MS4s that

are not causing the impairment of a

receiving water body. Qualifications for

the waiver vary depending on whether

the MS4 serves a population under

1,000 or a population between 1,000

and 10,000. Note that even if a small

MS4 has requirements waived, it can

subsequently be brought back into the

program if circumstances change. See

Section II.G, NPDES Permitting

Authority’s Role, for more details on

this process.

3. Municipal Permit Requirements

a. Overview

i. Summary of Permitting Options.

Today’s rule outlines six minimum

control measures that constitute the

framework for a storm water discharge

control program for regulated small

MS4s that, when properly implemented,

will reduce pollutants to the maximum

extent practicable (MEP). These six

minimum control measures are

specified in § 122.34(b) and are

discussed below in section ‘‘II.H.3.b,

Program Requirements-Minimum

Control Measures.’’ All operators of

regulated small MS4s are required to

obtain coverage under an NPDES

permit, unless the requirement is

waived by the permitting authority in

accordance with today’s rule.

Implementation of § 122.34(b) may be

required either through an individual

permit or, if the State or EPA makes one

available to the facility, through a

general permit. The process for issuing

and obtaining these permits is discussed

below in section ‘‘II.H.3.c, Application

Requirements.’’

As an alternative to implementing a

program that complies with the

requirements of § 122.34, today’s rule

provides operators of regulated small

MS4s with the option of applying for an

individual permit under § 122.26(d).

The permit application requirements in

§ 122.26 were originally drafted to apply

to medium and large MS4s. Although

EPA believes that the requirements of

§ 122.34 provide a regulatory option that

is appropriate for most small MS4s, the

operators of some small MS4s may

prefer more individualized

requirements. This alternative

permitting option for regulated small

MS4s that wish to develop their own

program is discussed below in section

‘‘II.H.3.c.iii. Alternative Permit Option.’’

The second alternative permitting

option for regulated small MS4s is to

become co-permittees with a medium or

large MS4 regulated under § 122.26(d),

as discussed below in section

‘‘II.H.3.c.v. Joint Permit Programs.’’

ii. Water Quality-Based Requirements.

Any NPDES permit issued under today’s

rule must, at a minimum, require the

operator to develop, implement, and

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68753

enforce a storm water management

program designed to reduce the

discharge of pollutants from a regulated

system to the MEP, to protect water

quality, and satisfy the appropriate

water quality requirements of the Clean

Water Act (see MEP discussion in the

following section). Absent evidence to

the contrary, EPA presumes that a small

MS4 program that implements the six

minimum measures in today’s rule does

not require more stringent limitations to

meet water quality standards. Proper

implementation of the measures will

significantly improve water quality. As

discussed further below, however, small

MS4 permittees should modify their

programs if and when available

information indicates that water quality

considerations warrant greater attention

or prescriptiveness in specific

components of the municipal program.

If the program is inadequate to protect

water quality, including water quality

standards, then the permit will need to

be modified to include any more

stringent limitations necessary to

protect water quality.

Regardless of the basis for the

development of the effluent limitations

(whether designed to implement the six

minimum measures or more stringent or

prescriptive limitations to protect water

quality), EPA considers narrative

effluent limitations requiring

implementation of BMPs to be the most

appropriate form of effluent limitations

for MS4s. CWA section 402(p)(3)(b)(iii)

expresses a preference for narrative

rather than numeric effluent limits, for

example, by reference to ‘‘management

practices, control techniques and

system, design and engineering

methods, and such other provisions as

the Administrator or the State

determines appropriate for the control

of such pollutants.’’ 33 U.S.C.

1342(p)(3)(B)(iii). EPA determines that

pollutants from wet weather discharges

are most appropriately controlled

through management measures rather

than end-of-pipe numeric effluent

limitations. As explained in the Interim

Permitting Policy for Water QualityBased Effluent Limitations in Storm

Water Permits, issued on August 1, 1996

[61 FR 43761 (November 26, 1996), EPA

believes that the currently available

methodology for derivation of numeric

water quality-based effluent limitations

is significantly complicated when

applied to wet weather discharges from

MS4s (compared to continuous or

periodic batch discharges from most

other types of discharge). Wet weather

discharges from MS4s introduce a high

degree of variability in the inputs to the

models currently available for

derivation of water quality based

effluent limitations, including

assumptions about instream and

discharge flow rates, as well as effluent

characterization. In addition, EPA

anticipates that determining compliance

with any such numeric limitations may

be confounded by practical limitations

in sample collection.

In the first two to three rounds of

permit issuance, EPA envisions that a

BMP-based storm water management

program that implements the six

minimum measures will be the extent of

the NPDES permit requirements for the

large majority of regulated small MS4s.

Because the six measures represent a

significant level of control if properly

implemented, EPA anticipates that a

permit for a regulated small MS4

operator implementing BMPs to satisfy

the six minimum control measures will

be sufficiently stringent to protect water

quality, including water quality

standards, so that additional, more

stringent and/or more prescriptive water

quality based effluent limitations will be

unnecessary.

If a small MS4 operator implements

the six minimum control measures in

§ 122.34(b) and the discharges are

determined to cause or contribute to

non-attainment of an applicable water

quality standard, the operator needs to

expand or better tailor its BMPs within

the scope of the six minimum control

measures. EPA envisions that this

process will occur during the first two

to three permit terms. After that period,

EPA will revisit today’s regulations for

the municipal separate storm sewer

program.

If the permitting authority (rather than

the regulated small MS4 operator) needs

to impose additional or more specific

measures to protect water quality, then

that action will most likely be the result

of an assessment based on a TMDL or

equivalent analysis that determines

sources and allocations of pollutant(s) of

concern. EPA believes that the small

MS4’s additional requirements, if any,

should be guided by its equitable share

based on a variety of considerations,

such as cost effectiveness, proportionate

contribution of pollutants, and ability to

reasonably achieve wasteload

reductions. Narrative effluent

limitations in the form of BMPs may

still be the best means of achieving

those reductions.

See Section II.L, Water Quality Issues,

for further discussion of this approach

to permitting, consistent with EPA’s

interim permitting guidance. Pursuant

to CWA section 510, States

implementing their own NPDES

programs may develop more stringent or

more prescriptive requirements than

those in today’s rule.

EPA’s interpretation of CWA section

402(p)(3)(B)(iii) was recently reviewed

by the Ninth Circuit in Defenders of

Wildlife, et al v. Browner, No. 98–71080

(September 15, 1999). The Court upheld

the Agency’s action in issuing five MS4

permits that included water qualitybased effluent limitations. The Court

did, however, disagree with EPA’s

interpretation of the relationship

between CWA sections 301 and 402(p).

The Court reasoned that MS4s are not

compelled by section 301(b)(1)(C) to

meet all State water quality standards,

but rather that the Administrator or the

State may rely on section

402(p)(3)(B)(iii) to require such controls.

Accordingly, the Defenders of Wildlife

decision is consistent with the Agency’s

1996 ‘‘Interim Permitting Policy for

Water Quality-Based Effluent

Limitations in Storm Water Permits.’’

As noted, the 1996 Policy describes

how permits would implement an

iterative process using BMPs,

assessment, and refocused BMPs,

leading toward attainment of water

quality standards. The ultimate goal of

the iteration would be for water bodies

to support their designated uses. EPA

believes this iterative approach is

consistent with and implements section

301(b)(1)(C), notwithstanding the Ninth

Circuit’s interpretation. As an

alternative to basing these water qualitybased requirements on section

301(b)(1)(C), however, EPA also believes

the iterative approach toward

attainment of water quality standards

represents a reasonable interpretation of

CWA section 402(p)(3)(B)(iii). For this

reason, today’s rule specifies that the

‘‘compliance target’’ for the design and

implementation of municipal storm

water control programs is ‘‘to reduce

pollutants to the maximum extent

practicable (MEP), to protect water

quality, and to satisfy the appropriate

water quality requirements of the

CWA.’’ The first component, reductions

to the MEP, would be realized through

implementation of the six minimum

measures. The second component, to

protect water quality, reflects the overall

design objective for municipal programs

based on CWA section 402(p)(6). The

third component, to implement other

applicable water quality requirements of

the CWA, recognizes the Agency’s

specific determination under CWA

section 402(p)(3)(B)(iii) of the need to

achieve reasonable further progress

toward attainment of water quality

standards according to the iterative BMP

process, as well as the determination

that State or EPA officials who establish

TMDLs could allocate waste loads to

68754 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

MS4s, as they would to other point

sources.

EPA does not presume that water

quality will be protected if a small MS4

elects not to implement all of the six

minimum measures and instead applies

for alternative permit limits under

§ 122.26(d). Operators of such small

MS4s that apply for alternative permit

limits under § 122.26(d) must supply

additional information through

individual permit applications so that

the permit writer can determine

whether the proposed program reduces

pollutants to the MEP and whether any

other provisions are appropriate to

protect water quality and satisfy the

appropriate water quality requirements

of the Clean Water Act.

iii. Maximum Extent Practicable.

Maximum extent practicable (MEP) is

the statutory standard that establishes

the level of pollutant reductions that

operators of regulated MS4s must

achieve. The CWA requires that NPDES

permits for discharges from MS4s ‘‘shall

require controls to reduce the discharge

of pollutants to the maximum extent

practicable, including management

practices, control techniques and

system, design and engineering

methods.’’ CWA Section

402(p)(3)(B)(iii). This section also calls

for ‘‘such other provisions as the [EPA]

Administrator or the State determines

appropriate for the control of such

pollutants.’’ EPA interprets this

standard to apply to all MS4s, including

both existing regulated (large and

medium) MS4s, as well as the small

MS4s regulated under today’s rule.

For regulated small MS4s under

today’s rule, authorization to discharge

may be under either a general permit or

individual permit, but EPA anticipates

and expects that general permits will be

the most common permit mechanism.

The general permit will explain the

steps necessary to obtain permit

authorization. Compliance with the

conditions of the general permit and the

series of steps associated with

identification and implementation of

the minimum control measures will

satisfy the MEP standard.

Implementation of the MEP standard

under today’s rule will typically require

the permittee to develop and implement

appropriate BMPs to satisfy each of the

required six minimum control

measures.

In issuing the general permit, the

NPDES permitting authority will

establish requirements for each of the

minimum control measures. Permits

typically will require small MS4

permittees to identify in their NOI the

BMPs to be performed and to develop

the measurable goals by which

implementation of the BMPs can be

assessed. Upon receipt of the NOI from

a small MS4 operator, the NPDES

permitting authority will have the

opportunity to review the NOI to verify

that the identified BMPs and

measurable goals are consistent with the

requirement to reduce pollutants under

the MEP standard, to protect water

quality, and to satisfy the appropriate

water quality requirements of the Clean

Water Act. If necessary, the NPDES

permitting authority may ask the

permittee to revise their mix of BMPs,

for example, to better reflect the MEP

pollution reduction requirement. Where

the NPDES permit is not written to

implement the minimum control

measures specified under § 122.34(b),

for example in the case of an individual

permit under § 122.33(b)(2)(ii), the MEP

standard will be applied based on the

best professional judgment of the permit

writer.

Commenters argued that MEP is, as

yet, an undefined term and that EPA

needs to further clarify the MEP

standards by providing a regulatory

definition that includes recognition of

cost considerations and technical

feasibility. Commenters argued that,

without a definition, the regulatory

community is not adequately on notice

regarding the standard with which they

need to comply. EPA disagrees that

affected MS4 permittees will lack notice

of the applicable standard. The

framework for the small MS4 permits

described in this notice provides EPA’s

interpretation of the standard and how

it should be applied.

EPA has intentionally not provided a

precise definition of MEP to allow

maximum flexibility in MS4 permitting.

MS4s need the flexibility to optimize

reductions in storm water pollutants on

a location-by-location basis. EPA

envisions that this evaluative process

will consider such factors as conditions

of receiving waters, specific local

concerns, and other aspects included in

a comprehensive watershed plan. Other

factors may include MS4 size, climate,

implementation schedules, current

ability to finance the program, beneficial

uses of receiving water, hydrology,

geology, and capacity to perform

operation and maintenance.

The pollutant reductions that

represent MEP may be different for each

small MS4, given the unique local

hydrologic and geologic concerns that

may exist and the differing possible

pollutant control strategies. Therefore,

each permittee will determine

appropriate BMPs to satisfy each of the

six minimum control measures through

an evaluative process. Permit writers

may evaluate small MS4 operator’s

proposed storm water management

controls to determine whether reduction

of pollutants to the MEP can be

achieved with the identified BMPs.

EPA envisions application of the MEP

standard as an iterative process. MEP

should continually adapt to current

conditions and BMP effectiveness and

should strive to attain water quality

standards. Successive iterations of the

mix of BMPs and measurable goals will

be driven by the objective of assuring

maintenance of water quality standards.

If, after implementing the six minimum

control measures there is still water

quality impairment associated with

discharges from the MS4, after

successive permit terms the permittee

will need to expand or better tailor its

BMPs within the scope of the six

minimum control measures for each

subsequent permit. EPA envisions that

this process may take two to three

permit terms.

One commenter observed that MEP is

not static and that if the six minimum

control measures are not achieving the

necessary water quality improvements,

then an MS4 should be expected to

revise and, if necessary, expand its

program. This concept, it is argued,

must be clearly part of the definition of

MEP and thus incorporated into the

binding and operative aspects of the

rule. As is explained above, EPA

believes that it is. The iterative process

described above is intended to be

sensitive to water quality concerns. EPA

believes that today’s rule contains

provisions to implement an approach

that is consistent with this comment.

b. Program Requirements’Minimum

Control Measures

A regulated small MS4 operator must

develop and implement a storm water

management program designed to

reduce the discharge of pollutants from

their MS4 to protect water quality. The

storm water management program must

include the following six minimum

measures.

i. Public Education and Outreach on

Storm Water Impacts. Under today’s

final rule, operators of small MS4s must

implement a public education program

to distribute educational materials to the

community or conduct equivalent

outreach activities about the impacts of

storm water discharges on water bodies

and the steps to reduce storm water

pollution. The public education

program should inform individuals and

households about the problem and the

steps they can take to reduce or prevent

storm water pollution.

EPA believes that as the public gains

a greater understanding of the storm

water program, the MS4 is likely to gain

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68755

more support for the program (including

funding initiatives). In addition,

compliance with the program will

probably be greater if the public

understands the personal

responsibilities expected of them. Wellinformed citizens can act as formal or

informal educators to further

disseminate information and gather

support for the program, thus easing the

burden on the municipalities to perform

all educational activities.

MS4s are encouraged to enter into

partnerships with their States in

fulfilling the public education

requirement. It may be more costeffective to utilize a State education

program instead of numerous MS4s

developing their own programs. MS4

operators are also encouraged to work

with other organizations (e.g.,

environmental, nonprofit and industry

organizations) that might be able to

assist in fulfilling this requirement.

The public education program should

be tailored, using a mix of locally

appropriate strategies, to target specific

audiences and communities

(particularly minority and

disadvantaged communities). Examples

of strategies include distributing

brochures or fact sheets, sponsoring

speaking engagements before

community groups, providing public

service announcements, implementing

educational programs targeted at school

age children, and conducting

community-based projects such as storm

drain stenciling, and watershed and

beach cleanups. Operators of MS4s may

use storm water educational information

provided by the State, Tribe, EPA, or

environmental, public interest, trade

organizations, or other MS4s. Examples

of successful public education efforts

concerning polluted runoff can be found

in many State nonpoint source pollution

control programs under CWA section

319.

The public education program should

inform individuals and households

about steps they can take to reduce

storm water pollution, such as ensuring

proper septic system maintenance,

ensuring the use and disposal of

landscape and garden chemicals

including fertilizers and pesticides,

protecting and restoring riparian

vegetation, and properly disposing of

used motor oil or household hazardous

wastes. Additionally, the program could

inform individuals and groups on how

to become involved in local stream and

beach restoration activities as well as

activities coordinated by youth service

and conservation corps and other

citizen groups. Finally, materials or

outreach programs should be directed

toward targeted groups of commercial,

industrial, and institutional entities

likely to have significant storm water

impacts. For example, MS4 operators

should provide information to

restaurants on the impact of grease

clogging storm drains and to auto

garages on the impacts of used oil

discharges.

EPA received comments from

representatives of State DOTs and U.S.

Department of Defense (DOD)

installations seeking exemption from

the public education requirement.

While today’s rule does not exempt

DOTs and military bases from the user

education requirement, the Agency

believes the flexibility inherent in the

Rule addresses many of the concerns

expressed by these commenters.

Certain DOT representatives

commented that if their agencies were

not exempt from the user education

measure’s requirements, they should at

least be allowed to count DOT employee

education as an adequate substitute.

EPA supports the use of existing

materials and programs, granted such

materials and programs meet the rule’s

requirement that the MS4 user

community (i.e., the public) is also

educated concerning the impacts of

storm water discharges on water bodies

and the steps to reduce storm water

pollution.

Finally, certain DOD representatives

requested that ‘‘public,’’ as applied to

their installations, be defined as the

resident and employee populations

within the fence line of the facility. EPA

agrees that the education effort should

be directed toward those individuals

who frequent the federally owned land

(i.e., residents and individuals who

come there to work and use the MS4

facilities).

EPA also received a number of

comments from municipalities stating

that education would be more thorough

and cost effective if accomplished by

EPA on the national level. EPA believes

that a collaborative State and local

approach, in conjunction with

significant EPA technical support, will

best meet the goal of targeting, and

reaching, specific local audiences. EPA

technical support will include a tool

box which will contain fact sheets,

guidance documents, an information

clearinghouse, and training and

outreach efforts.

Finally, EPA received comments

expressing concern that the public

education program simply encourages

the distribution of printed material. EPA

is sensitive to this concern. Upon

evaluation, the Agency made changes to

the proposal’s language for today’s rule.

The language has been changed to

reflect EPA’s belief that a successful

program is one that includes a variety of

strategies locally designed to reach

specific audiences.

ii. Public Involvement/Participation.

Public involvement is an integral part of

the small MS4 storm water program.

Accordingly, today’s final rule requires

that the municipal storm water

management program must comply with

applicable State and local public notice

requirements. Section 122.34(b)(2)

recommends a public participation

process with efforts to reach out and

engage all economic and ethnic groups.

EPA believes there are two important

reasons why the public should be

allowed and encouraged to provide

valuable input and assistance to the

MS4’s program.

First, early and frequent public

involvement can shorten

implementation schedules and broaden

public support for a program.

Opportunities for members of the public

to participate in program development

and implementation could include

serving as citizen representatives on a

local storm water management panel,

attending public hearings, working as

citizen volunteers to educate other

individuals about the program, assisting

in program coordination with other preexisting programs, or participating in

volunteer monitoring efforts. Moreover,

members of the public may be less

likely to raise legal challenges to a

MS4’s storm water program if they have

been involved in the decision making

process and program development and,

therefore, internalize personal

responsibility for the program

themselves.

Second, public participation is likely

to ensure a more successful storm water

program by providing valuable expertise

and a conduit to other programs and

governments. This is particularly

important if the MS4’s storm water

program is to be implemented on a

watershed basis. Interested stakeholders

may offer to volunteer in the

implementation of all aspects of the

program, thus conserving limited

municipal resources.

EPA recognizes that there are a

number of challenges associated with

public involvement. One challenge is in

engaging people in the public meeting

and program design process. Another

challenge is addressing conflicting

viewpoints. Nevertheless, EPA strongly

believes that these challenges can be

addressed by use of an aggressive and

inclusive program. Section II.K.

provides further discussion on public

involvement.

A number of municipalities sought

clarification from EPA concerning what

the public participation program must

68756 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

actually include. In response, the actual

requirements are minimal, but the

Agency’s recommendations are more

comprehensive. The public

participation program must only comply

with applicable State and local public

notice requirements. The remainder of

the preamble, as well as the Explanatory

Note accompanying the regulatory text,

provide guidance to the MS4s

concerning what elements a successful

and inclusive program should include.

EPA will provide technical support as

part of the tool box (i.e., providing

model public involvement programs,

conducting public workshops, etc.) to

assist MS4 operators meet the intent of

this measure.

Finally, the Agency encourages MS4s

to seek public participation prior to

submitting an NOI. For example, public

participation at this stage will allow the

MS4 to involve the public in developing

the BMPs and measurable goals for their

NOI.

iii. Illicit Discharge Detection and

Elimination. Discharges from small

MS4s often include wastes and

wastewater from non-storm water

‘‘illicit’’ discharges. Illicit discharge is

defined at 40 CFR 122.26(b)(2) as any

discharge to a municipal separate storm

sewer that is not composed entirely of

storm water, except discharges pursuant

to an NPDES permit and discharges

resulting from fire fighting activities. As

detailed below, other sources of nonstorm water, that would otherwise be

considered illicit discharges, do not

need to be addressed unless the operator

of the MS4 identifies one or more of

them as a significant source of

pollutants into the system. EPA’s

Nationwide Urban Runoff Program

(NURP) indicated that many storm

water outfalls still discharge during

substantial dry periods. Pollutant levels

in these dry weather flows were shown

to be high enough to significantly

degrade receiving water quality. Results

from a 1987 study conducted in

Sacramento, California, revealed that

slightly less than one-half of the water

discharged from a municipal separate

storm sewer system was not directly

attributable to precipitation runoff (U.S.

Environmental Protection Agency,

Office of Research and Development.

1993. Investigation of Inappropriate

Pollutant Entries Into Storm Drainage

Systems—A User’s Guide. Washington,

DC EPA 600/R–92/238.) A significant

portion of these dry weather flows

results from illicit and/or inappropriate

discharges and connections to the

municipal separate storm sewer system.

Illicit discharges enter the system

through either direct connections (e.g.,

wastewater piping either mistakenly or

deliberately connected to the storm

drains) or indirect connections (e.g.,

infiltration into the storm drain system

or spills collected by drain inlets).

Under the existing NPDES program

for storm water, permit applications for

large and medium MS4s are to include

a program description for effective

prohibition against non-storm water

discharges into their storm sewers (see

40 CFR 122.26 (d)(1)(v)(B) and

(d)(1)(iv)(B)). Further, EPA believes that

in implementing municipal storm water

management plans under these permits,

large and medium MS4 operators

generally found their illicit discharge

detection and elimination programs to

be cost-effective. Properly implemented

programs also significantly improved

water quality.

In today’s rule, any NPDES permit

issued to an operator of a regulated

small MS4 must, at a minimum, require

the operator to develop, implement and

enforce an illicit discharge detection

and elimination program. Inclusion of

this measure for regulated small MS4s is

consistent with the ‘‘effective

prohibition’’ requirement for large and

medium MS4s. Under today’s rule, the

NPDES permit will require the operator

of a regulated small MS4 to: (1) Develop

(if not already completed) a storm sewer

system map showing the location of all

outfalls, and names and location of all

waters of the United States that receive

discharges from those outfalls; (2) to the

extent allowable under State, Tribal, or

local law, effectively prohibit through

ordinance, or other regulatory

mechanism, illicit discharges into the

separate storm sewer system and

implement appropriate enforcement

procedures and actions as needed; (3)

develop and implement a plan to detect

and address illicit discharges, including

illegal dumping, to the system; and (4)

inform public employees, businesses,

and the general public of hazards

associated with illegal discharges and

improper disposal of waste.

The illicit discharge and elimination

program need only address the

following categories of non-storm water

discharges if the operator of the small

MS4 identifies them as significant

contributors of pollutants to its small

MS4: water line flushing, landscape

irrigation, diverted stream flows, rising

ground waters, uncontaminated ground

water infiltration (as defined at 40 CFR

35.2005(20)), uncontaminated pumped

ground water, discharges from potable

water sources, foundation drains, air

conditioning condensation, irrigation

water, springs, water from crawl space

pumps, footing drains, lawn watering,

individual residential car washing,

flows from riparian habitats and

wetlands, dechlorinated swimming pool

discharges, and street wash water

(discharges or flows from fire fighting

activities are excluded from the

definition of illicit discharge and only

need to be addressed where they are

identified as significant sources of

pollutants to waters of the United

States). If the operator of the MS4

identifies one or more of these

categories of sources to be a significant

contributor of pollutants to the system,

it could require specific controls for that

category of discharge or prohibit the

discharges completely.

Several comments were received on

the mapping requirements of the

proposal. Most comments said that more

flexibility should be given to the MS4s

to determine their mapping needs, and

that resources could be better spent in

addressing problems once the illicit

discharges are detected. EPA reviewed

the mapping requirements in the

proposed rule and agrees that some of

the information is not necessary in order

to begin an illicit discharge detection

and elimination program. Today’s rule

requires a map or set of maps that show

the locations of all outfalls and names

and locations of receiving waters.

Knowing the locations of outfalls and

receiving waters are necessary to be able

to conduct dry weather field screening

for non-storm water flows and to

respond to illicit discharge reports from

the public. EPA recommends that the

operator collect any existing

information on outfall locations (e.g.,

review city records, drainage maps,

storm drain maps), and then conduct

field surveys to verify the locations. It

will probably be necessary to ‘‘walk’’

(i.e. wade small receiving waters or use

a boat for larger receiving waters) the

streambanks and shorelines, and it may

take more than one trip to locate all

outfalls. A coding system should be

used to mark and identify each outfall.

MS4 operators have the flexibility to

determine the type (e.g. topographic,

GIS, hand or computer drafted) and size

of maps which best meet their needs.

The map scale should be such that the

outfalls can be accurately located. Once

an illicit discharge is detected at an

outfall, it may be necessary to map that

portion of the storm sewer system

leading to the outfall in order to locate

the source of the discharge.

Several comments requested

clarification of the requirement to

develop and implement a plan to detect

and eliminate illicit discharges. EPA

recommends that plans include

procedures for the following: locating

priority areas; tracing the source of an

illicit discharge; removing the source of

the discharge; and program evaluation

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68757

and assessment. EPA recommends that

MS4 operators identify priority areas

(i.e., problems areas) for more detailed

screening of their system based on

higher likelihood of illicit connections

(e.g., areas with older sanitary sewer

lines), or by conducting ambient

sampling to locate impacted reaches.

Once priority areas are identified, EPA

recommends visually screening outfalls

during dry weather and conducting field

tests, where flow is occurring, of

selected chemical parameters as

indicators of the discharge source.

EPA’s manual for investigation of

inappropriate pollutant entries into the

storm drainage system (EPA, 1993)

suggests the following parameter list:

specific conductivity, fluoride and/or

hardness concentration, ammonia and/

or potassium concentration, surfactant

and/or fluorescence concentration,

chlorine concentration, pH and other

chemicals indicative of industrial

sources. The manual explains why each

parameter is a good indicator and how

the information can be used to

determine the type of source flow. The

Agency is not recommending that

fluoride and chlorine, generally used to

locate potable water discharges, be

addressed under this program, therefore

a short list of parameters may include

conductivity, ammonia, surfactant and

pH. Some MS4s have found it useful to

measure for fecal coliform or E. coli in

their testing program. Observations of

physical characteristics of the discharge

are also helpful such as flow rate,

temperature, odor, color, turbidity,

floatable matter, deposits and stains,

and vegetation.

The implementation plan should also

include procedures for tracing the

source of an illicit discharge. Once an

illicit discharge is detected and field

tests provide source characteristics, the

next step is to determine the actual

location of the source. Techniques for

tracing the discharge to its place of

origin may include: following the flow

up the storm drainage system via

observations and/or chemical testing in

manholes or in open channels;

televising storm sewers; using infrared

and thermal photography; conducting

smoke or dye tests.

The implementation plan should also

include procedures for removing the

source of the illicit discharge. The first

step may be to notify the property

owner and specify a length of time for

eliminating the discharge. Additional

notifications and escalating legal actions

should also be described in this part of

the plan.

Finally, the implementation plan

should include procedures for program

evaluation and assessment. Procedures

could include documentation of actions

taken to locate and eliminate illicit

discharges such as: number of outfalls

screened, complaints received and

corrected, feet of storm sewers televised,

numbers of discharges and quantities of

flow eliminated, number of dye or

smoke tests conducted. Appropriate

records of such actions should be kept

and should be submitted as part of the

annual reports for the first permit term,

as specified by the permitting authority

(reports only need to be submitted in

years 2 and 4 in later permits). For more

on reporting requirements, see

§ 122.34(g).

EPA received comments regarding an

MS4’s legal authority beyond its

jurisdictional boundaries to inspect or

take enforcement against illicit

discharges. EPA recognizes that illicit

flows may originate in one jurisdiction

and cross into one or more jurisdictions

before being discharged at an outfall. In

such instances, EPA expects the MS4

that detects the illicit flow to trace it to

the point where it leaves their

jurisdiction and notify the adjoining

MS4 of the flow, and any other physical

or chemical information. The adjoining

MS4 should then trace it to the source

or to the location where it enters their

jurisdiction. The process of notifying

the adjoining MS4 should continue

until the source is located and

eliminated. In addition, because any

non-storm water discharge to waters of

the U.S. through an MS4 is subject to

the prohibition against unpermitted

discharges pursuant to CWA section 301

(a), remedies are available under the

federal enforcement provisions of CWA

sections 309 and 505.

EPA requested and received

comments regarding the prohibition and

enforcement provision for this

minimum measure. Commenters

specifically questioned the proposal that

the operator only has to implement the

appropriate prohibition and

enforcement procedures ‘‘to the extent

allowable under State or Tribal law.’’

They raised concerns that by qualifying

prohibition and enforcement procedures

in this manner, the operator could

altogether ignore this minimum measure

where affirmative legal authority did not

exist. Comments suggested that EPA

require States to grant authority to those

municipalities where it did not exist.

Other comments, however, stated that

municipalities cannot exercise legal

authority not granted to them under

State law, which varies considerably

from one State to another. EPA has no

intention of directing State legislatures

on how to allocate authority and

responsibility under State law. As noted

above, there is at least one remedy (the

federal CWA) to control non-storm

water discharges through MS4s. If State

law prevents political subdivisions from

controlling discharges through storm

sewers, EPA anticipates common sense

will prevail to provide those MS4

operators with the ability to meet the

requirements applicable for their

discharges.

One comment reinforced the

importance of public information and

education to the success of this

measure. EPA agrees and suggests that

MS4 operators consider a variety of

ways to inform and educate the public

which could include storm drain

stenciling; a program to promote,

publicize, and facilitate public reporting

of illicit connections or discharges; and

distribution of visual and/or printed

outreach materials. Recycling and other

public outreach programs could be

developed to address potential sources

of illicit discharges, including used

motor oil, antifreeze, pesticides,

herbicides, and fertilizers.

EPA received comments that State

DOT’s lack authority to implement this

measure. EPA believes that most DOTs

can implement most parts of this

measure. If a DOT does not have the

necessary legal authority to implement

any part of this measure, EPA

encourages them to coordinate their

storm water management efforts with

the surrounding MS4s and other State

agencies. Many DOTs that are regulated

under Phase I of this program are copermittees with the local regulated MS4.

Under today’s rule, DOTs can use any

of the options of § 122.35 to share their

storm water management

responsibilities.

EPA received comments requesting

clarification of various terms such as

‘‘outfall’’ and ‘‘illicit discharge.’’ One

comment asked EPA to reinforce the

point that a ‘‘ditch’’ could be considered

an outfall. The term ‘‘outfall’’ is defined

at 40 CFR 122.26(b)(9) as ‘‘a point

source at the point where a municipal

separate storm sewer discharges to

waters of the United States * * *’’. The

term municipal separate storm sewer is

defined at 40 CFR § 122.26(b)(8) as ‘‘a

conveyance or system of conveyances

(including roads with drainage systems,

municipal streets, catch basins, curbs,

gutters, ditches, man-made channels, or

storm drains) * * *’’. Following the

logic of these definitions, a ‘‘ditch’’ may

be part of the municipal separate storm

sewer, and at the point where the ditch

discharges to waters of the United

States, it would be an outfall. As with

any determination about jurisdictional

provisions of the CWA, however, final

decisions require case specific

evaluations of fact.

68758 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

One commenter specifically requested

clarification on the relationship between

the term ‘‘illicit discharge’’ and nonstorm water discharges from fire

fighting. The comment suggested that it

would be impractical to attempt to

determine whether the flow from a

specific fire (i.e., during a fire) is a

significant source of pollution. EPA

intends that MS4s will address all

allowable non-storm water flows

categorically rather than individually. If

an MS4 is concerned that flows from

fire fighting are, as a category,

contributing substantial amounts of

pollutants to their system, they could

develop a program to address those

flows prospectively. The program may

include an analysis of the flow from

several sources, steps to minimize the

pollutant contribution, and a plan to

work with the sources of the discharge

to minimize any adverse impact on

water quality. During the development

of such a program, the MS4 may

determine that only certain types of

flows within a particular category are a

concern, for example, fire fighting flows

at industrial sites where large quantities

of chemicals are present. In this

example, a review of existing

procedures with the fire department

and/or hazardous materials team may

reveal weaknesses or strengths

previously unknown to the MS4

operator.

EPA received comments requesting

modifications to the rule to include onsite sewage disposal systems (i.e., septic

systems) in the scope of the illicit

discharge program. On-site sewage

disposal systems that flow into storm

drainage systems are within the

definition of illicit discharge as defined

by the regulations. Where they are

found to be the source of an illicit

discharge, they need to be eliminated

similar to any other illicit discharge

source. Today’s rule was not modified

to include discharges from on-site

sewage disposal systems specifically

because those sources are already

within the scope of the existing

definition of illicit discharge.

iv. Construction Site Storm Water

Runoff Control. Over a short period of

time, storm water runoff from

construction site activity can contribute

more pollutants, including sediment, to

a receiving stream than had been

deposited over several decades (see

section I.B.3). Storm water runoff from

construction sites can include

pollutants other than sediment, such as

phosphorus and nitrogen, pesticides,

petroleum derivatives, construction

chemicals, and solid wastes that may

become mobilized when land surfaces

are disturbed. Generally, properly

implemented and enforced construction

site ordinances effectively reduce these

pollutants. In many areas, however, the

effectiveness of ordinances in reducing

pollutants is limited due to inadequate

enforcement or incomplete compliance

with such local ordinances by

construction site operators (Paterson,

R.G. 1994. ‘‘Construction Practices: The

Good, the Bad, and the Ugly.’’

Watershed Protection Techniques 1(2)).

Today’s rule requires operators of

regulated small MS4s to develop,

implement, and enforce a pollutant

control program to reduce pollutants in

any storm water runoff from

construction activities that result in

land disturbance of 1 or more acres (see

§ 122.34(b)(4)). Construction activity on

sites disturbing less than one acre must

be included in the program if the

construction activity is part of a larger

common plan of development or sale

that would disturb one acre or more.

The construction runoff control

program of the regulated small MS4

must include an ordinance or other

regulatory mechanism to require erosion

and sediment controls to the extent

practicable and allowable under State,

Tribal or local law. The program also

must include sanctions to ensure

compliance (for example, non-monetary

penalties, fines, bonding requirements,

and/or permit denials for noncompliance). The program must also

include, at a minimum: requirements for

construction site operators to implement

appropriate erosion and sediment

control BMPS, such as silt fences,

temporary detention ponds and

diversions; procedures for site plan

review by the small MS4 which

incorporate consideration of potential

water quality impacts; requirements to

control other waste such as discarded

building materials, concrete truck

washout, chemicals, litter, and sanitary

waste at the construction site that may

adversely impact water quality;

procedures for receipt and consideration

of information submitted by the public

to the MS4; and procedures for site

inspection and enforcement of control

measures by the small MS4.

Today’s rule provides flexibility for

regulated small MS4s by allowing them

to exclude from their construction

pollutant control program runoff from

those construction sites for which the

NPDES permitting authority has waived

NPDES storm water small construction

permit requirements. For example, if the

NPDES permitting authority waives

permit coverage for storm water

discharges from construction sites less

than 5 acres in areas where the rainfall

erosivity factor is less than 5, then the

regulated small MS4 does not have to

include these sites in its storm water

management program. Even if

requirements for a discharge from a

given construction site are waived by

the NPDES permitting authority,

however, the regulated small MS4 may

still chose to control those discharges

under the MS4’s construction pollutant

control program, particularly where

such discharges may cause siltation

problems in storm sewers. See Section

II.I.1.b for more information on

construction waivers by the permitting

authority.

Some commenters suggested that the

proposed construction minimum

measure requirements went beyond the

permit application requirements

concerning construction for medium

and large MS4s. In response, EPA has

made changes to the proposed measure

so that it more closely resembles the

MS4 permit application requirements in

existing regulations. For example, as

described below, the Agency revised the

proposed requirements for ‘‘preconstruction review of site management

plans’’ to require ‘‘procedures for site

plan review.’’

One commenter expressed concerns

that addressing runoff from construction

sites within urbanized areas (through

the small MS4 program) differently from

construction sites outside urbanized

areas (which will not be covered by the

small MS4 program) will encourage

urban sprawl. Today’s rule, together

with the existing requirements, requires

all construction greater than or equal to

1 acre, unless waived, to be covered by

an NPDES permit whether it is located

inside or outside of an urbanized area

(see § 122.26(b)(15)). Today’s rule does

not require small MS4s to control runoff

from construction sites more stringently

or prescriptively than is required for

construction site runoff outside

urbanized areas. Therefore, today’s rule

imposes no substantively different

onsite controls on runoff of storm water

from construction sites in urbanized

areas than from construction sites

outside of urbanized areas.

One commenter recommended that

the small MS4 construction site storm

water runoff control program address all

storm water runoff from construction

sites, not just the runoff into the MS4.

The commenter also believed that MS4s

should provide clear, objective

standards for all construction sites. EPA

agrees. Because today’s rule only

regulates discharges from the MS4, the

construction pollutant control measure

only requires small MS4 operators to

control runoff into its system. As a

practical matter, however, EPA

anticipates that MS4 operators will find

that regulation of all construction site

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68759

runoff, whether they runoff into the

MS4 or not, will prove to be the most

simple and efficient program. The

Agency may provide more specific

criteria for construction site BMPs in the

forthcoming rule being developed under

CWA section 402(m). See section II.D.1

of today’s rule.

One commenter stated that there is no

need for penalties at the local level by

the small MS4 because the CWA already

imposes sufficient penalties to ensure

compliance. EPA disagrees and believes

that enforcement and compliance at the

local level is both necessary and

preferable. Examples of sanctions, some

not available under the CWA, include

non-monetary penalties, monetary fines,

bonding requirements, and denial of

future or other local permits.

One commenter recommended that

EPA should not include the requirement

to control pollutants other than

sediment from construction sites in this

measure. EPA disagrees with this

comment. The requirement is to control

waste that ‘‘may cause adverse impacts

on water quality.’’ Such wastes may

include discarded building materials,

concrete truck washout, chemicals,

pesticides, herbicides, litter, and

sanitary waste. These wastes, when

exposed to and mobilized by storm

water, can contribute to water quality

impairment.

The proposed rule required

‘‘procedures for pre-construction review

of site management plans.’’ EPA

requested comment on expanding this

provision to require both review and

approval of construction site storm

water plans. Many commenters

expressed the concern that review and

approval of site plans is not only costly

and time intensive, but may

unnecessarily delay construction

projects and unduly burden staff who

administer the local program. In

addition, some commenters expressed

confusion whether EPA proposed preconstruction review for all site

management plans or only higher

priority sites. To address these

comments, and be consistent with the

permit application requirements for

larger MS4s, EPA changed ‘‘procedures

for pre-construction review of site

management plans’’ to ‘‘procedures for

site plan review.’’ Today’s rule requires

the small MS4 to develop procedures for

site plan review so as to incorporate

consideration of adverse potential water

quality impacts. Procedures should

include review of site erosion and

sediment control plans, preferably

before construction activity begins on a

site. The objective is for the small MS4

operator and the construction site

operator to address storm water runoff

from construction activity early in the

project design process so that potential

consequences to the aquatic

environment can be assessed and

adverse water quality impacts can be

minimized or eliminated.

One commenter requested that EPA

delete the requirement for ‘‘procedures

for receipt and consideration of

information submitted by the public’’

because it went beyond existing storm

water requirements. Another commenter

stated that establishing a separate

process to respond to public inquiries

on a project is a burden to small

communities, especially if the project

has gone through an environmental

review. One commenter requested

clarification of this provision. EPA has

retained this requirement in today’s

final rule to require some formality in

the process for addressing public

inquiries regarding storm water runoff

from construction activities. EPA does

not intend that small MS4s develop a

separate, burdensome process to

respond to every public inquiry. A small

MS4 could, for example, simply log

public complaints on existing storm

water runoff problems from

construction sites and pass that

information on to local inspectors. The

inspectors could then investigate

complaints based on the severity of the

violation and/or priority area.

One commenter believed that the

proposed requirement of ‘‘regular

inspections during construction’’ would

require every construction project to be

inspected more than once by the small

MS4 during the term of a construction

project. EPA has deleted the reference to

‘‘regular inspections.’’ Instead, the small

MS4 will be required to ‘‘develop

procedures for site inspection and

enforcement of control measures.’’

Procedures could include steps to

identify priority sites for inspection and

enforcement based on the nature and

extent of the construction activity,

topography, and the characteristics of

soils and receiving water quality.

In order to avoid duplication of small

MS4 construction requirements with

NPDES construction permit

requirements, today’s rule adds

§ 122.44(s) to recognize that the NPDES

permitting authority can incorporate

qualifying State, Tribal, or local erosion

and sediment control requirements in

NPDES permits for construction site

discharges. For example, a construction

site operator who complies with MS4

construction pollutant control programs

that are referenced in the NPDES

construction permit would satisfy the

requirements of the NPDES permit. See

section II.I.1.d for more information on

incorporating qualifying programs by

reference into NPDES construction

permits. This provision has no impact

on, or direct relation to, the small MS4

operator’s responsibilities under the

construction site storm water runoff

control minimum measure. Conversely,

under § 122.35(b), the permitting

authority may recognize in the MS4’s

permit that another governmental entity,

or the permitting authority itself, is

responsible for implementing one or

more of the minimum measures

(including construction site storm water

runoff control), and not include this

measure in the small MS4’s permit. In

this case, the other governmental

entity’s program must satisfy all of the

requirements of the omitted measure.

v. Post-Construction Storm Water

Management in New Development and

Redevelopment. The NURP study and

more recent investigations indicate that

prior planning and designing for the

minimization of pollutants in storm

water discharges is the most costeffective approach to storm water

quality management. Reducing

pollutant concentrations in storm water

after the discharge enters a storm sewer

system is often more expensive and less

efficient than preventing or reducing

pollutants at the source. Increased

human activity associated with

development often results in increased

pollutant loading from storm water

discharges. If potential adverse water

quality impacts are considered from the

beginning stages of a project, new

development and redevelopment

provides more opportunities for water

quality protection. For example,

minimization of impervious areas,

maintenance or restoration of natural

infiltration, wetland protection, use of

vegetated drainage ways, and use of

riparian buffers have been shown to

reduce pollutant loadings in storm

water runoff from developed areas. EPA

encourages operators of regulated small

MS4s to identify specific problem areas

within their jurisdictions and initiate

innovative solutions and designs to

focus attention on those areas through

local planning.

In today’s rule at § 122.34(b)(5),

NPDES permits issued to an operator of

a regulated small MS4 will require the

operator to develop, implement, and

enforce a program to address storm

water runoff from new development and

redevelopment projects that result in

land disturbance of greater than or equal

to one acre, including projects less than

one acre that are part of a larger

common plan of development or sale,

that discharge into the MS4.

Specifically, the NPDES permit will

require the operator of a regulated small

MS4 to: (1) Develop and implement

68760 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

strategies which include a combination

of structural and/or non-structural best

management practices (BMPs)

appropriate for the community; (2) use

an ordinance, or other regulatory

mechanism to address post-construction

runoff from new development and

redevelopment projects to the extent

allowable under State, Tribal or local

law; (3) ensure adequate long-term

operation and maintenance of BMPs;

and (4) ensure that controls are in place

that would minimize water quality

impacts. EPA intends the term

‘‘redevelopment’’ to refer to alterations

of a property that change the ‘‘footprint’’

of a site or building in such a way that

results in the disturbance of equal to or

greater than 1 acre of land. The term is

not intended to include such activities

as exterior remodeling, which would

not be expected to cause adverse storm

water quality impacts and offer no new

opportunity for storm water controls.

EPA received comments requesting

guidance and clarification of the rule

requirements. The scope of the

comments ranged from general requests

for more details on how MS4 operators

should accomplish the four

requirements listed above, to specific

requests for information regarding

transfer of ownership for structural

controls, as well as ongoing

responsibility for operation and

maintenance. By the term

‘‘combination’’ of BMPs, EPA intends a

combination of structural and/or nonstructural BMPs. For this requirement,

the term ‘‘combination’’ is meant to

emphasize that multiple BMPs should

be considered and adopted for use in

the community. A single BMP generally

cannot significantly reduce pollutant

loads because pollutants come from

many sources within a community. The

BMPs chosen should: (1) Be appropriate

for the local community; (2) minimize

water quality impacts; and (3) attempt to

maintain pre-development runoff

conditions. In choosing appropriate

BMPs, EPA encourages small MS4

operators to participate in locally-based

watershed planning efforts which

attempt to involve a diverse group of

stakeholders. Each new development

and redevelopment project should have

a BMP component. If an approach is

chosen that primarily focuses on

regional or non-structural BMPs,

however, then the BMPs may be located

away from the actual development site

(e.g., a regional water quality pond).

Non-structural BMPs are preventative

actions that involve management and

source controls such as: (1) Policies and

ordinances that provide requirements

and standards to direct growth to

identified areas, protect sensitive areas

such as wetlands and riparian areas,

maintain and/or increase open space

(including a dedicated funding source

for open space acquisition), provide

buffers along sensitive water bodies,

minimize impervious surfaces, and

minimize disturbance of soils and

vegetation; (2) policies or ordinances

that encourage infill development in

higher density urban areas, and areas

with existing storm sewer infrastructure;

(3) education programs for developers

and the public about project designs

that minimize water quality impacts;

and (4) other measures such as

minimization of the percentage of

impervious area after development, use

of measures to minimize directly

connected impervious areas, and source

control measures often thought of as

good housekeeping, preventive

maintenance and spill prevention.

Detailed examples of non-structural

BMPs follow.

Preserving open space may help to

protect water quality as well as provide

other benefits such as recharging

groundwater supplies, detaining storm

water, supporting wildlife and

providing recreational opportunities.

Although securing funding for open

space acquisition may be difficult,

various funding mechanisms have been

used. New Jersey uses a portion of their

State sales tax (voter approved for a ten

year period) as a stable source of

funding to finance the preservation of

historic sites, open space and farmland.

Colorado uses part of the proceeds from

the State lottery to acquire and manage

open space. Some local municipalities

use a percentage of the local sales tax

revenue to pay for open space

acquisition (e.g., Jefferson County, CO

has had an open space program in place

since 1977 funded by a 0.50 percent

sales tax). Open space can be acquired

in the form of: fee simple purchase;

easements; development rights;

purchase and sellback or leaseback

arrangements; purchase options; private

land trusts; impact fees; and land

dedication requirements. Generally, fee

simple purchases provide the highest

level of development control and

certainty of preservation, whereas the

other forms of acquisition may provide

less control, though they would also

generally be less costly.

Cluster development, while allowing

housing densities comparable to

conventional zoning practice,

concentrates housing units in a portion

of the total site area which provides for

greater open space, recreation, stream

protection and storm water control. This

type of development, by reducing lot

sizes, can protect sensitive areas and

result in less impervious surface, as well

as reduce the cost for roads and other

infrastructure.

Minimizing directly connected

impervious areas (DCIAs) is a drainage

strategy that seeks to reduce paved areas

and directs storm water runoff to

landscaped areas or to structural

controls such as grass swales or buffer

strips. This strategy can slow the rate of

runoff, reduce runoff volumes, attenuate

peak flows, and encourage filtering and

infiltration of storm water. It can be

made an integral part of drainage

planning for any development (Urban

Drainage and Flood Control District,

Denver, CO. 1992. Urban Storm

Drainage Criteria Manual, Volume 3—

Best Management Practices). The Urban

Drainage and Flood Control District

manual describes three levels for

minimizing DCIAs. At Level 1 all

impervious surfaces are made to drain

over grass-covered areas before reaching

a storm water conveyance system. Level

2 adds to Level 1 and replaces street

curb and gutter systems with lowvelocity grass-lined swales and pervious

street shoulders. In addition to Levels 1

and 2, Level 3 over-sizes swales and

configures driveway and street crossing

culverts to use grass-lined swales as

elongated detention basins.

Structural BMPs include: (1) Storage

practices such as wet ponds and

extended-detention outlet structures; (2)

filtration practices such as grassed

swales, sand filters and filter strips; and

(3) infiltration practices such as

infiltration basins and infiltration

trenches.

EPA recommends that small MS4

operators ensure the appropriate

implementation of the structural BMPs

by considering some or all of the

following: (1) Pre-construction review of

BMP designs; (2) inspections during

construction to verify BMPs are built as

designed; (3) post-construction

inspection and maintenance of BMPs;

and (4) sanctions to ensure compliance

with design, construction or operation

and maintenance (O&M) requirements

of the program.

EPA cautions that certain infiltration

systems such as dry wells, bored wells

or tile drainage fields may be subject to

Underground Injection Control (UIC)

program requirements (see 40 CFR Part

144.12.). To find out more about these

requirements, contact your state UIC

Program, or call EPA’s Safe Drinking

Water Hotline at 1–800–426–4791.

In order to meet the third postconstruction requirement (ensuring

adequate long-term O&M of BMPs), EPA

recommends that small MS4 operators

evaluate various O&M management

agreement options. The most common

options are agreements between the

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68761

MS4 operator and another party such as

post-development landowners (e.g.,

homeowners’ associations, office park

owners, other government departments

or entities), or regional authorities (e.g.,

flood control districts, councils of

government). These agreements

typically require the post-construction

property owner to be responsible for the

O&M and may include conditions

which: allow the MS4 operator to be

reimbursed for O&M performed by the

MS4 operator that is the responsibility

of the property owner but is not

performed; allow the MS4 operator to

enter the property for inspection

purposes; and in some cases specify that

the property owner submit periodic

reports.

In providing the guidance above, EPA

intends the requirements in today’s rule

to be consistent with the permit

application requirements for large MS4s

for post-construction controls for new

development and redevelopment. MS4

operators have significant flexibility

both to develop this measure as

appropriate to address local concerns,

and to apply new control technologies

as they become available. Storm water

pollution control technologies are

constantly being improved. EPA

recommends that MS4s be responsive to

these changes, developments or

improvements in control technologies.

EPA will provide more detailed

guidance addressing the responsibility

for long-term O&M of storm water

controls in guidance materials. The

guidance will also provide information

on appropriate planning considerations,

structural controls and non-structural

controls. EPA also intends to develop a

broad menu of BMPs as guidance to

ensure flexibility to accommodate local

conditions.

EPA received comments suggesting

that requirements for new development

be treated separately from

redevelopment in the rule. The

comment stressed that new

development on raw land presents

fewer obstacles and more opportunities

to incorporate elements for preventing

water quality impacts, whereas

redevelopment projects are constrained

by space limitations and existing

infrastructure. Another comment

suggested allowing waivers from the

redevelopment requirements if the

redevelopment does not result in

additional adverse water quality

impacts, and where BMPs are not

technologically or economically

feasible. EPA recognizes that

redevelopment projects may have more

site constraints which narrow the range

of appropriate BMPs. Today’s rule

provides small MS4 operators with the

flexibility to develop requirements that

may be different for redevelopment

projects, and may also include

allowances for alternate or off-site BMPs

at certain redevelopment projects. Nonstructural BMPs may be the most

appropriate approach for smaller

redevelopment projects.

EPA received comments requesting

clarification on what is meant by ‘‘predevelopment’’ conditions within the

context of redevelopment. Predevelopment refers to runoff conditions

that exist onsite immediately before the

planned development activities occur.

Pre-development is not intended to be

interpreted as that period before any

human-induced land disturbance

activity has occurred.

EPA received comments on the

guidance language in the proposed rule

and preamble which suggest that

implementation of this measure should

‘‘attempt to maintain pre-development

runoff conditions’’ and that ‘‘postdevelopment conditions should not be

different than pre-development

conditions in a way that adversely

affects water quality.’’ Many comments

expressed concern that maintaining predevelopment runoff conditions is

impossible and cost-prohibitive, and

objected to any reference to ‘‘flow’’ or

increase in volume of runoff. Other

comments support the inclusion of this

language in the final rule. Similar

references in today’s rule relating to predevelopment runoff conditions are

intended as recommendations to

attempt to maintain pre-development

runoff conditions. With these

recommendations, EPA intends to

prevent water quality impacts resulting

from increased discharges of pollutants,

which may result from increased

volume of runoff. In many cases,

consideration of the increased flow rate,

velocity and energy of storm water

discharges following development

unavoidably must be taken into

consideration in order to reduce the

discharge of pollutants, to meet water

quality standards and to prevent

degradation of receiving streams. EPA

recommends that municipalities

consider these factors when developing

their post-construction storm water

management program.

Some comments said that the quoted

phrases in the paragraph above are

directives that imply federal land use

control, which they argue is beyond the

authority of the CWA. EPA recognizes

that land use planning is within the

authority of local governments.

EPA disagrees, however, with the

implication that today’s rule dictates

any such land use decisions. The

requirement for small MS4 operators to

develop a program to address discharges

resulting from new development and

redevelopment is essentially a pollution

prevention measure. The Rule provides

the MS4 operator with flexibility to

determine the appropriate BMPs to

address local water quality concerns.

EPA recognizes that these program goals

may not be applied to every site, and

expects that MS4s will develop an

appropriate combination of BMPs to be

applied on a site-by-site, regional or

watershed basis.

vi. Pollution Prevention/Good

Housekeeping for Municipal

Operations. Under today’s final rule,

operators of MS4s must develop and

implement an operation and

maintenance program (‘‘program’’) that

includes a training component and has

the ultimate goal of preventing or

reducing storm water from municipal

operations (in addition to those that

constitute storm water discharges

associated with industrial activity). This

measure’s emphasis on proper O&M of

MS4s and employee training, as

opposed to requiring the MS4 to

undertake major new activities, is meant

to ensure that municipal activities are

performed in the most efficient way to

minimize contamination of storm water

discharges.

The program must include

government employee training that

addresses prevention measures

pertaining to municipal operations such

as: parks, golf courses and open space

maintenance; fleet maintenance; new

construction or land disturbance;

building oversight; planning; and storm

water system maintenance. The program

can use existing storm water pollution

prevention training materials provided

by the State, Tribe, EPA, or

environmental, public interest, or trade

organizations.

EPA also encourages operators of

MS4s to consider the following in

developing a program: (1) Implement

maintenance activities, maintenance

schedules, and long-term inspection

procedures for structural and nonstructural storm water controls to

reduce floatables and other pollutants

discharged from the separate storm

sewers; (2) implement controls for

reducing or eliminating the discharge of

pollutants from streets, roads, highways,

municipal parking lots, maintenance

and storage yards, waste transfer

stations, fleet or maintenance shops

with outdoor storage areas, and salt/

sand storage locations and snow

disposal areas operated by the MS4; (3)

adopt procedures for the proper

disposal of waste removed from the

separate storm sewer systems and areas

listed above in (2), including dredge

68762 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

spoil, accumulated sediments,

floatables, and other debris; and (4)

adopt procedures to ensure that new

flood management projects are assessed

for impacts on water quality and

existing projects are assessed for

incorporation of additional water

quality protection devices or practices.

Ultimately, the effective performance of

the program measure depends on the

proper maintenance of the BMPs, both

structural and non-structural. Without

proper maintenance, BMP performance

declines significantly over time.

Additionally, BMP neglect may produce

health and safety threats, such as

structural failure leading to flooding,

undesirable animal and insect breeding,

and odors. Maintenance of structural

BMPs could include: replacing upper

levels of gravel; dredging of detention

ponds; and repairing of retention basin

outlet structure integrity. Maintenance

of non-structural BMPs could include

updating educational materials

periodically.

EPA emphasizes that programs should

identify and incorporate existing storm

water practices and training, as well as

non-storm water practices or programs

that have storm water pollution

prevention benefits, as a means to avoid

duplication of efforts and reduce overall

costs. EPA recommends that MS4s

incorporate these new obligations into

their existing programs to the greatest

extent feasible and urges States to

evaluate MS4 programs with

programmatic efficiency in mind. EPA

designed this minimum control measure

as a modified version of the permit

application requirements for medium

and large MS4s described at 40 CFR

122.26(d)(2)(iv), in order to provide

more flexibility for these smaller MS4s.

Today’s requirements provide for a

consistent approach to control

pollutants from O&M among medium,

large, and regulated small MS4s.

By properly implementing a program,

operators of MS4s serve as a model for

the rest of the regulated community.

Furthermore, the establishment of a

long-term program could result in cost

savings by minimizing possible damage

to the system from floatables and other

debris and, consequently, reducing the

need for repairs.

EPA received comments requesting

clarification of what this measure

requires. Certain municipalities

expressed concern that the measure has

the potential to impose significant costs

associated with EPA’s requirement that

operators of MS4s consider

implementing controls for reducing or

eliminating the discharge of pollutants

from streets, roads, highways, municipal

parking lots, and salt/sand storage

locations and snow disposal areas

operated by the municipality. EPA

disagrees that a requirement to consider

such controls will impose considerable

costs.

One commenter objected to the

preamble language from the proposal

suggesting that EPA does not expect the

MS4 to undertake new activity. While it

remains the Agency’s expectation that

major new activity will not be required,

the MEP process should drive MS4s to

incorporate the measure’s obligations

into their existing programs to achieve

the pollutant reductions to the

maximum extent practicable.

Certain commenters requested a

definition for ‘‘municipal operations.’’

EPA has revised the language to more

clearly define municipal operations.

Questions may remain concerning

whether discharges from specific

municipal activities constitute

discharges associated with industrial

activities (requiring NPDES permit

authorization according to the

requirements for industrial storm water

that apply in that State) or from

municipal operations (subject only to

the controls developed in the MS4

control program). Even though there

may be different substantive

requirements that apply depending on

the source of the discharge, EPA has

modified the deadlines for permit

coverage so that all the regulated

municipally owned and operated

sources become subject to permit

requirements on the same date. The

deadline is the same for permit coverage

for this minimum measure as for permit

coverage for municipally owned/

operated industrial sources.

c. Application Requirements

An NPDES permit that authorizes the

discharge from a regulated small MS4

may take the form of either an

individual permit issued to one or more

facilities as co-permittees or a general

permit that applies to a group of MS4s.

For reasons of administrative efficiency

and to reduce the paperwork burden on

permittees, EPA expects that most

discharges from regulated small MS4s

will be authorized under general

permits. These NPDES general permits

will provide specific instructions on

how to obtain coverage, including

application requirements. Typically,

such application requirements will be

satisfied by the submission of a Notice

of Intent (NOI) to be covered by the

general permit. In this section, EPA

explains the small MS4 operator’s

application requirements for obtaining

coverage under a NPDES permit for

storm water.

i. Best Management Practices and

Measurable Goals, Section 122.34(d) of

today’s rule requires the operator of a

regulated small MS4 that wishes to

implement a program under § 122.34 to

identify and submit to the NPDES

permitting authority a list of the best

management practices (‘‘BMPs’’) that

will be implemented for each minimum

control measure in their storm water

management program. They also must

submit measurable goals for the

development and implementation of

each BMP. The BMPs and the

measurable goals must be included

either in an NOI to be covered under a

general permit or in an individual

permit application.

The operator’s submission must

identify, as appropriate, the months and

years in which the operator will

undertake actions required to

implement each of the minimum control

measures, including interim milestones

and the frequency of periodic actions.

The Agency revised references to

‘‘starting and completing’’ actions from

the proposed rule because many actions

will be repetitive or ongoing. The

submission also must identify the

person or persons responsible for

implementing or coordinating the small

MS4 storm water program. See

§ 122.34(d). The submitted BMPs and

measurable goals become enforceable

according to the terms of the permit.

The first permit can allow the permittee

up to five years to fully implement the

storm water management program.

Several commenters opposed making

the measurable goals enforceable permit

conditions. Some suggested that a

permittee should be able to change its

goals so that BMPs that are not

functioning as intended can be replaced.

EPA agrees that a permittee should be

free to switch its BMPs and

corresponding goals to others that

accomplish the minimum measure or

measures. The permittee is required to

implement BMPs that address the

minimum measures in § 122.34(b). If the

permittee determines that its original

combination of BMPs are not adequate

to achieve the objectives of the

municipal program, the MS4 should

revise its program to implement BMPs

that are adequate and submit to the

permitting authority a revised list of

BMPs and measurable goals. EPA

suggests that permits describe the

process for revising BMPs and

measurable goals, such as whether the

permittee should follow the same

procedures as were required for the

submission of the original NOI and

whether the permitting authority’s

approval is necessary prior to the

permittee implementing the revised

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68763

BMPs. The permittee should indicate on

its periodic report whether any BMPs

and measurable goals have been revised

since the last periodic report.

Some commenters expressed concern

that making the measurable goals

enforceable would encourage the

development of easily attained goals

and, conversely, discourage the setting

of ambitious goals. Others noted that it

is often difficult to determine the

pollutant reduction that can be achieved

by BMPs until several years after

implementation. Much of the opposition

to the enforceability of measurable goals

appears to have been based on a

mistaken understanding that measurable

goals must consist of pollutant

reduction targets to be achieved by the

corresponding BMPs.

Today’s rule requires the operator to

submit either measurable goals that

serve as BMP design objectives or goals

that quantify the progress of

implementation of the actions or

performance of the permittee’s BMPs. At

a minimum, the required measurable

goals should describe specific actions

taken by the permittee to implement

each BMP and the frequency and the

dates for such actions. Although the

operator may choose to do so, it is not

required to submit goals that measure

whether a BMP or combination of BMPs

is effective in achieving a specific result

in terms of storm water discharge

quality. For example, a measurable goal

might involve a commitment to inspect

a given number of drainage areas of the

collection system for illicit connections

by a certain date. The measurable goal

need not commit to achieving a specific

amount of pollutant reduction through

the elimination of illicit connections.

Other measurable goals could include

the date by which public education

materials would be developed, a certain

percentage of the community

participating in a clean-up campaign,

the development of a mechanism to

address construction site runoff, and a

reduction in the percentage of

imperviousness associated with new

development projects.

To reduce the risk that permittees will

develop inadequate BMPs, EPA intends

to develop a menu of BMPs to assist the

operators of regulated small MS4s with

the development of municipal

programs. States may also develop a

menu of BMPs. Today’s rule provides

that the measurable goals that

demonstrate compliance with the

minimum control measures in §§ 122.34

(b)(3) through (b)(6) do not have to be

met if the State or EPA has not issued

a menu of BMPs at the time the MS4

submits its NOI. Commenters pointed

out that the proposed rule would have

made the measurable goals

unenforceable if the menu of BMPs was

not available, but the proposal was

silent as to the enforceability of the

implementation of BMPs. Today’s rule

clarifies that the operators are not free

to do nothing prior to the issuance of a

menu of BMPs; they still must make a

good faith effort to implement the BMPs

designed to comply with each measure.

See § 122.34(d)(2). The operators would

not, however, be liable for failure to

meet its measurable goals if a menu of

BMPs was not available at the time they

submit their NOI.

The proposed rule provision in

§ 123.35 stated that the ‘‘[f]ailure to

issue the menu of BMPs would not

affect the legal status of the general

permit.’’ This concept is included in the

final rule in § 122.34(d)(2)’s clarification

that the permittee still must comply

with other requirements of the general

permit.

Unlike the proposed rule, today’s rule

does not require that each BMP in the

menu developed by the State or EPA be

regionally appropriate, cost-effective

and field-tested. Various commenters

criticized those criteria as unworkable,

and one described them as ‘‘ripe for

ambiguity and abuse.’’ Other

commenters feared that the operators of

regulated small MS4s would never be

required to achieve their goals until

menus were developed that were costeffective, field-tested and appropriate

for every conceivable subregion.

While some municipal commenters

supported the requirement that a menu

of BMPs be made available that

included BMPs that had been

determined to be regionally appropriate,

field-tested and cost-effective, others

raised concerns that they would be

restricted to a limited menu. Some

commenters supported such a detailed

menu because they thought they would

only be able to select BMPs that were on

the menu, while others thought that it

was the permitting authority’s

responsibility to develop BMPs

narrowly tailored to their situation. In

response, EPA notes that the operators

will not be restricted to implementing

only, or all of, the BMPs included on the

menu. Since the menu does not require

permittees to implement the BMPs

included on the menu, it is also not

necessary to apply the public notice and

other procedures that some commenters

thought should be applied to the

development of the menu of BMPs.

The purpose of the BMP menu is to

provide guidance to assist the operators

of regulated small MS4s with the

development and refinement of their

local program, not to limit their options.

Permittees may implement BMPs other

than those on the menu unless a State

restricts its permittees to specific BMPs.

To the extent possible, EPA will

develop a menu of BMPs that describes

the appropriateness of BMPs to specific

regions, whether the BMPs have been

field-tested, and their approximate

costs. The menu, however, is not

intended to relieve permittees of the

need to implement BMPs that are

appropriate for their specific

circumstances.

If there are no known relevant BMPs

for a specific circumstance, a permittee

has the option of developing and

implementing pilot BMPs that may be

better suited to their circumstances.

Where BMPs are experimental, the

permittee should consider committing

to measurable goals that address its

schedule for implementing its selected

BMPs rather than goals of achieving

specific pollutant reductions. If the

BMPs implemented by the permittee do

not achieve the desired objective, the

permittee may be required to commit to

different or revised BMPs.

As stated in § 123.35(g), EPA is

committed to issuing a menu of BMPs

prior to the deadline for the issuance of

permits. This menu would serve as

guidance for all operators of regulated

small MS4s nationwide. After

developing the initial menu of BMPs,

EPA intends to periodically modify,

update, and supplement the menu of

BMPs based on the assessments of the

MS4 storm water program and research.

States may rely on EPA’s menu of BMPs

or issue their own. If States develop

their own menus, they would constitute

additional guidance (or perhaps

requirements in some States) for the

operators to follow. Several commenters

were confused by the proposed rule

language that stated that States must

provide or issue a menu of BMPs and,

if they fail to do so, EPA ‘‘may’’ do so.

Some read this language as not requiring

either EPA or the State to develop the

menu. EPA had intended that it would

develop a menu and that States could

either provide the EPA developed menu

or one developed by the State.

EPA has dropped the proposed

language that States ‘‘must’’ develop the

menu of BMPs. Some commenters

thought that it was inappropriate to

require States to issue guidance. A

menu of BMPs issued by either EPA or

a permittee’s State will satisfy the

condition in § 122.34(d) that a

regulatory authority provide a menu of

BMPs. A State could require its

permittees to follow its menu of BMPs

provided that they are adequate to

implement § 122.34(b).

Several commenters raised concerns

that operators of small MS4s could be

68764 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

required to submit their BMPs and

measurable goals before EPA or the

State has issued a menu of BMPs. EPA

has assumed primary responsibility for

developing a menu of BMPs to

minimize the possibility of this

occurring. Should a general permit be

issued before a menu of BMPs is

available, the permit writer would have

the option of delaying the date by which

the identification of the BMPs and

measurable goals must be submitted to

the permitting authority until some time

after a menu of BMPs is available.

Several municipal commenters raised

concerns that they would begin to

develop a program only to be later told

by the permitting authority or

challenged in a citizen suit that their

BMPs were inadequate. They expressed

a need for certainty regarding what their

permit required. Several commenters

suggested that EPA require permitting

authorities to approve or disapprove the

submitted BMPs and measurable goals.

EPA disagrees that formal approval or

disapproval by the permitting authority

is needed.

EPA acknowledges that the lack of a

formal approval process does place on

the permittee some responsibility for

designing and determining the adequacy

of its BMPs. Once the permittee has

submitted its BMPs to the permitting

authority as part of its NOI, it must

implement them in order to achieve the

corresponding measurable goals. EPA

does not believe that this results in the

uncertainty to the extent expressed by

some commenters or unduly expose the

permittee to the risk of citizen suit. If

the permit is very specific regarding

what the permittee must do, then the

uncertainty is eliminated. If the permit

is less prescriptive, the permittee has

greater latitude in determining for itself

what constitutes an adequate program.

A citizen suit could impose liability on

the permittee only if the program that it

develops and implements clearly does

not satisfy the requirements of the

general permit. EPA believes today’s

approach strikes a balance between the

competing goals of providing certainty

as to what constitutes an adequate

program and providing flexibility to the

permittees.

Commenters were divided on whether

five years was a reasonable and

expeditious schedule for a MS4 to

implement its program. Some thought

that it was an appropriate amount of

time to allow for the development and

implementation of adequate programs.

One questioned whether the permittee

had to be implementing all of its

program within that time, and suggested

that there may be cases where a

permitting authority would need

flexibility to allow more time. One

commenter suggested that five years is

too long and would amount to a

relaxation of implementation in their

area. EPA believes it will take

considerable time to complete the tasks

of initially developing a program,

commencing to implement it, and

achieving results. EPA notes, however,

that full implementation of an

appropriate program must occur as

expeditiously as possible, and not later

than five years.

EPA solicited comment on how an

NOI form might best be formatted to

allow for measurable goal information

(e.g., through the use of check boxes or

narrative descriptions) while taking into

account the Agency’s intention to

facilitate computer tracking. All

commenters supported the development

of a checklist NOI, but most noted that

there would need to be room for

additional information to cover unusual

situations. One noted that, while a

summary of measurable goals might be

reduced to one sheet, attachments that

more fully described the program and

the planned BMPs would be necessary.

EPA agrees that in most cases a

‘‘checklist’’ will not be able to capture

the information on what BMPs a

permittee intends to implement and its

measurable goals for their

implementation. EPA will continue to

consider whether to develop a model

NOI form and make it available for

permitting authorities that choose to use

it. What will be required on an MS4’s

NOI, however, is more extensive than

what is usually required on an NOI, so

a ‘‘form’’ NOI for MS4s may be

impractical.

ii. Individual Permit Application for a

§ 122.34(b) program. In some cases, an

operator of a regulated small MS4s may

seek coverage under an individual

NPDES permit, either because it chooses

to do so or because the NPDES

permitting authority has not made the

general permit option available to that

source. For small MS4s that are to

implement a § 122.34(b) program in

today’s rule, EPA is promulgating

simplified individual permit application

requirements at § 122.33(b)(2)(i). Under

the simplified individual permit

application requirements, the operator

submits an application to the NPDES

permitting authority that includes the

information required under § 122.21(f)

and an estimate of square mileage

served by the small MS4. They are also

required to supply the BMP and

measurable goal information required

under § 122.34(d). Consistent with CWA

section 308 and analogous State law, the

permitting authority could request any

additional information to gain a better

understanding of the system and the

areas draining into the system.

Commenters suggested that the

requirements of § 122.21(f) are not

necessarily applicable to a small MS4.

One suggested that it was not

appropriate to require the following

information: a description of the

activities conducted by the applicant

which require it to obtain an NPDES

permit; the name, mailing address, and

location of the facility; and up to four

Standard Industrial Classification

(‘‘SIC’’) codes which best reflect the

principal products or services provided

by the facility. In response, EPA notes

that the requirements in § 122.21(f) are

generic application requirements

applicable to NPDES applicants. With

the exception of the SIC code

requirement, EPA believes that they are

applicable to MS4s. In the SIC code

portion of the standard application, the

applicant may simply put ‘‘not

applicable.’’

One commenter asked that EPA

clarify whether § 122.21(f)(5)’s

requirement to indicate ‘‘whether the

facility is located on Indian lands,’’

referred to tribal lands, Indian country,

or Indian reservations. For some local

governments this is a complex issue

with no easy ‘‘yes’’ or ‘‘no’’ answer. See

the discussion in the Section II.F in the

proposal to today’s rule regarding what

tribal lands are subject to the federal

trust responsibility for purposes of the

NPDES program.

One commenter suggested that the

application should not have to list the

permits and approvals required under

§ 122.21(f)(6). EPA notes that the

applicant must only list the

environmental permits that the

applicant has received that cover the

small MS4. The applicant is not

required to list permits for other

operations conducted by the small MS4

operator (e.g., for an operation of an

airport or landfill). Again, in most cases

the applicant could respond ‘‘not

applicable’’ to this portion of the

application.

One commenter suggested that the

topographic map requirement of

§ 122.21(f)(7) was completely different

from, and significantly more onerous

than, the mapping requirement outlined

in the proposed rule at § 122.34(b)(3)(i).

EPA agrees and has modified the final

rule to clarify that a map that satisfies

the requirements of § 122.34(b)(3)(i) also

satisfies the map requirements for MS4

applicants seeking individual permits

under § 122.33(b)(2)(i).

EPA is adding a new paragraph to

§ 122.44(k) to clarify that requirements

to implement BMPs developed pursuant

to CWA 402(p) are appropriate permit

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68765

conditions. While such conditions

could be included under the existing

provision in § 122.44(k)(3) for ‘‘practices

reasonably necessary to achieve effluent

limitations and standards or to carry out

the purposes and intent of the CWA,’’

EPA believes it is clearer to specifically

list in § 122.44(k) BMPs that implement

storm water programs in light of the

frequency with which they are used as

effluent limitations.

iii. Alternative Permit Options/Tenth

Amendment. As an alternative to

implementing a program that addresses

each of the six minimum measures

according to the requirements of

§ 122.34(b), today’s rule provides the

operators of regulated small MS4s with

the option of applying for an individual

permit under existing § 122.26(d). See

§ 122.33(b)(2)(ii). If a system operator

does not want to be held accountable for

implementation of each of the minimum

measures, an individual permit option

under § 122.33(b)(2)(ii) remains

available. (As explained in the next

section of this preamble, § 122.35(b) also

provides an opportunity for relief from

permit obligations for some of the

minimum measures, but that relief

exists within the framework of the

minimum measures.)

EPA originally drafted the individual

permit application requirements in

§ 122.26(d) to apply to medium and

large MS4s. Today’s rule abbreviates the

individual permit application

requirements for small MS4s. Although

EPA believes that the storm water

management program requirements of

§ 122.34, including the minimum

measures, provide the most appropriate

means to control pollutants from most

small MS4s, the Agency does recognize

that the operators of some small MS4s

may prefer more individualized permit

requirements. Among other possible

reasons, an operator may seek to avoid

having to ‘‘regulate’’ third parties

discharging into the separate storm

sewer system. Alternatively, an operator

may determine that structural controls,

such as constructed wetlands, are more

appropriate or effective to address the

discharges that would otherwise be

addressed under the construction and/

or development/redevelopment

measures.

Some MS4s commenters alleged that

an absolute requirement to implement

the minimum measures violates the

Tenth Amendment to the U.S.

Constitution. While EPA disagrees that

requiring MS4s to implement the

minimum measures would violate the

Constitution, today’s rule does provide

small MS4s with the option of

developing more individualized

measures to reduce the pollutants and

pollution associated with urban storm

water that will be regulated under

today’s rule.

Some commenters specifically

objected that § 122.34’s minimum

measures for small MS4s violate the

Tenth Amendment insofar as they

require the operators of MS4s to regulate

third parties. The minimum measures

include requirements for small MS4

operators to prohibit certain non-storm

water discharges, control storm water

discharges from construction greater

than one acre, and take other actions to

control third party sources of storm

water discharges into their MS4s.

Commenters also argued that it was

inappropriate for EPA to require local

governments to enact ordinances that

will consume local revenues and put

local governments in the position of

bearing the political responsibility for

implementing the program. One

commenter argued that EPA was

prohibited from conditioning the

issuance of an NPDES permit upon the

small MS4 operators waiving their

constitutional right to be free from such

requirements to regulate third parties.

The Agency replies to each comment in

turn.

Because the rule does rely on local

governments—who operate municipal

separate storm sewer systems—to

regulate discharges from third parties

into storm sewers, EPA acknowledges

that the rule implicates the Tenth

Amendment and constitutional

principles of federalism. EPA disagrees,

however, that today’s rule is

inconsistent with federalism principles.

[As political subdivisions of States,

municipalities enjoy the same

protections as States under the Tenth

Amendment.]

The Supreme Court has interpreted

the Tenth Amendment to preclude

federal actions that compel States or

their political subdivisions to enact or

administer a federal regulatory program.

See New York v. United States, 505 U.S.

144 (1992); Printz v. United States, 117

S.Ct. 2365 (1997). The Printz case,

however, did acknowledge that the

restriction does not apply when federal

requirements of general applicability—

requirements that regulate all parties

engaging in a particular activity—do not

excessively interfere with the

functioning of State governments when

those requirements are applied to States

(or their political subdivisions). See

Printz, 117 S.Ct. at 2383.

Today’s rule imposes a federal

requirement of general applicability,

namely, the requirement to obtain and

comply with an NPDES permit, on

municipalities that operate a municipal

separate storm sewer system. By virtue

of this rule, the permit will require the

municipality/storm sewer operator to

develop a storm water control program.

The rule specifies the components of the

control program, which are primarily

‘‘management’-type controls, for

example, municipal regulation of third

party storm water discharges associated

with construction, as well as

development and redevelopment, when

those discharges would enter the

municipal system.

Unlike the circumstances reviewed in

the New York and Printz cases, today’s

rule merely applies a generally

applicable requirement (the CWA

permit requirement) to municipal point

sources. The CWA establishes a

generally applicable requirement to

obtain an NPDES permit to authorize

point source discharge to waters of the

United States. Because municipalities

own and operate separate storm sewers,

including storm sewers into which third

parties may discharge pollutants,

NPDES permits may require

municipalities to control the discharge

of pollutants into the storm sewers in

the first instance. Because NPDES

permits can impose end-of-pipe

numeric effluent limits, narrative

effluent limits in the form of

‘‘management’’ program requirements

are also within the scope of Clean Water

Act authority. As noted above, however,

EPA believes that such narrative

limitations are the most appropriate

form of effluent limitation for these

types of permits. For municipal separate

storm sewer permits, CWA section

402(p)(3)(B)(iii) specifically authorizes

‘‘controls to reduce pollutants to the

maximum extent practicable, including

management practices, control

techniques and system, design and

engineering methods, and such other

provisions as the Administrator or the

State determines appropriate for the

control of such pollutants.’’

The Agency did not design the

minimum measures in § 122.34 to

‘‘commandeer’’ state regulatory

mechanisms, but rather to reduce

pollutant discharges from small MS4s.

The permit requirement in CWA section

402 is a requirement of general

applicability. The operator of a small

MS4 that does not prohibit and/or

control discharges into its system

essentially accepts ‘‘title’’ for those

discharges. At a minimum, by providing

free and open access to the MS4s that

convey discharges to the waters of the

United States, the municipal storm

sewer system enables water quality

impairment by third parties. Section

122.34 requires the operator of a

regulated small MS4 to control a third

68766 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

party only to the extent that the MS4

collection system receives pollutants

from that third party and discharges it

to the waters of the United States. The

operators of regulated small MS4s

cannot passively receive and discharge

pollutants from third parties. The

Agency concedes that administration of

a municipal program will consume

limited local revenues for

implementation; but those

consequences stem from the municipal

operator’s identity as a permitted sewer

system operator. The Tenth Amendment

does not create a blanket municipal

immunity from generally applicable

requirements. Development of a

program based on the minimum

measures and implementation of that

program should not ‘‘excessively

interfere’’ with the functioning of

municipal government, especially given

the ‘‘practicability’’ threshold under

CWA section 402(p)(3)(B)(iii).

As noted above, today’s rule also

allows regulated small MS4s to opt out

of the minimum measures approach.

The individual permit option provides

for greater flexibility in program

implementation and also responds to

the comment about requiring a

municipal permit applicant’s waiver of

any arguable constitutional rights. The

individual permit option responds to

questions about the rule’s alleged

unconstitutionality by more specifically

focusing on the pollutants discharged

from municipal point sources. Today’s

rule gives operators of MS4s the option

to seek an individual permit that varies

from the minimum measures/

management approach that is otherwise

specified in today’s rule. Even if the

minimum measures approach was

constitutionally suspect, a requirement

that standing alone would violate

constitutional principles of federalism

does not raise concerns if the entity

subject to the requirement may opt for

an alternative action that does not raise

a federalism issue.

For municipal system operators who

seek to avoid third party regulation

according to all or some of the

minimum measures, § 122.26(d)

requires the operator to submit a

narrative description of its storm water

sewer system and any existing storm

water control program, as well as the

monitoring data to enable the permit

writer to develop appropriate permit

conditions. The permit writer can then

develop permit conditions and

limitations that vary from the six

minimum measures prescribed in

today’s rule. The information will

enable the permit writer to develop an

NPDES permit that will result in

pollutant reduction to the maximum

extent practicable. See NRDC v. EPA,

966 F.2d at 1308, n17. If determined

appropriate under CWA section

402(p)(3)(B)(iii), for example BMPs to

meet water quality standards, the permit

could also incorporate any more

stringent or prescriptive effluent limits

based on the individual permit

application information.

For small MS4 operators seeking an

individual permit, both Part 1 and Part

2 of the application requirements in

§ 122.26(d)(1) and (2) are required to be

submitted within 3 years and 90 days of

the date of publication of this Federal

Register notice. Some of the information

required in Part 1 will necessarily have

to be developed by the permit applicant

prior to the development of Part 2 of the

application. The permit applicant

should coordinate with its permitting

authority regarding the timing of review

of the information.

The operators of regulated small MS4s

that apply under § 122.26(d) may apply

to implement certain of the § 122.34(b)

minimum control measures, and thereby

focus the necessary evaluation for

additional limitations on alternative

controls to the § 122.34(b) measures that

the small MS4 will not implement. The

permit writer may determine

‘‘equivalency’’ for some or all of the

minimum measures by developing a

rough estimate of the pollutant

reduction that would be achieved if the

MS4 implemented the § 122.34

minimum measure and to incorporate

that pollutant reduction estimate in the

small MS4’s individual permit as an

effluent limitation. The Agency

recognizes that, based on current

information, any such estimates will

probably have a wide range.

Anticipation of this wide range is one of

the reasons EPA believes MS4 operators

need flexibility in determining the mix

of BMPs (under the minimum measures)

to achieve water quality objectives.

Therefore, for example, if a system

operator seeks to employ an alternative

that involves structural controls, wide

ranges will probably be associated with

gross pollutant reduction estimates.

Permit writers will undoubtedly

develop other ways to ensure that

permit limits ensure reduction of

pollutants to the maximum extent

practicable.

Small MS4 operators that pursue this

individual permit option do not need to

submit details about their future

program requirements (e.g., the MS4’s

future plans to obtain legal authority

required by §§ 122.26(d)(1)(ii) and

(d)(2)). A small MS4 operator might

elect to supply such information if it

intends for the permit writer to take

those plans into account when

developing the small MS4’s permit

conditions.

Several operators of small MS4s

commented that they currently lacked

the authority they would need to

implement one or more of the minimum

measures in § 122.34(b). Today’s rule

recognizes that the operators of some

small MS4s might not have the

authority under State law to implement

one or more of the measures using, for

example, an ordinance or other

regulatory mechanism. To address these

situations, each minimum measure in

§ 122.34(b) that would require the small

MS4 operator to develop an ordinance

or other regulatory mechanism states

that the operator is only required to

implement that requirement to ‘‘the

extent allowable under State, Tribal or

local law.’’ See § 122.34(b)(3)(ii) (illicit

discharge elimination), § 122.34(b)(4)(ii)

(construction runoff control) and

§ 122.34(b)(5)(ii) (post-construction

storm water management). This

regulatory language does not mean that

a operator of a small MS4 with

ordinance making authority can simply

fail to pass an ordinance necessary for

a § 122.34(b) program. The reference to

‘‘the extent allowable under * * * local

law’’ refers to the local laws of other

political subdivisions to which the MS4

operator is subject. Rather, a small MS4

operator that seeks to implement a

program under section § 122.34(b) may

omit a requirement to develop an

ordinance or other regulatory

mechanism only to the extent its

municipal charter, State constitution or

other legal authority prevents the

operator from exercising the necessary

authority. Where the operator cannot

obtain the authority to implement any

activity that is only required to ‘‘the

extent allowable under State, Tribal or

local law,’’ the operator may satisfy

today’s rule by administering the

remaining § 122.34(b) requirements.

Finally, although today’s rule

provides operators of small MS4s with

an option of applying for a permit under

§ 122.26(d), States authorized to

administer the NPDES program are not

required to provide this option. NPDESauthorized States could require all

regulated small MS4s to be permitted

under the minimum measures

management approach in § 122.34 as a

matter of State law. Such an approach

would be deemed to be equally or more

stringent than what is required by

today’s rule. See 40 CFR 123.2(i). The

federalism concerns discussed above do

not apply to requirements imposed by a

State on its political subdivisions.

iv. Satisfaction of Minimum Measure

Obligations by Another Entity. An

operator of a regulated small MS4 may

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68767

satisfy the requirement to implement

one or more of the six minimum

measures in § 122.34(b) by having a

third party implement the measure or

measures. Today’s rule provides a

variety of means for small MS4

operators to share responsibility for

different aspects of their storm water

management program. The means by

which the operators of various MS4s

share responsibility may affect who is

ultimately responsible for performance

of the minimum measure and who files

the periodic reports on the

implementation of the minimum

measure. Section 122.35 addresses these

issues. The rule describes two different

variants on third party implementation

with different consequences if the third

party fails to implement the measure.

If the permit covering the discharge

from a regulated small MS4 identifies

the operator as the entity responsible for

a particular minimum control measure,

then the operator-permittee remains

responsible for the implementation of

that measure even if another entity has

agreed to implement the control

measure. Section 122.35(a). Another

party may satisfy the operatorpermittee’s responsibility by

implementing the minimum control

measure in a manner at least as stringent

or prescriptive as the corresponding

NPDES permit requirement. If the third

party fails to do so, the operatorpermittee remains responsible for its

performance. The operator of the MS4

should consider entering into an

agreement with the third party that

acknowledges the responsibility to

implement the minimum measure. The

operator-permittee’s NOI and its annual

§ 122.34(f)(3) reports submitted to the

NPDES permitting authority must

identify the third party that is satisfying

one or more of the permit obligations.

This requirement ensures that the

permitting authority is aware which

entity is supposed to implement which

minimum measures.

If, on the other hand, the regulated

small MS4’s permit recognizes that an

NPDES permittee other than the

operator-permittee is responsible for a

particular minimum control measure,

then the operator-permittee is relieved

from the responsibility for

implementing that measure. The

operator-permittee is also relieved from

the responsibility for implementing any

measure that the operator’s permit

indicates will be performed by the

NPDES permitting authority. Section

122.35(b). The MS4 operator-permittee

would be responsible for implementing

the remaining minimum measures.

Today’s final rule differs from the

proposed version of § 122.35(b), which

stated that, even if the third party’s

responsibility is recognized in the

permit, the MS4 operator-permittee

remained responsible for performance if

the third party failed to perform the

measure consistent with § 122.34(b).

Under today’s rule, the operatorpermittee is relieved from responsibility

for performance of a measure if the third

party is an NPDES permittee whose

permit makes it responsible for

performance of the measure (including,

for example, a State agency other than

the State agency that issues NPDES

permits) or if the third party is the

NPDES permitting authority itself.

Because the permitting authority is

acknowledging the third party’s

responsibility in the permit,

commenters thought that the MS4

operator-permittee should not be

responsible for ensuring that the other

entity is implementing the control

measure properly. EPA agrees that the

operator-permittee should not be

conditionally responsible when the

requirements are enforceable against

some other NPDES permittee. If the

third party fails to perform the

minimum measure, the requirements

will be enforceable against the third

party. In addition, the NPDES

permitting authority could reopen the

operator-permittee’s permit under

§ 122.62 and modify the permit to make

the operator responsible for

implementing the measure. A new

paragraph has been added to § 122.62 to

clarify that the permit may be reopened

in such circumstances.

Today’s rule also provides that the

operator-permittee is not conditionally

responsible where it is the State NPDES

permitting authority itself that fails to

implement the measure. The permitting

authority does not need to issue a

permit to itself (i.e., to the same State

agency that issues the permit) for the

sole purpose of relieving the small MS4

from responsibility in the event the

State agency does not satisfy its

obligation to implement a measure. EPA

does not believe that the small MS4

should be responsible in the situation

where the NPDES permit issued to the

small MS4 operator recognizes that the

State agency that issues the permit is

responsible for implementing a

measure. If the State does fail to

implement the measure, the State

agency could be held accountable for its

commitment in the permit to implement

the measure. Where the State does not

fulfill its responsibility to implement a

measure, a citizen also could petition

for withdrawal of the State’s NPDES

program or it could petition to have the

MS4’s permit reopened to require the

MS4 operator to implement the

measure.

EPA notes that not every State

program that addresses erosion and

sediment control from construction sites

will be adequate to satisfy the

requirement that each regulated small

MS4 have a program to the extent

required by § 122.34(b)(4). For example,

although all NPDES States are required

to issue NPDES permits for construction

activity that disturbs greater than one

acre, the State’s NPDES permit program

will not necessarily be extensive enough

to satisfy a regulated small MS4’s

obligation under § 122.34(b)(4). NPDES

States will not necessarily be

implementing all of the required

elements of that minimum measure,

such as procedures for site plan review

in each jurisdiction required to develop

a program and procedures for receipt

and consideration of information

submitted by the public on individual

construction sites. In order for a State

erosion and sediment control program

to satisfy a small MS4 operator’s

obligation to implement § 122.34(b)(4),

the State program would have to

include all of the elements of that

minimum measure.

Where the operator-permittee is itself

performing one or more of the minimum

measures, the operator-permittee

remains responsible for all of the

reporting requirements under

§ 122.34(f)(3). The operator-permittee’s

reports should identify each entity that

is performing the control measures

within the geographic jurisdiction of the

regulated small MS4. If the other entity

also operates a regulated MS4 and files

reports on the progress of

implementation of the measures within

the geographic jurisdiction of the MS4,

then the operator-permittee need not

include that same information in its

own reports.

If the other entity operates a regulated

MS4 and is performing all of the

minimum measures for the permittee,

the permittee is not required to file the

reports required by § 122.34(f)(3). This

relief from reporting is specified in

§ 122.35(a).

Section 122.35 addresses the concerns

of some commenters who sought relief

for governmental facilities that are

classified as small MS4s under today’s

rule. These facilities frequently

discharge storm water through another

regulated MS4 and could be regulated

by that MS4’s program. For example, a

State owned office complex that

operates its storm sewer system in an

urbanized area will be regulated as an

MS4 under today’s rule even though its

system may be subject to the storm

water controls of the municipality in

68768 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

which it is located. Today’s rule

specifically revised the definition of

MS4 to recognize that different levels of

government often operate MS4s and that

each such separate entity (including the

federal government) should be

responsible for its discharges. If both

MS4s agree, the downstream MS4 can

develop a storm water management

program that regulates the discharge

from both MS4s. The upstream small

MS4 operator still must submit an NOI

that identifies the entity on which the

upstream small MS4 operator is relying

to satisfy its permit obligations. No

reports are required from the upstream

small MS4 operator, but the upstream

operator must remain in compliance

with the downstream MS4 operator’s

storm water management program. This

option allows small MS4s to work

together to develop one storm water

management program that satisfies the

permit obligations of both. If they

cannot agree, the upstream small MS4

operator must develop its own program.

As mentioned previously, comments

from federal facilities and State

organizations that operate MS4s

requested that their permit requirements

differ from those of MS4s that are

political subdivisions of States (cities,

towns, counties, etc.). EPA

acknowledges that there are differences;

e.g., many federal and State facilities do

not serve a resident population and thus

might require a different approach to

public education. EPA believes,

however, that MS4s owned by State and

federal governments can develop storm

water management plans that address

the minimum measures. Federal and

State owned small MS4s may choose to

work with adjacent municipally owned

MS4s to develop a unified plan that

addresses all of the required measures

within the jurisdiction of all of the

contiguous MS4s. The options in

§ 122.35 minimize the burden on small

MS4s that are covered by another MS4’s

program.

One commenter recommended that if

one MS4 discharges into a second MS4,

the operator of the upstream MS4

should have to provide a copy of its NOI

or permit application to the operator of

the receiving MS4. EPA did not adopt

this recommendation because the NOI

and permit application will be publicly

available; but EPA does recommend that

NPDES permitting authorities consider

it as a possible permit requirement. The

commenter also suggested that

monitoring data should be collected by

the upstream MS4 and provided to the

downstream MS4. EPA is not adopting

such a uniform monitoring requirement

because EPA believes it is more

appropriate to let the MS4 operators

work out the need for such data. If

necessary, the downstream MS4s might

want to make such data a condition to

allowing the upstream MS4 to connect

to its system.

v. Joint Permit Programs. Many

commenters supported allowing the

operators of small MS4s to apply as copermittees so they each would not have

to develop their own storm water

management program. Today’s rule

specifically allows regulated small

MS4s to join with either other small

MS4s regulated under § 122.34(d) or

with medium and large MS4s regulated

under § 122.26(d).

As is discussed in the previous

section, regulated small MS4s may

indicate in their NOIs that another

entity is performing one or more of its

required minimum control measures.

Today’s rule under § 122.33(b)(1) also

specifically allows the operators of

regulated small MS4s to jointly submit

an NOI. The joint NOI must clearly

indicate which entity is required to

implement which control measure in

each geographic jurisdiction within the

service area of the entire small MS4.

The operator of each regulated small

MS4 remains responsible for the

implementation of each minimum

measure for its MS4 (unless, as is

discussed in the previous section above,

the permit recognizes that another entity

is responsible for completing the

measure.) The joint NOI, therefore, is

legally equivalent to each entity

submitting its own NOI. EPA is,

however, revising the rule language to

specifically authorize the joint

submission of NOIs in response to

comments that suggested that such

explicit authorization might encourage

programs to be coordinated on a

watershed basis.

Section 122.33(b)(2)(iii) authorizes

regulated small MS4s to jointly apply

for an individual permit to implement

today’s rule, where allowed by an

NPDES permitting authority. The permit

application should contain sufficient

information to allow the permitting

authority to allocate responsibility

among the parties under one of the two

permitting options in §§ 122.33(b)(2)(i)

and (ii).

Section 122.33(b)(3) of today’s rule

also allows an operator of a regulated

small MS4 to join as a co-permittee in

an existing NPDES permit issued to an

adjoining medium or large MS4 or

source designated under the existing

storm water program. This co-permittee

option applies only with the agreement

of all co-permittees. Under this copermittee arrangement, the operator of

the regulated small MS4 must comply

with the terms and conditions of the

applicable permit rather than the permit

condition requirements of § 122.34 of

today’s rule. The regulated small MS4

that wishes to be a co-permittee must

comply with the applicable

requirements of § 122.26(d), but would

not be required to fulfill all the permit

application requirements applicable to

medium and large MS4s. Specifically,

the regulated small MS4 is not required

to comply with the application

requirements of § 122.26(d)(1)(iii)

(Part 1 source identification), § 122.26

(d)(1)(iv) (Part 1 discharge

characterization), and § 122.26(d)(2)(iii)

(Part 2 discharge characterization data).

Furthermore, the regulated small MS4

operator could satisfy the requirements

in § 122.26(d)(1)(v) (Part 1 management

programs) and § 122.26(d)(2)(iv) (Part 2

proposed management program) by

referring to the adjoining MS4 operator’s

existing plan. An operator pursuing this

option must describe in the permit

modification request how the adjoining

MS4’s storm water program addresses or

needs to be supplemented in order to

adequately address discharges from the

MS4. The request must also explain the

role of the small MS4 operator in

coordinating local storm water activities

and describe the resources available to

accomplish the storm water

management plan.

EPA sought comments regarding the

appropriateness of the application

requirements in these subsections of

§ 122.26(d). One commenter stated that

newly regulated smaller MS4s should

not be required to meet the existing

regulations’ Part II application

requirements under § 122.26(d)

regarding the control of storm water

discharges from industrial activity. EPA

disagrees. The smaller MS4 operators

designated for regulation in today’s rule

may satisfy this requirement by

referencing the legal authority of the

already regulated MS4 program to the

extent the newly regulated MS4 will

rely on such legal authority to satisfy its

permit requirements. If the smaller MS4

operator plans to rely on its own legal

authorities, it must identify it in the

application. If the smaller MS4 operator

does not elect to use its own legal

authority, they may file an individual

permit application for an alternate

program under § 122.33(b)(2)(ii).

The explanatory language in

§ 122.33(b)(3) recommends that the

smaller MS4s designated under today’s

rule identify how an existing plan

‘‘would need to be supplemented in

order to adequately address your

discharges.’’ One commenter suggested

that this must be regulatory language

and not guidance. EPA disagrees that

this needs to be mandatory language.

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68769

Since many of the smaller MS4s

designated today are ‘‘donut holes’’

within the geographic jurisdiction of an

already regulated MS4, the larger MS4’s

program generally will be adequate to

address the newly regulated MS4’s

discharges. The small MS4 applicant

should consider the adequacy of the

existing MS4’s program to address the

smaller MS4’s water quality needs, but

EPA is not imposing specific

requirements. Where circumstances

suggest that the existing program is

inadequate with respect to the newly

designated MS4 and the applicant does

not address the issue, the NPDES

permitting authority must require that

the existing program be supplemented.

Commenters recommended that the

application deadline for smaller MS4s

designated today be extended so that

existing regulated MS4s would not have

to modify their permit in the middle of

their permit term, provided that permit

renewal would occur within a

reasonable time (12 to 18 months) of the

deadline. In response, EPA notes that

today’s rule allows operators of newly

designated small MS4s up to three years

and 90 days from the promulgation of

today’s rule to submit an application to

be covered under the permit issued to

an already regulated MS4. The

permitting authority has a reasonable

time after receipt of the application to

modify the existing permit to include

the newly designated source. If an

existing MS4’s permit is up for renewal

in the near future, the operator of a

newly designated small MS4 may take

that into account when timing its

application and the NPDES permitting

authority may take that into account

when processing the application.

Another commenter suggested that

the rule should include a provision to

allow permit application requirements

for smaller MS4s designated today to be

determined by the permitting authority

to account for the particular needs/

wants of an already regulated MS4

operator. EPA does not believe that the

regulations should specifically require

this approach. When negotiating

whether to include a newly designated

MS4 in its program, the already

regulated MS4 operator may require the

newly designated MS4’s operator to

provide any information that is

necessary.

The co-permitting approach allows

small MS4s to take advantage of existing

programs to ease the burden of creating

their own programs. The operators of

regulated small MS4s, however, may

find it simpler to apply for a program

under today’s rule, and to identify the

medium or large MS4 operator that is

implementing portions of its § 122.34(b)

minimum measures.

d. Evaluation and Assessment

Under today’s rule, operators of

regulated small MS4s are required to

evaluate the appropriateness of their

identified BMPs and progress toward

achieving their identified measurable

goals. The purpose of this evaluation is

to determine whether or not the MS4 is

meeting the requirements of the

minimum control measures. The NPDES

permitting authority is responsible for

determining whether and what types of

monitoring needs to be conducted and

may require monitoring in accordance

with State/Tribe monitoring plans

appropriate to the watershed. EPA does

not encourage requirements for ‘‘end-ofpipe’’ monitoring for regulated small

MS4s. Rather, EPA encourages

permitting authorities to carefully

examine existing ambient water quality

and assess data needs. Permitting

authorities should consider a

combination of physical, chemical, and

biological monitoring or the use of other

environmental indicators such as

exceedance frequencies of water quality

standards, impacted dry weather flows,

and increased flooding frequency.

(Claytor, R. and W. Brown. 1996.

Environmental Indicators to Assess

Storm Water Control Programs and

Practices. Center for Watershed

Protection, Silver Spring, MD.) Section

II.L., Water Quality Issues, discusses

monitoring in greater detail.

As recommended by the

Intergovernmental Task Force on

Monitoring Water Quality (ITFM), the

NPDES permitting authority is

encouraged to consider the following

watershed objectives in determining

monitoring requirements: (1) To

characterize water quality and

ecosystem health in a watershed over

time, (2) to determine causes of existing

and future water quality and ecosystem

health problems in a watershed and

develop a watershed management

program, (3) to assess progress of

watershed management program or

effectiveness of pollution prevention

and control practices, and (4) to support

documentation of compliance with

permit conditions and/or water quality

standards. With these objectives in

mind, the Agency encourages

participation in group monitoring

programs that can take advantage of

existing monitoring programs

undertaken by a variety of governmental

and nongovernental entities. Many

States may already have a monitoring

program in effect on a watershed basis.

The ITFM report is included in the

docket for today’s rule

(Intergovernmental Task Force on

Monitoring Water Quality. 1995. The

Strategy for Improving Water-Quality

Monitoring in the United States: Final

Report of the Intergovernmental Task

Force on Monitoring Water Quality.

Copies can be obtained from: U.S.

Geological Survey, Reston, VA.).

EPA expects that many types of

entities will have a role in supporting

group monitoring activities—including

federal agencies, State agencies, the

public, and various classes or categories

of point source dischargers. Some

regulated small MS4s might be required

to contribute to such monitoring efforts.

EPA expects, however, that their

participation in monitoring activities

will be relatively limited. For purposes

of today’s rule, EPA recommends that,

in general, NPDES permits for small

MS4s should not require the conduct of

any additional monitoring beyond

monitoring that the small MS4 may be

already performing. In the second and

subsequent permit terms, EPA expects

that some limited ambient monitoring

might be appropriately required for

perhaps half of the regulated small

MS4s. EPA expects that such

monitoring will only be done in

identified locations for relatively few

pollutants of concern. EPA does not

anticipate ‘‘end-of-pipe’’ monitoring

requirements for regulated small MS4s.

EPA received a wide range of

comments on this section of the rule.

Some commenters believe that EPA

should require monitoring; others want

a strong statement that the newly

regulated small MS4s should not be

required to monitor. Many commenters

raised questions about exactly what EPA

expects MS4s to do to evaluate and

assess their BMPs. EPA has

intentionally written today’s rule to

provide flexibility to both MS4s and

permitting authorities regarding

appropriate evaluation and assessment.

Permitting authorities can specify

monitoring or other means of evaluation

when writing permits. If additional

requirements are not specified, MS4s

can decide what they believe is the most

appropriate way to evaluate their storm

water management program. As

mentioned above, EPA expects that the

necessity for monitoring and its extent

may change from permit cycle to permit

cycle. This is another reason for making

the evaluation and assessment rule

requirements very flexible.

i. Recordkeeping. The NPDES

permitting authority is required to

include at least the minimum

appropriate recordkeeping conditions in

each permit. Additionally, the NPDES

permitting authority can specify that

permittees develop, maintain, and/or

68770 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

submit other records to determine

compliance with permit conditions. The

MS4 operator must keep these records

for at least 3 years but is not required

to submit records to the NPDES

permitting authority unless specifically

directed to do so. The MS4 operator

must make the records, including the

storm water management program,

available to the public at reasonable

times during regular business hours (see

40 CFR 122.7 for confidentiality

provision). The MS4 operator is also

able to assess a reasonable charge for

copying and to establish advance notice

requirements for members of the public.

EPA received a comment that

questioned EPA’s authority to require

MS4s to make their records available to

the public. EPA disagrees with the

commenter and believes that the CWA

does give EPA the authority to require

that MS4 records be available. It is also

more practical for the public to request

records directly from the MS4 than to

request them from EPA who would then

make the request to the MS4. Based on

comments, EPA revised the proposed

rule so as not to limit the time for

advance notice requirements to 2

business days.

ii. Reporting. Under today’s rule, the

operator of a regulated small MS4 is

required to submit annual reports to the

NPDES permitting authority for the first

permit term. For subsequent permit

terms, the MS4 operator must submit

reports in years 2 and 4 unless the

NPDES permitting authority requires

more frequent reports. EPA received

several comments supporting this

timing for report submittal. Other

commenters suggested that annual

reports during the first permit cycle are

too burdensome and not necessary. EPA

believes that annual reports are needed

during the first 5-year permit term to

help permitting authorities track and

assess the development of MS4

programs, which should be established

by the end of the initial term.

Information contained in these reports

can also be used to respond to public

inquiries.

The report must include (1) the status

of compliance with permit conditions,

an assessment of the appropriateness of

identified BMPs and progress toward

achieving measurable goals for each of

the minimum control measures, (2)

results of information collected and

analyzed, including monitoring data, if

any, during the reporting period, (3) a

summary of what storm water activities

the permittee plans to undertake during

the next reporting cycle, and (4) a

change in any identified measurable

goal(s) that apply to the program

elements.

The NPDES permitting authority is

encouraged to provide a brief two-page

reporting format to facilitate compiling

and analyzing the data from submitted

reports. EPA does not believe that

submittal of a brief annual report of this

nature is overly burdensome, and has

not changed the required reporting time

frame from the proposal. The permitting

authority will use the reports in

evaluating compliance with permit

conditions and, where necessary, will

modify the permit conditions to address

changed conditions.

iii. Permit-As-A-Shield. Section

122.36 describes the scope of

authorization (i.e. ‘‘permit-as-a-shield’’)

under an NPDES permit as provided by

section 402(k) of the CWA. Section

402(k) provides that compliance with an

NPDES permit is deemed compliance,

for purposes of enforcement under CWA

sections 309 and 505, with CWA

sections 301, 302, 306, 307, and 403,

except for any standard imposed under

section 307 for toxic pollutants

injurious to human health.

EPA’s Policy Statement on Scope of

Discharge Authorization and Shield

Associated with NPDES Permits,

originally issued on July 1, 1994, and

revised on April 11, 1995, provides

additional information on this matter.

e. Other Applicable NPDES

Requirements

Any NPDES permit issued to an

operator of a regulated small MS4 must

also include other applicable NPDES

permit requirements and standard

conditions, specifically the applicable

requirements and conditions at 40 CFR

122.41 through 122.49. Reporting

requirements for regulated small MS4s

are governed by § 122.34 and not the

existing requirements for medium and

large MS4s 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 II.L.1,

Water Quality Based Effluent Limits,

provides more information. 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 will be met

by the specific approach outlined in

today’s rule for the implementation of

BMPs. BMPs are the most appropriate

form of effluent limitations to satisfy

technology requirements and water

quality-based requirements in MS4

permits (see the introduction to Section

II.H.3, Municipal Permit Requirements,

Section II.H.3.h, Reevaluation of Rule,

and the discussion of the Interim

Permitting Policy in Section II.L.1.

below).

f. Enforceability

NPDES permits are federally

enforceable. Violators may be subject to

the enforcement actions and penalties

described in CWA sections 309, 504,

and 505 or under similar water

pollution enforcement provisions of

State, tribal or local law. Compliance

with a permit issued pursuant to section

402 of the Clean Water Act is deemed

compliance, for purposes of sections

309 and 505, with sections 301, 302,

306, 307, and 403 (except any standard

imposed under section 307 for toxic

pollutants injurious to human health).

g. Deadlines

Today’s final rule includes

‘‘expeditious deadlines’’ as directed by

CWA section 402(p)(6). In proposed

§ 122.26(e), the permit application for

the ‘‘ISTEA’’ facilities was maintained

as August 7, 2001 and the permit

application deadline for storm water

discharges associated with other

construction activity was established as

3 years and 90 days from the final rule

date. In proposed § 122.33(c)(1),

operators of regulated small MS4s were

required to seek permit coverage within

3 years and 90 days from the date of

publication of the final rule. In

proposed § 122.33(c)(2), operators of

regulated small MS4s designated by the

NPDES permitting authority on a local

basis under § 122.32(a)(2) must seek

coverage under an NPDES permit within

60 days of notice, unless the NPDES

permitting authority specifies a later

date.

In order to increase the clarity of

today’s final rule, EPA has changed the

location of some of the above

requirements. All application deadlines

for both Phase I and Phase II are now

listed or referenced in § 122.26(e).

Section 122.26(e)(1) contains the

deadlines for storm water associated

with industrial activity. Paragraph (i)

has been changed to correct a

typographical error. Paragraph (ii) has

been revised to reflect the changed

application date for ‘‘ISTEA’’ facilities.

(See discussion in section I.3, ISTEA

Sources). The application deadline for

storm water discharges associated with

other construction activity is now in a

new § 122.26(e)(8). The application

deadline for regulated small MS4s

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68771

remains in § 122.33(c) because this

section is written in ‘‘readable

regulation’’ format, but it is also

described in a new § 122.26(e)(9).

Under today’s rule, permitting

authorities are allowed up to 3 years to

issue a general permit and MS4s

designated under § 122.32(a)(1) are

allowed up to 3 years and 90 days to

submit a permit application. Operators

of regulated small MS4s that choose to

be a co-permittee with an adjoining MS4

with an existing NPDES storm water

permit must apply for a modification of

that permit within the same time frame.

Several commenters stated that 90 days

was not adequate time to submit an

NOI. This might be true if facilities did

not start developing their storm water

program until publication of their

general permit. In fact, municipalities

should start developing their storm

water program upon publication of

today’s final rule, if they have not

already done so. Municipalities that are

uncertain if they fall within the

urbanized area should ask their

permitting authority. EPA believes that

municipalities should not automatically

take three years and 90 days to develop

a program and submit their NOI. Three

years is the maximum amount of time

to issue a general permit. MS4s that are

automatically designated under today’s

rule may have less than 3 years and 90

days if the permitting authority issues a

permit that requires submission of NOIs

before that time. EPA encourages States

to modify their NPDES program to

include storm water and issue their

permits as soon as possible. It is

important for permitting authorities to

keep their municipalities informed of

their progress in developing or

modifying their NPDES storm water

requirements.

EPA recognizes that MS4s brought

into the program due to the 2000 Census

calculations do not have as much time

to develop a program as those already

designated from the 1990 Census.

However, the official Bureau of the

Census urbanized area calculation for

the 2000 Census is expected to be

published in the Federal Register in the

spring of 2002, which should give the

potentially affected MS4s adequate time

to prepare for compliance under the

applicable permit. However, if the

publication of this information is

delayed, MS4s in newly designated

urbanized areas will have 180 days from

the time the new designations are

published to submit an NOI, consistent

with the time frame for other regulated

MS4s that are designated after

promulgation of the rule.

The proposed application deadline for

MS4s designated under § 122.32(a)(2)

was within 60 days of notice. Many

commenters stated that 60 days does not

provide adequate time for the

preparation of an NOI or permit

application. EPA agrees that newly

designated MS4s may not be aware that

they might be designated since the

permitting authority could take several

years to develop designation criteria.

EPA has decided that the application

time frame for these facilities should be

consistent with the 180 days allowed for

facilities designated under

§§ 122.26(a)(9)(i)(C) and (D). Section

122.33(c)(2) of today’s final rule

contains the modified time frame of 180

days to apply for coverage.

h. Reevaluation of Rule

The municipal caucus of the Storm

Water Phase II FACA Subcommittee

asked EPA to demonstrate its

commitment to revisit the municipal

requirements of today’s rule and make

changes where necessary after

evaluating the storm water program and

researching the effectiveness of

municipal BMPs. In § 122.37 of today’s

final rule, EPA commits to revisiting the

regulations for the municipal storm

water discharge control program after

completion of the first two permit terms.

EPA intends to use this time to work

closely with stakeholders on research

efforts. Gathering and analyzing data

related to the storm water program,

including data regarding the

effectiveness of BMPs, is critical to

EPA’s storm water program evaluation.

EPA does not intend to change today’s

NPDES municipal storm water program

until the end of this period, except

under the following circumstances: a

court decision requires changes; a

technical change is necessary for

implementation; or the CWA is

modified, thereby requiring changes.

After careful analysis, EPA might also

consider changes from consensus-based

stakeholder requests regarding

requirements applicable to newly

regulated MS4s. EPA will apply the

August 1, 1996, Interim Permitting

Approach to today’s program during

this interim period and encourages all

permitting authorities to use this

approach in municipal storm water

permits for newly regulated MS4s and

in determining MS4 permit

requirements under a TMDL approach.

After careful consideration of the data,

EPA will make modifications as

necessary.

EPA received comments that

supported waiting two permit cycles

before re-evaluating the rule and other

comments that requested re-evaluation

much sooner. EPA anticipates two full

permit cycles are necessary to obtain

enough data to significantly evaluate the

rule. The re-evaluation time frame of 13

years from today remains as proposed.

I. Other Designated Storm Water

Discharges

1. Discharges Associated with Small

Construction Activity

Section 122.26(b)(15) of today’s rule

designates certain construction

activities for regulation as ‘‘storm water

discharges associated with small

construction activity.’’ Specifically,

storm water discharges from

construction activity equal to or greater

than 1 acre and less than 5 acres are

automatically designated except in

those circumstances where the operator

(i.e., person responsible for discharges

that might occur) certifies to the

permitting authority that one of two

specific waiver circumstances

(described in section b. below) applies.

Sites below one acre may be designated

under § 122.26(b)(15)(ii) where

necessary to protect water quality.

Today’s rule regulates these

construction-related storm water

sources under CWA section 402(p)(6) to

protect water quality rather than under

CWA section 402(p)(2). Designation

under 402(p)(6) gives States and EPA

the flexibility to waive the permit

requirement for construction activity

that is not likely to impair water quality,

and to designate additional sources

below one acre that are likely to cause

water quality impairment. Thus, the one

acre threshold of today’s rule is not an

absolute threshold like the five acre

threshold that applies under the existing

storm water rule.

Today’s rule regulating certain storm

water discharges from construction

activity disturbing less than 5 acres is

consistent with the 9th Circuit remand

in NRDC v. EPA, 966 F.2d 1292 (9th Cir.

1992). In that case, the court remanded

portions of the existing storm water

regulations related to discharges from

construction sites. The existing Phase I

regulations define ‘‘storm water

discharges associated with industrial

activity’’ to include storm water

discharges from construction sites

disturbing 5 acres or more of total land

area (see 40 CFR 122.26(b)(14)(x)). In its

decision, the court concluded that the 5-

acre threshold was improper because

the Agency had failed to identify

information ‘‘to support its perception

that construction activities on less than

5 acres are non-industrial in nature’’

(966 F.2d at 1306). The court remanded

the exemption to EPA for further

proceedings (966 F.2d at 1310). EPA’s

objectives in today’s action include an

effort to (1) address the 9th Circuit

68772 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

remand to reconsider regulation of

storm water discharges from

construction activities that disturb less

than 5 acres of land, (2) address water

quality concerns associated with such

activities, and (3) balance conflicting

recommendations and concerns of

stakeholders in the regulation of

additional construction activity.

EPA responded to the Ninth Circuit’s

decision by designating discharges from

construction activities that disturb

between 1 and 5 acres as ‘‘discharges

associated with small construction

activity’’ under CWA section 402(p)(6),

rather than as ‘‘discharges associated

with industrial activity’’ under CWA

section 402(p)(2)(B). Although a size

criterion alone may be an indicator of

whether runoff from construction sites

between 1 and 5 acres is ‘‘associated

with industrial activity,’’ the Agency is

instead relying on a size threshold in

tandem with provisions that allow for

designations and waivers based on

potential for ‘‘predicted water quality

impairments’’ to regulate construction

sites between 1 and 5 acres under CWA

section 402(p)(6). This approach was

chosen by the Agency for the sake of

simplicity and certainty and, most

importantly, to protect water quality

consistent with the mandate of CWA

section 402(p)(6). Today’s rule also

includes extended application deadlines

for this new category of dischargers

under the authority of CWA section

402(p)(6) (see § 122.26(e)(8) of today’s

rule).

In today’s rule, EPA is regulating

storm water discharges from additional

construction sites to better protect the

Nation’s waters, while remaining

sensitive to a concern that the Agency

should not regulate discharges from

construction sites that might not or do

not have adverse water quality impacts.

EPA believes that today’s rule will

successfully accomplish this objective

by establishing a 1-acre threshold

nationwide that includes the flexibility

to allow the permitting authority to both

waive requirements for discharges from

sites that are not expected to cause

adverse water quality impacts and to

designate discharges from sites below 1-

acre based on adverse water quality

impacts.

In addition to the diminishing water

quality benefits of regulating all sites

below one acre, the Agency relied on

practical considerations in establishing

a one acre threshold and not setting a

lower threshold. Regardless of the

threshold established by EPA, a NPDES

permit can only be required if a

construction site has a point source

discharge. A point source discharge

means that pollutants are added to

waters of the United States through a

discernible, confined, discrete

conveyance. ‘‘Sheet flow’’ runoff from a

small construction site would not result

in a point source discharge unless and

until it channelized. As the amount of

disturbed land surface decreases,

precipitation is less likely to channelize

and create a ‘‘point source’’ discharge

(assuming the absence of steep slopes or

other factors that lead to increased

channelization). Categorical designation

of very small sites may create confusion

about applicability of the NPDES

permitting program to those sites. EPA’s

one acre threshold reflects, in part, the

need to recognize that smaller sites are

less likely to result in point source

discharges. Of course, the NPDES

permitting authority could designate

smaller sites (below one acre, assuming

point source discharges occur from the

smaller designated sites) for regulation

if a watershed or other local assessment

indicated the need to do so. The Phase

II rule includes this designation

authority at 40 CFR 122.26(a)(9)(i)(D)

and (b)(15)(ii).

The one acre threshold also provides

an administrative tool for more easily

identifying those sites that are identified

for coverage by the rule (but may receive

a waiver) and those that are not

automatically covered (but may be

designated for inclusion). Although all

construction sites less than five acres

could have a significant water quality

impact cumulatively, EPA is

automatically designating for permit

coverage only those storm water

discharges from construction sites that

disturb land equal to or greater than one

acre. Categorical regulation of

discharges from construction below this

one acre threshold would overwhelm

the resources of permitting authorities

and might not yield corresponding

water quality benefits. Construction

activities that disturb less than one acre

make up, in total, a very small

percentage of the total land disturbance

from construction nationwide. The one

acre threshold is reasonable for

accomplishing the water quality goals of

CWA section 402(p)(6) because it results

in 97.5% of the total acreage disturbed

by construction being designated for

coverage by the NPDES storm water

program, while excluding from

automatic coverage the numerous

smaller sites that represent 24.7% of the

total number of construction sites.

Some commenters believed that EPA

has not adequately identified water

quality problems associated with storm

water discharges from construction

activity disturbing less than five acres.

Other commenters believed that storm

water discharges from small

construction activity is a significant

water quality problem nationwide.

Section I.B.3, Construction Site Runoff,

provides a detailed discussion of

adverse water quality impacts resulting

from construction site storm water

discharges. EPA is regulating storm

water discharges from construction

activity disturbing between 1 and 5

acres because the cumulative impact of

many sources, and not just a single

identified source, is typically the cause

for water quality impairments,

particularly for sediment-related water

quality standards.

Several commenters requested that

EPA regulate discharges from small

construction activity as ‘‘discharges

associated with industrial activity’’

under CWA 402(p)(4) and not, as

proposed, as ‘‘storm water discharges

associated with other activity’’ under

CWA 402(p)(6). EPA is regulating

discharges from small construction sites

as ‘‘small construction activity’’ under

the authority of CWA section 402(p)(6),

rather than section 402(p)(4), to ensure

that regulation of these sources is water

quality-sensitive. CWA section 402(p)(6)

affords the opportunity for designations

and waivers of sources based on

potential for ‘‘predicted water quality

impairments.’’ Regulation of storm

water ‘‘associated with industrial

activity’’ does not necessarily focus

regulation to protect water quality.

a. Scope

The definition of ‘‘storm water

discharges associated with small

construction activity’’ includes

discharges from construction activities,

such as clearing, grading, and

excavating activities, that result in the

disturbance of equal to or greater than

1 acre and less than 5 acres (see

§ 122.26(b)(15)(i)). Such activities could

include: road building; construction of

residential houses, office buildings, or

industrial buildings; or demolition

activity. The definition of ‘‘storm water

discharges associated with small

construction activity’’ also includes any

other construction activity, regardless of

size, designated based on the potential

for contribution to a violation of a water

quality standard or for significant

contribution of pollutants to waters of

the United States (§ 122.26(b)(15)(ii)).

This designation is made by the

Director, or in States with approved

NPDES programs, either the Director or

the EPA Regional Administrator.

For the purposes of today’s rule, the

definition of ‘‘storm water discharges

associated with small construction

activity’’ includes discharges from

activities disturbing less than 1 acre if

that construction activity is part of a

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68773

‘‘larger common plan of development or

sale’’ with a planned disturbance of

equal to or greater than 1 acre of land.

A ‘‘larger common plan of development

or sale’’ means a contiguous area where

multiple separate and distinct

construction activities are planned to

occur at different times on different

schedules under one plan, e.g., a

housing development of five 1⁄4 acre lots

(§ 122.26(b)(15)(i)).

In addition to the regulatory text for

smaller construction, the Agency is also

revising the existing text of

§ 122.26(b)(14)(x) to clarify EPA’s

intention regarding construction

projects involving a larger common plan

of development or sale ultimately

disturbing 5 or more acres. Operators of

such sites are required to seek coverage

under an NPDES permit regardless of

the number of lots in the larger plan

because designation for permit coverage

is based on the total amount of land area

to be disturbed under the common plan.

This designation attempts to address the

potential cumulative effects of

numerous construction activities

concentrated in a given area.

Several commenters asked that EPA

allow the permitting authority to set the

appropriate size threshold based on

water quality studies. While EPA agrees

that location-specific water quality

studies provide an ideal information

base from which to make regulatory

decisions, today’s rule establishes a

default standard for regulation in the

absence of location-specific studies. The

rule does allow for deviation from the

default standard through additional

designations and waivers, however,

when supported by location-specific

water quality information. The rule

codifies the ability of permitting

authorities to provide waivers for sites

greater than or equal to one acre (the

default standard) and designate

additional discharges from small sites

below one acre when location-specific

information suggests that the default 1

acre standard is either unnecessary

(waivers) or too limited (designations) to

protect water quality.

Some commenters wanted EPA to

base the regulation of storm water

discharges from construction sites not

only on size, but also on the duration

and intensity of activity occurring on

the site. EPA believes that a national 1-

acre threshold, in combination with

waivers and additional designations, is

the most effective and simplest way to

address adverse water quality impacts

from storm water from small

construction sites. Moreover, as

discussed below, the waiver for rainfall

erosivity does account for projects of

limited duration. EPA believes,

however, that the intensity of activity

occurring on-site would be a very

difficult condition to quantify.

Many commenters requested that EPA

maintain the 5 acre threshold from the

existing regulations, which include

opportunities for site-specific

designation, as the regulatory scope for

regulating storm water from

construction sites, i.e., that the Agency

not automatically regulate storm water

discharges from sites less than 5 acres.

Several commenters wanted

construction requirements to be applied

to sites smaller than 1 acre, while some

commenters suggested alternative

thresholds of 2 or 3 acres. The rest of the

commenters supported the 1 acre

threshold. None of the commenters

presented any data or rationales to

support a specific size threshold.

EPA examined alternative size

thresholds, including 0.5 acre, 1 acre, 2

acres and 5 acres. EPA had difficulty

evaluating the alternative size

thresholds because, while directly

proportional to the size of the disturbed

site, the water quality threat posed by

discharges from construction sites of

differing sizes varies nationwide,

depending on the local climatological,

geological, geographical, and

hydrological influences. In order to

ensure improvements in water quality

nationwide, however, today’s rule does

not allow various permitting authorities

to establish different size thresholds

except based on the waiver and

designation provisions of the rule. EPA

believes that the water quality impact

from small construction sites is as high

as or higher than the impact from larger

sites on a per acre basis. By selecting the

1 acre size threshold and coupling it

with waivers and additional

designations, EPA is seeking to

standardize improvement of water

quality on a national basis while

providing permitting authorities with

the opportunity to designate those

unregulated activities causing water

quality impairments regardless of site

size, as well as to waive requirements

when information demonstrates that

regulation is unnecessary.

EPA recognizes that the size criterion

alone may not be the most ideal

predictor of the need for regulation, but

effective protection of water quality

depends as much on simplicity in

implementation as it does on the

scientific information underlying the

regulatory criteria. The default size

criterion of 1 acre will ensure protection

against adverse water quality impacts

from storm water from small

construction sites while not

overburdening the resources of

permitting authorities and the

construction industry to implement the

program to protect water quality in the

first place.

One commenter stated a need to

clarify whether routine road

maintenance is considered construction

activity for the purpose of today’s rule.

The NPDES general permit for

discharges from construction sites larger

than 5 acres defined ‘‘commencement of

construction’’ as the initial disturbance

of soils associated with clearing,

grading, or excavating activities or other

construction activities (63 FR 7913). For

construction sites disturbing less than 5

acres, EPA does not consider

construction activity to include routine

maintenance performed to maintain the

original line and grade, hydraulic

capacity, or original purpose of the

facility.

Two commenters believed that the

Multi-Sector General Permit for storm

water discharges from industrial

activities (MSGP) (60 FR 50804) already

applies to storm water discharges from

construction activities at oil and gas

exploration and production sites and

asked for a clarification on this issue.

Commenters also requested a single

general permit to authorize both

industrial storm water discharges and

construction site discharges which

occur at the same industrial site.

Currently, when construction activity

disturbing more than 5 acres occurs on

an industrial site covered by the MSGP,

authorization under a separate NPDES

construction permit is needed because

the MSGP does not include the

‘‘construction’’ industrial sector. While

the MSGP does address sediment and

erosion control, it is not as specific as

the NPDES general permit for storm

water discharges from construction

activities disturbing more than 5 acres.

Though permitting authorities could

conceivably develop a single general

permit to authorize storm water

discharges associated with construction

activity at these industrial facilities, the

commenter’s request is not addressed by

today’s rulemaking. When today’s rule

is implemented through general permits

(to be issued later), the permitting

authority will have discretion whether

or not to incorporate the permit

requirements for both the industrial

storm water discharges and construction

site storm water discharges into a single

general permit. This type of request

should be addressed to the permitting

authority.

One commenter suggested that

discharges from small construction sites

should be regulated through a ‘‘selfimplementing rule’’ approach. While

today’s rule is not a self-implementing

rule, it does add § 122.28(b)(2)(v), which

68774 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

gives the permitting authority the

discretion to authorize a construction

general permit for sites less than 5 acres

without submitting a notice of intent.

Such non-registration general permits

function similarly to self-implementing

rules, but are, in fact, permits. Today’s

rule will be implemented through

NPDES permits rather than selfimplementing regulations to capitalize

on the compliance, tracking,

enforcement, and public participation

associated with NPDES permits (see

discussion in section II.C).

Other commenters believed that only

the permitting authority should regulate

construction site storm water discharges

(under a NPDES permit) and that a

small MS4 operator’s regulation of

storm water discharges associated with

construction (under the small MS4

NPDES storm water program) is

redundant. EPA disagrees that control

measure implementation by the NPDES

authority and the small MS4 operator is

redundant. To the extent the two efforts

overlap, today’s rule provides for

consolidation and coordination of

substantive requirements via

incorporation by reference permitting.

Small MS4s operators may choose to

impose more prescriptive requirements

than an NPDES permitting authority

based on localized water quality needs.

In those cases, EPA intends that the

substantive requirements from the small

MS4 program should apply as the

NPDES permit requirements for the

construction site discharger. In cases

where a small MS4 program does not

prioritize and focus on storm water from

construction sites (beyond the small

MS4 minimum control measure in

today’s rule, which does not require the

small MS4 operator to control

construction site discharges in a manner

as prescriptive as is expected for

discharges regulated under NPDES

permits), the Agency intends that the

NPDES general permit will provide the

substantive standards applicable to the

construction site discharge. EPA does

anticipate, however, that

implementation of MS4 programs to

address construction site runoff within

their jurisdiction will enhance overall

NPDES compliance by construction site

dischargers. EPA also notes that under

§ 122.35(b), the permitting authority

may recognize its own program to

control storm water discharges from

construction sites in lieu of requiring

such a program in an MS4’s NPDES

permit, provided that the permitting

authority’s program satisfies the

requirements of § 122.34(b)(4),

including, for example, procedures for

site plan reviews and consideration of

information submitted by the public on

individual construction sites in each

jurisdiction required to be covered by

the program.

b. Waivers

Under § 122.26(b)(15)(i) of today’s

rule, NPDES permitting authorities may

waive today’s requirement for

construction site operators to obtain a

permit in two circumstances. The first

waiver is intended to apply where little

or no rainfall is expected during the

period of construction. The second

waiver may be granted when a TMDL or

equivalent analysis indicates that

controls on construction site discharges

are not needed to protect water quality.

The first waiver is based on ‘‘low

predicted rainfall erosivity’’ which can

be found using tables of rainfall-runoff

erosivity (R) values published for each

region in the U.S. R factors are

published in the U.S. Department of

Agriculture (USDA) Agricultural

Handbook 703 (Renard, K.G., Foster,

G.R., Weesies, G.A., McCool, D.K., and

D.C. Yoder. 1997. Predicting Soil

Erosion by Water: A Guide to

Conservation Planning with the Revised

Universal Soil Loss Equation (RUSLE).

U.S. Department of Agriculture

Handbook 703). The R factor varies

based on the time during the year when

construction activity occurs, where in

the country it occurs, and how long the

construction activity lasts. The

permitting authority may determine,

using Handbook 703, which times of

year, if any, the waiver opportunity is

available for construction activity. EPA

will provide assistance either through

computer programs or the World Wide

Web on how to determine whether this

waiver applies for a particular

geographic area and time period.

Application of this waiver for regulatory

purposes will be determined by the

authorized NPDES authority. This

waiver is discussed further in the

following section titled RainfallErosivity Waiver.

The second waiver is based on a

consideration of ambient water quality.

This waiver is available after a State or

EPA develops and implements TMDLs

for the pollutant(s) of concern from

storm water discharges associated with

construction activity. This waiver is also

available for sites discharging to nonimpaired waters that do not require

TMDLs, when an equivalent analysis

has determined allocations for small

construction sites for the pollutant(s) of

concern or determined that such

allocations are not needed to protect

water quality based on consideration of

existing in-stream concentrations,

expected growth in pollutant

contributions from all sources, and a

margin of safety. The Agency envisions

an equivalent analysis that would

demonstrate that water quality is not

threatened by storm water discharges

from small construction activity. This

waiver is discussed further below in the

sections titled TMDL Waiver and Water

Quality Issues.

The proposed rule included a waiver

based on ‘‘low predicted soil loss.’’ This

waiver provision would have been

applicable on a case-by-case basis where

the annual soil loss rate for the period

of construction for a site, using the

Revised Universal Soil Loss Equation

(RUSLE), would be less than 2 tons/

acre/year. The annual soil loss rate of

less than 2 tons/acre/year would be

calculated through the use of the RUSLE

equation, assuming the constants of no

ground cover and no runoff controls in

place.

Several commenters found the low

soil loss waiver too complex and

impractical, and stated that expertise is

not available at the local level to prepare

and evaluate eligibility for the waiver.

Another commenter questioned whether

two tons/acre/year was an appropriate

threshold for predicting adverse water

quality impacts. Two other commenters

said that RUSLE was never intended to

predict off-site impacts and is not an

indicator of potential harm to water

quality. EPA agrees with the

commenters on the difficulty associated

with determining and implementing

this waiver. Most construction site

operators are not familiar with the

RUSLE program, and the potential

burden on the permitting authority,

construction industry, USDA’s Natural

Resources Conservation Service and

conservation districts probably would

have been significant. The Agency has

not included this waiver in the final

rule.

Two commenters asked that EPA

allow States the flexibility to develop

their own waiver criteria but did not

suggest how the Agency (or affected

stakeholders) could evaluate the

acceptability of alternative State waiver

criteria. Therefore, the final rule does

not provide for any such alternative

waivers. If a State does seek to develop

alternate waiver criteria, then EPA

procedures afford the opportunity for

subsequent actions, for example, under

the Project XL Program in EPA’s Office

of Reinvention, which seeks cleaner,

smarter, and cheaper solutions to

environmental problems. Many

commenters suggested that EPA extend

these waivers to existing industrial

storm water regulations for construction

activity greater than 5 acres. These

construction site discharges are

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68775

regulated as industrial storm water

discharges under CWA 402(p)(2) and are

not eligible for such water quality-based

waivers.

Two commenters were concerned that

waivers would create a potential for

significant degradation of small streams.

EPA disagrees. If small streams are

threatened, the permitting authority

would choose not to provide any

waivers. In addition, permitting

authorities may protect small streams by

designating discharges from small

construction activity based on the

potential for contribution to a violation

of a water quality standard or for

significant contribution of pollutants to

waters of the U.S.

Two commenters asked that the

waiver options be eliminated. They felt

it would create a gross inequity within

the construction community if some

projects will not be subject to the

requirements of today’s rule. While the

comments may be valid, EPA disagrees

that waivers should be disallowed on

this basis. Construction site discharges

that qualify for a waiver from permitting

requirements are not expected to

present a threat to water quality, which

is the basis for designation and

regulation under today’s rule.

A number of commenters suggested

additional waivers in cases where new

development will result in no additional

adverse impacts to water quality as

compared to the existing development it

replaces. EPA believes these waivers are

either unworkable or unnecessary. It

would be very difficult for most

construction operators to determine, as

well as for other stakeholders to verify,

on a site-by-site basis, that there is no

potential for adverse impact to water

quality compared to the replaced

development.

Other commenters proposed waivers

in cases where a local erosion and

sediment control program covers the

project or a separate waiver for small

linear utility projects. Instead of

waivers, today’s rule addresses the first

suggestion through the qualifying

program provision described in the

section titled Cross-Referencing State/

Local Erosion and Sediment Control

Programs below. Today’s rule provides

waivers for small linear projects in so

far as they satisfy conditions for low

rainfall erosivity. (See

§ 122.26(b)(15)(i)(A).)

Other commenters suggested waivers

based on distance to water body,

existence of vegetated buffer around

water body, slope of disturbed land, or

if discharging to very large bodies of

water. As a result of public outreach,

EPA believes that these proposed

waivers would be generally unworkable

for construction site dischargers and

permitting authorities because of the

difficulty in applying them to all small

sites.

One commenter mentioned that

waivers for the R factor (rainfallerosivity) and soil loss are effluent

standards that have not been developed

in accordance with sections 301 and 304

of the CWA. EPA disagrees that these

sections are relevant to the designation

of sources in today’s rule. The waiver

provisions in this section of the rule are

jurisdictional because they affect the

scope of the universe of entities subject

to the NPDES program. Therefore, the

waiver provisions are not themselves

substantive control standards

implemented through NPDES permits,

and thus, not subject to the statutory

criteria in sections 301 and 304.

Another commenter stated that

waivers would allow exemptions to the

technology based requirements and

would thus be inconsistent with the

two-fold approach of the CWA (a

technology based minimum and a water

quality based overlay). EPA

acknowledges that the CWA does not

generally provide for waivers for the

Act’s technology-based requirements.

The waiver provisions do not create

exemptions from technology-based

standards that apply to NPDES

dischargers; they provide exemption

from the underlying requirement for an

NPDES permit in the first place.

Protection of water quality is the reason

these smaller sites are designated for

regulation under NPDES. The Act’s two

fold approach imposes more stringent

water quality based effluent limitations

when technology-based limitations

applicable to regulated dischargers are

insufficient to meet water quality

standards. Under today’s rule, water

quality protection is the basis for

determining which of the unregulated

sources should be regulated at all. Thus,

today’s rule is entirely consistent with

the Act’s two fold approach.

i. Rainfall-Erosivity Waiver. The

rainfall-erosivity waiver under

§ 122.26(b)(15)(i)(A) is intended to

exempt the requirements for a permit

when and where negligible rainfall/

runoff-erosivity is expected. In the

development of the Universal Soil Loss

Equation, analysis of data indicated that

when factors other than rainfall are held

constant, soil loss is directly

proportional to a rainfall factor

composed of total storm kinetic energy

times the maximum 30 minute

intensity. The average annual sum of the

storm energy and intensity values for an

area comprise the R factor—the rainfall

erosivity index. A detailed explanation

of the R factor can be found in

Predicting Soil Erosion by Water: A

Guide to Conservation Planning With

the Revised Universal Soil Loss

Equation (RUSLE) (USDA, 1997).

This waiver is time-sensitive and is

dependent on when during the year a

construction activity takes place, how

long it lasts, and the expected rainfall

and intensity during that time. R factors

vary based on location. EPA anticipates

that this waiver opportunity responds to

concerns about the requirement for a

permit when it is not expected to rain,

especially in the arid areas of the U.S.

Under today’s rule, the permitting

authority could waive the requirements

for a permit for time periods when the

rainfall-erosivity factor (‘‘R’’ in RUSLE)

is less than five during the period of

construction. For the purposes of

calculating this waiver, the period of

construction activity starts at the time of

initial disturbance and ends with the

time of final stabilization. The operator

must submit a written certification to

the Director in order to apply for such

a waiver. EPA believes that those areas

receiving negligible rainfall during

certain times of the year are unlikely to

have storm events causing discharges

that could adversely impact receiving

streams. Consequently, BMPs would not

be necessary on those smaller sites. This

waiver is most applicable to projects of

short duration and to the arid regions of

the country where the occurrence of

rainfall follows a cyclic pattern—

between no rain and extremely heavy

rain. EPA review of rainfall records for

these areas indicates that, during

periods of the year when the number of

events and quantity of rain are low,

storm water discharges from the smaller

construction sites regulated under

today’s rule should be minimal.

Some commenters supported the use

of the R factor as a waiver, while others

felt that a waiver based on rainfall

statistics ignores the fact that it may rain

on any given day and it is the

cumulative effect of wet weather

discharges which cause water quality

impairments. A commenter also asked

what happens in ‘‘El Nin ̃o’’ years when

significantly more rainfall than normal

occurs. Another commenter also

expressed concern that this waiver was

not based on a measured water quality

impact, but instead on an indicator of

potential impact. In response to the

previous comments, EPA notes that,

under CWA 402(p)(6), sources are

designated on their potential for adverse

impact. Designation under the section is

prospective, not retrospective or

remedial only. For that reason, the

waivers under today’s rule also operate

prospectively. EPA wanted to waive

requirements for sites with little

68776 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

potential to impair water quality, and

the R factor is the most straightforward

way to do this. The permitting

authority, if electing to use waivers,

could always suspend the use of

waivers in certain areas or during

certain times. In addition, the

permitting authority may choose to use

a lower R factor threshold than the one

set by EPA. Application of this waiver

is at the discretion of the permitting

authority, subject only to the limitation

that R factors cannot exceed 5.

One commenter expressed the need

for EPA to provide a justification for the

threshold value used for the R factor.

None of the commenters included any

data to show that EPA’s proposed R

factor of 2 was either too high or too

low. EPA is using the R factor as an

indicator of the potential to impact

water quality. In an effort to determine

which R threshold should be used, EPA

conducted additional analysis of the

rainfall/runoff erosivity factor for 134

sites across the country. For an R factor

threshold of 5, approximately 12% of

sites would be waived if the project

period lasted 6 months, 27% for 3

months, 47% for 1 month, and 60% of

sites would be waived if the project

lasted for only 15 days. None of the 134

sites would be waived if the project

lasted an entire year. For an R factor

threshold of 2, approximately 9% of

sites would be waived if the project

period lasted 6 months, 15% for 3

months, 31% for 1 month, and 43% for

15 days. For an R factor threshold of 10,

approximately 22% of sites would be

waived if the project period lasted 6

months, 37% for 3 months, 60% for 1

month, and 78% for 15 days. EPA

believes that an R factor of 5 is an

adequate threshold to waive

requirements for sites because they

would not reasonably be expected to

impair water quality.

EPA will develop, as part of the tool

box described in section II.A.5,

guidance materials and computer or

web-accessible programs to assist

permitting authorities and construction

site discharges in determining if any

resulting storm water discharges from

specific projects are eligible for this

waiver.

ii. Water Quality Waiver. The water

quality waiver under

§ 122.26(b)(15)(i)(B) is available where

storm water controls are not needed

based on a comprehensive, locationspecific evaluation of water quality

needs. The waiver is available based on

either an EPA-approved ‘‘total

maximum daily load’’ (TMDL) under

section 303(d) of the CWA that

addresses the pollutant(s) of concern or,

for sites discharging to non-impaired

waters that do not require TMDLs, an

equivalent analysis that has either

determined allocations for small

construction sites for the pollutant(s) of

concern or determined that such

allocations are not needed to protect

water quality based on consideration of

existing in-stream concentrations,

expected growth in pollutant

contributions from all sources, and a

margin of safety. The pollutants of

concern that must be addressed include

sediment or a parameter that addresses

sediment (such as total suspended

solids (TSS), turbidity or siltation) and

any other pollutant that has been

identified as a cause of impairment of

any water body that will receive a

discharge from the construction activity.

The operator must certify to the NPDES

permitting authority that the

construction activity will take place,

and storm water discharges will occur,

within the applicable drainage area

evaluated in the TMDLs or equivalent

analyses.

Today’s rule modifies the approach in

the proposed rule. EPA proposed to

allow a waiver of permit requirements

for small construction if storm water

controls were determined to be

unnecessary based on ‘‘wasteload

allocations that are part of ‘total

maximum daily loads’ (TMDLs) that

address the pollutants of concern,’’ or ‘‘a

comprehensive watershed plan,

implemented for the water body, that

includes the equivalents of TMDLs, and

addresses the pollutants of concern.’’

Commenters asked for clarification of

the terms ‘‘comprehensive watershed

plans’’ and ‘‘equivalent of TMDLs.’’ EPA

intended that both terms would include

a comprehensive analysis that

determines that controls on small

construction sites are not needed based

on consideration of existing in-stream

concentrations, expected growth in

pollutant contributions from all sources,

and a margin of safety. Today’s rule

makes this clarification.

One commenter pointed out that there

are no water quality standards for

suspended solids, the major pollutant

expected in discharges from

construction activity. The commenter

asserted that no waiver would ever be

available. Another commenter noted

that there are no sediment criteria

developed for streams, also making this

waiver useless. EPA notes that a number

of States and Tribes have water quality

standards that address TSS, which are

narrative in form, and that may serve as

a basis for water quality-based effluent

limits. As efforts to identify

impairments and improve water quality

progress, some States may yet develop

water quality standards for suspended

solids. Although several TMDLs for

sediment and related parameters have

been established, EPA does recognize

that currently it is extremely difficult to

develop TMDLs for sediment. EPA is

partially addressing this concern by

clarifying in today’s rule that the

waivers may be based on a TMDL or

equivalent analyses for sediment or one

of the various pollutant parameters that

are a proxy for sediment. These include

TSS, turbidity and siltation.

Other commenters noted that this

waiver was unattainable if a TMDL or

equivalent analysis must be available for

every pollutant that could possibly be

present in any amount in discharges

from small construction sites regardless

of whether the pollutant is causing

water quality impairment. Commenters

asked that EPA identify what constitutes

the ‘‘pollutants of concern’’ for which a

TMDL or its equivalent must be

developed. EPA has revised the

proposed rule in response to these

concerns.

In order for discharges from

construction sites under five acres to

qualify for the water quality waiver of

today’s rule, the construction site

operator must demonstrate that storm

water controls are not necessary for

sediment or a parameter that addresses

sediment (such as TSS, turbidity or

siltation) and any other pollutant that

has been identified as a cause of

impairment of any water body that will

receive a discharge from the

construction activity. Even if the water

body is not currently impaired for

sediment, today’s rule requires an

analysis of the potential impacts of

sediment because the storm water

discharges from the construction

activity will be a new source of loading

to the water body that could constitute

a new impairment. Because the water

body will not necessarily have been

included on a ‘‘303(d) list’’ and a TMDL

will not necessarily be required, the rule

continues to allow an analysis that is

the equivalent of a TMDL. The

designation of storm water discharges

from small construction activity for

regulation in today’s rule is intended to

control pollutants other than sediment.

This waiver provision requires a TMDL

or equivalent analysis for a pollutant

other than gross particulates (i.e.,

sediment and other particulate-focused

pollutant parameters) only if the

receiving water is currently impaired for

that pollutant.

One commenter expressed the

concern that construction operators will

not know if they are in a watershed

covered by a TMDL. To the extent this

is an operator’s concern, he or she could

contact their NPDES permitting

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68777

authority before applying for permit

coverage to determine if receiving water

is subject to a TMDL. Alternatively, the

permitting authority could identify the

TMDL (or equivalent analysis) areas in

the general permit or another operatoraccessible information source.

Another commenter expressed the

concern that a TMDL waiver is likely to

be ineffective because the TMDL list is

submitted only once every 2 years. By

the time a water is listed, the activity

may have been completed and

stabilized. The commenter argued that,

if a watershed is impaired due to

sediment from construction, then storm

water controls will still be needed,

because small construction can only be

waived when it is not identified as a

source of impairment. In response, EPA

notes that an analysis that is the

equivalent of a TMDL (specifically,

equivalent to the component of a TMDL

that comprehensively analyses existing

ambient conditions against the

applicable water quality standards) may

also provide a basis for waiver from the

default 1 acre designation. Also, even if

a water has been identified as impaired

for sediment, it is possible that a site or

category of sites may receive an

allocation that is sufficiently high

enough to allow discharges without

storm water controls.

c. Permit Process and Administration

The operator of the construction site,

as with any operator of a point source

discharge, is responsible for obtaining

coverage under a NPDES permit as

required by § 122.21(b). The ‘‘operator’’

of the construction site, as explained in

the current NPDES construction general

permit, is typically the party or parties

that either individually or collectively

meet the following two criteria: (1)

Operational control over the site

specifications, including the ability to

make modifications in the

specifications; and (2) day-to-day

operational control of those activities at

the site necessary to ensure compliance

with permit conditions (63 FR 7859). If

more than one party meets these

criteria, then each party involved would

typically be a co-permittee with any

other operators. The operator could be

the owner, the developer, the general

contractor, or individual contractor.

When responsibility for operational

control is shared, all operators must

apply.

In today’s rule, EPA is not requiring

an NOI for NPDES general permits for

storm water discharges from

construction activities regulated by

§ 122.26(b)(15) if the NPDES permitting

authority finds that the use of NOIs

would be inappropriate (see

§ 122.28(b)(2)(v)). Under this approach,

the NPDES permitting authority will

have the discretion to decide whether or

not to require NOIs for discharges from

construction activity less than 5 acres.

Compared to the existing storm water

regulation, the permitting authority thus

has increased flexibility in program

implementation. EPA does recommend

the use of NOIs, however because NOIs

track permit coverage and provide a

useful information source to prioritize

inspections or enforcement. Requiring

an NOI allows for greater accountability

by, and tracking of, dischargers. This

simple permit application and reporting

mechanism also allows for better

outreach to the regulated community,

uses an existing and familiar

mechanism, and is consistent with the

existing requirements for storm water

discharges from larger construction

activities. Today’s rule does not amend

the requirement for NOIs in general

permits for storm water discharges from

construction activity disturbing 5 acres

for more. See § 122.28(b)(2)(v).

EPA expects that the vast majority of

discharges of storm water associated

with small construction activity

identified in § 122.26(b)(15) will be

regulated through general permits. In

the event that an NPDES permitting

authority decides to issue an individual

construction permit, however,

individual application requirements for

these construction site discharges are

found at § 122.26(c)(1)(ii). For any

discharges of storm water associated

with small construction activity

identified in § 122.26(b)(15) that are not

authorized by a general permit, a permit

application made pursuant to

§ 122.26(c) must be submitted to the

Director by 3 years and 90 days after

publication of the final rule.

Some commenters expressed concern

that linear construction projects (e.g.,

roads, highways, pipelines) that cross

several jurisdictions will have to

comply with multiple sets of

requirements from various jurisdictions,

including multiple local governments

and States. EPA is limited in its options

to address these concerns because the

Agency cannot issue NPDES permits in

States authorized to implement the

NPDES program nor preempt other more

stringent local and State requirements.

EPA believes, however, that the option

for incorporating by reference the State,

Tribal or local requirements (see

discussion in Section II.I.2.d., CrossReferencing State/Local Erosion and

Sediment Control Programs) should

limit the administrative burden on the

operator responsible for discharges from

linear construction projects. If the

operator were to implement the most

comprehensive of the various

requirements for the whole project, it

could avoid confusion due to differing

requirements for different sections of

the project. In addition, linear utility

projects, which usually have a shorter

project period, are more likely to be

eligible for the rainfall erosivity waiver.

One commenter stated there was no

reason to delay the application period

for regulated storm water discharges

from small construction activities. The

commenter requested that the newly

regulated construction site discharges

should be required to seek permit

coverage within 90 days, as opposed to

3 years, of the effective date of the rule.

The Agency does not accept this

request. EPA anticipates that NPDES

permitting authorities will need one to

two years to develop adequate legal

authority to implement a program to

address this new category of discharges,

as well as to develop and issue general

permits. Moreover, to ensure effective

implementation to protect water quality,

regulatory authorities will need

additional time to inform small

construction site operators of

requirements and provide guidance and

training on these requirements.

Finally, EPA received a comment

requesting that the three year file

retention requirement be deleted for

discharges from small construction

sites. While EPA recognizes that the

three year record retention schedule

may be unnecessary for certain

construction projects, the Agency has

determined it is necessary to retain files

after the completion of the project to

ensure permit compliance, including

applicable construction site stabilization

enabling permit termination for such

sites.

d. Cross-Referencing State, Tribal or

Local Erosion and Sediment Control

Programs

In developing the NPDES permit

requirements for construction sites less

than 5 acres, members of the Storm

Water Phase II FACA Subcommittee

asked EPA to try to minimize

redundancy in the construction permit

requirements. In response, today’s rule

at § 122.44(s) provides for incorporation

of qualifying State, Tribal or local

erosion and sediment control program

requirements by reference into the

NPDES permit authorizing storm water

discharges from construction sites

(described under §§ 122.26(b)(15) and

(b)(14)(x)). The incorporation by

reference approach applies not only to

the newly regulated storm water

discharges (from construction activity

disturbing between 1 and 5 acres,

including designated sites, but

68778 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

excluding waived sites) but also to

discharges from construction activity

disturbing 5 or more acres already

covered by the existing storm water

regulations. For this latter category of

discharges from construction activity

disturbing 5 or more acres, the

incorporation by reference approach

requires that the pollutant control

requirements from the incorporated

program also satisfy the statutory

standard for limitations representing

application of the best available

technology economically achievable

(BAT) and best conventional pollutant

control technology (BCT).

For permits issued for discharges from

small construction activity defined

under § 122.26(b)(15), a qualifying State,

Tribal, or local erosion and sediment

control program is one that includes the

program elements described under

§ 122.44(s)(1). These elements include

requirements for construction site

operators to implement appropriate

erosion and sediment control BMPs,

requirements to control waste, a

requirement to develop a storm water

pollution prevention plan, and

requirements to submit a site plan for

review. A storm water pollution

prevention plan includes site

descriptions, descriptions of appropriate

control measures, copies of approved

State, Tribal or local requirements,

maintenance procedures, inspection

procedures, and identification of nonstorm water discharges. The

construction site’s permit would require

it to follow the requirements of the

qualifying local program rather than

require it to follow two different sets of

requirements. If a partially-qualifying

program does not have all of the

elements described under § 122.44(s)(1),

then the NPDES permitting authority

may still incorporate language in the

small construction site discharge’s

permit that requires the construction

site operator to follow the program, but

the construction site discharge permit

also must incorporate the missing

required elements in order to satisfy

CWA requirements.

The term ‘‘local’’ refers to the

geographic area of applicability, not the

form of government that develops and

administers the program. Thus, a

qualifying federal erosion and control

program, such as certain programs

developed and administered by the

federal Bureau of Land Management,

could be a qualifying local program.

As a result of this provision, local

requirements will, in effect, provide the

substantive construction site erosion

and sediment control requirements for

the NPDES permit authorization.

Therefore, by following one set of

erosion and sediment control

requirements, construction site

operators satisfy both local and NPDES

permit requirements without

duplicative effort. At the same time,

noncompliance with the referenced

local requirements will be considered

noncompliance with the NPDES permit

which is federally enforceable. The

NPDES permitting authority will, of

course, retain the discretion to decide

whether to include the alternative

requirements in the general permit. EPA

believes that this approach will best

balance the need for consideration of

specific local requirements and local

implementation with the need for

federal and citizen oversight, and will

extend supplemental NPDES

requirements to control storm water

discharges from construction sites.

EPA developed the ‘‘incorporation by

reference’’ approach based on

implementation efforts designed by the

State of Michigan. Michigan relies on

localities to develop substantive

controls for storm water discharges

associated with construction activities

on a localized basis. Localities,

however, are not required to do so. In

areas where the local authority does not

choose to participate, the State

administers the sedimentation and

erosion control requirements. The State

agency, as the NPDES permitting

authority, receives an NOI (termed

‘‘notice of coverage’’ by Michigan)

under the general permit and tracks and

exercises oversight, as appropriate, over

the activity causing the storm water

discharge. Michigan’s goal under these

procedures is to utilize the existing

erosion and sediment control program

infrastructure authorized under State

law for storm water discharge

regulation. (See U.S. Environmental

Protection Agency, Office of Water.

January 7, 1994. Memo: From Michael

B. Cook, Director OWEC, to Water

Management Division Directors,

Regarding the ‘‘Approach Taken by

Michigan to Regulate Storm Water

Discharges from Construction

Activities.’’)

Most commenters supported the

general concept of incorporating by

reference qualifying programs. Two

commenters expressed concern that

different local construction

requirements will create an impossible

regulatory scheme for builders who

work in different localities. EPA

believes that allowing States to

incorporate qualifying programs by

reference will minimize the differences

for builders who work in different areas

of the State. These differences already

exist, however, not only for erosion and

sediment controls, but also other aspects

of construction. In any event, the

criteria for qualification for localized

programs should provide a certain

degree of standardization for various

localities’ requirements. EPA expects

that the new rule for construction and

post-construction BMPs being

developed under CWA section 304(m)

will also encourage standardization of

local requirements. (See discussion of

this new rulemaking in section II.D.1,

Federal Role of this preamble).

Two commenters requested that an

‘‘incorporation by reference’’ should

include permission, in writing, from the

qualifying local program administrator

because of a perceived extra burden on

the referenced program. Any program

requirements incorporated by reference

in NPDES permits should already apply

to construction site dischargers in the

applicable area and therefore should not

add any additional burden to the

referenced program. EPA has left to the

discretion of the permitting authority

the decision on whether to seek

permission from the qualifying program

before cross-referencing it in an NPDES

permit.

One commenter stated that a

qualifying local program should require

a SWPPP. The proposed rule defined

the qualifying local program as a

program the meets the minimum

program requirements established in the

proposed construction minimum

control measure for small MS4s. To

ensure consistency in the controls for

storm water discharges between the

larger, already regulated construction

sites and the discharges from smaller

sites that will be regulated as a result of

today’s rule, EPA has made a change to

define a qualifying local program as one

that includes the elements described in

§ 122.44(s)(1). Section 122.44(s)(1)

requires the development and

implementation of a storm water

pollution prevention plan as a criterion

for qualification of local programs for

incorporation by reference. As noted

above, if a qualifying program does not

include all the elements in § 122.44(s)(1)

then the permitting authority will need

to specify the missing elements in order

to rely on the incorporation by reference

approach.

One commenter asked what happens

in regard to the use of qualifying

programs when a construction site

operator is also the qualifying local

program operator. The provision for

incorporation by reference applies in

this situation also. The local program

operator will be required to comply

with requirements it has established for

others.

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68779

e. Alternative Approaches

EPA received a number of comments

on alternative permitting approaches.

Several commenters supported

regulating discharges only from those

construction sites within urbanized

areas. Other commenters opposed this

approach. EPA chose to address storm

water discharges from construction sites

located both within and outside

urbanized areas because of the potential

for adverse water quality impact from

storm water discharges from smaller

sites in all areas. Regulating only those

sites within urbanized areas would have

excluded a large number of potential

contributors to water quality

impairment and would not address large

areas of new development occurring on

the outer fringes of urbanized areas. In

fact, designating only small construction

discharges within urbanized areas might

create a perverse incentive for building

only outside urbanized areas. Such an

incentive would be inconsistent with

the Agency’s intention behind

designating to protect water quality. The

Agency intends that designation to

protect water quality in today’s rule

should be both remedial and preventive.

A number of commenters encouraged

EPA to cover municipal construction

activities under the small MS4 general

permit, instead of issuing a separate

NPDES construction permit to these

municipal construction projects.

Similarly, a number of commenters

supported EPA giving industrial

facilities the option of having storm

water from construction activities on the

site covered by the industrial storm

water permit. Several other commenters

found that combining multiple permit

types under one general permit

introduced a degree of complexity

which was confusing to permittees.

Permitting authorities have the option of

combining MS4 and construction

permits or industrial and construction

permits, however, specific requirements

for each would still need to be included

in the permit issued. EPA agrees that

this would probably result in a more

complex and confusing permit

compared to the existing component

permits.

Several commenters supported an

alternative for regulated small MS4s

where a local qualified program alone,

without an NPDES permit, is sufficient

to enforce compliance with construction

site discharge requirements. On the

other hand, one commenter stated that

linking the local construction erosion

and sediment control program to the

existing NPDES program for storm water

from larger construction has driven

improvements in many local programs.

Another commenter stated that the

potential fines under the NPDES

program will encourage compliance and

will be much stronger than any fines a

local program may have. EPA agrees

that the NPDES program is the best

approach to address water quality

impacts from construction sites and

provides benefits such as accountability

and federal enforcement.

A number of commenters supported

issuing one permit for each construction

company, instead of a permit for each

individual construction activity (also

requested for storm water discharges

from the larger, already regulated

construction sites). Other commenters

found that a ‘licensing’ program for

construction site operators would have

many problems, including identifying

who to permit and tracking information

on active sites. EPA is regulating only

the storm water discharges associated

with construction activity from small

sites, not the construction activity itself.

Separate NPDES permits (either

individual or general permit coverage)

for construction site discharges avoid

potential problems in tracking sites and

operator accountability. Section

122.28(b)(2)(v) gives permitting

authorities the option to issue a general

permit without requiring an NOI. If an

NOI is not required for each activity,

permitting authorities could pursue

other options such as a company-wide

NOI, license instead of an NOI, or

another mechanism.

2. Other Sources

In the Storm Water Discharges

Potentially Addressed by Phase II of the

National Pollutant Discharge

Elimination System Storm Water

Program, Report to Congress, March

1995, (‘‘Report’’) submitted by EPA

pursuant to CWA section 402(p)(5), EPA

examined the remaining unregulated

point sources of storm water for the

potential to adversely affect water

quality. Due to very limited national

data on which to estimate pollutant

loadings on the basis of discharge

categories, the discussion of the extent

of unregulated storm water discharges is

limited to an analysis of the number and

geographic distribution of the

unregulated storm water discharges.

Therefore, EPA is not designating any

additional unregulated point sources of

storm water on a nationwide, categorical

basis. Instead, the remainder of the

sources will be regulated based on caseby-case post-promulgation designations

by the NPDES permitting authority.

EPA did, however, evaluate a variety

of categories of discharges for potential

designation in the Report. EPA’s efforts

to identify sources and categories of

unregulated storm water discharges for

potential designation for regulation in

today’s rule started with an examination

of approximately 7.7 million

commercial, retail, industrial, and

institutional facilities identified as

‘‘unregulated.’’ In general, the

distribution of these facilities follows

the distribution of population, with a

large percentage of facilities

concentrated within urbanized areas

(see page 4-35 of the Report). This

examination resulted in identification of

two general classes of facilities with the

potential for discharging pollutants to

waters of the United States through

storm water point sources.

The first group (Group A) included

sources that are very similar, or

identical, to regulated ‘‘storm water

discharges associated with industrial

activity’’ but that were not included in

the existing storm water regulations

because EPA used SIC codes in defining

the universe of regulated industrial

activities. By relying on SIC codes, a

classification system created to identify

industries rather than environmental

impacts from these industries

discharges, some types of storm water

discharges that might otherwise be

considered ‘‘industrial’’ were not

included in the existing NPDES storm

water program. The second general class

of facilities (Group B) was identified on

the basis of potential for activities and

pollutants that could contribute to storm

water contamination.

EPA estimates that Group A has

approximately 100,000 facilities.

Discharges from facilities in this group,

which may be of high priority due to

their similarity to regulated storm water

discharges from industrial facilities,

include, for example, auxiliary facilities

or secondary activities (e.g.,

maintenance of construction equipment

and vehicles, local trucking for an

unregulated facility such as a grocery

store) and facilities intentionally

omitted from existing storm water

regulations (e.g., publicly owned

treatment works with a design flow of

less than 1 million gallons per day,

landfills that have not received

industrial waste).

Group B consists of nearly one

million facilities. EPA organized Group

B sources into 18 sectors for the

purposes of the Report. The automobile

service sector (e.g., gas/service stations,

general automobile repair, new and

used car dealerships, car and truck

rental) makes up more than one-third of

the total number of facilities identified

in all 18 sectors.

EPA conducted a geographical

analysis of the industrial and

commercial facilities in Groups A and

68780 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

B. The geographical analysis shows that

the majority are located in urbanized

areas (see Section 4.2.2, Geographic

Extent of Facilities, in the Report). In

general, about 61 percent of Group A

facilities and 56 percent of Group B

facilities are located in urbanized areas.

The analysis also showed that nearly

twice as many industrial facilities are

found in all urbanized areas as are

found in large and medium

municipalities alone. Notable

exceptions to this generalization

included lawn/garden establishments,

small unregulated animal feedlots,

wholesale livestock, farm and garden

machinery repair, bulk petroleum

wholesale, farm supplies, lumber and

building materials, agricultural

chemical dealers, and petroleum

pipelines, which can frequently be

located in smaller municipalities or

rural areas.

In identifying potential categories of

sources for designation in today’s

notice, EPA considered designation of

discharges from Group A and Group B

facilities. EPA applied three criteria to

each potential category in both groups

to determine the need for designation:

(1) The likelihood for exposure of

pollutant sources included in that

category, (2) whether such sources were

adequately addressed by other

environmental programs, and (3)

whether sufficient data were available at

this time on which to make a

determination of potential adverse water

quality impacts for the category of

sources. As discussed previously, EPA

searched for applicable nationwide data

on the water quality impacts of such

categories of facilities.

By application of the first criterion,

the likelihood for exposure, EPA

considered the nature of potential

pollutant sources in exposed portions of

such sites. As precipitation contacts

industrial materials or activities, the

resultant runoff is likely to mobilize and

become contaminated by pollutants. As

the size of these exposed areas

increases, EPA expects a proportional

increase in the pollutant loadings

leaving the site. If EPA concluded that

a category of sources has a high

potential for exposure of raw materials,

intermediate products, final products,

waste materials, byproducts, industrial

machinery, or industrial activity to

rainfall, the Agency rated that category

of sources as having ‘‘high’’ potential for

adverse water quality impact. EPA’s

application of the first criterion showed

that a number of Group A and B sources

have a high likelihood of exposure of

pollutants.

Through application of the second

criterion, EPA assessed the likelihood

that pollutant sources are regulated in a

comprehensive fashion under other

environmental protection programs,

such as programs under the Resource

Conservation and Recovery Act (RCRA)

or the Occupational Health and Safety

Act (OSHA). If EPA concluded that the

category of sources was sufficiently

addressed under another program, the

Agency rated that source category as

having ‘‘low’’ potential for adverse

water quality impact. Application of the

second criterion showed that some

categories were likely to be adequately

addressed by other programs.

After application of the third

criterion, availability of nationwide data

on the various storm water discharge

categories, EPA concluded that available

data would not support any such

nationwide designations. While such

data could exist on a regional or local

basis, EPA believes that permitting

authorities should have flexibility to

regulate only those categories of sources

contributing to localized water quality

impairments.

EPA received comments requesting

designation of additional industrial,

commercial and retail sources (e.g.

industrial activity ‘‘look-alikes’’, roads,

commercial facilities and institutions,

and vehicle maintenance facilities) in

the final rule, because the commenters

believe that the data exist to support

national designation of some of these

sources. Other comments were received

opposing designation of any additional

sources. Today’s rule does not designate

any additional industrial or commercial

category of sources either because EPA

currently lacks information indicating a

consistent potential for adverse water

quality impact or because of EPA’s

belief that the likelihood of adverse

impacts on water quality is low, with

some possible exceptions on a more

local basis. Since the time the Agency

submitted the Report, EPA has

continued to seek additional data and

has requested available data from the

FACA members. If sufficient regional or

nationwide data become available in the

future, the permitting authority could at

that time designate a category of sources

or individual sources on a case-by-case

basis. Therefore, today’s rule encourages

control of storm water discharges from

Groups A and B through self-initiated,

voluntary BMPs, unless the discharge

(or category of discharges) is designated

for permitting by the permitting

authority. See discussion in section I.D.,

EPA’s Reports to Congress.

3. ISTEA Sources

Provisions within the Intermodal

Surface Transportation and Efficiency

Act (ISTEA) of 1991 temporarily

exempted storm water discharges

associated with industrial activity that

are owned or operated by municipalities

serving populations less than 100,000

people (except for airports, power

plants, and uncontrolled sanitary

landfills) from the need to apply for or

obtain a storm water discharge permit

(section 1068(c) of ISTEA). Congress

extended the NPDES permitting

moratorium for these facilities to allow

small municipalities additional time to

comply with NPDES requirements for

certain sources of industrial storm

water. The August 7, 1995 storm water

final rule (60 FR 40230) further

extended this moratorium until August

7, 2001. However, today’s rule changes

this deadline so that previously

exempted industrial facilities owned or

operated by municipalities serving

populations less than 100,000 people,

must now submit an application for a

permit within 3 years and 90 days from

date of publication of today’s rule.

EPA received comments

recommending that permit requirements

for municipally owned or operated

industrial storm water discharges,

including those previously exempt

under ISTEA, be included in a single

NPDES permit for all MS4 storm water

discharges. The existing NPDES

regulations already provide permitting

authorities the ability to issue a single

‘‘combination’’ permit for MS4

discharges. However, if the permitting

authorities chose to issue this type of

permit, they must make sure that in

doing so, they are not creating a double

standard for industrial facilities covered

under the combination permit versus

those covered under separate general or

individual permits. In order to avoid

this double standard, combination

permits would have to contain

requirements that are the same or very

similar to the requirements found in

separate MS4 and industrial permits,

i.e., the minimum measures and other

necessary requirements of an MS4

permit, and the SWPPP, monitoring and

reporting requirements, and other

necessary requirements of an industrial

permit. If such a combined MS4 general

permit were issued, the regulations

require that each discharger submit

NOIs for their respective discharges,

except for discharges from small

construction activities. Flexibility exists

in developing a combination NOI which

could reduce the need to submit

duplicative information, e.g. owner/

operator name and address. The

combination NOI would still need to

require specific information for each

separate municipally owned or operated

industrial location, including

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68781

construction projects disturbing 5 or

more acres. The regulations at

§ 122.28(b)(2)(ii) list the necessary

contents of an NOI, which require: the

facility name, facility address, type of

facility or discharge and receiving

stream for each industrial discharge

location. When viewed in its entirety, a

combination permit, which by necessity

would need to contain all elements of

otherwise separate industrial and MS4

permit requirements, and require NOI

information for each separate industrial

activity, may have few advantages when

compared to obtaining separate MS4

and industrial general permit coverage.

In order to allow the permitting

authority to issue a single storm water

permit for the MS4 and all municipally

owned or operated industrial facilities,

including those previously exempt

under ISTEA, today’s rule requires

applications for ISTEA sources within 3

yrs and 90 days from date of publication

of today’s rule. The permitting authority

has the ultimate decision to determine

whether or not a single allencompassing MS4 permit is

appropriate.

4. Residual Designation Authority

The NPDES permitting authority’s

existing designation authority, as well

as the petition provisions are being

retained. Today’s rule contains two

provisions related to designation

authority at §§ 122.26(a)(9)(i)(C) and (D).

Subsection (C) adds designation

authority where storm water controls

are needed for the discharge based upon

wasteload allocations that are part of

TMDLs that address the pollutant(s) of

concern. EPA intends that the NPDES

permitting authority have discretion in

the matter of designations based on

TMDLs under subsection (C).

Subsection (D) carries forward residual

designation authority under former

§ 122.26(g), and has been modified to

provide clarification on categorical

designation. Under today’s rule, EPA

and authorized States continue to

exercise the authority to designate

remaining unregulated discharges

composed entirely of storm water for

regulation on a case-by-case basis

(including § 123.35). Individual sources

are subject to regulation if EPA or the

State, as the case may be, determines

that the storm water discharge from the

source contributes to a violation of a

water quality standard or is a significant

contributor of pollutants to waters of the

United States. This standard is based on

the text of section CWA 402(p). In

today’s rule, EPA believes, as Congress

did in drafting section CWA

402(p)(2)(E), that individual instances of

storm water discharge might warrant

special regulatory attention, but do not

fall neatly into a discrete,

predetermined category. Today’s rule

preserves the regulatory authority to

subsequently address a source (or

category of sources) of storm water

discharges of concern on a localized or

regional basis. For example, as States

and EPA implement TMDLs, permitting

authorities may need to designate some

point source discharges of storm water

on a categorical basis either locally or

regionally in order to assure progress

toward compliance with water quality

standards in the watershed.

EPA received comments asking that

§ 122.26(a)(9)(i)(D) as proposed be

modified to include specific language

clarifying the permitting authority’s

ability to designate additional sources

on a categorical basis as explained in

the preamble to the proposed rule. One

comment requested that the designation

language include ‘‘categories of sources

on a Statewide basis.’’ EPA agrees that

the intent of the language may not have

been clear regarding categorical

designation. Today’s rule modifies

subsection (D) to clarify that the

designation authority can be applied

within different geographic areas to any

single discharge (i.e., a specific facility),

or category of discharges that are

contributing to a violation of a water

quality standard or are significant

contributors of pollutants to waters of

the United States. The added term

‘‘within a geographic area’’ allows

‘‘State-wide’’ or ‘‘watershed-wide’’

designation within the meaning of the

terms.

One commenter questioned the

Agency’s legal authority to provide for

such residual designation authority. The

stakeholder argued that the lapse of the

October 1, 1994, permitting moratorium

under CWA section 402(p)(1) eliminated

the significance of the CWA section

402(p)(2) exceptions to the moratorium,

including the exception for discharges

of storm water determined to be

contributing to a violation of a water

quality standard or a significant

contributor of pollutants under CWA

section 402(p)(2)(E). The stakeholder

further argued that EPA’s authority to

designate sources for regulation under

CWA section 402(p)(6) is limited to

storm water discharges other than those

described under CWA section 402(p)(2).

Because CWA section 402(p)(2)(E)

describes individually designated

discharges, the stakeholder concluded

that regulations under CWA section

402(p)(6) cannot provide for postpromulgation designation of individual

sources. EPA disagrees.

First, as explained previously, EPA

anticipates that NPDES permitting

authorities may yet determine that

individual unregulated point sources of

storm water discharges require

regulation on a case-by-case basis. This

conclusion is consistent with the

Congress’ recognition of the potential

need for such designation under the first

phase of storm water regulation as

described in CWA section 402(p)(2)(E).

Under CWA section 402(p)(2)(E),

Congress recognized the need for both

EPA and the State to retain authority to

regulate unregulated point sources of

storm water under the NPDES permit

program. Second, to the extent that

CWA section 402(p)(6) requires

designation of a ‘‘category’’ of sources,

the permitting authority may designate

such (as yet unidentified) sources as a

category that should be regulated to

protect water quality. Though such

sources may exist and discharge today,

if neither EPA nor the State/Tribal

NPDES permitting authority has

designated the source for regulation

under CWA section 402(p)(2)(E) to date,

then CWA section 402(p)(6) provides

the authority to designate such sources.

The Agency can designate a category

of ‘‘not yet identified’’ sources to be

regulated, based on local concerns, even

if data do not exist to support

nationwide regulation of such sources.

EPA does not interpret the language in

CWA section 402(p) to preclude States

from exercising designation authority

under these provisions because such

designation (and subsequent regulation

of designated sources) is within the

‘‘scope’’ of the NPDES program.

EPA also believes that sources

regulated pursuant to a State

designation are part of (and regulated

under) a federally approved State

NPDES program, and thus subject to

enforcement under CWA sections 309

and 505. Under existing NPDES State

program regulations, State programs that

are ‘‘greater in scope of coverage’’ are

not part of the federally-approved

program. By contrast, any such State

regulation of sources in this ‘‘reserved

category’’ will be within the scope of the

federal program because today’s rule

recognizes the need for such post

promulgation designations of

unregulated point sources of storm

water. Such regulation will be ‘‘more

stringent’’ than the federal program

rather than ‘‘greater in scope of

coverage’’ (40 CFR 123.1(h)).

EPA does not interpret the

congressional direction in CWA section

402(p)(6) to preclude regulation of point

sources of storm water that should be

regulated to protect water quality.

Under CWA section 510, Congress

expressly recognized and preserved the

authority of States to adopt and enforce

68782 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

more stringent regulation of point

sources, as well as any requirement

respecting the control or abatement of

pollution. Section 510 applies, ‘‘except

as expressly provided’’ in the CWA.

CWA section 502(14) does expressly

provide affirmative limitations on the

regulation of certain pollutant sources

through the point source control

program, the NPDES permitting

program. Section 502(14) excludes

agricultural storm water and return

flows from irrigated agriculture from the

definition of point source, and section

402(l) limits applicability of the section

402 permit program for return flows

from irrigated agriculture, as well as for

storm water runoff from certain oil, gas,

and mining operations. Unlike sections

502(14) and 402(l), EPA does not

interpret CWA section 402(p)(6) as an

express provision limiting the authority

to designate point sources of storm

water for regulation on a case-by-case

basis after the promulgation of final

regulations. Any source of storm water

discharge is encouraged to assess its

potential for storm water contamination

and take preventive measures against

contamination. Such proactive actions

could result in the avoidance of future

regulation.

One comment was received

requesting clarification of the term

‘‘non-municipal’’ in § 122.26(a)(9)(ii).

The commenter is concerned that the

term ‘‘non-municipal,’’ in this context,

implies that municipally owned or

operated facilities cannot be designated.

The term ‘‘non-municipal’’ in this

context refers to the universe of

unregulated industrial and commercial

facilities that could potentially be

designated according to § 122.26(a)(9)(i)

authority. There is no exemption for

municipally owned or operated

facilities under these designation

provisions.

Finally, EPA received comments and

evaluated the proposal under which

operators of regulated small, medium,

and large MS4s would be responsible

for controlling discharges from

industrial and other facilities into their

systems in lieu of requiring NPDES

permit coverage for such facilities. EPA

did not adopt this framework due to

concerns with administrative and

technical burden on the MS4 operators,

as well as concerns about such an

intergovernmental mandate.

J. Conditional Exclusion for ‘‘No

Exposure’’ of Industrial Activities and

Materials to Storm Water

1. Background

In 1992, the Ninth Circuit court

remanded to EPA for further

rulemaking, a portion of the definition

of ‘‘storm water discharge associated

with industrial activity’’ that excluded

the category of industrial activity

identified as ‘‘light industry’’ when

industrial materials and/or activities

were not exposed to storm water. See

NRDC v. EPA, 966 F.2d 1292, 1305 (9th

Cir. 1992). Today’s final rule responds

to that remand. In the 1990 storm water

regulations, EPA excluded the light

industry category from the requirement

for an NPDES permit if the industrial

materials and/or activities were not

‘‘exposed’’ to storm water (see

§ 122.26(b)(14)). The Agency had

reasoned that most of the activity at

these types of facilities takes place

indoors and that emissions from stacks,

use of unhoused manufacturing

equipment, outside material storage or

disposal, and generation of large

amounts of dust or particles would be

atypical (55 FR 48008, November 16,

1990).

The Ninth Circuit determined that the

exemption was arbitrary and capricious

for two reasons. First, the court found

that EPA had not established a record to

support its assumption that light

industry that was not exposed to storm

water was not ‘‘associated with

industrial activity,’’ particularly when

other types of industrial activity not

exposed to storm water remained

‘‘associated with industrial activity.’’

The court specifically found that ‘‘[t]o

exempt these industries from the normal

permitting process based on an

unsubstantiated assumption about this

group of facilities is arbitrary and

capricious.’’ Second, the court

concluded that the exemption

impermissibly ‘‘altered the statutory

scheme’’ for permitting because the

exemption relied on the unverified

judgment of the light industrial facility

operator to determine non-applicability

of the permit application requirements.

In other words, the court was critical

that the operator would determine for

itself that there was ‘‘no exposure’’ and

then simply not apply for a permit

without any further action. Without a

basis for ensuring the effective operation

of the permitting scheme—either that

facilities would self-report actual

exposure or that EPA would be required

to inspect and monitor such facilities—

the court vacated and remanded the rule

to EPA for further rulemaking.

One of the major concerns expressed

by the FACA Committee, was that EPA

streamline and reinvent certain

troublesome or problematic aspects of

the existing permitting program for

storm water discharges. One area

identified was the mandatory

applicability of the permitting program

to all industrial facilities, even those

‘‘light industrial’’ activities that are of

very low risk or of no risk to storm

water contamination. Such dischargers

may not have any industrial sources of

storm water contamination on the plant

site, yet they are still required to apply

for an NPDES storm water permit and

meet all permitting requirements.

Examples of such facilities are a soap

manufacturing plant (SIC Code 28) or

hazardous waste treatment and disposal

facility, where all industrial activities,

even loading docks, are inside a

building or under a roof.

Although they did not provide a

written report, the FACA Committee

members advised EPA that the existing

storm water program should be revised

to allow such facilities to seek an

exclusion from the NPDES storm water

permitting requirements. The

Committee agreed that such an

exclusion should also provide a strong

incentive for other industrial facilities

that conduct industrial activities

outdoors to move the activities under

cover or into buildings to prevent

contamination of rainfall and storm

water runoff. The committee believed

that such a ‘‘no exposure’’ permit

exclusion could be a valuable incentive

for storm water pollution prevention.

In today’s final rule, the Agency

responds to both of the bases for the

court’s remand. The exclusion from

permitting based on ‘‘no exposure’’

applies to all industrial categories listed

in the existing storm water regulations

except construction. The court’s opinion

rejected EPA’s distinction between light

industry and other industry, but it did

not preclude an interpretation that treats

all ‘‘non-exposed’’ industrial facilities in

the same fashion. Presuming that an

industrial facility adequately prevents

exposure of industrial materials and

activities to storm water, today’s rule

treats discharges from ‘‘non-exposed’’

industrial facilities in a manner similar

to the way Congress intended for

discharges from administrative

buildings and parking lots. Specifically,

permits will not be required for storm

water discharges from these facilities on

a categorical basis.

To assure that discharges from

industrial facilities really are similar to

discharges from administrative

buildings and parking lots, and to

respond to the second basis for the

court’s remand, the permitting

exclusion is ‘‘conditional’’. The person

responsible for a point source discharge

from a ‘‘no exposure’’ industrial source

must meet the conditions of the

exclusion, and complete, sign and

submit the certification to the

permitting authority for tracking and

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68783

accountability purposes. EPA believes

today’s rule, therefore, is fully

consistent with the direction provided

by the court.

EPA relied upon the ‘‘no exposure’’

concept discussed by the FACA

Committee in developing the ‘‘no

exposure’’ provisions of today’s rule.

EPA is deleting the sentence regarding

‘‘no exposure’’ for the facilities in

§ 122.26(b)(14)(xi) and adding a new

§ 122.26(g) titled ‘‘Conditional

Exclusion for No Exposure of Industrial

Activities to Storm Water.’’ The ‘‘no

exposure’’ provision will make storm

water discharges from all classes of

industrial facilities eligible for

exclusion, except storm water

discharges from regulated construction

activities. Regulated construction

activities cannot claim ‘‘no exposure’’

because the main pollutants of concern

(e.g., sediment) generally cannot

entirely be sheltered from storm water.

Today’s rule represents a significant

expansion in the scope of the ‘‘no

exposure’’ provision originally

promulgated in the 1990 rule, which

was only for storm water discharges

from light industry. The intent of

today’s ‘‘no exposure’’ provision is to

provide a simplified method for

complying with the CWA to all

industrial facilities that are entirely

indoors. This includes facilities that are

located within a large office building, or

at which the only items permanently

exposed to precipitation are roofs,

parking lots, vegetated areas, and other

non-industrial areas or activities.

EPA received several comments

related to storm water runoff from

parking lots, roof tops, lawns, and other

non-industrial areas of an industrial

facility. Storm water discharges from

these areas, which may contain

pollutants or which may result in

additional storm water flows, are not

directly regulated under the existing

storm water permitting program because

they are not ‘‘storm water discharges

associated with industrial activity’’.

Many comments on this issue supported

maintaining the exclusion from the

existing regulations for storm water

permitting for discharges from

administrative buildings, parking lots,

and other non-industrial areas. Other

comments opposed allowing the

continued exclusion for discharges from

non-industrial areas of the site because

discharges from these areas are

potentially a significant cause of

receiving water impairment. These

comments urged that such discharges

should not be excluded from NPDES

permit coverage. Today’s rule does not

require permit coverage for discharges

from a facility’s exposed areas that are

separate from industrial activities such

as runoff from office buildings and

accompanying parking lots, lawns and

other non-industrial areas. This

approach is consistent with the existing

storm water rules which were based on

Congress’s intent to exclude nonindustrial areas such as ‘‘parking lots

and administrative and employee

buildings.’’ 133 Cong. Rec. 985 (1987).

EPA also lacks data indicating that

discharges from these areas at an

industrial facility cause significant

receiving water impairments. Therefore,

the non-industrial areas at a facility do

not need to be assessed as part of the

‘‘no exposure’’ certification.

EPA received comments related to

industrial facilities that achieve ‘‘no

exposure’’ by constructing large

amounts of impervious surfaces, such as

roofs, where previously there were

pervious or porous surfaces into which

storm water could infiltrate. Some

commenters made the point that large

amounts of impervious area may cause

a significant increase in storm water

volume flowing off the industrial

facility, and thus may cause adverse

receiving water impacts simply due to

the increased quantity of storm water

flow. Some commenters said that storm

water discharges from impervious areas

at an industrial facility are generally

more frequent, and often larger, than

discharges from the pre-existing natural

surfaces. They believe that these

discharges will contain pollutants

typical of commercial areas and roads

and are an equal threat to direct human

uses of the water and can cause equal

damage to aquatic life and its habitat.

Other commenters believe that if

Congress or EPA addresses the issue of

flow, it should be addressed on a

broader scale than merely through the

‘‘no exposure’’ exclusion, and that EPA

has no authority under any existing

legal framework to regulate flow

directly. Some commenters stated that

developing federal parameters for the

control of water quantity, i.e. flow,

would result in federal intrusion into

land use planning, an authority that

they claim is solely within the purview

of State governments and their political

subdivisions.

EPA is not attempting to regulate flow

via the ‘‘no exposure’’ provisions. EPA

does agree, however, that increases in

impervious surfaces can result in

increased runoff volumes from the site

which in turn may increase pollutant

loading. In addition, the Agency notes

that in some States water quality

standards include water quality criteria

for flow or turbidity. Therefore, in order

to provide a minimal amount of

information on possible impacts from

increased pollutant loading and runoff

volume, EPA’s ‘‘no exposure’’

certification form (see Appendix 4) asks

the discharger to indicate if they have

paved or roofed over a formerly

exposed, pervious area in order to

qualify for the ‘‘no exposure’’ exclusion.

If the answer is yes, the discharger must

indicate, by choosing from three

possible responses, approximately how

much impervious area was created to

achieve ‘‘no exposure’’. The choices are:

(1) less than 1 acre, (2) 1 to 5 acres, and

(3) more than 5 acres. This requirement

provides additional information that

will aid in determining if discharges

from the facility are causing adverse

receiving water impacts. EPA intends to

prevent water quality impacts resulting

from increased discharges of pollutants,

which may result from increased

volume of runoff. In many cases,

consideration of the increased flow rate,

velocity and energy of storm water

discharges, following construction of

large amounts of impervious surfaces,

must be taken into consideration in

order to reduce the discharge of

pollutants, to meet water quality

standards and to prevent degradation of

receiving streams. EPA recommends

that dischargers consider these factors

when making modifications to their site

in order to qualify for the ‘‘no exposure’’

exclusion.

2. Today’s Rule

In order to claim relief under the ‘‘no

exposure’’ provision, the discharger of

an otherwise regulated facility must

submit a no exposure certification that

incorporates the questions of

§ 122.26(g)(4)(iii) to the NPDES

permitting authority once every 5 years.

This provision applies across all

categories of industrial activity covered

by the existing program, except

discharges from construction activities.

In addition to submitting a ‘‘no

exposure’’ certification every 5 years,

the facility must allow the NPDES

permitting authority or operator of an

MS4 (where there is a storm water

discharge to the MS4) to inspect the

facility and to make such inspection

reports publicly available upon request.

Also, upon request, the facility must

submit a copy of the ‘‘no exposure’’

certification to the operator of the MS4

into which the facility discharges (if

applicable). All ‘‘no exposure’’

certifications must be signed in

accordance with the signatory

requirements of § 122.22. The ‘‘no

exposure’’ certification is nontransferable. In the event that the facility

operator changes, the new discharger

must submit a new ‘‘no exposure’’

certification.

68784 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

Members of the FACA Committee

urged that EPA not allow dischargers

certifying ‘‘no exposure’’ to take actions

to qualify for this provision that result

in a net environmental detriment. In

developing a regulatory implementation

mechanism, however, EPA found that

the phrase ‘‘no net environmental

detriment,’’ was too imprecise to use

within this context. Therefore, today’s

rule addresses this issue by requiring

information that should help the

permitting authority to determine

whether actions taken to qualify for the

exclusion interfere with the attainment

or maintenance of water quality

standards, including designated uses.

Permitting authorities will be able,

where necessary, to make a

determination by evaluating the

activities that changed at the industrial

site to achieve ‘‘no exposure’’, and

assess whether these changes cause an

adverse impact on, or have the

reasonable potential to cause an

instream excursion of, water quality

standards, including designated uses.

EPA anticipates that many efforts to

achieve ‘‘no exposure’’ will employ

simple good housekeeping and

contaminant cleanup activities. Other

efforts may involve moving materials

and industrial activities indoors into

existing buildings or structures.

In very limited cases, industrial

operators may make major changes at a

site to achieve ‘‘no exposure’’. These

efforts may include constructing a new

building or cover to eliminate exposure

or constructing structures to prevent

run-on and storm water contact with

industrial materials or activities. Where

major changes to achieve ‘‘no exposure’’

increase the impervious area of the site,

the facility operator must provide this

information on the ‘‘no exposure’’

certification form as discussed above.

Using this and other available data and

information, permitting authorities

should be able to assess whether any

major change has resulted in increased

pollutant concentrations or loadings,

toxicity of the storm water runoff, or a

change in natural hydrological patterns

that would interfere with the attainment

and maintenance of water quality

standards, including designated uses or

appropriate narrative, chemical,

biological, or habitat criteria where such

State or Tribal water quality standards

exist. In these instances, the facility

operator and their NPDES permitting

authority should take appropriate

actions to ensure that attainment or

maintenance of water quality standards

can be achieved. The NPDES permitting

authority should decide if the facility

must obtain coverage under an

individual or general permit to ensure

that appropriate actions are taken to

address adverse water quality impacts.

While the intent of today’s ‘‘no

exposure’’ provision is to reduce the

regulatory burdens on industrial

facilities and government agencies, the

FACA Committee suggested that the

NPDES permitting authority consider a

compliance assessment program to

ensure that facilities that have availed

themselves of this ‘‘no exposure’’ option

meet the applicable requirements.

Inspections could be conducted at the

discretion of the NPDES authority and

be coordinated with other facility

inspections. EPA expects, however, that

the permitting authority will conduct

inspections when it becomes aware of

potential water quality impacts possibly

caused by the facility’s storm water

discharges or when requested to do so

by adversely affected members of the

public. The intent of this provision is

that the 5 year ‘‘no exposure’’

certification be fully available to, and

enforceable by, appropriate federal and

State authorities under the CWA.

Private citizens can enforce against

facilities for discharges of storm water

that are inconsistent with a ‘‘no

exposure’’ certification if storm water

discharges from such facilities are not

otherwise permitted and in compliance

with applicable requirements.

EPA received comments from owners,

operators and representatives of Phase I

facilities classified as ‘‘light industry’’ as

defined by the regulations at

§ 122.26(b)(14)(xi). The comments

recommended maintaining the approach

of the existing regulations which does

not require the discharger to submit any

supporting documentation to the

permitting authority in order to claim

the ‘‘no exposure’’ exclusion from

permitting. As discussed previously, the

‘‘no exposure’’ concept was developed

in response to the Ninth Circuit court’s

remand of part of the existing rules back

to EPA. The court found that EPA

cannot rely on the ‘‘unverified

judgment’’ of the facility. The comments

opposing documentation did not

address the ‘‘unverified judgment’’

concern.

Today’s rule is a ‘‘conditional’’

exclusion from permitting which

requires all categories, including the

‘‘light industrial’’ facilities that have no

exposure of materials to storm water, to

submit a certification to the permitting

authority. Upon receipt of a complete

certification, the permitting authority

can review the information, or call, or

inspect the facility if there are doubts

about the facility’s ‘‘no exposure’’ claim.

Also, if the facility discharges into an

MS4, the operator of the MS4 can

request a copy of the certification, and

can inspect the facility. The public can

request a copy of the certification and/

or inspection reports. In adopting these

conditional ‘‘no exposure’’ provisions,

the Agency addressed the Ninth Circuit

court’s ruling regarding the discharger’s

unverified judgment.

EPA received one comment

requesting clarification on whether the

anti-backsliding provisions in the

regulations at § 122.44(l) apply to

industrial facilities that are currently

covered under an NPDES storm water

permit, and whether such facilities

could qualify for the ‘‘no exposure’’

exclusion under today’s rule. The antibacksliding provisions will not prevent

most industrial facilities that can certify

‘‘no exposure’’ under today’s rule from

qualifying for an exclusion from

permitting. The anti-backsliding

provisions contain 5 exceptions that

allow permits to be renewed, reissued or

modified with less stringent conditions.

One exception at § 122.44(l)(2)(A)

allows less stringent conditions if

‘‘material and substantial alterations or

additions to the permitted facility

occurred after permit issuance which

justify the application of a less stringent

effluent limitation.’’ Section

122.44(l)(B)(1) also allows less stringent

requirements if ‘‘information is

available which was not available at the

time of permit issuance and which

would have justified the application of

less stringent effluent limitations at the

time of permit issuance.’’ Facility’s

operators who certify ‘‘no exposure’’

and submit the required information

once every 5 years will have provided

the permitting authority ‘‘information

that was not available at the time of

permit issuance.’’ Also, some facilities

may, in order to achieve ‘‘no exposure’’,

make ‘‘material and substantial

alterations or additions to the permitted

facility.’’ Therefore, most facilities

covered under existing NPDES general

permits for storm water (e.g., EPA’s

Multi-Sector General Permit) will be

eligible for the conditional ‘‘no

exposure’’ exclusion from permitting

without concern about the antibacksliding provisions. Such

dischargers will have met one or both of

the anti-backsliding exceptions detailed

above. Facilities that are covered under

individual permits containing numeric

limitations for storm water should

consult with their permitting authority

to determine whether the antibacksliding provisions will prevent

them from qualifying for the exclusion

from permitting (for that discharge

point) based on a certification of ‘‘no

exposure’’.

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68785

EPA received several comments

regarding the timing of when the ‘‘no

exposure’’ certification should be

submitted. The proposed rule said that

the ‘‘no exposure’’ certification notice

must be submitted ‘‘at the beginning of

each permit term or prior to

commencing discharges during a permit

term.’’ Some commenters interpreted

this statement to mean that existing

facilities can only submit the

certification at the time a permit is being

issued or renewed. EPA intended the

phrase ‘‘at the beginning of each permit

term’’ to mean ‘‘once every 5 years’’ and

today’s rule reflects this clarification.

EPA envisions that the NPDES storm

water program will be implemented

primarily through general permits

which are issued for a 5 year term.

Likewise the ‘‘no exposure’’ certification

term is 5 years. The NPDES permitting

authority will maintain a simple

registration list that should impose only

a minor administrative burden on the

permitting authority. The registration

list will allow for tracking of industrial

facilities claiming the exclusion. This

change allows a facility to submit a ‘‘no

exposure’’ certification at any time

during the term of the permit, provided

that a new certification is submitted

every 5 years from the time it is first

submitted (assuming that the facility

maintains a ‘‘no exposure’’ status). Once

a discharger has established that the

facility meets the definition of ‘‘no

exposure’’, and submits the necessary

‘‘no exposure’’ certification, the

discharger must maintain their ‘‘no

exposure’’ status. Failure to maintain

‘‘no exposure’’ at their facility could

result in the unauthorized discharge of

pollutants to waters of the United States

and enforcement for violation of the

CWA. Where a discharger believes that

exposure could occur in the future due

to some anticipated change at the

facility, the discharger should submit an

application and obtain coverage under

an NPDES permit prior to such

discharge to avoid penalties.

Where EPA is the permitting

authority, dischargers may submit a ‘‘no

exposure’’ certification at any time after

the effective date of today’s rule. Where

EPA is not the permitting authority,

dischargers may not be able to submit

the certification until the non-federal

permitting authority completes any

necessary statutory or regulatory

changes to adopt this ‘‘no exposure’’

provision. EPA recommends that the

discharger contact the permitting

authority for guidance on when the ‘‘no

exposure’’ certification should be

submitted.

EPA received comments on the

proposed rule requirement that the

discharger ‘‘must comply immediately

with all the requirements of the storm

water program including applying for

and obtaining coverage under an NPDES

permit,’’ if changes occur at the facility

which cause exposure of industrial

activities or materials to storm water.

The comments expressed the difficultly

of immediate compliance. EPA expects

that most facility changes can be

anticipated, therefore dischargers

should apply for and obtain NPDES

permit coverage in advance of changes

that result in exposure to industrial

activities or materials. Permitting

authorities may grant additional time,

on a case-by-case basis, for preparation

and implementation of a storm water

pollution prevention plan.

Finally, today’s rule at § 122.26(g)(4)

includes the information which must be

included on the ‘‘no exposure’’

certification. Authorized States, Tribes

or U.S. Territories may develop their

own form which includes this required

information, at a minimum. EPA

adopted the requirements (with

modification) from the draft ‘‘No

Exposure Certification Form’’ published

as an appendix to the proposed rule.

Modifications were made to the draft

form to address comments received and

to streamline the required information.

EPA included these certification

requirements in today’s rule in order to

preserve its integrity. Dischargers in

areas where EPA is the permitting

authority should use the ‘‘No Exposure

Certification’’ form included in

Appendix 4.

3. Definition of ‘‘No Exposure’’

For purposes of this section, ‘‘no

exposure’’ means that all industrial

materials or activities are protected by a

storm resistant shelter to prevent

exposure to rain, snow, snowmelt, and/

or runoff. Industrial materials or

activities include, but are not limited to,

material handling equipment or

activities, industrial machinery, raw

materials, intermediate products, byproducts, final products, or waste

products. Material handling activities

include the storage, loading and

unloading, transportation, or

conveyance of any raw material,

intermediate product, final product or

waste product. However, storm resistant

shelter is not required for: (1) Drums,

barrels, tanks, and similar containers

that are tightly sealed, provided those

containers are not deteriorated and do

not leak; (2) adequately maintained

vehicles used in material handling; and

(3) final products, other than products

that would be mobilized in storm water

discharge (e.g., rock salt). Each of these

three exceptions to the no exposure

definition are discussed in more detail

below.

EPA intends the term ‘‘storm resistant

shelter’’ to include completely roofed

and walled buildings or structures, as

well as structures with only a top cover

but no side coverings, provided material

under the structure is not otherwise

subject to any run-on and subsequent

runoff of storm water. While the Agency

intends that this provision promote

permanent ‘‘no exposure’’, EPA

understands that certain vehicles could

pass between buildings and, during

passage, be exposed to rain and snow.

Adequately maintained vehicles such as

trucks, automobiles, forklifts, or other

such general purpose vehicles at the

industrial site that are not industrial

machinery, and that are not leaking

contaminants or are not otherwise a

source of industrial pollutants, could be

exposed to precipitation or runoff. Such

activities alone does not prevent a

discharger from being able to certify no

exposure under this provision.

Similarly, trucks or other vehicles

awaiting maintenance at vehicle

maintenance facilities, as defined at

§ 122.26(b)(14)(viii), that are not leaking

contaminants or are not otherwise a

source of industrial pollutants, are not

considered exposed.

In addition, EPA recognizes that there

are circumstances where permanent ‘‘no

exposure’’ of industrial activities or

materials is not possible. Under such

conditions, materials and activities may

be sheltered with temporary covers,

such as tarps, between periods of

permanent enclosure. The final rule

does not specify every such situation.

EPA intends that permitting authorities

will address this issue on a case-by-case

basis. Permitting authorities can

determine the circumstances under

which temporary structures will or will

not meet the requirements of this

section. Until permitting authorities

specifically determine otherwise, EPA

recommends application of the ‘‘no

exposure’’ exclusion for temporary

sheltering of industrial materials or

activities only during facility renovation

or construction, provided that the

temporary shelter achieves the intent of

this section. Moreover, ‘‘exposure’’ that

results from a leak in protective

covering would only be considered

‘‘exposure’’ if not corrected prior to the

next storm water discharge event. EPA

received one comment requesting that

this allowance for temporary shelter be

limited to facility renovation or

construction directly related to the

industrial activity requiring temporary

shelter, and be scheduled to minimize

the use of temporary shelter. Another

comment suggested placing time limits

68786 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

on the use of temporary shelter. The

commenter did not recommend a

specific time period, rather the

comment said that renovation in some

instances may take years, and that EPA

should not allow temporary shelter over

prolonged periods. EPA agrees that the

use of temporary shelter must be related

to the renovation or construction at the

site, and be scheduled or designed to

minimize the use of temporary shelter.

Further, EPA agrees that the use of

temporary shelter should be limited in

duration, but does not intend to define

‘‘temporary’’ or ‘‘prolonged period’’.

Many final products are intended for

outdoor use and pose little risk of storm

water contamination, such as new cars.

Therefore, final products, except those

that can be mobilized in storm water

discharge, can be ‘‘exposed’’ and still

allow the discharge to certify ‘‘no

exposure’’. EPA intends the term ‘‘final

products’’ to mean those products that

are not used in producing another

product. Any product that can be used

to make another product is considered

an ‘‘intermediate product.’’ For

example, a facility that makes horse

trailers can store the finished trailers

outdoors as a final product. The storage

of those final products does not prevent

eligibility to claim ‘‘no exposure’’.

However, any facility that makes parts

for the horse trailers (e.g., metal tubing,

sheet metal, paint) is not eligible for the

‘‘no exposure’’ exclusion from

permitting if those ‘‘intermediate

products’’ are stored outdoors (i.e.,

‘‘exposed’’).

EPA received comments related to

materials in drums, barrels, tanks and

similar containers. Some comments

objected to the language in the preamble

to the proposed rule that would have

recommended that the ‘‘exposure’’

determination for drums and barrels be

based on the ‘‘potential to leak.’’ Those

comments said that all drums and

barrels have the potential to leak,

thereby making certification impossible.

They recommended allowing outdoor

storage of drums and barrels except for

those that ‘‘are leaking’’ at the time of

certification. Other comments suggested

allowing drums and barrels to be stored

outside only if the drums and barrels:

are empty; have secondary containment;

or there is a spill contingency plan in

place. Opposing comments suggested

that allowing outdoor exposure of

drums and barrels, based on existing

integrity and condition, is inconsistent

with the ‘‘however packaged’’ proposed

rule language, and also would not

satisfy the Ninth Circuit remand. The

comments point out that the former rule

was invalidated by the court in part

because it relied on the ‘‘unverified

judgment’’ of the light industrial facility

operator to determine the nonapplicability of the permit requirements,

and that allowing the facility operator to

determine the condition of their drums

and barrels would result in the same

flaw.

In response, EPA believes that drums

and barrels that are stored outdoors pose

little risk of storm water contamination

unless they are open, deteriorated or

leaking. The Agency has modified

today’s rule accordingly. EPA intends

the term ‘‘open’’ to mean any container

that is not tightly sealed and ‘‘sealed’’ to

mean banded or otherwise secured and

without operational taps or valves.

Drums, barrels, tanks, and similar

containers may only be stored outdoors

under this conditional exclusion. The

addition of material to or withdrawing

of material from these containers while

outside is deemed ‘‘exposure’’. Moving

the containers while outside does not

create ‘‘exposure’’ provided that the

containers are not open, deteriorated or

leaking. In order to complete the ‘‘no

exposure’’ certification, a facility

operator must inspect all drums, barrels,

tanks or other containers stored outside

to ensure that they are not open,

deteriorated, or leaking. EPA

recommends that the discharger

designate someone at the facility to

conduct frequent inspections to verify

that the drums, barrels, tanks or other

containers remain in a condition such

that they are not open, deteriorated or

leaking. Drums, barrels, tanks or other

containers stored outside that have

valves which are used to put material in

or take material out of the container,

and that have dripped or may drip, are

considered to be ‘‘leaking’’ and must be

under a storm resistant shelter in order

to qualify for the no exposure exclusion.

Likewise, leaking pipes containing

contaminants exposed to storm water

are deemed ‘‘exposed.’’ If at any time

drums, barrels, tanks or similar

containers are opened, deteriorated or

leaking, the discharger should take

immediate actions to close or replace

the container. Any resulting

unpermitted discharge would violate

the CWA. The Director, the operator of

the MS4, or the municipality may

inspect the facility to verify that all of

the applicable areas meet the ‘‘no

exposure’’ conditions as specified in the

rule language. In requiring submission

of the conditional ‘‘no exposure’’

certification and allowing the permitting

authority and the operator of the MS4 to

inspect the facility, today’s rule does not

rely on the unverified judgment of the

facility to determine that the no

exposure provision is being met.

EPA received several comments

related to trash dumpsters that are

located outside. The preamble to the

proposed rule listed dumpsters in the

same grouping as drums and barrels,

which based exposure on the ‘‘potential

to leak’’. Today’s rule distinguishes

between dumpsters and drums/barrels.

In the Phase I Question and Answer

document (volume 1, question 52) the

Agency noted that a covered dumpster

containing waste material that is kept

outside is not considered ‘‘exposed’’ as

long as ‘‘the container is completely

covered and nothing can drain out holes

in the bottom, or is lost in loading onto

a garbage truck.’’ EPA affirms this

approach today. Industrial refuse and

industrial trash that is left uncovered is

deemed ‘‘exposed.’’

For purposes of this provision,

particulate matter emissions from roof

stacks/vents that are regulated and in

compliance under other environmental

protection programs, such as air quality

control programs, and that do not cause

storm water contamination, are

considered ‘‘not exposed.’’ EPA

received comments on the phrase in the

draft ‘‘no exposure’’ certification form

that asked whether ‘‘particulate

emissions from roof stacks/vents not

otherwise regulated, and in quantities

detectable in the storm water outflow,’’

are exposed to precipitation. One

comment expressed concern that the

phrase ‘‘in quantities detectable in the

storm water outflow’’ implies that the

facility must conduct monitoring prior

to completing the checklist, and must

continue to monitor after receiving the

no exposure exclusion, in order to be

able to verify compliance with the no

exposure provision. Another comment

said that current measurement

technology allows detection of

pollutants at levels that may not cause

environmental harm. EPA does not

intend to require monitoring of runoff

from facilities with roof stacks/vents

prior to or after completing and

submitting the no exposure certification.

EPA has thus replaced the phrase ‘‘in

quantities detectable’’ with ‘‘evident’’ to

convey the message that emissions from

some roof stacks/vents have the

potential to contaminate storm water

discharges in quantities that are

considered significant or that cause or

contribute to a water quality standards

violation. In those instances where the

permitting authority determines that

particulate emissions from facility roof

stacks/vents are a significant contributor

of pollutants or contributing to water

quality violations, the permitting

authority may require the discharger to

apply for and obtain coverage under a

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68787

permit. Visible deposits of residuals

(e.g., particulate matter) near roof or

side vents are considered ‘‘exposed’’.

Likewise, visible ‘‘track out’’ (i.e.,

pollutants carried on the tires of

vehicles) or windblown raw materials

are deemed ‘‘exposed.’’

EPA received a comment requesting

an allowance under the ‘‘no exposure’’

provision for industrial facilities with

several outfalls at a site where some, but

not all of the outfalls drain non-exposed

areas. The commenter provided an

example of an industrial facility that has

5 outfalls draining different areas of the

site, where two of those outfalls drain

areas where industrial activities or

materials are not exposed to storm

water. The comment requested that the

facility in this example be allowed to

submit a ‘‘no exposure’’ certification in

order to be relieved of permitting

obligations for discharges from those

two outfalls.

EPA agrees, but the comment would

be implemented on an outfall-by-outfall

basis in the permitting process, not

through the ‘‘no exposure’’ exclusion.

The ‘‘no exposure’’ provision was

developed to allow exclusion from

permitting of discharges from entire

industrial facilities (except

construction), based on a claim of ‘‘no

exposure’’ for all areas of the facility

where industrial materials or activities

occur. Where exposure to industrial

materials or activities exist at some but

not all areas of the facility, the ‘‘no

exposure’’ exclusion from permitting is

not allowed because permit coverage is

still required for storm water discharges

from the exposed areas. Relief from

permit requirements for outfalls

draining non-exposed areas should be

addressed through the permit process,

in coordination with the permitting

authority. Most NPDES general permits

for storm water discharge provide

enough flexibility to allow minimal or

no requirements for non-exposed areas

at industrial facilities. If the permitting

authority determines that additional

flexibility is needed for this scenario,

the permits could be modified as

necessary.

K. Public Involvement/Public Role

The Phase II FACA Subcommittee

discussed the appropriate role of the

public in successful implementation of

a municipal storm water program. EPA

believes that an educated and actively

involved public is essential to a

successful municipal storm water

program. An educated public increases

program compliance from residents and

businesses as they realize their

individual and collective responsibility

for protecting water resources (e.g., the

residents and businesses could be

subject to a local ordinance that

prohibits dumping used oil down storm

sewers). Finally, the program is also

more likely to receive public support

and participation when the public is

actively involved from the program’s

inception and allowed to participate in

the decision making process.

In a time of limited staff and financial

resources, public volunteers offer

diverse backgrounds and expertise that

may be used to plan, develop, and

implement a program that is tailored to

local needs (e.g., participate in public

meetings and other opportunities for

input, perform lawful volunteer

monitoring, assist in program

coordination with other preexisting and

related programs, aid in the

development and distribution of

educational materials, and provide

public training activities). The public’s

participation is also useful in the areas

of information dissemination/education

and reporting of violators, where large

numbers of community members can be

more effective than a few regulators.

The public can also petition the

NPDES permitting authority to require

an NPDES permit for a discharge

composed entirely of storm water that

contributes to a violation of a water

quality standard or is a significant

contributor of pollutants to waters of the

United States. In evaluating such a

petition, the NPDES permitting

authority is encouraged to consider the

set of designation criteria developed for

the evaluation of small MS4s located

outside of an urbanized area in places

with a population of at least 10,000 and

a population density of 1,000 or more.

Furthermore, any person can protect

water bodies by taking civil action

under section 505 of the CWA against

any person who is alleged to be in

violation of an effluent standard or

permit condition. If civil action is taken,

EPA encourages citizen plaintiffs to

resolve any disagreements or concerns

directly with the parties involved, either

informally or through any available

alternative dispute resolution process.

EPA recognizes that public

involvement and participation pose

challenges. It requires a substantial

initial investment of staff and financial

resources, which could be very limited.

Even with this investment, the public

might not be interested in participating.

In addition, public participation could

slow down the decision making process.

However, the benefits are numerous.

EPA encourages members of the

public to contact the NPDES permitting

authority or local MS4s operator for

information on the municipal storm

water program and ways to participate.

Such information may also be available

from local environmental, nonprofit and

industry groups.

Some commenters stressed the need

to suggest to the public that they have

a responsibility to fund the municipal

storm water program. While EPA

believes it is important that the program

be adequately funded, today’s rule does

not address appropriate mechanisms or

levels for such funding.

EPA received comments expressing

concern that considerable public

involvement requirements could result

in increased litigation. EPA is not

convinced there is a correlation between

meaningful public education programs

and any increased probability of

litigation.

Finally, EPA received comments

stating that the Agency should not en

courage volunteer monitoring unless

proper procedures are followed. EPA

agrees. EPA encourages only lawful

monitoring, i.e., obtaining the necessary

approval if there is any question about

lawful access to sites. Moreover, as a

matter of good practice and to enhance

the validity and usefulness of the

results, any party, public or private,

conducting water quality monitoring is

encouraged to use appropriate quality

control procedures and approved

sampling and analytic methods.

L. Water Quality Issues

1. Water Quality Based Effluent Limits

In addition to technology based

requirements, all point source

discharges of industrial storm water are

subject to more stringent NPDES

permitting requirements when

necessary to meet water quality

standards. CWA sections 402(p)(3)(A)

and 301(b)(1)(C). For municipal separate

storm sewers, EPA or the State may

determine that other permit provisions

(e.g. one of the minimum measures) are

appropriate to protect water quality and,

for discharges to impaired waters, to

achieve reasonable further progress

toward attainment of water quality

standards pending implementation of a

TMDL. CWA section 402(p)(3)(B)(iii).

See Defenders of Wildlife, et al.

Browner, No. 98–71080 (9th cir., August

11, 1999). Discharges of storm water

also must comply with applicable

antidegradation policies and

implementation methods to maintain

and protect water quality. 40 CFR

131.12. Section 122.34(a) emphasizes

this point by specifically noting that a

storm water management program

designed to reduce the discharge of

pollutants from the storm sewer system

‘‘to the maximum extent practicable’’ is

also designed to protect water quality.

68788 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

Permits issued to non-municipal

sources of storm water must include

water quality-based effluent limits

where necessary to meet water quality

standards.

Commenters challenged EPA’s

interpretation of the CWA as requiring

water quality-based effluent limits for

MS4s when necessary to protect water

quality. Commenters asserted that CWA

402(p)(3)(B), which addresses permit

requirements for municipal discharges,

limits the scope of municipal program

requirements to an effective prohibition

on non-storm water discharges to a

separate storm sewer and to controls

which reduce pollutants to the

‘‘maximum extent practicable, including

management practices, control

techniques and system design and

engineering methods.’’ They asserted

that the final rule should clarify that

neither numeric nor narrative water

quality-based limits are appropriate or

authorized for MS4s.

EPA disagrees that section 402(p)(3)

divests permitting authorities of the

tools necessary to issue permits to meet

water quality standards. Section

402(p)(3)(B)(iii) specifically preserves

the authority for EPA or the State to

include other provisions determined

appropriate to reduce pollutants in

order to protect water quality. Defenders

of Wildlife, slip op. at 11688. Small

MS4s regulated under today’s rule are

designated under CWA 402(p)(6) ‘‘to

protect water quality.’’

Commenters argued that water quality

standards, particularly numeric criteria,

were not designed to address storm

water discharges. The episodic nature

and magnitude of storm water events,

they argue, make it impossible to apply

the ‘‘end of pipe’’ compliance

assessment approach, for example, in

the development of water quality based

effluent limits.

EPA’s disagrees with the commenters

arguments about the inability of water

quality criteria to address high flow

conditions. Today’s final rule does,

however, address the concern that

numeric effluent limits will necessitate

end of pipe treatment and the need to

provide a workable alternative.

Today’s rule was developed under the

approach outlined in the Interim

Permitting Policy for Water QualityBased Effluent Limitations in Storm

Water Permits, issued on August 1,

1996. 61 FR 43761 (November 26, 1996)

(the ‘‘Interim Permitting Policy’’). EPA

intends to issue NPDES permits

consistent with the Interim Permitting

Policy, which provides as follows:

In response to recent questions

regarding the type of water qualitybased effluent limitations that are most

appropriate for NPDES storm water

permits, EPA is adopting an interim

permitting approach for regulating wet

weather storm water discharges. Due to

the nature of storm water discharges,

and the typical lack of information on

which to base numeric water qualitybased effluent limitations (expressed as

concentration and mass), EPA will use

an interim permitting approach for

NPDES storm water permits.

‘‘The interim permitting approach

uses best management practices (BMPs)

in first-round storm water permits, and

expanded or better-tailored BMPs in

subsequent permits, where necessary, to

provide for the attainment of water

quality standards. In cases where

adequate information exists to develop

more specific conditions or limitations

to meet water quality standards, these

conditions or limitations are to be

incorporated into storm water permits,

as necessary and appropriate. This

interim permitting approach is not

intended to affect those storm water

permits that already include

appropriately derived numeric water

quality-based effluent limitations. Since

the interim permitting approach only

addresses water quality-based effluent

limitations, it also does not affect

technology-based effluent limitations,

such as those based on effluent

limitations guidelines or developed

using best professional judgment, that

are incorporated into storm water

permits.

‘‘Each storm water permit should

include a coordinated and cost-effective

monitoring program to gather necessary

information to determine the extent to

which the permit provides for

attainment of applicable water quality

standards and to determine the

appropriate conditions or limitations of

subsequent permits. Such a monitoring

program may include ambient

monitoring, receiving water assessment,

discharge monitoring (as needed), or a

combination of monitoring procedures

designed to gather necessary

information.

‘‘This interim permitting approach

applies only to EPA; however, EPA also

encourages authorized States and Tribes

to adopt similar policies for storm water

permits. This interim permitting

approach provides time, where

necessary, to more fully assess the range

of issues and possible options for the

control of storm water discharges for the

protection of water quality. This interim

permitting approach may be modified as

a result of the ongoing Urban Wet

Weather Flows Federal Advisory

Committee policy dialogue on this

subject.’’

One commenter challenged the

Interim Permitting Policy on a

procedural basis, arguing that it was

published without opportunity for

public notice and comment. In

response, EPA notes that the Policy was

included verbatim and made available

for public comment in the proposal to

today’s final rule. Prior to that proposal,

the Agency defended the application of

the Policy on a case-by-case basis in

individual permit proceedings.

Moreover, the essential elements of the

Policy—that narrative effluent

limitations are the most appropriate

form of effluent limitations for storm

water dischargers from municipal

sources—was inherent in § 122.34(a) of

the proposed rule, and was the subject

of extensive public comment. In any

event, the Policy does not constitute a

binding obligation. It is policy, not

regulation.

Consistent with the recognition of

data needs underlying the Policy, EPA

will evaluate the small MS4 storm water

regulations after the second round of

permit issuance. Section 122.34(e)(2) of

today’s rule expressly provides that for

the interim ten-year period, ‘‘EPA

strongly recommends that until the

evaluation of the storm water program

in § 122.37, no additional requirements

beyond the minimum control measures

be imposed on regulated small MS4s

without the agreement of the operator of

the affected small MS4, except where an

approved TMDL or equivalent analysis

provides adequate information to

develop more specific measures to

protect water quality.’’ This approach

addresses the concern for protecting

water resources from the threat posed by

storm water discharges with the

important qualification that there must

be adequate information on the

watershed or a specific site as a basis for

requiring tailored storm water controls

beyond the minimum control measures.

As indicated, the Interim Permitting

Policy has several important

limitations—it does not apply to

technology-based controls or to sources

that already have numeric end of pipe

effluent limitations. EPA encourages

authorized States and Tribes to adopt

policies similar to the Interim

Permitting Policy when developing

storm water discharge programs. For a

discussion of appropriate monitoring

activities, see Section H.3.d., Evaluation

and Assessment.

Where a water quality analysis

indicates there is a need and basis for

deriving water quality-based effluent

limits in NPDES permits for storm water

discharges regulated under today’s rule,

EPA believes that most of these cases

would be satisfied by narrative effluent

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68789

limitations that require the

implementation of BMPs. NPDES permit

limits will in most cases continue to be

based on the specific approach outlined

in today’s rule for the implementation of

BMPs as the most appropriate form of

effluent limitation to satisfy technology

and water quality-based requirements.

See § 122.34(a). For storm water

management plans with existing BMPs,

this may require further tailoring of

BMPs to address the pollutant(s) of

concern, the nature of the discharge and

the receiving water. If the permitting

authority determines that, through

implementation of appropriate BMPs

required by the NPDES storm water

permit, the discharge has the necessary

controls to provide for attainment of

water quality standards, additional

controls are not needed in the permit.

Conversely, if a discharger (MS4,

industrial or construction) fails to adopt

and implement adequate BMPs, the

permittee and/or the permitting

authority should consider a different

mix of BMPs or more specific

conditions to ensure water quality

protection.

Some commenters observed that there

was no evidence from the experience of

storm water dischargers regulated under

the existing NPDES storm water

program, or from studies or reports that

allegedly support EPA’s position, that

implementation of BMPs to satisfy the

six minimum control measures would

meet applicable water quality standards

for a regulated small MS4. In response,

EPA acknowledges that the six

minimum measures are intended to

implement the statutory requirement to

control discharges to the maximum

extent practicable, and they may not

result in the attainment of water quality

standards in all cases. The control

measures do, however, focus on and

address well-documented threats to

water quality associated with storm

water discharges. Based on the

collective expertise of the FACA Subcommittee, EPA believes that

implementation of the six minimum

measures will, for most regulated small

MS4s, be adequate to protect water

quality, and for other regulated small

MS4s will substantially reduce the

adverse impacts of their discharges on

water quality.

Some commenters asserted that

analyses of existing water quality

criteria suggest that numeric criteria for

aquatic life may be overprotective if

applied to storm water discharges.

These comments maintained that an

approach that prohibits exceedance of

applicable water quality criteria is

unworkable. Various commenters

recommended wet weather specific

criteria, variances to the criteria during

wet weather events, and seasonal

designated uses. Other commenters

noted that water quality-based effluent

limits in NPDES permits have

traditionally been developed based on

dry weather flow conditions (e.g.,

assuming critical low-flow conditions in

the receiving water to ensure protection

of aquatic life and human health). Wet

weather discharges, however, typically

occur under high-flow conditions in the

receiving water. Assumptions regarding

mass balance equations and size of

mixing zones may also not be pertinent

during wet weather.

EPA acknowledges the need to devise

a regulatory program that is both

flexible enough to accommodate the

episodic nature, variability and volume

of wet weather discharges and

prescriptive enough to ensure protection

of the water resource. EPA believes that

wet weather discharges can be

adequately addressed in the existing

regulations through refining designated

uses and assigning criteria that are

tailored to the level of water quality

protection described by the refined

designated use.

EPA believes that lack of precision in

assigning designated uses and

corresponding criteria by States and

Tribes, in many cases may result in

application of water quality criteria that

may not appropriately match the

intended condition of the water body.

States and Tribes have frequently

designated uses without regard to sitespecific wet weather conditions.

Because certain uses (swimming, for

example) might not exist during highintensity storm events or in the winter,

States may factor such climatic

conditions and seasonal uses into their

use designations with appropriate

analyses. This would acknowledge that

a lower level of control, at lower

compliance cost, would be appropriate

to protect that use. Before modifying

any designated use, however, States

would need to evaluate the effect of less

stringent water quality criteria on

protecting other uses, including any

threatened or endangered species,

drinking water supplies and

downstream uses. EPA will further

evaluate these issues in the context of

the Water Quality Standards Regulation,

Advance Notice of Proposed Rule

Making (ANPRM), 63 FR, 36742, July 7,

1998.

One of the major themes presented by

EPA in the ANPRM is that refinement

in use designations and tailoring of

water quality criteria to match refined

use designations is an important future

direction of the water quality standards

program. In assigning criteria to protect

general use classifications, a State or

Tribe must ensure that the criteria are

sufficiently protective to safeguard the

full range of waters of the State, i.e.,

criteria would be based on the most

sensitive use. This approach has been

disputed, especially for aquatic life

uses, where evidence suggests that the

general use criteria will require controls

more stringent than needed to protect

the existing or potential aquatic life

community for a specific water body.

EPA recognizes that there is a growing

need to more precisely tailor use

descriptions and criteria to match sitespecific conditions, ensuring that uses

and criteria provide an appropriate level

of protection, which, to the extent

possible, are not overprotective. EPA is

engaged in an ongoing evaluation of its

regulations in this area through the

ANPRM effort. At the same time, EPA

continues to encourage States and

Tribes to review the applicability of the

designated uses and associated criteria

using existing provisions in the water

quality standards regulation.

2. Total Maximum Daily Loads and

Analysis To Determine the Need for

Water Quality-Based Limitations

The development and implementation

of total maximum daily loads (TMDLs)

provide a link between water quality

standards and effluent limitations. CWA

section 303(d) requires States to develop

TMDLs to provide more stringent water

quality-based controls when technologybased controls are inadequate to achieve

applicable water quality standards. A

TMDL is the sum of the individual

wasteload allocations for point sources

and load allocations for nonpoint

sources, with consideration for natural

background conditions. A TMDL

quantifies the maximum allowable

loading of a pollutant to a water body

and allocates this maximum load to

contributing point and nonpoint sources

so that water quality criteria will not be

exceeded and designated uses will be

protected. A TMDL also includes a

margin of safety to account for

uncertainty about the relationship

between pollutant loads and water

quality.

Today’s final rule refers to TMDLs in

several provisions. For the purpose of

today’s rule, EPA relies on the

component of the TMDL that evaluates

existing conditions and allocates loads.

For discharges to waters that are not

impaired and for which a TMDL has not

been developed, today’s rule also refers

to an ‘‘equivalent analysis.’’ The

discussion that follows uses the term

‘‘TMDL’’ for both.

Under revised § 122.26(a)(9)(i)(C), the

permitting authority may designate

68790 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

storm water discharges that require

NPDES permits based on TMDLs that

address the pollutants of concern. For

storm water discharges associated with

small construction activity,

§ 122.26(b)(15)(i)(B) provides a waiver

provision where it may be determined

that storm water controls are not needed

based on TMDLs that address sediment

and any other pollutants of concern.

The NPDES permitting authority may

waive requirements under the program

for certain small MS4s within urbanized

areas serving less than 1,000 persons

provided that, if the small MS4

discharges any pollutant that has been

identified as a cause of impairment of a

water body into which it discharges, the

discharge is in compliance with a

wasteload allocation in a TMDL for the

pollutant of concern. The permitting

authority may also waive requirements

for MS4s in urbanized areas serving

between 1,000 and 10,000 persons, if

the permitting authority determines that

storm water controls are not needed, as

provided in § 123.35(d)(2). See

§ 122.32(c).

Under CWA section 303(d), States

identify which of their water bodies

need TMDLs and rank them in order of

priority. Generally, once a TMDL has

been completed for one or more

pollutants in a water body, a wasteload

allocation for each point source

discharging the pollutant(s) is

implemented as an enforceable

condition in the NPDES permit.

Regulated small MS4s are essentially

like other point source discharges for

purposes of the TMDL process.

A TMDL and the resulting wasteload

allocations for pollutant(s) of concern in

a water body may not be available

because the water body is not on the

State’s 303(d) list, the TMDL has not yet

been completed, or the TMDL did not

include specific pollutants of concern.

In these cases, the permitting authority

must determine whether point sources

discharge pollutant(s) in amounts that

cause, have the reasonable potential to

cause, or contribute to excursions above

State water quality standards, including

narrative water quality criteria. This socalled ‘‘reasonable potential’’ analysis is

intended to determine whether and for

what pollutants water quality based

effluent limits are required. The analysis

is, in effect, a substitute for a similar

determination that would be made as

part of a TMDL, where necessary. When

‘‘reasonable potential’’ exists,

regulations at § 122.44(d) require a

water quality-based effluent limit for the

pollutant(s) of concern in NPDES

permits. The water quality-based

effluent limits may be narrative

requirements to implement BMPs or,

where necessary, may be numeric

pollutant effluent limitations.

Commenters, generally from the

regulated community, objected that, due

to references to the need to develop a

program ‘‘to protect water quality’’ and

to additional NPDES permit

requirements beyond the minimum

control measures based on TMDLs or

their equivalent, regulated small MS4s

will be subject to uncertain permit

limitations beyond the six minimum

control measures. Commenters also

asserted that through the imposition of

a wasteload allocation under a TMDL in

impaired water bodies, there is a

likelihood that unattainable, yet

enforceable narrative and numeric

standards will be imposed on regulated

small MS4s.

As is discussed in the preceding

section, NPDES permits must include

any more stringent limitations when

necessary to meet water quality

standards. However, even if a regulated

small MS4 is subject to water quality

based effluent limits, such limits may be

in the form of narrative effluent

limitations that require the

implementation of BMPs. As discussed

earlier, EPA has adopted the Interim

Permitting Policy and incorporated it in

the development of today’s rule to

recognize the appropriateness of BMPbased limits developed on a case-bycase basis.

EPA formed a Federal Advisory

Committee to provide advice to EPA on

identifying water quality-limited water

bodies, establishing TMDLs for them as

appropriate, and developing appropriate

watershed protection programs for these

impaired waters in accordance with

CWA section 303(d). Operating under

the auspices of the National Advisory

Council for Environmental Policy and

Technology (NACEPT), the committee

produced its Report of the Federal

Advisory Committee on the Total

Maximum Daily Load (TMDL) Program

(July 1998). EPA recently published a

proposed rule to implement the Report’s

recommendations (64 FR 46012, August

23, 1999).

3. Anti-Backsliding

In general, the term ‘‘antibacksliding’’ refers to statutory

provisions at CWA sections 303(d)(4)

and 402(o) and regulatory provisions at

40 CFR 122.44(l). These provisions

prohibit the renewal, reissuance, or

modification of an existing NPDES

permit that contain effluent limits,

permit terms, limitations and

conditions, or standards that are less

stringent than those established in the

previous permit. There are also

exceptions to this prohibition known as

‘‘antibacksliding exceptions.’’

The issue of backsliding from prior

permit limits, standards, or conditions

is not expected to initially apply to most

storm water dischargers designated

under today’s proposal because they

generally have not been previously

authorized by an NPDES permit.

However, the backsliding prohibition

would apply if a storm water discharge

was previously covered under another

NPDES permit. Also, the backsliding

prohibition could apply when an

NPDES storm water permit is reissued,

renewed, or modified. In most cases,

however, EPA does not believe that

these provisions would restrict revisions

to storm water NPDES permits.

One commenter questioned whether,

if BMPs implemented by a regulated

small MS4 operator fail to produce

results in removal of pollutants and the

permittee attempts to substitute a more

effective BMP, the small MS4 operator

could be accused of violating the antibacksliding provisions and also be

exposed to citizen lawsuits. In response,

EPA notes that in such circumstances

the MS4’s permit has not changed and,

therefore, the prohibition against

backsliding is not applicable. Further,

any change in the mix of BMPs that was

intended to be more effective at

controlling pollutants would not be

considered backsliding, even if it did

not include all of the previously

implemented BMPs.

4. Water Quality-Based Waivers and

Designations

Several sections of today’s final rule

refer to water quality standards in

identifying those storm water discharges

that are and are not required to be

permitted under today’s rule. As noted

in § 122.30 of today’s rule, CWA section

402(p)(6) requires the designation of

municipal storm water sources that

need to be regulated to protect water

quality and the establishment of a

comprehensive storm water program to

regulate these sources. Requirements

applicable to certain municipal sources

may be waived based on the absence of

demonstrable water quality impacts.

Section 122.32(c). The section 402(p)(6)

mandate to protect water quality also

provides the basis for regulating

discharges associated with small

construction. See also § 122.26(b)(15)(i).

Further, today’s rule carries forward the

existing authority for the permitting

authority to designate sources of storm

water discharges based upon water

quality considerations. Section

122.26(a)(9)(i)(C) and (D).

As is discussed above in sections

II.H.2.e (for small MS4s) and II.I.1.b.ii

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68791

(for small construction), the

requirements of today’s rule may be

waived based on wasteload allocations

that are part of ‘‘total maximum daily

loads’’ (TMDLs) that address the

pollutants of concern or, in the case of

small construction and municipalities

serving between 1,000 and 10,000

persons, the equivalents of TMDLs. One

commenter stated that waivers would

allow exemptions to the technology

based requirements and would thus be

inconsistent with the two-fold approach

of the CWA (a technology based

minimum and a water quality based

overlay). EPA acknowledges that

waivers are not allowed for other

technology-based requirements under

the CWA. A more flexible approach is

allowed, however, for sources

designated for regulation under

402(p)(6) to protect water quality. For

such sources EPA may allow a waiver

where it is demonstrated that an

individual source does not present the

threat to water quality that was the basis

for EPA’s designation.

III. Cost-Benefit Analysis

EPA has determined that the range of

the rule’s benefits exceeds the range of

regulatory costs. The estimated rule

costs range from $847.6 million to

$981.3 million annually with

corresponding estimated monetized

annual benefits which range from

$671.5 million to $1.628 billion,

expected to exceed costs.

The rule’s cost and benefit estimates

are based on an annual comparison of

costs and benefits for a representative

year (1998) in which the rule is

implemented. This differs from the

approach used for the proposed rule

which projected cost and benefits over

three permit terms. EPA has chosen to

use the current approach because it

determined that the ratio of annual

benefits and costs would not change

significantly over time. Moreover,

because there is not an initial outlay of

capital costs with benefits accruing in

the future (i.e., benefits and costs are

almost immediately at a steady state), it

is not necessary to discount costs in

order to account for a time differential.

EPA developed detailed estimates of

the costs and benefits of complying with

each of the incremental requirements

imposed by the rule. The Agency used

two approaches, a national water quality

model and national water quality

assessment, to estimate the potential

benefits of the rule. Both approaches

show that the benefits are likely to

exceed costs.

These estimates, including

descriptions of the methodology and

assumptions used, are described in

detail in the Economic Analysis of the

Final Phase II Rule, which is included

in the record of this rule making.

Exhibit 3 summarizes costs and benefits

associated with the basic elements of

today’s rule.

EXHIBIT 3.—COMPARISON OF ANNUAL COMPLIANCE COST AND BENEFIT ESTIMATES 1

Monetized benefits

National water

quality model

(millions of 1998

dollars)

National water

quality assessment (millions of

1998 dollars)

Municipal Minimum Measures ........................................................................................................................... ........................... $131.0–$410.2

Controls for Construction Sites .......................................................................................................................... ........................... $540.5–$686.0

Total Annual Benefits ................................................................................................................................. $1,628.5 ........... $671.5–$1,096.2

Costs Millions of 1998 dollars 2

Municipal Minimum Measures ............................................................................................................................... $297.3

Controls/Waivers for Construction Sites ................................................................................................................ $545.0–$678.7

Federal/State Administrative Costs ....................................................................................................................... $5.3

Total Annual Costs $847.6–$981.31

1 National level benefits are not inclusive of all categories of benefits that can be expected to result from the regulation.

2Total may not add due to rounding.

A. Costs

1. Municipal Costs

Initially, to determine municipal costs

for the proposed rule, EPA used

anticipated expenditure data included

in permit applications from a sample of

21 Phase I MS4s. Certain commenters

criticized the Agency for using

anticipated expenditures because they

could be significantly different from the

actual expenditures. These commenters

suggested that the Agency use the actual

cost incurred by the Phase I MS4s.

Other comments stated that because the

Phase I MS4s, in general, are large

municipalities, they may not be

representative of the Phase II MS4s for

estimating regulatory costs. Finally, one

commenter noted that the sample of 21

municipalities used to project cost was

relatively small.

To address the concerns of the

commenters, EPA utilized a National

Association of Flood and Stormwater

Management Agencies (NAFSMA)

survey of the Phase II community to

obtain incremental cost estimates for

Phase II municipalities. Using the list of

potential Phase II designees published

in the Federal Register (63 FR 1616),

NAFSMA contacted more than 1,600

jurisdictions. The goal of the survey was

to solicit information from those

communities about the proposed Phase

II NPDES storm water program. Several

of the survey questions corresponded

directly to the minimum measures

required by the Phase II rule. One

hundred twenty-one surveys were

returned to NAFSMA and were used to

develop municipal costs.

Using the NAFSMA information, EPA

estimated average annual per household

program costs for automatically

designated municipalities. EPA also

estimated an average annual per

household administrative cost for

municipalities to address application,

record keeping, and reporting

requirements of the Rule. The total

average per household cost of the rule

is expected to $9.16 per household.

To determine potential national level

costs for municipalities, EPA multiplied

the number of households (32.5 million)

by the per household cost ($9.16). EPA

estimates the annual cost of the Phase

II municipal program at $298 million.

As an alternative method, and point

of comparison, to the NAFSMA-based

approach, EPA reviewed actual

expenditures reported from 35 Phase I

MS4s. The Agency targeted these 35

Phase I MS4s because they had

participated in the NPDES program for

68792 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

nearly one permit term, were smaller in

size and had detailed data reflecting

their actual program implementation

costs. Of the 35 MS4s, appropriate cost

data was only available for 26 of those

MS4s. EPA analyzed the expenditure

data and identified the relevant

expenditures, excluding costs presented

in the annual reports unrelated to the

requirements of the Rule. The cost range

and annual per household program

costs of $9.08 are similar to those found

using the NAFSMA survey data.

2. Construction Costs

In order to estimate the rule’s

construction-related cost on a national

level (the soil and erosion controls

(SEC) requirements of the rule and the

potential impacts of the postconstruction municipal measure on

construction), EPA estimated a per site

cost for sites of one, three, and five acres

and multiplied these costs by the total

number of estimated Phase II

construction starts across these size

categories.

To estimate the percentage of starts

subject to the soil and erosion control

requirements between 1 and 5 acres,

with respect to each category of building

permits (residential, commercial, etc.),

EPA initially used data from Prince

George’s County (PGC), Maryland, and

applied these percentages to national

totals. In the proposal, EPA recognized

that the PGC data may not be

representative of the entire country and

requested data that could be used to

develop better estimates of the number

of construction sites between 1 and 5

acres. EPA did not receive any

substantiated national data from

commenters.

In view of the unavailability of

national data from commenters, EPA

made extensive efforts to collect

construction site data around the

country. The Agency contacted more

than 75 municipalities. EPA determined

that 14 of the contacted municipalities

had useable construction site data.

Using data from these 14 municipalities,

EPA developed an estimate of the

percentage of construction starts on one

to five acres. EPA then multiplied this

percentage by the number of building

permits issued nationwide to determine

the total number of construction starts

occurring on one to five acres. Finally,

to isolate the number of construction

starts incrementally regulated by Phase

II, EPA subtracted the number of

activities regulated under equivalent

programs (e.g., areas covered by the

Coastal Zone Act Reauthorization

Amendments of 1990, and areas covered

by equivalent State level soil and

erosion control requirements).

Ultimately, EPA estimated that 110,223

construction starts would be

incrementally covered by the rule

annually.

EPA then used standard cost

estimates from Building Construction

Cost Data and Site Work Landscape

Cost Data (R.S. Means, 1997a and

1997b) to estimate construction BMP

costs for 27 model sites in a variety of

typical site conditions across the United

States. The model sites included three

different site sizes (one, three and five

acres), three slope variations (3%, 7%,

and 12%), and three soil erosivity

conditions (low, medium, and high).

EPA chose BMP combinations

appropriate to the model site

conditions. Based on the assumption

that any combination of site factors is

equally likely to occur in a given site,

EPA developed average cost of sediment

and erosion control for all model sites.

EPA estimated that, on average, BMPs

for a 1 acre site will cost $1,206, for a

3 acre site $4,598 and for a 5 acre site

$8,709.

EPA then estimated administrative

costs per construction site for the

following elements required under the

rule: Submittal of a notice of intent for

permit coverage; notification to

municipalities; development of a storm

water pollution prevention plan; record

retention; and submittal of a notice of

termination. EPA estimated the average

total administrative cost per site to be

$937.

EPA also considered the cost

implications of NPDES permit

authorities waiving the applicability of

requirements to storm water discharges

from small construction sites based on

two different criteria involving water

quality impact and low rainfall. EPA

received comments stating that a waiver

would require a significant investment

in training or acquisition of a

consultant. Based on comments

received, EPA eliminated one of the

waiver conditions involving low soil

loss threshold because it necessitated

use of the Revised Universal Soil Loss

Equation which could require extensive

technical expertise.

Based on the opinions of construction

industry experts, EPA estimates that 15

percent of the construction sites that

would otherwise be covered by today’s

rule will be eligible to receive waivers.

Therefore, the Agency has excluded 15

percent of the construction sites when

deriving costs of sediment and erosion

control. The average cost for sites to

qualify for the waiver is expected to be

$34 per site. The construction cost

analysis for the proposed rule did not

include any costs for the preparation

and submission of waiver applications

because EPA believed those costs would

be negligible. However, in response to

public comments, EPA has estimated

these potential costs.

EPA has also estimated the potential

costs for construction site operators to

implement the post-construction

minimum measure. These are costs that

may be incurred by construction site

operators if the MS4 chooses to meet the

post-construction minimum measure by

requiring on-site structural, site-by-site

control of post-construction runoff.

Municipalities may select from an array

of structural and non-structural options

in implementing this measure, so the

potential costs to construction operators

is uncertain. Nonetheless, EPA

developed average annual BMP costs for

sites of one, three, five and seven acres.

EPA’s analysis accounted for varying

levels of imperviousness that

characterize residential, commercial,

and institutional land uses. Nationwide,

these costs are expected to range from

$44 million to $178 million annually.

Finally, to establish national

incremental annual costs for Phase II

construction starts, EPA multiplied the

total costs of compliance for the chosen

site size categories by the total number

of Phase II construction starts and added

post-construction costs. EPA estimates

the annual compliance cost to range

from $545 million to $678.7 million.

B. Quantitative Benefits

In the Economic Analysis for the

proposed rule, a ‘‘top-down’’ approach

was used to estimate economic benefits.

Under this approach, the combined

economic benefits for wet weather

programs were estimated first, and then

were divided among various water

programs on the basis of expert opinion.

As a result, the benefits estimates for an

individual program were rather

uncertain. Moreover, this approach was

inconsistent with the approach used to

estimate the cost of the proposed storm

water rule, which was developed using

municipal-based and cost-based data to

develop ‘‘bottom-up’’ costs. Therefore,

EPA decided to use a ‘‘bottom-up’’

approach for estimating benefits of the

Phase II rule. To adequately reflect the

quantifiable benefits of the rule, EPA

used two different methods: (1) National

Water Quality Model and (2) National

Water Quality Assessment.

To monetize benefits in both

approaches, the Agency applied Carson

and Mitchell’s (1993) estimates of

household willingness-to-pay (WTP) for

water quality improvement to estimates

of waters impaired by storm water

discharges. Carson and Mitchell’s 1993

study reports the results of their 1983

national survey of WTP for incremental

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68793

improvements in fresh water quality.

Carson and Mitchell estimate the WTP

for three minimum levels of fresh water

quality: boatable, fishable, and sizable.

EPA adjusted the WTP amounts to

account for inflation, growth in real per

capita income, and increased attitudes

towards pollution control. The adjusted

WTP amounts for improvements in

fresh water quality are $210 for

boatable, $158 for fishable, and $177 for

sizable. A brief summary of the national

water quality model and national water

quality assessment approaches follow.

1. National Water Quality Model

One approach EPA used to estimate

the benefits of the Phase II municipal

and construction site controls was the

National Water Pollution Control

Assessment Model (NWPCAM).

NWPCAM estimates benefits of the

storm water program at the national

level, including the impact on small

streams. This model estimates water

quality and the resultant use support for

the 632,000 miles of rivers and streams

in the USEPA Reach File Version 1

(RF1), which covers the continental

United States. The model analyzes

water quality changes by stream reach.

The parameters modeled in the

NWPCAM are biological oxygen

demand (BOD), total suspended solids

(TSS), dissolved oxygen (DO), and fecal

coliforms (FC).

The model projects changes in water

quality due to the Phase II municipal

and construction site controls. To

calculate the economic benefits of

change in water quality, the number of

households in the proximity of the

stream reach are determined, by

overlaying the model results on the

1990 Census of Populated Places and

Minor Civil Divisions, and updating the

population to 1998. Economic benefits

are calculated using the Carson and

Mitchell WTP values. The benefits are

separately estimated for local and nonlocal waters on the basis of WTP values

and proximity to water quality changes.

The value of the change in use

support for local waters is greater than

the value of the non-local waters

because of the opportunity to use local

waters by the local population. This

model assumes that if improvement

occurs in waters that are not close to

population centers the economic value

is lower. Therefore, benefits are

estimated for local and non-local waters

separately. This assumption is based on

Carson and Mitchell’s survey which

asked respondents to apportion each of

their stated WTP values between

achieving the water quality goals in

their own State and achieving those

goals in the nation as a whole. On

average, respondents allocated 67% of

their values to achieving in-State water

quality goals and the remainder to the

nation as a whole. Carson and Mitchell

argue that for valuing local water quality

changes 67% is a reasonable upper

bound for the local multiplier and 33%

for the non-local water quality changes.

For the purposes of this analysis, the

locality is defined as urban sites and

associated populations linked into the

NWPCAM framework. Using this

methodology, the total monetized

benefits of Phase II control of urban and

construction site runoff is estimated to

be $1.628 billion per year. The local and

non-local benefits due to Phase II

controls are presented in Exhibit 4.

EXHIBIT 4.—LOCAL AND NON-LOCAL BENEFITS ESTIMATES DUE TO PHASE II CONTROLS NATIONAL WATER QUALITY

MODEL ESTIMATE

Use support Local benefits

($million/yr)

Non-local benefits 1

($million/yr)

Total benefits

($million/yr)

Swimming, Fishing, and Boating ............................................................................... 306.20 60.60 366.80

Fishing and Boating ................................................................................................... 395.10 51.90 447.00

Boating ....................................................................................................................... 700.10 114.60 814.70

Total .................................................................................................................... 1401.40 227.10 1628.50

1To estimate non-local willingness to pay per household, the 33% of willingness is multiplied by the fraction of previously impaired national waters (in each use category) that attain the beneficial use as a result of the Phase II rule. To estimate the aggregate non-local benefits, non-local

willingness to pay is multiplied with the total number of households in the US.

While the numbers of miles that are

estimated to change their use support

are small, the benefits estimates are

quite significant. This is because urban

runoff and, to a large extent,

construction activity occurs where the

people actually reside and the water

quality changes mostly occur close to

these population centers. NWPCAM

indicates that changes in pollution loads

have the most effect immediately

downstream of pollution changes. As a

result, the aggregate WTP is large

because large numbers of households in

these population centers are associated

with the local waters that reflect

improvement in designated use support.

2. National Water Quality Assessment

EPA also estimated benefits of the

Phase II Storm Water program using the

1998 National Water Quality Inventory

(305(b)) Report to Congress, rather than

the NWPCAM as a basis for estimating

impairment addressed by the rule. The

Water Quality Assessment method

separately estimates benefits associated

with improvements to fresh water,

marine water and construction site

controls, and then aggregates these

separate categories into an estimate of

total annual benefits.

a. Municipal Measures

i. Fresh Waters Benefits

In order to develop estimates for the

potential value of the municipal

measures (except storm water runoff

controls for construction sites), EPA

applied Carson & Mitchell WTP values

to estimated existing and projected

future fresh water impairment. Carson &

Mitchell did not evaluate marine waters,

so only fresh water values were

available from their research. Even

though the Carson and Mitchell

estimates apply to all fresh water, it is

not clear how these values would be

apportioned among rivers, lakes, and

the Great Lakes. The 305(b) data

indicate that lakes are the most

impaired by urban runoff/storm sewers,

followed closely by the Great Lakes, and

then rivers. Therefore, EPA applied the

WTP values to the categories separately

and assumed that the higher resulting

value for lakes represents the high end

of the range (i.e., assuming that lake

impairment is more indicative of

national fresh water impairment) and

that the lower resulting value for

impaired rivers represents the low end

of a value range for all fresh waters (i.e.,

assuming that river impairment is more

indicative of national fresh water

impairment). In addition, EPA estimated

that the post-construction runoff

68794 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

requirements of the municipal program

might result in benefits of at least $16.8

million annually from avoided future

runoff. The post-construction estimate

significantly underestimates potential

program benefits because it does not

account for avoided hydrologic changes

and resulting water quality impairment

associated with increases in

imperviousness from development and

redevelopment. Summing the benefits

across the water quality use support

levels yields an estimate of benefits

ranging from approximately $121.9

million to $378.2 million per year.

ii. Marine Waters Benefits

In addition to the fresh water benefits

captured by the Carson and Mitchell

study, EPA anticipates benefits as a

result of improvements to marine

waters. Sufficient methods have not

been developed to quantify nationallevel benefits for commercial or

recreational fishing. EPA used beach

closure data and visitation estimates

from its Beach Watch Program to

estimate potential reductions in marine

swimming visits due to storm water

runoff contamination events in 1997.

The estimated 86,100 trips that did not

occur because of beach closures in

coastal Phase II communities is a lower

bound because it represents only those

beaches that report both closures and

visitation data. EPA estimates potential

swimming benefits from the rule to be

at least $2.1 million annually.

EPA developed an analysis of

potential benefits associated with

avoided health impacts from exposure

to contaminants in storm sewer effluent.

Based on a study of incremental

illnesses found among people who

swam within one yard of storm drains

in Santa Monica Bay, EPA estimated a

range of incremental illnesses (Haile et

al., 1996). Depending on assumptions

made about number of exposures to

contaminants and contaminant

concentrations, benefits ranged from

$7.0 million to $29.9 million annually.

b. Construction Benefits

The major pollutant resulting from

construction activities is sediment.

However, in addition to sediment,

construction activities also yield

pollutants such as pesticides, petroleum

products, and solvents. Because

circumstances will vary considerably

from site to site, data is not available

with which to develop estimates of

benefits for each site and aggregate to

obtain a national-level estimate.

In the proposed rule, EPA estimated

the combined benefits of all wet weather

programs, and then used expert

opinions to allocate them to different

individual programs. To eliminate the

possible overlap between the benefits of

the soil and erosion control

requirements, municipal measures, and

other wet weather storm water

programs, EPA chose to use an approach

in today’s final rule that directly

estimates the benefits of soil and erosion

requirements.

A survey of North Carolina residents

(Paterson et al., 1993) indicated that

households are willing to pay for

erosion and sediment controls similar to

those in today’s rule. Based on income

and other indicators, the values derived

from the study are expected to be

similar to values held in the rest of the

country. Using the mean value of the

willingness to pay of $25 per household,

EPA projects annual benefits of the soil

and erosion requirements to range from

$540.5–$686 million.

c. Summary of Benefits From the

National Water Quality Assessment

Total benefits from municipal

measures and construction site controls

are expected to range from $671.5

million to $1.1 billion per year,

including benefits of approximately

$13.7 million per year associated with

small stream improvements. A summary

of the potential benefits is presented in

Exhibit 5.

As shown in Exhibit 5, it was not

possible to monetize all categories of

benefits using the WTP estimates. In

particular, benefits for improving

marine water quality such as fishing and

passive use benefits are not included in

the values used to estimate the potential

benefits of the municipal minimum

measures (excluding construction sites

controls), and they are not estimated

separately, because information is not

currently available.

EXHIBIT 5.—POTENTIAL ANNUAL BENEFITS OF THE PHASE II STORM WATER RULE NATIONAL WATER QUALITY

ASSESSMENT ESTIMATE

Benefit category Annual WTP

Municipal Minimum Measures 1

Fresh Water Use and Passive Use 2 ..................................................................................................................... $121.9–$378.2

Marine Recreational Swimming ............................................................................................................................. $2.1

Human Health (Marine Waters) ............................................................................................................................. $7.0–$29.9

Other Marine Use and Passive Use ...................................................................................................................... (∂)

Erosion and Sediment Controls for Construction Sites

Fresh Water and Marine Use and Passive Use 3 ................................................................................................. $540.5–$686

Total Phase II Program

Total Use & Passive Use (Fresh Water and Marine) ........................................................................................... >$671.5–>$1,096.2

+= positive benefits expected but not monetized.

1 Includes water quality benefit of municipal programs, based on 80% effectiveness of municipal programs.

2Based on research by Carson and Mitchell (1993). Fresh water value only. Does not include commercial fishery, navigation, or diversionary

(e.g. municipal drinking water cost savings or risk reductions) benefits. May not fully capture human health risk reduction or ecological values. 3Based on research by Paterson et al. (1993). Although the survey’s description of the benefits of reducing soil erosion from construction sites

included reduced dredging, avoided flooding, and water storage capacity benefits, these benefit categories may not be fully incorporated in the

WTP values. Small streams may account for over 2% of total benefits.

C. Qualitative Benefits

There are additional benefits to storm

water control that cannot be quantified

or monetized. Thus, the current estimate

of monetized benefits may understate

the true value of storm water controls

because it omits many ways in which

society is likely to benefit from reduced

storm water pollution, such as improved

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68795

aesthetic quality of waters, benefits to

wildlife and to threatened and

endangered species, cultural values, and

biodiversity benefits.

A benefit that EPA did not monetize

completely is the flood control benefits

attributable to municipal storm water

controls reducing downstream flooding,

although flood control benefits

associated with sediment and erosion

control are already reflected to some

extent in the construction benefits.

Similarly, the Agency could not value

the benefits from increased property

value due to storm water controls

reflected in the rule, even though a

commenter suggested inclusion of these

benefits in the estimates.

Moreover, while a number of

commenters requested that EPA include

ecological benefits, the Agency was not

able to fully monetize these benefits.

Urbanization usually increases the

amount of sediment, nutrients, metals

and other pollutants associated with

land disturbance and development.

Development usually not only results in

a dramatic increase in the volume of

water runoff, but also in a substantial

decrease in that water’s quality due to

stream scour, runoff and dispersion of

toxic pollutants, and oversiltation.

These kinds of secondary benefits could

not be fully reflected in the monetized

benefits. EPA was able to only monetize

the aquatic life support benefits for

waters assumed to be impaired. Thus,

only the aquatic life support benefits

attributable to municipal controls,

reflected through human satisfaction,

are taken into account.

Reduced nutrient level is another

benefit of the storm water control which

is not fully captured by the economic

analysis. High nutrient levels often lead

to eutrophication of the aquatic system.

The quality change in ecological sources

as the result of storm water controls to

reduce pollutants is not fully reflected

in the present benefits.

D. National Economic Impact

Finally, the Agency determined that

the rule will have minimal impacts on

the economy or employment. This is

because the final rule regulates small

MS4s and construction sites under 5

acres, not the typical industrial plants or

other non-construction activities that

could directly impact production and

thus those sectors of the economy.

Discussions with representatives

within the construction industry

indicate that construction costs will

likely be passed on to buyers, thus not

seriously affecting the housing industry

directly. One commenter argued that the

rule will have a negative employment

effect because the builders will build

fewer homes requiring less building

materials as a result of the declining

demand induced by the cost of the soil

and erosion controls. EPA disagrees

with this argument because the cost of

the controls, as the percentage of the

price of a median home, is negligible

and will be passed on to final buyers.

Flexibility within the rule allows

MS4s to tailor the storm water program

requirements to their needs and

financial position, minimizing impacts.

For sedimentation and erosion controls

on construction sites, the rule

contemplates application of commonly

used BMPs to reduce costs for the

construction industry. Thus, the rule

attempts to use existing practices to

prevent pollution, which should

minimize impacts on States, Tribes,

municipalities and the construction

industry.

Thus, EPA concludes that the effect of

the rule, if any, on the national economy

will be minimal. The benefits of today’s

rule more than offset any cost impacts

on the national economy.

IV. Regulatory Requirements

A. Paperwork Reduction Act

The Office of Management and Budget

(OMB) has approved some of the

information collection requirements

contained in this final rule (i.e. those

found in 40 CFR 122.26(g) and

123.35(b)) under the provisions of the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq. and has assigned OMB

control number 2040–0211.

The burden and costs described below

are for the information collection,

reporting, and record keeping

requirements for the three year period

beginning with the effective date of

today’s rule. Additional information

collection requirements for regulated

small MS4s and small construction sites

will occur after this initial three year

period and will be counted in a

subsequent information collection

requirement. The total burden of the

information collection requirements for

the first three years of this rule is

estimated at 56,369 hours with a

corresponding cost of $2,151,305

million annually. This burden and cost

is for industrial facilities to complete

and submit the no exposure

certification, for NPDES-authorized

States to process and review the no

exposure certification, and for the

NPDES-authorized States to develop

designation criteria and assess

additional MS4s outside of urbanized

areas. Compliance with the applicable

information collection requirements

imposed under this rule are mandatory,

pursuant to CWA section 402.

Exhibit 6 presents average annual

burden and cost estimates for Phase II

respondents for the first three years.

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, disclose or

provide information to or for a Federal

agency. This includes the time needed

to review instructions; develop, acquire,

install, and utilize technology and

systems for the purposes of collecting,

validating, and verifying information,

processing and maintaining

information, and disclosing and

providing information; adjust existing

ways for complying with any previously

applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

EXHIBIT 6.—AVERAGE ANNUAL BURDEN AND COST ESTIMATES FOR PHASE II RESPONDENTS

Information collection activity

A

Respondents

per year

(projected) 1

B

Burden hours

per respondent per year

(predicted)

(A)×(B)=C

Annual respondent burden hours

(projected)

D

Respondent

labor cost ($/

hr) (1998 $)

(C)×(D)=E

Annual Cost

($) (projected)

Ind. No Expos. Facilities:2

No Expos. Certification ................................................. 36,377 1.0 36,377 44.35 1,613,320

Annual Subtotal ..................................................... ........................ ........................ 36,377 ........................ 1,613,320

NPDES-Authorized States:3

Designation of Addit. MS4s 4 ........................................ 15 332.8 4,892 26.91 131,644

68796 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

EXHIBIT 6.—AVERAGE ANNUAL BURDEN AND COST ESTIMATES FOR PHASE II RESPONDENTS—Continued

Information collection activity

A

Respondents

per year

(projected) 1

B

Burden hours

per respondent per year

(predicted)

(A)×(B)=C

Annual respondent burden hours

(projected)

D

Respondent

labor cost ($/

hr) (1998 $)

(C)×(D)=E

Annual Cost

($) (projected)

No Exp. Cert. Proc. & Rev ........................................... 30,200 0.5 15,100 26.91 406,341

Annual Subtotal ..................................................... ........................ ........................ 19,992 ........................ 537,985

Annual Totals ......................................................... ........................ ........................ 56,369 ........................ 2,151,305

Notes:

1Source: U.S. EPA, Office of Wastewater Management. Economic Analysis for the Storm Water Phase II Rule.

2The total number of potential no exposure respondents was divided by 5 to estimate an annual total. It was assumed that the annual number

of respondents for the no exposure certification would be spread over the five year period the exclusion applies. 3The number of respondents in each category represents only those respondents located within the 44 NPDES-authorized States and Territories. The burden and cost estimates provided in this section are for the NPDES-authorized States in their role as the permitting authority for

municipal designations and industrial no exposure. 4The number of respondents for this activity, 15, represents the number of NPDES-authorized States and Territories that must develop designation criteria and assess small MS4s located outside of an urbanized area for possible Phase II coverage divided by the three year ICR period.

Given the requirements of today’s

regulation, EPA believes there will be

no capital startup and no operation and

maintenance costs associated with

information collection requirements of

the rule.

The government burden associated

with today’s rule will impact State,

Tribal, and Territorial governments

(NPDES-authorized governmental

entities) that have storm water program

authority, as well as the federal

government (i.e., EPA), where it is the

NPDES permitting authority. As of

March 1999, 43 States and the Virgin

Islands had NPDES authority.

The annual burden imposed upon

authorized governmental entities

(delegated States and the Virgin Islands)

and the federal government for the next

three years is estimated to be 19,992

hours ($537,985) and 4,087 hours

($115,948) respectively, for a total of

24,079 hours ($653,933). This estimate

is based on the average time that

governments will expend to carry out

the following activities: designate

additional MS4s (332.8 hours) and

process and review ‘‘no exposure’’

certificates from industrial dischargers

(0.5 hour).

Under the existing rule, storm water

discharges from light industrial

activities identified under

§ 122.26(b)(14)(xi) were exempted from

the permit application requirements if

they were not exposed to storm water.

Today’s rule expands the applicability

of the ‘‘no exposure’’ exclusion to

include all industrial activity regulated

under § 122.26(b)(14) (except category

(x), construction). The ‘‘no exposure’’

provision is applied through the use of

a written certification process, thus

representing a slight reporting burden

increase for ‘‘light’’ industries with ‘‘no

exposure’.

In addition to the information

collection, reporting, and record

keeping burden for the next three years,

today’s rule contains information

collection requirements that will not

begin until three years or more from the

effective date of today’s rule. These

information collection requirements

were not included in the information

collection request approved by OMB.

EPA will submit these burden estimates

for OMB approval when it submits ICR

2040–0211 to OMB for renewal in three

years. The rule burdens for regulated

small MS4s and small construction sites

that will be included in the ICR renewal

fall into three areas: application for an

NPDES permit or submittal of waiver

information, record keeping of storm

water management activities, and

submittal of reports to the permitting

authority. There will also be an

additional burden for the permitting

authority to review this information.

An agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA’s regulations are listed

in 40 CFR Part 9 and 48 CFR Chapter

15. EPA is amending the table in 40 CFR

Part 9 of currently approved ICR control

numbers issued by OMB for various

regulations to list the first three years of

information requirements contained in

this final rule.

B. Executive Order 12866

Under Executive Order 12866, [58 FR

51,735 (October 4, 1993)] the Agency

must determine whether the regulatory

action is ‘‘significant’’ and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

Pursuant to the terms of Executive

Order 12866, it has been determined

that this rule is a ‘‘significant regulatory

action’’. As such, this action was

submitted to OMB for review. Changes

made in response to OMB suggestions or

recommendations will be documented

in the public record.

C. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to State, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year. Before

promulgating an EPA rule for which a

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68797

written statement is needed, section 205

of the UMRA generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective or least burdensome alternative

that achieves the objectives of the rule.

The provisions of section 205 do not

apply when they are inconsistent with

applicable law. Moreover, section 205

allows EPA to adopt an alternative other

than the least costly, most cost-effective

or least burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted.

EPA has determined that today’s rule

contains a Federal mandate that may

result in expenditures of $100 million or

more in any one year for both State,

local, and tribal governments, in the

aggregate, and the private sector.

Accordingly, EPA has prepared under

section 202 of the UMRA a written

statement which is summarized below.

1. Summary of UMRA Section 202

Written Statement

EPA promulgates today’s storm water

regulation pursuant to the specific

mandate of Clean Water Act section

402(p)(6), as well as sections 301, 308,

402, and 501. (33 U.S.C. sections

1342(p)(6), 1311, 1318, 1342, 1361.)

Section 402(p)(6) of the CWA requires

that EPA designate sources to be

regulated to protect water quality and

establish a comprehensive program to

regulate those sources.

In the Economic Analysis of the Final

Phase II Rule (EA), EPA describes the

qualitative and monetized benefits

associated with today’s rule and then

compares the monetized benefits with

the estimated costs for the rule. EPA

developed detailed estimates of the

costs and benefits of complying with

each of the incremental requirements

imposed by the rule. These estimates,

including descriptions of the

methodology and assumptions used, are

described in detail in the EA. The

Agency used two approaches, a national

water quality model and national water

quality assessment, to estimate the

potential benefits of the rule. Both

approaches show that the benefits are

likely to exceed costs. Exhibit 3 in

section III of this preamble summarizes

the costs and benefits associated with

the basic elements of today’s rule.

There are additional benefits to storm

water control that cannot be quantified

or monetized. Thus, the current estimate

of monetized benefits may understate

the true value of storm water controls

because it omits many ways by which

society is likely to benefit from reduced

storm water pollution, such as improved

aesthetic quality of waters, benefits to

wildlife and to threatened and

endangered species, cultural values, and

biodiversity benefits.

Several commenters asserted that

today’s rule is an unfunded mandate

and that, without funding, the

monitoring of the already existing

pollution control programs would

suffer. In section II.D.3 of the preamble,

EPA lists some of the programs that EPA

anticipates may provide funds to help

develop and, in limited circumstances,

implement storm water management

programs.

In the EA, EPA reviewed the expected

effect of today’s rule on the national

economy. The Agency determined that

the rule will have minimal impacts on

the economy or employment. This is

because the final rule regulates small

MS4s and construction sites under 5

acres, not the typical industrial plants or

other non-construction activities that

could directly impact production and

thus those sectors of the economy.

Discussions with representatives

within the construction industry

indicate that construction costs will

likely be passed on to buyers, thus not

seriously affecting the housing industry

directly. Flexibility within the rule

allows MS4s to tailor the storm water

program requirements to their needs

and financial position, minimizing

impacts. For sedimentation and erosion

controls on construction sites, the rule

contemplates application of commonly

used BMPs to reduce costs for the

construction industry. Thus, the rule

attempts to use existing practices to

prevent pollution, which should

minimize impacts on States, Tribes,

municipalities and the construction

industry.

Thus, EPA concludes that the effect of

the rule, if any, on the national economy

would be minimal. The benefits of

today’s rule more than offset any cost

impacts on the national economy.

Consistent with the intergovernmental

consultation provisions of section 204 of

the UMRA and Executive Order 12875,

‘‘Enhancing the Intergovernmental

Partnership,’’ EPA consulted with the

governmental entities affected by this

rule.

First, EPA provided States, Tribal and

local governments with the opportunity

to comment on draft alternative

approaches for the proposed rule

through publishing a notice requesting

information and public comment in the

Federal Register on September 9, 1992

(57 FR 41344). This notice presented a

full range of regulatory alternatives. At

that time, EPA received more than 130

comments, including approximately 43

percent from municipalities and 24

percent from State or Federal agencies.

These comments were the genesis of

many of the provisions in the today’s

rule, including reliance on the NPDES

program framework (including general

permits), providing State and local

governments flexibility in selecting

additional sources requiring regulation,

and focusing on high priority polluters.

These comments helped to focus on

pollution prevention, watershed-based

concerns and BMPs. They also led to

certain exemptions for facilities that do

not pollute national waters.

In early 1993, EPA, in conjunction

with the Rensselaerville Institute, held

public and expert meetings to assist in

developing and analyzing options for

identifying unregulated storm water

sources and possible controls. These

meetings provided participants an

additional opportunity to provide input

into the CWA section 402(p)(6) program

development process. The final rule

addresses several of the key concerns

identified in these groups, including

provisions that provide flexibility to the

States to select sources to be controlled

and types of permits to be issued, and

flexibility to MS4s in selecting BMPs.

EPA also conducted outreach with

representatives of small entities,

including small government

representatives, in conjunction with the

convening of a Small Business

Advocacy Review Panel under SBREFA

which is discussed in section IV.E. of

the preamble.

In addition, EPA established the

Urban Wet Weather Flows Advisory

Committee under the Federal Advisory

Committee Act (FACA). The Urban Wet

Weather Flows Advisory Committee, in

turn established the Storm Water Phase

II Subcommittee. Consistent with

FACA, the membership of the

Committee and the Storm Water Phase

II Subcommittee was balanced among

EPA’s various outside stakeholder

interests, including representatives from

State governments, municipal

governments (both elected officials and

appointed officials) and Tribal

governments, as well as industrial and

commercial sectors, agriculture,

environmental and public interest

groups.

In general, municipal and Tribal

government representatives supported

the NPDES approach in today’s rule for

the following reasons: It will be

uniformly applied on a nationwide

basis; it provides flexibility to allow

incorporation of State and local

programs; it resolves the problem of

donut holes that cause water quality

impacts in urbanized areas; and it

allows co-permitting of small regulated

68798 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

MS4s with those regulated under the

existing storm water program.

In contrast, State representatives

sought alternative approaches for State

implementation of the storm water

program for Phase II sources. State

representatives asserted that a nonNPDES alternative approach best

facilitated watershed management and

avoided duplication and overlapping

regulations. These representatives

pointed out that there are a variety of

State programs—not based on the

CWA—implementing effective storm

water controls, and that EPA should

provide incentives for their

implementation and improvement in

performance. EPA continues to believe

that an NPDES approach is the best

approach in order to adequately protect

water quality. However, EPA has

worked with States on an alternative

approach that provides flexibility

within the NPDES framework. The final

rule allows States with a watershed

permitting approach to phase in permit

coverage for MS4s in jurisdictions with

a population less than 10,000 and

provides two waivers from coverage for

small MS4s. This issue is discussed in

section II.C of the preamble, Program

Framework: NPDES Approach.

Some municipal governments

objected that the rule’s minimum

measures for small MS4s violate the

Tenth Amendment insofar as they

require the operators of MS4s to regulate

third parties according to the

‘‘minimum measures’’ for municipal

storm water management programs. EPA

disagrees that today’s rule is

inconsistent with Tenth Amendment

principles. Permits issued under today’s

rule will not compel political

subdivisions of States to regulate in

their sovereign capacities, but rather to

effectively control discharges out of

their storm sewer systems in their

owner/operator capacities. For MS4s

that do not accept this ‘‘default’’

minimum measures-based approach (to

control discharges out of the storm

sewer system by exercising local powers

to control discharges into the storm

sewer system), today’s rule allows for

alternative permits through individual

permit applications. EPA made

revisions to the rule to allow regulated

small MS4s to opt out of the minimum

measures approach and instead apply

for an individual permit. This issue is

discussed in section II.H.3.c.iii of the

preamble, Alternative Permit Option/

Tenth Amendment.

2. Selection of the Least Costly, Most

Cost-Effective or Least Burdensome

Alternative That Achieves the

Objectives of the Statute

Today’s rule evolved over time and

incorporated aspects of alternatives that

responded to concerns presented by the

various stakeholders. A primary

characteristic of today’s rule is the

flexibility it offers both the permitting

authority and the regulated sources

(small MS4s and small construction

sites), by the use of general permits,

implementation of BMPs suited to

specific locations, and allowing MS4s to

develop their own program goals.

In the administrative record

supporting the proposed rule, EPA

estimated ranges of costs associated

with six different options, including a

no action option, the proposed option,

and four other options that considered

various combinations of the following:

Covering all the unregulated

construction sites below 5 acres, all

small MS4s, certain industrial and

commercial activities, and all point

sources. EPA developed detailed cost

estimates for the incremental

requirements imposed under the final

regulation, and for each of the

alternatives, and applied these estimates

to the remaining unregulated point

sources of storm water. The Agency

compared the estimated annual range of

costs imposed under today’s rule and

other major options considered. The

range of values for each option included

the costs for compliance, including

paperwork requirements for the

operators of small construction sites,

industrial facilities, and MS4s and

administrative costs for State and

Federal NPDES permitting authorities.

Today’s rule reflects the least costly

option that achieves the objectives of

the statute, thus meeting the

requirements of section 205. EPA did

not consider ‘‘no regulation’’ to be an

‘‘option’’ because it would not achieve

the objectives of CWA section 402(p)(6).

A portion of currently unregulated point

sources of storm water need to reduce

pollutants to protect water quality.

Today’s rule is estimated to range in

cost from $847.6 million to $981.3

million annually, although the cost

estimate for the proposed rule was

reported as a range of $138 to $869

million annually. That range reflected a

unit cost range for the municipal

minimum measures and a cost range per

construction site for soil erosion control.

EPA has since revised its cost analysis

to allow it to report the current estimate,

which is toward the high end of the

original cost range. The four other

regulatory options considered at

proposal involved higher regulatory

costs and, therefore, were not selected.

These four options and their estimated

costs are as follows:

(1) An option based on the August 7,

1995 direct final rule was estimated to

cost between $2.2 billion and $78.9

billion per year.

(2) A ‘‘Plan B’’ option was estimated

to cost between $0.6 billion and $3.2

billion per year.

(3) An option based on the September

30, 1996 draft proposed rule was

estimated to cost between $0.2 billion

and $3.7 billion per year.

(4) An option based on the February

13, 1997 draft proposed rule, was

estimated to cost between $0.2 billion

and $3.5 billion.

There are three reasons why the costs

for these four options exceeded the

estimated cost range for the proposed

rule. The first two options regulated

substantially more municipal

governments. The first, third, and fourth

options required industrial facilities to

apply for permits. Finally, the first three

options applied permit requirements to

construction sites below 1 acre.

Consequently, these options would be

more costly than today’s rule even with

the revised analysis methods used to

estimate costs.

3. Effects on Small Governments

Before EPA establishes any regulatory

requirements that may significantly or

uniquely affect small governments,

including tribal governments, it must

have developed under section 203 of the

UMRA a small government agency plan.

The plan must provide for notifying

potentially affected small governments,

enabling officials of affected small

governments to have meaningful and

timely input in the development of EPA

regulatory proposals with significant

Federal intergovernmental mandates,

and informing, educating, and advising

small governments on compliance with

the regulatory requirements. EPA has

determined that this rule contains no

regulatory requirements that might

significantly or uniquely affect small

governments. Although today’s rule

expands the NPDES program (with

modifications) to certain MS4s serving

populations below 100,000 and

although many MS4s are owned by

small governments, EPA does not

believe today’s rule significantly or

uniquely affects small governments. As

explained in section IV.E. of the

preamble, EPA today certifies that the

rule will not have a significant impact

on small governmental jurisdictions. In

addition, the rule will not have a unique

impact on small governments because

the rule will affect small governments in

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68799

to the same extent as (or to a lesser

extent than) larger governments that are

already covered by the existing storm

water rules. Thus, today’s rule is not

subject to the requirements of section

203 of UMRA.

Notwithstanding this finding, in

developing today’s rule, EPA provided

notice of the requirements to potentially

affected small governments; enabled

officials of affected small governments

to provide meaningful and timely input

in the development of regulatory

proposals; and informed, educated and

advised small governments on

compliance with the requirements.

Concerning notice, EPA provided

States, local, and Tribal governments

with the opportunity to comment on

alternative approaches for an early draft

of the proposed rule by publishing a

notice requesting information and

public comment in the Federal Register

on September 9, 1992 (57 FR 41344).

This notice presented a full range of

regulatory alternatives. At that time,

EPA received more than 130 comments,

including approximately 43 percent

from municipalities and 24 percent from

State or Federal agencies.

The Agency also provided, through

the SBREFA panel process and the

FACA process, the opportunity for

elected officials of small governments

(and their representatives) to

meaningfully participate in the

development of the rule. Through such

participation and exchange, EPA not

only notified potentially affected small

governments of requirements of the

developing rule, but also allowed

officials of affected small governments

to have meaningful and timely input

into the development of regulatory

proposals.

In addition to involving

municipalities in the development of

the rule, EPA also continues to inform,

educate, and advise small governments

on compliance with the requirements of

today’s rule. For example, EPA

supported 10 workshops, presented by

the American Public Works Association

from September 1998 through May

1999, designed to educate local

governments on the implementation of

the rule. The workshop curriculum

included information on a variety of key

issues such as anticipated regulatory

requirements, agency reporting, best

management practices, construction site

controls, post construction management

for new and redeveloped sites, public

education and public involvement

strategies, detection and control of illicit

discharges, and good housekeeping

practices. Moreover, EPA has prepared

a series of fact sheets, available on the

EPA website at www.epa.gov/owm/sw/

toolbox, that explains the rule in detail.

Finally, to assist small governments in

implementing the Phase II program,

EPA is committed to the following: (1)

developing a tool box of implementation

strategies; (2) providing written

technical assistance, including guidance

on developing BMPs and measurable

goals; and (3) compiling a

comprehensive evaluation of the NPDES

municipal storm water Phase II program

over the next 13 years.

D. Executive Order 13132

Executive Order 13132, entitled

‘‘Federalism’’ (64 FR 43255, August 10,

1999), requires EPA to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’ Under

Executive Order 13132, EPA may not

issue a regulation that has federalism

implications, that imposes substantial

direct compliance costs, and that is not

required by statute, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by State and local

governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

If EPA complies by consulting,

Executive Order 13132 requires EPA to

provide to the Office of Management

and Budget (OMB), in a separately

identified section of the preamble to the

rule, a federalism summary impact

statement (FSIS). The FSIS must include

a description of the extent of EPA’s

prior consultation with State and local

officials, a summary of the nature of

their concerns and the agency’s position

supporting the need to issue the

regulation, and a statement of the extent

to which the concerns of State and local

officials have been met. For final rules

subject to Executive Order 13132, EPA

also must submit to OMB a statement

from the agency’s Federalism Official

certifying that EPA has fulfilled the

Executive Order’s requirements.

EPA has concluded that this final rule

may have federalism implications. As

discussed above in section IV.C., the

rule contains a Federal mandate that

may result in the expenditure by State,

local and tribal governments, in the

aggregate, of $100 million or more in

any one year. Accordingly, the rule may

have substantial direct effects on the

States, on the relationship between the

national government and the States, or

on the distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. Moreover, the

rule will impose substantial direct

compliance costs on State or local

governments. Accordingly, EPA

provides the following FSIS under

section 6(b) of Executive Order 13132.

1. Description of the Extent of the

Agency’s Prior Consultation with State

and Local Governments

Although this rule was proposed long

before the November 2, 1999 effective

date of Executive Order 13132, EPA

consulted extensively with affected

State and local governments pursuant to

the intergovernmental consultation

provisions of Executive Order 12875,

‘‘Enhancing the Intergovernmental

Partnership’’ (now revoked by Executive

Order 13132) and section 204 of UMRA.

First, EPA provided State and local

governments the opportunity to

comment on draft alternative

approaches for the proposed rule

through publishing a notice requesting

information and public comment in the

Federal Register on September 9, 1992

(57 FR 41344). This notice presented a

full range of regulatory alternatives. At

that time, EPA received more than 130

comments, including approximately 43

percent from municipalities and 24

percent from State or Federal agencies.

These comments were the genesis of

many of the provisions in the today’s

rule, including reliance on the NPDES

program framework (including general

permits), providing State and local

governments flexibility in selecting

additional sources requiring regulation,

and focusing on high priority polluters.

These comments helped to focus on

pollution prevention, watershed-based

concerns and BMPs. They also led to

certain exemptions for facilities that do

not pollute national waters.

In early 1993, EPA, in conjunction

with the Rensselaerville Institute, held

public and expert meetings to assist in

developing and analyzing options for

identifying unregulated storm water

sources and possible controls. These

meetings provided participants an

additional opportunity to provide input

into the CWA section 402(p)(6) program

68800 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

development process. The final rule

addresses several of the key concerns

identified in these groups, including

provisions that provide flexibility to the

States to select sources to be controlled

and types of permits to be issued, and

flexibility to MS4s in selecting BMPs.

EPA also conducted outreach with

representatives of small entities,

including small governments, in

conjunction with the convening of a

Small Business Advocacy Review Panel

under SBREFA which is discussed in

section III.F. of the preamble.

In addition, EPA established the

Urban Wet Weather Flows Advisory

Committee (FACA), which in turn

established the Storm Water Phase II

Subcommittee. Consistent with the

Federal Advisory Committee Act, the

membership of the Committee and the

Storm Water Phase II Subcommittee was

balanced among EPA’s various outside

stakeholder interests, including

representatives from State governments,

municipal governments (both elected

officials and appointed officials) and

Tribal governments, as well as

industrial and commercial sectors,

agriculture, environmental and public

interest groups.

2. Summary of Nature of State and Local

Government Concerns, and Statement of

the Extent to Which Those Concerns

Have Been Met

In general, municipal government

representatives supported the NPDES

approach in today’s rule for the

following reasons: it will be uniformly

applied on a nationwide basis; it

provides flexibility to allow

incorporation of State and local

programs; it resolves the problem of

donut holes that cause water quality

impacts in urbanized areas; and it

allows co-permitting of small regulated

MS4s with those regulated under the

existing storm water program.

In contrast, State representatives

sought alternative approaches for State

implementation of the storm water

program for Phase II sources. State

representatives asserted that a nonNPDES alternative approach best

facilitated watershed management and

avoided duplication and overlapping

regulations. These representatives

pointed out that there are a variety of

State programs—not based on the

CWA—implementing effective storm

water controls, and that EPA should

provide incentives for their

implementation and improvement in

performance. EPA continues to believe

that an NPDES approach is the best

approach in order to adequately protect

water quality. However, EPA has

worked with States on an alternative

approach that provides flexibility

within the NPDES framework. The final

rule allows States with a watershed

permitting approach to phase in permit

coverage for MS4s in jurisdictions with

a population less than 10,000 and

provides two waivers from coverage for

small MS4s. This issue is discussed in

section II.C of the preamble, Program

Framework: NPDES Approach.

Some municipal governments

objected that the rule’s minimum

measures for small MS4s violate the

Tenth Amendment insofar as they

require the operators of MS4s to regulate

third parties according to the

‘‘minimum measures’’ for municipal

storm water management programs. EPA

disagrees that today’s rule is

inconsistent with Tenth Amendment

principles. Permits issued under today’s

rule will not compel political

subdivisions of States to regulate in

their sovereign capacities, but rather to

effectively control discharges out of

their storm sewer systems in their

owner/operator capacities. For MS4s

that do not accept this ‘‘default’’

minimum measures-based approach (to

control discharges out of the storm

sewer system by exercising local powers

to control discharges into the storm

sewer system), today’s rule allows for

alternative permits through individual

permit applications. EPA made

revisions to the rule to allow regulated

small MS4s to opt out of the minimum

measures approach and instead apply

for an individual permit. This issue is

discussed in section II.H.3.c.iii of the

preamble, Alternative Permit Option/

Tenth Amendment.

3. Summary of the Agency’s Position

Supporting the Need To Issue the

Regulation

As discussed more fully in section I.B.

above, today’s rule is needed because

uncontrolled storm water discharges

from areas of urban development and

construction activity have been shown

to have negative impacts on receiving

waters by changing the physical,

biological, and chemical composition of

the water, resulting in an unhealthy

environment for aquatic organisms,

wildlife, and people. As discussed in

section II.C., the NPDES approach in

today’s rule is needed to ensure uniform

application on a nationwide basis, to

provide flexibility to allow

incorporation of State and local

programs, to resolve the problem of

donut holes that cause water quality

impacts in urbanized areas, and to allow

co-permitting of small regulated MS4s

with those regulated under the existing

storm water program.

The draft final rule was transmitted to

OMB on July 6, 1999. Because

transmittal occurred before the

November 2, 1999 effective date of

Executive Order 13132, certification

under section 8 of the Executive Order

is not required.

E. Regulatory Flexibility Act (RFA), as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA), 5 U.S.C. 601 et seq.

The RFA generally requires an

Agency to prepare a regulatory

flexibility analysis of any rule subject to

notice and comment rulemaking

requirements under the Administrative

Procedure Act or any other statute

unless the agency certifies that the rule

will not have a significant economic

impact on a substantial number of small

entities. Small entities include small

businesses, small organizations, and

small governmental jurisdictions.

For purposes of assessing the impact

of today’s rule on small entities, small

entity is defined as: (1) a building

contractor (SIC 15) with up to $17.0

million in annual revenue; (2) a small

governmental jurisdiction that is a

government of a city, county, town,

school district, or special district with a

population of less than 50,000; and (3)

a small organization that is any not-forprofit enterprise which is independently

owned and operated and is not

dominant in its field.

After considering the economic

impacts of today’s final rule on small

entities, I certify that this action will not

have a significant economic impact on

a substantial number of small entities.

Although this final rule will not have

a significant economic impact on a

substantial number of small entities,

EPA nonetheless has tried to reduce the

impact of this rule on small entities.

For purposes of evaluating the

economic impact of this rule on small

governmental jurisdictions, EPA

compared annual compliance costs with

annual government revenues obtained

from the 1992 Census of Governments,

using state-specific estimates of annual

revenue per capita for municipalities in

three population size categories (fewer

than 10,000, 10,000–25,000, and

25,000–50,000).

In order to estimate the annual

compliance cost for small governmental

jurisdictions, EPA used the mean

variable municipal cost of $8.93 per

household as calculated in a 1998 study

of 121 municipalities conducted by the

national Association of Flood and

Stormwater Management Agencies

(NAFSMA). In addition, EPA used the

estimated fixed administrative costs of

$1,545 per municipality for reporting,

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68801

recordkeeping, and application

requirements for today’s rule.

In evaluating the economic impact of

this rule on small governmental

jurisdictions, EPA determined that

compliance costs represent more than 1

percent of estimated revenues for only

10 percent of small governments and

more than 3 percent of the revenue for

0.7 percent of these entities. In both

absolute and relative terms, EPA does

not consider this a significant economic

impact on a substantial number of small

entities.

EPA normally uses the ‘‘sales test’’ for

determining the economic impact on

small businesses. Under a sales test,

annual compliance costs are compared

with the small business’s total annual

sales. However, the direct application of

the sales test is not suitable in this case,

because of the uncertainty associated

with estimating the number of units an

‘‘average’’ developer/contractor

develops or builds in a typical year. For

this rule, EPA has approximated the

sales test by estimating compliance

costs for three sizes of construction sites

and comparing them with a

representative sale price for three

building categories. Although EPA’s

analysis is not exactly a ‘‘sales test,’’ it

is similar to the sales test, producing

comparable results.

For small building contractors, EPA

estimated administrative compliance

costs of $870 per site for applying for

coverage, reporting, record keeping,

monitoring and preparing a storm water

pollution prevention plan. EPA

estimated compliance costs for

installing soil and erosion controls as

ranging from $1,206 to $8,709 per site.

EPA compliance cost estimates are

based on 27 theoretical model

construction sites designed to mimic the

mostly likely used best management

practices around the country.

In evaluating the economic impact on

small building contractors, EPA divided

the revised compliance costs per

construction start by the appropriate

homes-to-site ratio for each of the three

sizes of construction sites. The average

compliance cost per home ranges from

approximately $450 to $650. EPA

concluded that compliance costs are

roughly 0.22 to 0.43 percent of both the

mean, $181,300, and median, $151,000,

sale price of a home.

The absence of data to specifically

assess annual compliance costs for

building contractors as a percentage of

annual sales (i.e., a very direct estimate

of the impact on potentially affected

small businesses) led EPA to perform

additional market analysis to examine

the ability of potentially affected firms

to pass along regulatory costs to buyers

for single-family homes constructed

subject to today’s rule. If the small

building contractors covered by the rule

are able to pass on the costs of

compliance, either completely or

partially, to their purchasers, then the

rule’s impact on these small business

entities is significantly reduced. The

market analysis shows that demand for

homes is not overly sensitive to small

changes in price, therefore builders

should be able to pass on at least a

significant fraction of the compliance

costs to buyers.

EPA also assessed the effect of the

building contractors’ costs on average

monthly mortgage rates and on the

demand for new homes. Based on that

screening analysis, EPA concludes that

the costs to building contractors, and

the potential changes in housing prices

and monthly mortgage payments for

single-family home buyers, are not

expected to have a significant impact on

the market for single-family houses. In

both absolute and relative terms, EPA

does not consider this a significant

economic impact on a substantial

number of small entities.

EPA also certified this rule at

proposal. Even though the Agency was

not required to, we convened a Small

Business Advocacy Review Panel

(‘‘Panel’’) in June 1997. A number of

small entity representatives had already

been actively involved with EPA

through the FACA process, and were,

therefore, broadly knowledgeable about

the development of the proposed and

final rules. Prior to convening the Panel,

EPA consulted with the Small Business

Administration to identify a group of

small entity representatives to advise

the Panel. The Agency distributed a

briefing package describing its

preliminary analysis under the RFA to

the small entity representatives (as well

as to representatives from OMB and

SBA) and conducted two telephone

conference calls and an all-day meeting

at EPA Headquarters in May of 1997

with small entity representatives. With

this preliminary work complete, in June

1997, EPA formally convened the

SBREFA Panel, comprising

representatives from OMB, SBA, EPA’s

Office of Water and EPA’s Small

Business Advocacy Chair. The Panel

received written comments from small

entity representatives based on their

involvement in the earlier meetings, and

invited additional comments.

Consistent with requirements of the

RFA, the Panel evaluated the assembled

materials and small-entity comments on

issues related to: (1) a description and

the number of small entities that would

be regulated; (2) a description of the

projected record keeping, reporting and

other compliance requirements

applicable to small entities; (3)

identification of other Federal rules that

may duplicate, overlap, or conflict with

the proposal to the final rule; and (4)

regulatory alternatives that would

minimize any significant economic

impact of the rule on small entities

while accomplishing the stated

objectives of the CWA section 402(p)(6).

On August 7, 1997, the Panel

provided a Final Report (hereinafter,

‘‘Report’’) to the EPA Administrator. A

copy of the Report is included in the

docket for the rule. The Panel

acknowledged and commended EPA’s

efforts to work with stakeholders,

including small entities, through the

FACA process. The SBREFA Panel

stated that, because of EPA’s extensive

outreach and responsiveness in

addressing stakeholder concerns,

commenters during the SBREFA process

raised fewer concerns than might

otherwise have been expected. Based on

the advice and recommendations of the

Panel, today’s rule includes a number of

provisions designed to minimize any

significant impact on small entities. (See

Appendix 5).

F. National Technology Transfer And

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (‘‘NTTAA’’), Public Law

104–113, section 12(d) (15 U.S.C. 272

note) directs EPA to use voluntary

consensus standards in its regulatory

activities unless to do so would be

inconsistent with applicable law or

otherwise impractical. Voluntary

consensus standards are technical

standards (e.g., materials specifications,

test methods, sampling procedures, and

business practices) that are developed or

adopted by voluntary consensus

standard bodies. The NTTAA directs

EPA to provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards.

This action does not mandate the use

of any particular technical standards,

although in designing appropriate BMPs

regulated small MS4s and small

construction sites are encouraged to use

any voluntary consensus standards that

may be applicable and appropriate.

Because no specific technical standards

are included in the rule, section 12(d) of

the NTTAA is not applicable.

G. Executive Order 13045

Executive Order 13045: ‘‘Protection of

Children from Environmental Health

Risks and Safety Risks’’ (62 FR 19885,

April 23, 1997) applies to any rule that:

(1) Is determined to be ‘‘economically

68802 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

significant’’ as defined under E.O.

12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

This final rule is not subject to E.O.

13045 because it does not concern an

environmental health or safety risk that

may have a disproportionate effect on

children. The rule expands the scope of

the existing NPDES permitting program

to require small municipalities and

small construction sites to regulate their

storm water discharges. The rule does

not itself, however, establish standards

or criteria that would be included in

permits for those sources. Such

standards or criteria will be developed

through other actions, for example, in

the establishment of water quality

standards or subsequently in the

issuance of permits themselves. As

such, today’s action does not concern an

environmental health or safety risk that

may have a disproportionate effect on

children. To the extent it does address

a risk that may have a disproportionate

effect on children, expanding the scope

of the permitting program will have a

corresponding disproportionate benefit

to children to protect them from such

risk.

H. Executive Order 13084

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the Tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA’s

prior consultation with representatives

of affected Tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected officials and other

representatives of Indian Tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’

Today’s rule does not significantly or

uniquely affect the communities of

Indian Tribal governments. Even though

the Agency is not required to address

Tribes under the Regulatory Flexibility

Act, EPA used the same revenue test

that was used for municipalities to

assess the impact of the rule on

communities of Tribal governments and

determine that they will not be

significantly affected. In addition, the

rule will not have a unique impact on

the communities of Tribal governments

because small municipal governments

are also covered by this rule and larger

municipal governments are already

covered by the existing storm water

rules. Accordingly, the requirements of

section 3(b) of Executive Order 13084

do not apply to this rule.

I. Congressional Review Act

The Congressional Review Act, 5

U.S.C. section 801 et seq., as added by

the Small Business Regulatory

Enforcement Fairness Act of 1996,

generally provides that before a rule

may take effect, the agency

promulgating the rule must submit a

rule report, which includes a copy of

the rule, to each House of the Congress

and the Comptroller General of the

United States. EPA will submit a report

containing this rule and other required

information to the U.S. Senate, the U.S.

House of Representatives, and the

Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This rule is a ‘‘major rule’’ as defined by

5 U.S.C. 804(2). This rule will be

effective on February 7, 2000.

List of Subjects

40 CFR Part 9

Environmental protection, Reporting

and recordkeeping requirements.

40 CFR Part 122

Administrative practice and

procedure, Confidential business

information, Environmental protection,

Hazardous substances, Incorporation by

reference, Reporting and recordkeeping

requirements, Sewage disposal, Waste

treatment and disposal, Water pollution

control.

40 CFR Part 123

Administrative practice and

procedure, Confidential business

information, Hazardous materials,

Indians—lands, Intergovernmental

relations, Penalties, Reporting and

recordkeeping requirements, Sewage

disposal, Waste treatment and disposal,

Water pollution control, Penalties.

40 CFR Part 124

Administrative practice and

procedure, Air pollution control,

Hazardous waste, Indians—lands,

Reporting and recordkeeping

requirements, Water pollution control,

Water supply.

Dated: October 29, 1999.

Carol M. Browner,

Administrator.

Appendices to the Preamble

APPENDIX 1 TO PREAMBLE—FEDERALLY-RECOGNIZED AMERICAN INDIAN AREAS LOCATED FULLY OR PARTIALLY IN

BUREAU OF THE CENSUS URBANIZED AREAS

[Based on 1990 Census data]

State American Indian Area Urbanized Area

AZ ....... Pascua Yacqui Reservation (pt.): Pascua Yacqui Tribe of Arizona ................................... Tucson, AZ (Phase I).

AZ ....... Salt River Reservation (pt.): Salt River Pima-Maricopa Indian Community of the Salt

River Reservation, California.

Phoenix, AZ (Phase I).

AZ ....... San Xavier Reservation (pt.): Tohono O’odham Nation of Arizona (formerly known as

the Papago Tribe of the Sells, Gila Bend & San Xavier Reservation).

Tucson, AZ (Phase I).

CA ....... Augustine Reservation: Augustine Band of Cahuilla Mission of Indians of the Augustine

Reservation, CA.

Indio-Coachella, CA (Phase I).

CA ....... Cabazon Reservation: Cabazon Band of Cahuilla Mission Indians of the Cabazon Reservation, CA.Indio-Coachella, CA (Phase I).

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68803

APPENDIX 1 TO PREAMBLE—FEDERALLY-RECOGNIZED AMERICAN INDIAN AREAS LOCATED FULLY OR PARTIALLY IN

BUREAU OF THE CENSUS URBANIZED AREAS—Continued

[Based on 1990 Census data]

State American Indian Area Urbanized Area

CA ....... Fort Yuma (Quechan) (pt.): Quechan Tribe of the Fort Yuma Indian Reservation, California & Arizona.Yuma, AZ–CA.

CA ....... Redding Rancheria: Redding Rancheria of California ........................................................ Redding, CA.

FL ........ Hollywood Reservation: Seminole Tribe ............................................................................. Fort Lauderdale, FL (Phase I).

FL ........ Seminole Trust Lands: Seminole Tribe of Florida, Dania, Big Cypress & Brighton Reservations.Fort Lauderdale, FL (Phase I).

ID ........ Fort Hall Reservation and Trust Lands: Shosone-Bannock Tribes of the Fort Hall Reservation of Idaho.Pocatello, ID.

ME ...... Penobscot Reservation and Trust Lands (pt.): Penobscot Tribe of Maine ........................ Bangor, ME.

MN ...... Shakopee Community: Shakopee Mdewakanton Sioux Community of Minnesota (Prior

Lake).

Minneapolis-St. Paul, MN (Phase I).

NM ...... Sandia Pueblo (pt.): Pueblo of Sandia, New Mexico ......................................................... Albuquerque, NM (Phase I).

NV ....... Las Vegas Colony: Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony,

Nevada.

Las Vegas, NV (Phase I).

NV ....... Reno-Sparks Colony: Reno-Sparks Indian Colony, Nevada .............................................. Reno, NV (Phase I).

OK ....... Osage Reservation (pt.): Osage Nation of Oklahoma ........................................................ Tulsa, OK (Phase I).

OK ....... Absentee Shawnee-Citizens Band of Potawatomi TJSA (pt.): Absentee-Shawnee Tribe

of Indians of Oklahoma; Citizen Potawatomi Nation, Oklahoma.

Oklahoma City, OK (Phase I).

OK ....... Cherokee TJSA 9 (pt.): Cherokee Nation of Oklahoma; United Keetoowah Band of

Cherokee Indians of Oklahoma.

Ft. Smith, AR–OK; Tulsa, OK (Phase I).

OK ....... Cheyenne-Arapaho TJSA (pt.): Cheyenne-Arapaho Tribes of Oklahoma ......................... Oklahoma City, OK (Phase I).

OK ....... Choctaw TJSA (pt.): Choctaw Nation of Oklahoma ........................................................... Ft. Smith, AR–OK (Phase I).

OK ....... 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.

Tulsa, OK (Phase I).

OK ....... 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.

Lawton, OK.

TX ....... Ysleta del Sur Reservation: Ysleta Del Sur Pueblo of Texas ............................................ El Paso, TX–NM (Phase I).

WA ...... Muckleshoot Reservation and Trust Lands (pt.): Muckleshoot Indian Tribe of the

Muckleshoot Reservation.

Seattle, WA (Phase I).

WA ...... Puyallup Reservation and Trust Lands (pt.): Puyallup Tribe of the Puyallup Reservation,

WA.

Tacoma, WA (Phase I).

WA ...... Yakima Reservation (pt.): Confederated Tribes and Bands of the Yakama Indian Nation

of the Yakama Reservation, WA.

Yakima, WA.

WI ....... Oneida (West) (pt.): Oneida Tribe of Wisconsin ................................................................. Green Bay, WI.

Please Note

‘‘(pt.)’’ indicates that the American Indian

Area (AIA) listed is only partially located

within the referenced urbanized area.

The first line under ‘‘American Indian

Area’’ is the name of the federally-recognized

reservation/colony/rancheria or trust land as

it appears in the Bureau of the Census data.

After this first line, the names of the tribes

included in the AIA are listed as they appear

in the Bureau of Indian Affairs’ list of

Federally Recognized Indian Tribes. [Federal

Register: Nov. 13, 1996, Vol. 66, No. 220, pgs.

58211–58216]

‘‘TJSAs’’ are Tribal Jurisdiction Statistical

Areas in Oklahoma that are defined in

conjunction with the federally-recognized

tribes in Oklahoma who have definite land

areas under their jurisdiction, but do not

have reservation status.

‘‘(Phase I)’’ indicates that the referenced

urbanized area includes a medium or large

MS4 currently regulated under the existing

NPDES storm water program (i.e., Phase I).

Any Tribally operated MS4 within these such

urban areas would not automatically have

been covered under Phase I, however.

Sources

Michael Ratcliffe, Geographic Concepts

Division, Bureau of the Census, U.S.

Department of Commerce.

1990 Census of Population and Housing,

Summary Population and Housing

Characteristics, United States. Tables 9 & 10.

[1990 CPH–1–1]. Bureau of the Census, U.S.

Department of Commerce.

BILLING CODE 6560–50–P

68804 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

BILLING CODE 6560–50–C

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68805

Appendix 3 to the Preamble—

Urbanized Areas of the United States

and Puerto Rico

(Source: 1990 Census of Population and

Housing, U.S. Bureau of the Census—

This list is subject to change with the

Decennial Census)

Alabama

Anniston

Auburn-Opelika

Birmingham

Columbus, GA–AL

Decatur

Dothan

Florence

Gadsden

Huntsville

Mobile

Montgomery

Tuscaloosa

Alaska

Anchorage

Arizona

Phoenix

Tucson

Yuma, AZ–CA

Arkansas

Fayetteville-Springdale

Fort Smith, AR–OK

Little Rock-North Little Rock

Memphis, TN–AR–MS

Pine Bluff

Texarkana, AR–TX

California

Antioch-Pittsburgh

Bakersfield

Chico

Davis

Fairfield

Fresno

Hemet-San Jacinto

Hesperia-Apple Valley-Victorville

Indio-Coachella

Lancaster-Palmdale

Lodi

Lompoc

Los Angeles

Merced

Modesto

Napa

Oxnard-Ventura

Palm Springs

Redding

Riverside-San Bernardino

Sacramento

Salinas

San Diego

San Francisco-Oakland

San Jose

San Luis Obispo

Santa Barbara

Santa Cruz

Santa Maria

Santa Rosa

Seaside-Monterey

Simi Valley

Stockton

Vacaville

Visalia

Watsonville

Yuba City

Yuma

Colorado

Boulder

Colorado Springs

Denver

Fort Collins

Grand Junction

Greeley

Longmont

Pueblo

Connecticut

Bridgeport-Milford

Bristol

Danbury, CT–NY

Hartford-Middletown

New Britain

New Haven-Meriden

New London-Norwich

Norwalk

Springfield, MA–CT

Stamford, CT–NY

Waterbury

Worcester, MA–CT

Delaware

Dover

Wilmington, DE–NJ–MD–PA

District of Columbia

Washington, DC–MD–VA

Florida

Daytona Beach

Deltona

Fort Lauderdale-Hollywood-Pompano Beach

Fort Myers-Cape Coral

Fort Pierce

Fort Walton Beach

Gainesville

Jacksonville

Kissimmee

Lakeland

Melbourne-Palm Bay

Miami-Hialeah

Naples

Ocala

Orlando

Panama City

Pensacola

Punta Gorda

Sarasota-Bradenton

Spring Hill

Stuart

Tallahassee

Tampa-St. Petersburg-Clearwater

Titusville

Vero Beach

West Palm Beach-Boca Raton-Delray Beach

Winter Haven

Georgia

Albany

Athens

Atlanta

Augusta

Brunswick

Chattanooga

Columbus

Macon

Rome

Savannah

Warner Robins

Hawaii

Honolulu

Kailua

Idaho

Boise City

Idaho Falls

Pocatello

Illinois

Alton

Aurora

Beloit, WI–IL

Bloomington-Normal

Champaign-Urbana

Chicago, IL-Northwestern IN

Crystal Lake

Davenport-Rock Island-Moline, IA–IL

Decatur

Dubuque

Elgin

Joliet

Kankakee

Peoria

Rockford

Round Lake Beach-McHenry, IL–WI

St. Louis, MO–IL

Springfield

Indiana

Anderson

Bloomington

Chicago, IL-Northwestern IN

Elkhart-Goshen

Evansville, IN–KY

Fort Wayne

Indianapolis

Kokomo

Lafayette-West Lafayette

Louisville, KY–IN

Muncie

South Bend-Mishawaka, IN–MI

Terre Haute

Iowa

Cedar Rapids

Davenport-Rock Island-Moline, IA–IL

Des Moines

Dubuque, IA–IL–WI

Iowa City

Omaha, NE–IA

Sioux City, IA–NE–SD

Waterloo-Cedar Falls

Kansas

Kansas City, MO–KS

Lawrence

St. Joseph, MO–KS

Topeka

Wichita

Kentucky

Cincinnati, OH–KY

Clarksville, TN–KY

Evansville, IN–KY

Huntington-Ashland, WV–KY–OH

Lexington-Fayette

Louisville, KY–IN

Owensboro

Louisiana

Alexandria

Baton Rouge

Houma

Lafayette

Lake Charles

Monroe

New Orleans

Shreveport

68806 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

Slidell

Maine

Bangor

Lewiston-Auburn

Portland

Portsmouth-Dover-Rochester, NH–ME

Maryland

Annapolis

Baltimore

Cumberland

Frederick

Hagerstown, MD–PA–WV

Washington, DC–MD–VA

Wilmington, DE–NJ–MD–PA

Massachusetts

Boston

Brockton

Fall River, MA–RI

Fitchburg-Leominster

Hyannis

Lawrence-Haverhill, MA–NH

Lowell, MA–NH

New Bedford

Pittsfield

Providence-Pawtucket, RI–MA

Springfield, MA–CT

Taunton

Worcester, MA–CT

Michigan

Ann Arbor

Battle Creek

Bay City

Benton Harbor

Detroit

Flint

Grand Rapids

Holland

Jackson

Kalamazoo

Lansing-East Lansing

Muskegon

Port Huron

Saginaw

South Bend-Mishawaka, IN–MI

Toledo, OH–MI

Minnesota

Duluth, MN–WI

Fargo-Moorhead, ND–MN

Grand Forks, ND–MN

La Crosse, WI–MN

Minneapolis-St.Paul

Rochester

St. Cloud

Mississippi

Biloxi-Gulfport

Hattiesburg

Jackson

Memphis, TN–AR–MS

Pascagoula

Missouri

Columbia

Joplin

Kansas City, MO–KS

St. Joseph, MO–KS

St. Louis, MO–IL

Springfield

Montana

Billings

Great Falls

Missoula

Nebraska

Lincoln

Omaha, NE–IA

Sioux City, IA–NE–SD

Nevada

Las Vegas

Reno

New Hampshire

Lawrence-Haverhill, MA–NH

Lowell, MA–NH

Manchester

Nashua

Portsmouth-Dover-Rochester, NH–ME

New Jersey

Allentown-Bethlehem-Easton, PA–NJ

Atlantic City

New York, NY-Northeastern NJ

Philadelphia, PA–NJ

Trenton, NJ–PA

Vineland-Millville

Wilmington, DE–NJ–MD–PA

New Mexico

Albuquerque

El Paso

Las Cruces

Santa Fe

New York

Albany-Schenectady-Troy

Binghamton

Buffalo-Niagara Falls

Danbury, CT–NY

Elmira

Glens Falls

Ithaca

Newburgh

New York, NY–Northeastern NJ

Poughkeepsie

Rochester

Stamford, CT–NY

Syracuse

Utica-Rome

North Carolina

Asheville

Burlington

Charlotte

Durham

Fayetteville

Gastonia

Goldsboro

Greensboro

Greenville

Hickory

High Point

Jacksonville

Kannapolis

Raleigh

Rocky Mount

Wilmington

Winston-Salem

North Dakota

Bismark

Fargo-Moorhead, ND–MN

Grand Forks, ND–MN

Ohio

Akron

Canton

Cincinnati, OH–KY

Cleveland

Columbus

Dayton

Hamilton

Huntington-Ashland, WV–KY–OH

Lima

Lorain-Elyria

Mansfield

Middletown

Newark

Parkersburg, WV–OH

Sharon, PA–OH

Springfield

Steubenville-Weirton, OH–WV–PA

Toledo, OH–MI

Wheeling, WV–OH

Youngstown-Warren

Oklahoma

Fort Smith, AR–OK

Lawton

Oklahoma City

Tulsa

Oregon

Eugene-Springfield

Longview

Medford

Portland-Vancouver, OR–WA

Salem

Pennsylvania

Allentown-Bethlehem-Easton, PA–NJ

Altoona

Erie

Hagerstown, MD–PA–WV

Harrisburg

Johnstown

Lancaster

Monessen

Philadelphia, PA–NJ

Pittsburgh

Pottstown

Reading

Scranton-Wilkes-Barre

Sharon, PA–OH

State College

Steubenville-Weirton, OH–WV–PA

Trenton, NJ–PA

Williamsport

Wilmington, DE–NJ–MD–PA

York

Rhode Island

Fall River, MA–RI

Newport

Providence-Pawtucket, RI–MA

South Carolina

Anderson

Augusta, GA–SC

Charleston

Columbia

Florence

Greenville

Myrtle Beach

Rock Hill

Spartanburg

Sumter

South Dakota

Rapid City

Sioux City, IA–NE–SD

Sioux Falls

Tennessee

Bristol, TN-Bristol, VA

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68807

Chattanooga, TN–GA

Clarksville, TN–KY

Jackson

Johnson City

Kingsport, TN–VA

Knoxville

Memphis, TN–AR–MS

Nashville

Texas

Abilene

Amarillo

Austin

Beaumont

Brownsville

Bryan-College Station

Corpus Christi

Dallas-Fort Worth

Denton

El Paso, TX–NM

Galveston

Harlingen

Houston

Killeen

Laredo

Lewisville

Longview

Lubbock

McAllen-Edinburg-Mission

Midland

Odessa

Port Arthur

San Angelo

San Antonio

Sherman-Denison

Temple

Texarkana, TX-Texarkana, AR

Texas City

Tyler

Victoria

Waco

Wichita Falls

Utah

Logan

Ogden

Provo-Orem

Salt Lake City

Vermont

Burlington

Virginia

Bristol, TN-Bristol, VA

Charlottesville

Danville

Fredericksburg

Kingsport, TN–VA

Lynchburg

Norfolk-Virginia Beach-Newport News

Petersburg

Richmond

Roanoke

Washington, DC–MD–VA

Washington

Bellingham

Bremerton

Longview, WA–OR

Olympia

Portland-Vancouver, OR–WA

Richland-Kennewick-Pasco

Seattle

Spokane

Tacoma

Yakima

West Virginia

Charleston

Cumberland, MD–WV

Hagerstown, MD–PA–WV

Huntington-Ashland, WV–KY–OH

Parkersburg, WV–OH

Steubenville-Weirton, OH–WV–PA

Wheeling, WV–OH

Wisconsin

Appleton-Neenah

Beloit, WI–IL

Duluth, MN–WI

Eau Claire

Green Bay

Janesville

Kenosha

La Crosse, WI–MN

Madison

Milwaukee

Oshkosh

Racine

Round Lake Beach-McHenry, IL–WI

Sheboygan

Wausau

Wyoming

Casper

Cheyenne

Puerto Rico

Aquadilla

Arecibo

Caguas

Cayey

Humacao

Mayaguez

Ponce

San Juan

Vega Baja-Manati

BILLING CODE 6560–50–P

68808 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

Appendix 4 to the Preamble—No Exposure Certification Form

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68809

68810 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68811

BILLING CODE 6560–50–C

Appendix 5 to Preamble—Regulatory

Flexibility for Small Entities

A. Regulatory Flexibility for Small

Municipal Storm Sewer Systems (MS4s)

Different Compliance, Reporting, or

Timetables That Are Responsive to Resources

of Small Entities

NPDES permitting authorities can issue

general permits instead of requiring

individual permits. This flexibility avoids the

high application costs and administrative

burden associated with individual permits.

NPDES permitting authorities can specify a

time period of up to five years for small MS4s

to fully develop and implement their

program

Analytic monitoring is not required.

After the first permit term and subsequent

permit terms, submittal of a summary report

is only required in years two and four (Phase

I municipalities are currently required to

submit a detailed report each year).

A brief reporting format is encouraged to

facilitate compiling and analyzing data from

submitted reports. EPA intends to develop a

model form for this purpose.

NPDES Permitting Authorities can phase in

permit coverage for small MS4s serving

jurisdictions with a population under 10,000

on a schedule consistent with a State

watershed permitting approach.

Clarifying, Consolidating, or Simplifying

Compliance and Reporting Requirements

The rule avoids duplication in permit

requirements by allowing NPDES permitting

authorities to include permit conditions that

direct an MS4 to follow the requirements of

a qualifying local program rather than the

requirements of a minimum measure.

Compliance with these programs is

considered compliance with the NPDES

general permit.

The rule allows NPDES permitting

authorities to recognize existing

responsibilities among different municipal

entities to satisfy obligations for the

minimum control measures.

A further alternative allows a small MS4 to

satisfy its NPDES permit obligations if

another governmental entity is already

implementing a minimum control measure in

the jurisdiction of the small MS4. The

following conditions must be met:

1. The other entity is implementing the

control measure,

2. The particular control measure (or

component thereof) is at least as stringent as

the corrersponding NPDES permit

requirement, and

3. The other entity agrees to implement the

control measure on your behalf.

The rule allows a covered small MS4 to

‘‘piggy-back’’ on to the storm water

management program of an adjoining Phase

I MS4. A small MS4 is waived from the

application requirements of

§ 122.26(d)(1)(iii), (iv) and (d)(2)(iii)

[discharge characterization] and may satisfy

the requirements of § 122.26(d)(1)(v) and

(d)(2)(iv) [identifying a management plan] by

referencing the adjoining Phase I MS4’s

storm water management plan.

The rule accommodates the use of the

watershed approach through NPDES general

permits that could be issued on a watershed

basis. The small MS4 can develop measures

that are tailored to meet their watershed

requirements. The small MS4’s storm water

management program can tie into watershedwide plans.

Performance Rather Than Design Standards

for Small Entities

Small governmental jurisdictions whose

MS4s are covered by this rule are allowed to

choose the best management practices

(BMPs) to be implemented and the

measurable goals for each of the minimum

control measures:

1. Public education and outreach on storm

water impacts

2. Public Involvement/Participation

3. Illicit discharge detection and

elimination

68812 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

4. Construction site storm water runoff

control

5. Post-construction storm water

management in new development and

redevelopment

6. Pollution prevention/good housekeeping

for municipal operations

EPA will provide guidance and

recommend, but not mandate, certain BMPs

for some of the minimum control measures

listed above. States can provide guidance to

supplement or supplant EPA guidance.

Small MS4s can identify the measurable

goals for each of the minimum control

measures listed above. In their reports to the

NPDES permitting authority, the small MS4s

must evaluate their progress towards

achievement of their identified measurable

goals.

Waivers for Small Entities From Coverage

The rule allows permitting authorities to

waive from coverage MS4s operated by small

governmental jurisdictions located within an

urbanized area and serving a population less

than 1,000 people where the permitting

authority has determined the MS4 is not

contributing substantially to the pollutant

loadings of an interconnected MS4 and, if the

MS4 discharges pollutants that have been

identified as a cause of impairment in the

receiving water of the MS4 then the

permitting authority has determined that

storm water controls are not needed based on

a TMDL that addresses the pollutants of

concern.

The rule allows the permitting authority to

waive from coverage MS4s serving a

population under 10,000 where the

permitting authority has evaluated all waters

that receive a discharge from the MS4 and

the permitting authority has determined that

storm water controls are not needed based on

a TMDL that addresses the pollutants of

concern and future discharges do not have

the potential to result in exceedances of

water quality standards.

B. Regulatory Flexibility for Small

Construction Activities

Different Compliance, Reporting, or

Timetables That Are Responsive to Resources

of Small Entities

The rule gives NPDES permitting

authorities discretion not to require the

submittal of a notice of intent (NOI) for

coverage under a NPDES general permit,

thereby reducing administrative and

financial burden. All construction sites

disturbing greater than 5 acres must submit

an NOI.

Clarifying, Consolidating, or Simplifying

Compliance and Reporting Requirements

The rule avoids duplication by allowing

the NPDES permitting authority to

incorporate by reference State, Tribal, or

local programs under a NPDES general

permit. Compliance with these programs is

considered compliance with the NPDES

general permit.

Performance Rather Than Design Standards

for Small Entities

The operator of a covered construction

activity selects and implement the BMPs

most appropriate for the construction site

based on the operator’s storm water pollution

prevention plan.

Waivers for Small Entities From Coverage

Waivers could be granted based on the use

of a rainfall erosivity factor or a

comprehensive analysis of water quality

impacts.

(A) Low rainfall waiver: When the rainfall

erosivity factor (‘‘R’’ from Revised Universal

Soil Loss Equation) is less than 5 during the

period of construction activity, a permit is

not required.

(B) Determination based on Water Quality

Analysis: The NPDES permitting authority

can waive from coverage construction

activities disturbing from 1 acre up to 5 acres

of land where storm water controls are not

needed based on:

1. A TMDL approved or established by

EPA that addresses the pollutants of concern,

or

2. For non-impaired waters, an equivalent

analysis that determines that such allocations

are not needed to protect water quality based

on consideration of existing in-stream

concentrations, expected growth in pollutant

contributions from all sources, and a margin

of safety.

C. Regulatory Flexibility for Industrial/

Commercial Facilities

Waivers for Small Entities From Coverage

The rule provides a ‘‘no-exposure’’ waiver

provision for Phase I industrial/commercial

facilities. Qualifying facilities seeking this

provision simply need to complete a selfcertification form indicating that no

industrial materials or activities are exposed

to rain, snow, snow melt and/or runoff.

Appendix 6 of Preamble—

Governmental Entities Located Fully or

Partially Within an Urbanized Area

(This is a reference list only, not a list of

all operators of small MS4s subject to

§§ 122.32–122.36. For example, a listed

governmental entity is only regulated if it

operates a small MS4 within an ‘‘urbanized

area’’ boundary as determined by the Bureau

of the Census. Furthermore, entities such as

military bases, large hospitals, prison

complexes, universities, sewer districts, and

highway departments that operate a small

MS4 within an urbanized area are also

subject to the permitting regulations but are

not individually listed here. See

§ 122.26(b)(16) for the definition of a small

MS4 and § 122.32(a) for the definition of a

regulated small MS4.)

(Source: 1990 Census of Population and

Housing, U.S. Bureau of the Census. This list

is subject to change with the Decennial

Census)

AL Anniston city

AL Attalla city

AL Auburn city

AL Autauga County

AL Blue Mountain town

AL Calhoun County

AL Colbert County

AL Dale County

AL Decatur city

AL Dothan city

AL Elmore County

AL Etowah County

AL Flint City town

AL Florence city

AL Gadsden city

AL Glencoe city

AL Grimes town

AL Hartselle city

AL Hobson City town

AL Hokes Bluff city

AL Houston County

AL Kinsey town

AL Lauderdale County

AL Lee County

AL Limestone County

AL Madison County

AL Midland City town

AL Montgomery County

AL Morgan County

AL Muscle Shoals city

AL Napier Field town

AL Northport city

AL Opelika city

AL Oxford city

AL Phenix City city

AL Prattville city

AL Priceville town

AL Rainbow City city

AL Russell County

AL Sheffield city

AL Southside city

AL Sylvan Springs town

AL Talladega County

AL Tuscaloosa city

AL Tuscaloosa County

AL Tuscumbia city

AL Weaver city

AR Alexander town

AR Barling city

AR Benton County

AR Cammack Village city

AR Crawford County

AR Crittenden County

AR Farmington city

AR Fayetteville city

AR Fort Smith city

AR Greenland town

AR Jacksonville city

AR Jefferson County

AR Johnson city

AR Marion city

AR Miller County

AR North Little Rock city

AR Pine Bluff city

AR Pulaski County

AR Saline County

AR Sebastian County

AR Shannon Hills city

AR Sherwood city

AR Springdale city

AR Sunset town

AR Texarkana city

AR Van Buren city

AR Washington County

AR West Memphis city

AR White Hall city

AZ Apache Junction city

AZ Chandler city

AZ El Mirage town

AZ Gilbert town

AZ Guadalupe town

AZ Maricopa County

AZ Oro Valley town

AZ Paradise Valley town

AZ Peoria city

AZ Pinal County

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68813

AZ South Tucson city

AZ Surprise town

AZ Tolleson city

AZ Youngtown town

AZ Yuma city

AZ Yuma County

CA Apple Valley town

CA Belvedere city

CA Benicia city

CA Brentwood city

CA Butte County

CA Capitola city

CA Carmel-by-the-Sea city

CA Carpinteria city

CA Ceres city

CA Chico city

CA Compton city

CA Corte Madera town

CA Cotati city

CA Davis city

CA Del Rey Oaks city

CA Fairfax town

CA Hesperia city

CA Imperial County

CA Lakewood city

CA Lancaster city

CA Larkspur city

CA Lodi city

CA Lompoc city

CA Marin County

CA Marina city

CA Marysville city

CA Merced city

CA Merced County

CA Mill Valley city

CA Monterey city

CA Monterey County

CA Morgan Hill city

CA Napa city

CA Napa County

CA Novato city

CA Pacific Grove city

CA Palm Desert city

CA Palmdale city

CA Piedmont city

CA Placer County

CA Redding city

CA Rocklin city

CA Rohnert Park city

CA Roseville city

CA Ross town

CA San Anselmo town

CA San Buenaventura (Ventura) city

CA San Francisco city

CA San Joaquin County

CA San Luis Obispo city

CA San Luis Obispo County

CA San Rafael city

CA Sand City city

CA Santa Barbara city

CA Santa Barbara County

CA Santa Cruz city

CA Santa Cruz County

CA Santa Maria city

CA Sausalito city

CA Scotts Valley city

CA Seaside city

CA Shasta County

CA Solano County

CA Sonoma County

CA Stanislaus County

CA Suisun City city

CA Sutter County

CA Tiburon town

CA Tulare County

CA Vacaville city

CA Victorville city

CA Villa Park city

CA Visalia city

CA Watsonville city

CA West Sacramento city

CA Yolo County

CA Yuba City city

CA Yuba County

CO Adams County

CO Arvada city

CO Boulder city

CO Boulder County

CO Bow Mar town

CO Broomfield city

CO Cherry Hills Village city

CO Columbine Valley town

CO Commerce City city

CO Douglas County

CO Edgewater city

CO El Paso County

CO Englewood city

CO Evans city

CO Federal Heights city

CO Fort Collins city

CO Fountain city

CO Garden City town

CO Glendale city

CO Golden city

CO Grand Junction city

CO Greeley city

CO Greenwood Village city

CO Jefferson County

CO La Salle town

CO Lakeside town

CO Larimer County

CO Littleton city

CO Longmont city

CO Manitou Springs city

CO Mesa County

CO Mountain View town

CO Northglenn city

CO Pueblo city

CO Pueblo County

CO Sheridan city

CO Thornton city

CO Weld County

CO Westminster city

CO Wheat Ridge city

CT Ansonia city

CT Avon town

CT Beacon Falls town

CT Berlin town

CT Bethel town

CT Bloomfield town

CT Bozrah town

CT Branford town

CT Bridgeport city

CT Bristol city

CT Brookfield town

CT Burlington town

CT Cheshire town

CT Cromwell town

CT Danbury city

CT Darien town

CT Derby city

CT Durham town

CT East Granby town

CT East Hartford town

CT East Haven town

CT East Lyme town

CT East Windsor town

CT Easton town

CT Ellington town

CT Enfield town

CT Fairfield County

CT Fairfield town

CT Farmington town

CT Franklin town

CT Glastonbury town

CT Greenwich town

CT Groton city

CT Groton town

CT Guilford town

CT Hamden town

CT Hartford city

CT Hartford County

CT Ledyard town

CT Lisbon town

CT Litchfield County

CT Manchester town

CT Meriden city

CT Middlebury town

CT Middlefield town

CT Middlesex County

CT Middletown city

CT Milford city (remainder)

CT Monroe town

CT Montville town

CT Naugatuck borough

CT New Britain city

CT New Canaan town

CT New Fairfield town

CT New Haven city

CT New Haven County

CT New London city

CT New London County

CT New Milford town

CT Newington town

CT Newtown town

CT North Branford town

CT North Haven town

CT Norwalk city

CT Norwich city

CT Orange town

CT Oxford town

CT Plainville town

CT Plymouth town

CT Portland town

CT Preston town

CT Prospect town

CT Rocky Hill town

CT Seymour town

CT Shelton city

CT Sherman town

CT Somers town

CT South Windsor town

CT Southington town

CT Sprague town

CT Stonington town

CT Stratford town

CT Suffield town

CT Thomaston town

CT Thompson town

CT Tolland County

CT Tolland town

CT Trumbull town

CT Vernon town

CT Wallingford town

CT Waterbury city

CT Waterford town

CT Watertown town

CT West Hartford town

CT West Haven city

CT Weston town

CT Westport town

CT Wethersfield town

CT Wilton town

CT Windham County

CT Windsor Locks town

CT Windsor town

CT Wolcott town

CT Woodbridge town

68814 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

CT Woodmont borough

DE Camden town

DE Dover city

DE Kent County

DE Newark city

DE Wyoming town

FL Alachua County

FL Baldwin town

FL Bay County

FL Belleair Shore town

FL Biscayne Park village

FL Brevard County

FL Callaway city

FL Cape Canaveral city

FL Cedar Grove town

FL Charlotte County

FL Cinco Bayou town

FL Clay County

FL Cocoa Beach city

FL Cocoa city

FL Collier County

FL Daytona Beach city

FL Daytona Beach Shores city

FL Destin city

FL Edgewater city

FL El Portal village

FL Florida City city

FL Fort Pierce city

FL Fort Walton Beach city

FL Gainesville city

FL Gulf Breeze city

FL Hernando County

FL Hillsboro Beach town

FL Holly Hill city

FL Indialantic town

FL Indian Harbour Beach city

FL Indian River County

FL Indian River Shores town

FL Indian Shores town

FL Kissimmee city

FL Lazy Lake village

FL Lynn Haven city

FL Malabar town

FL Marion County

FL Martin County

FL Mary Esther city

FL Melbourne Beach town

FL Melbourne city

FL Melbourne Village town

FL Naples city

FL New Smyrna Beach city

FL Niceville city

FL Ocala city

FL Ocean Breeze Park town

FL Okaloosa County

FL Orange Park town

FL Ormond Beach city

FL Osceola County

FL Palm Bay city

FL Panama City city

FL Parker city

FL Ponce Inlet town

FL Port Orange city

FL Port St. Lucie city

FL Punta Gorda city

FL Rockledge city

FL Santa Rosa County

FL Satellite Beach city

FL Sewall’s Point town

FL Shalimar town

FL South Daytona city

FL Springfield city

FL St. Johns County

FL St. Lucie County

FL St. Lucie village

FL Stuart city

FL Sweetwater city

FL Titusville city

FL Valparaiso city

FL Vero Beach city

FL Virginia Gardens village

FL Volusia County

FL Walton County

FL Weeki Wachee city

FL West Melbourne city

FL Windermere town

GA Albany city

GA Athens city

GA Bartow County

GA Brunswick city

GA Catoosa County

GA Centerville city

GA Chattahoochee County

GA Cherokee County

GA Chickamauga city

GA Clarke County

GA Columbia County

GA Conyers city

GA Dade County

GA Dougherty County

GA Douglas County

GA Douglasville city

GA Fayette County

GA Floyd County

GA Fort Oglethorpe city

GA Glynn County

GA Grovetown city

GA Henry County

GA Houston County

GA Jones County

GA Lee County

GA Lookout Mountain city

GA Mountain Park city

GA Oconee County

GA Payne city

GA Rockdale County

GA Rome city

GA Rossville city

GA Stockbridge city

GA Vernonburg town

GA Walker County

GA Warner Robins city

GA Winterville city

GA Woodstock city

IA Altoona city

IA Asbury city

IA Bettendorf city

IA Black Hawk County

IA Buffalo city

IA Carter Lake city

IA Cedar Falls city

IA Clive city

IA Coralville city

IA Council Bluffs city

IA Dallas County

IA Dubuque city

IA Dubuque County

IA Elk Run Heights city

IA Evansdale city

IA Hiawatha city

IA Iowa City city

IA Johnson County

IA Johnston city

IA Le Claire city

IA Linn County

IA Marion city

IA Norwalk city

IA Panorama Park city

IA Pleasant Hill city

IA Polk County

IA Pottawattamie County

IA Raymond city

IA Riverdale city

IA Robins city

IA Scott County

IA Sergeant Bluff city

IA Sioux City city

IA University Heights city

IA Urbandale city

IA Warren County

IA Waterloo city

IA West Des Moines city

IA Windsor Heights city

IA Woodbury County

ID Ada County

ID Ammon city

ID Bannock County

ID Bonneville County

ID Chubbuck city

ID Idaho Falls city

ID Iona city

ID Pocatello city

ID Power County

IL Addison township

IL Addison village

IL Algonquin township

IL Algonquin village

IL Alorton village

IL Alsip village

IL Alton city

IL Antioch township

IL Antioch village

IL Arlington Heights village

IL Aroma Park village

IL Aroma township

IL Aurora city

IL Aurora township

IL Avon township

IL Ball township

IL Bannockburn village

IL Barrington township

IL Barrington village

IL Bartlett village

IL Bartonville village

IL Batavia city

IL Batavia township

IL Beach Park village

IL Bedford Park village

IL Belleville city

IL Bellevue village

IL Bellwood village

IL Bensenville village

IL Benton township

IL Berkeley village

IL Berwyn city

IL Bethalto village

IL Blackhawk township

IL Bloom township

IL Bloomingdale township

IL Bloomingdale village

IL Bloomington city

IL Bloomington township

IL Blue Island city

IL Bolingbrook village

IL Bourbonnais township

IL Bourbonnais village

IL Bowling township

IL Bradley village

IL Bremen township

IL Bridgeview village

IL Bristol township

IL Broadview village

IL Brookfield village

IL Brooklyn village

IL Buffalo Grove village

IL Burbank city

IL Burnham village

IL Burr Ridge village

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68815

IL Burritt township

IL Burton township

IL Cahokia village

IL Calumet City city

IL Calumet Park village

IL Calumet township

IL Canteen township

IL Capital township

IL Carbon Cliff village

IL Carol Stream village

IL Carpentersville Village

IL Cary village

IL Caseyville township

IL Caseyville village

IL Centreville city

IL Centreville township

IL Champaign city

IL Champaign County

IL Champaign township

IL Channahon township

IL Cherry Valley township

IL Cherry Valley village

IL Chicago city

IL Chicago Heights city

IL Chicago Ridge village

IL Chouteau township

IL Cicero town

IL Cincinnati township

IL Clarendon Hills village

IL Coal Valley township

IL Coal Valley village

IL Collinsville city

IL Collinsville township

IL Colona township

IL Colona village

IL Columbia city

IL Country Club Hills city

IL Countryside city

IL Crest Hill city

IL Crestwood village

IL Crete township

IL Crete village

IL Creve Coeur village

IL Crystal Lake city

IL Cuba township

IL Curran township

IL Darien city

IL Decatur city

IL Decatur township

IL Deer Park village

IL Deerfield township

IL Deerfield village

IL Des Plaines city

IL Dixmoor village

IL Dolton village

IL Dorr township

IL Downers Grove township

IL Downers Grove village

IL Dry Grove township

IL Du Page township

IL Dundee township

IL Dunleith township

IL Dupo village

IL East Alton village

IL East Dubuque city

IL East Dundee village

IL East Hazel Crest village

IL East Moline city

IL East Peoria city

IL East St. Louis city

IL Edwardsville city

IL Edwardsville township

IL Ela township

IL Elgin city

IL Elgin township

IL Elk Grove township

IL Elk Grove Village village

IL Elm Grove township

IL Elmhurst city

IL Elmwood Park village

IL Evanston city

IL Evergreen Park village

IL Fairmont City village

IL Fairview Heights city

IL Flossmoor village

IL Fondulac township

IL Ford Heights village

IL Forest Park village

IL Forest View village

IL Forsyth village

IL Fort Russell township

IL Foster township

IL Fox Lake village

IL Fox River Grove village

IL Frankfort township

IL Frankfort village

IL Franklin Park village

IL Fremont township

IL Gardner township

IL Geneva city

IL Geneva township

IL Gilberts village

IL Glen Carbon village

IL Glen Ellyn village

IL Glencoe village

IL Glendale Heights village

IL Glenview village

IL Glenwood village

IL Godfrey township

IL Golf village

IL Grafton township

IL Grandview village

IL Granite City city

IL Grant township

IL Grayslake village

IL Green Oaks village

IL Green Rock city

IL Groveland township

IL Gurnee village

IL Hainesville village

IL Hampton township

IL Hampton village

IL Hanna township

IL Hanover Park village

IL Hanover township

IL Harlem township

IL Harristown township

IL Harristown village

IL Hartford village

IL Harvey city

IL Harwood Heights village

IL Hawthorn Woods village

IL Hazel Crest village

IL Henry County

IL Hensley township

IL Hickory Hills city

IL Hickory Point township

IL Highland Park city

IL Highwood city

IL Hillside village

IL Hinsdale village

IL Hodgkins village

IL Hoffman Estates village

IL Hollis township

IL Homer township

IL Hometown city

IL Homewood village

IL Indian Creek village

IL Indian Head Park village

IL Inverness village

IL Itasca village

IL Jarvis township

IL Jerome village

IL Jo Daviess County

IL Joliet city

IL Joliet township

IL Justice village

IL Kane County

IL Kankakee city

IL Kankakee County

IL Kankakee township

IL Kendall County

IL Kenilworth village

IL Kickapoo township

IL Kildeer village

IL La Grange Park village

IL La Grange village

IL Lake Barrington village

IL Lake Bluff village

IL Lake Forest city

IL Lake in the Hills village

IL Lake Villa township

IL Lake Villa village

IL Lake Zurich village

IL Lakemoor village

IL Lakewood village

IL Lansing village

IL Leland Grove city

IL Lemont township

IL Leyden township

IL Libertyville township

IL Libertyville village

IL Limestone township

IL Lincolnshire village

IL Lincolnwood village

IL Lindenhurst village

IL Lisle township

IL Lisle village

IL Lockport city

IL Lockport township

IL Lombard village

IL Long Creek township

IL Long Grove village

IL Loves Park city

IL Lynwood village

IL Lyons township

IL Lyons village

IL Machesney Park village

IL Macon County

IL Madison city

IL Madison County

IL Maine township

IL Markham city

IL Marquette Heights city

IL Maryville village

IL Matteson village

IL Maywood village

IL McCook village

IL McCullom Lake village

IL McHenry city

IL McHenry County

IL McHenry township

IL McLean County

IL Medina township

IL Melrose Park village

IL Merrionette Park village

IL Midlothian village

IL Milan village

IL Milton township

IL Moline city

IL Moline township

IL Monee township

IL Monroe County

IL Montgomery village

IL Moro township

IL Morton Grove village

IL Morton township

IL Morton village

68816 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

IL Mount Prospect village

IL Mount Zion township

IL Mount Zion village

IL Mundelein village

IL Nameoki township

IL Naperville city

IL Naperville township

IL National City village

IL New Lenox township

IL New Lenox village

IL New Millford village

IL New Trier township

IL Newport township

IL Niles township

IL Niles village

IL Normal town

IL Normal township

IL Norridge village

IL North Aurora village

IL North Barrington village

IL North Chicago city

IL North Pekin village

IL North Riverside village

IL Northbrook village

IL Northfield township

IL Northfield village

IL Northlake city

IL Norwood Park township

IL Norwood village

IL Nunda township

IL Oak Brook village

IL Oak Forest city

IL Oak Grove village

IL Oak Lawn village

IL Oak Park village

IL Oakbrook Terrace city

IL Oakley township

IL Oakwood Hills village

IL O’Fallon city

IL O’Fallon township

IL Olympia Fields village

IL Orland Hills village

IL Orland Park village

IL Orland township

IL Oswego township

IL Oswego village

IL Otto township

IL Owen township

IL Palatine township

IL Palatine village

IL Palos Heights city

IL Palos Hills city

IL Palos Park village

IL Palos township

IL Park City city

IL Park Forest village

IL Park Ridge city

IL Pekin city

IL Pekin township

IL Peoria city

IL Peoria County

IL Peoria Heights village

IL Phoenix village

IL Pin Oak township

IL Plainfield township

IL Plainfield village

IL Pontoon Beach village

IL Posen village

IL Precinct 10

IL Prospect Heights city

IL Proviso township

IL Rich township

IL Richton Park village

IL Richwoods township

IL River Forest village

IL River Grove village

IL Riverdale village

IL Riverside township

IL Riverside village

IL Riverwoods village

IL Robbins village

IL Rochester township

IL Rock Island city

IL Rock Island County

IL Rock Island township

IL Rockdale village

IL Rockford township

IL Rockton township

IL Rockton village

IL Rolling Meadows city

IL Romeoville village

IL Roscoe township

IL Roscoe village

IL Roselle village

IL Rosemont village

IL Round Lake Beach village

IL Round Lake Heights village

IL Round Lake Park village

IL Round Lake village

IL Roxana village

IL Rutland township

IL Sangamon County

IL Sauget village

IL Sauk Village village

IL Savoy village

IL Schaumburg township

IL Schaumburg village

IL Schiller Park village

IL Shields township

IL Shiloh Valley township

IL Shiloh village

IL Shorewood village

IL Silvis city

IL Skokie village

IL Sleepy Hollow village

IL Somer township

IL South Beloit city

IL South Chicago Heights village

IL South Elgin village

IL South Holland village

IL South Moline township

IL South Rock Island township

IL South Roxana village

IL South Wheatland township

IL Southern View village

IL Spring Bay township

IL Springfield city

IL Springfield township

IL St. Charles city

IL St. Charles township

IL St. Clair County

IL St. Clair township

IL Steger village

IL Stickney township

IL Stickney village

IL Stites township

IL Stone Park village

IL Stookey township

IL Streamwood village

IL Sugar Grove township

IL Sugar Loaf township

IL Summit village

IL Sunnyside village

IL Swansea village

IL Tazewell County

IL Thornton township

IL Thornton village

IL Tinley Park village

IL Tolono township

IL Tower Lakes village

IL Tremont township

IL Troy city

IL Troy township

IL University Park village

IL Urbana city

IL Urbana township

IL Venice city

IL Venice township

IL Vernon Hills village

IL Vernon township

IL Villa Park village

IL Warren township

IL Warrenville city

IL Washington city

IL Washington Park village

IL Washington township

IL Wauconda township

IL Waukegan city

IL Waukegan township

IL Wayne township

IL West Chicago city

IL West Deerfield township

IL West Dundee village

IL West Peoria township

IL Westchester village

IL Western Springs village

IL Westmont village

IL Wheatland township

IL Wheaton city

IL Wheeling township

IL Wheeling village

IL Whitmore township

IL Will County

IL Willow Springs village

IL Willowbrook village

IL Wilmette village

IL Winfield township

IL Winfield village

IL Winnebago County

IL Winnetka village

IL Winthrop Harbor village

IL Wood Dale city

IL Wood River city

IL Wood River township

IL Woodford County

IL Woodridge village

IL Woodside township

IL Worth township

IL Worth village

IL York township

IL Zion city

IN Aboite township

IN Adams township

IN Allen County

IN Anderson city

IN Anderson township

IN Baugo township

IN Beech Grove city

IN Bloomington city

IN Bloomington township

IN Boone County

IN Buck Creek township

IN Calumet township

IN Carmel city

IN Castleton town

IN Cedar Creek township

IN Center township

IN Centre township

IN Chesterfield town

IN Chesterton town

IN Clark County

IN Clarksville town

IN Clay township

IN Clermont town

IN Cleveland township

IN Concord township

IN Country Club Heights town

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68817

IN Crown Point city

IN Crows Nest town

IN Cumberland town

IN Daleville town

IN Delaware County

IN Delaware township

IN Dyer town

IN Eagle township

IN East Chicago city

IN Edgewood town

IN Elkhart city

IN Elkhart County

IN Elkhart township

IN Evansville city

IN Fairfield township

IN Fall Creek township

IN Fishers town

IN Floyd County

IN Fort Wayne city

IN Franklin township

IN Gary city

IN German township

IN Goshen city

IN Greenwood city

IN Griffith town

IN Hamilton County

IN Hamilton township

IN Hammond city

IN Hancock County

IN Hanover township

IN Harris township

IN Harrison township

IN Hendricks County

IN Highland town

IN Hobart city

IN Hobart township

IN Homecroft town

IN Honey Creek township

IN Howard County

IN Howard township

IN Indian Village town

IN Jackson township

IN Jefferson township

IN Jeffersonville city

IN Jeffersonville township

IN Johnson County

IN Knight township

IN Kokomo city

IN Lafayette city

IN Lafayette township

IN Lake County

IN Lake Station city

IN Lawrence city

IN Lawrence township

IN Liberty township

IN Lincoln township

IN Lost Creek township

IN Madison County

IN Meridian Hills town

IN Merrillville town

IN Mishawaka city

IN Monroe County

IN Mount Pleasant township

IN Muncie city

IN Munster town

IN New Albany city

IN New Albany township

IN New Chicago town

IN New Haven city

IN New Whiteland town

IN Newburgh town

IN North Crows Nest town

IN North township

IN Ogden Dunes town

IN Ohio township

IN Osceola town

IN Osolo township

IN Otter Creek township

IN Penn township

IN Perry township

IN Pigeon township

IN Pike township

IN Pleasant township

IN Portage city

IN Portage township

IN Porter County

IN Porter town

IN Richland township

IN Riley township

IN River Forest town

IN Rocky Ripple town

IN Roseland town

IN Ross township

IN Salem township

IN Schererville town

IN Seelyville town

IN Sellersburg town

IN Selma town

IN Silver Creek township

IN South Bend city

IN Southport city

IN Speedway town

IN Spring Hill town

IN St. John town

IN St. John township

IN St. Joseph County

IN St. Joseph township

IN Sugar Creek township

IN Taylor township

IN Terre Haute city

IN Tippecanoe County

IN Tippecanoe township

IN Union township

IN Utica township

IN Van Buren township

IN Vanderburgh County

IN Vigo County

IN Wabash township

IN Warren Park town

IN Warren township

IN Warrick County

IN Washington township

IN Wayne township

IN Wea township

IN West Lafayette city

IN West Terre Haute town

IN Westchester township

IN Westfield town

IN White River township

IN Whiteland town

IN Whiting city

IN Williams Creek town

IN Woodlawn Heights town

IN Wynnedale town

IN Yorktown town

IN Zionsville town

KS Attica township

KS Bel Aire city

KS Countryside city

KS Delano township

KS Doniphan County

KS Douglas County

KS Eastborough city

KS Elwood city

KS Fairway city

KS Gypsum township

KS Haysville city

KS Johnson County

KS Kechi city

KS Kechi township

KS Lake Quivira city

KS Lawrence city

KS Leawood city

KS Lenexa city

KS Merriam city

KS Minneha township

KS Mission city

KS Mission Hills city

KS Mission township

KS Mission Woods city

KS Monticello township

KS Ohio township

KS Olathe city

KS Olathe township

KS Park City city

KS Park township

KS Prairie Village city

KS Riverside township

KS Roeland Park city

KS Salem township

KS Sedgwick County

KS Shawnee city

KS Shawnee County

KS Shawnee township

KS Soldier township

KS Tecumseh township

KS Topeka township

KS Waco township

KS Wakarusa township

KS Washington township

KS Westwood city

KS Westwood Hills city

KS Williamsport township

KS Wyandotte County

KY Alexandria city

KY Ashland city

KY Bellefonte city

KY Bellevue city

KY Boone County

KY Boyd County

KY Bromley city

KY Bullitt County

KY Campbell County

KY Catlettsburg city

KY Christian County

KY Covington city

KY Crescent Park city

KY Crescent Springs city

KY Crestview city

KY Crestview Hills city

KY Daviess County

KY Dayton city

KY Edgewood city

KY Elsmere city

KY Erlanger city

KY Fairview city

KY Flatwoods city

KY Florence city

KY Forest Hills city

KY Fort Mitchell city

KY Fort Thomas city

KY Fort Wright city

KY Fox Chase city

KY Greenup County

KY Hebron Estates city

KY Henderson city

KY Henderson County

KY Highland Heights city

KY Hillview city

KY Hunters Hollow city

KY Independence city

KY Jessamine County

KY Kenton County

KY Kenton Vale city

KY Lakeside Park city

KY Latonia Lakes city

KY Ludlow city

KY Melbourne city

68818 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

KY Newport city

KY Oak Grove city

KY Owensboro city

KY Park Hills city

KY Pioneer Village city

KY Raceland city

KY Russell city

KY Silver Grove city

KY Southgate city

KY Taylor Mill city

KY Villa Hills city

KY Wilder city

KY Woodlawn city

KY Wurtland city

LA Alexandria city

LA Baker city

LA Ball town

LA Bossier City city

LA Bossier Parish

LA Broussard town

LA Caddo Parish

LA Calcasieu Parish

LA Carencro city

LA Denham Springs city

LA Houma city

LA Lafayette city

LA Lafayette Parish

LA Lafourche Parish

LA Lake Charles city

LA Livingston Parish

LA Monroe city

LA Ouachita Parish

LA Pineville city

LA Plaquemines Parish

LA Port Allen city

LA Rapides Parish

LA Richwood town

LA Scott town

LA Slidell city

LA St. Bernard Parish

LA St. Charles Parish

LA St. Tammany Parish

LA Sulphur city

LA Terrebonne Parish

LA West Baton Rouge Parish

LA West Monroe city

LA Westlake city

LA Zachary city

MA Abington town

MA Acton town

MA Acushnet town

MA Agawam town

MA Amesbury town

MA Andover town

MA Arlington town

MA Ashland town

MA Attleboro city

MA Auburn town

MA Avon town

MA Barnstable County

MA Barnstable town

MA Bedford town

MA Bellingham town

MA Belmont town

MA Berkshire County

MA Beverly city

MA Billerica town

MA Blackstone town

MA Boxborough town

MA Boylston town

MA Braintree town

MA Bridgewater town

MA Bristol County

MA Brockton city

MA Brookline town

MA Burlington town

MA Cambridge city

MA Canton town

MA Charlton town

MA Chelmsford town

MA Chelsea city

MA Chicopee city

MA Cohasset town

MA Concord town

MA Dalton town

MA Danvers town

MA Dartmouth town

MA Dedham town

MA Dennis town

MA Dighton town

MA Dover town

MA Dracut town

MA Dudley town

MA East Bridgewater town

MA East Longmeadow town

MA Easthampton town

MA Easton town

MA Essex County

MA Essex town

MA Everett city

MA Fairhaven town

MA Fall River city

MA Fitchburg city

MA Foxborough town

MA Framingham town

MA Franklin town

MA Freetown town

MA Georgetown town

MA Gloucester city

MA Grafton town

MA Granby town

MA Groton town

MA Groveland town

MA Hadley town

MA Halifax town

MA Hamilton town

MA Hampden County

MA Hampden town

MA Hampshire County

MA Hanover town

MA Hanson town

MA Haverhill city

MA Hingham town

MA Hinsdale town

MA Holbrook town

MA Holden town

MA Holliston town

MA Holyoke city

MA Hudson town

MA Hull town

MA Lanesborough town

MA Lawrence city

MA Leicester town

MA Leominster city

MA Lexington town

MA Lincoln town

MA Littleton town

MA Longmeadow town

MA Lowell city

MA Ludlow town

MA Lunenburg town

MA Lynn city

MA Lynnfield town

MA Malden city

MA Manchester town

MA Mansfield town

MA Marblehead town

MA Marlborough city

MA Mashpee town

MA Maynard town

MA Medfield town

MA Medford city

MA Medway town

MA Melrose city

MA Merrimac town

MA Methuen town

MA Middlesex County

MA Middleton town

MA Millbury town

MA Millis town

MA Millville town

MA Milton town

MA Nahant town

MA Natick town

MA Needham town

MA New Bedford city

MA Newton city

MA Norfolk town

MA North Andover town

MA North Attleborough town

MA North Reading town

MA Northampton city

MA Northborough town

MA Northbridge town

MA Norton town

MA Norwell town

MA Norwood town

MA Oxford town

MA Paxton town

MA Peabody city

MA Pembroke town

MA Pittsfield city

MA Plainville town

MA Plymouth County

MA Quincy city

MA Randolph town

MA Raynham town

MA Reading town

MA Rehoboth town

MA Revere city

MA Rockland town

MA Rockport town

MA Salem city

MA Sandwich town

MA Saugus town

MA Scituate town

MA Seekonk town

MA Sharon town

MA Shrewsbury town

MA Somerset town

MA Somerville city

MA South Hadley town

MA Southampton town

MA Southborough town

MA Southwick town

MA Springfield city

MA Stoneham town

MA Stoughton town

MA Stow town

MA Sudbury town

MA Sutton town

MA Swampscott town

MA Swansea town

MA Taunton city

MA Tewksbury town

MA Tyngsborough town

MA Uxbridge town

MA Wakefield town

MA Walpole town

MA Waltham city

MA Watertown town

MA Wayland town

MA Webster town

MA Wellesley town

MA Wenham town

MA West Boylston town

MA West Bridgewater town

MA West Springfield town

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68819

MA Westborough town

MA Westfield city

MA Westford town

MA Westminster town

MA Weston town

MA Westport town

MA Westwood town

MA Weymouth town

MA Whitman town

MA Wilbraham town

MA Williamsburg town

MA Wilmington town

MA Winchester town

MA Winthrop town

MA Woburn city

MA Worcester County

MA Wrentham town

MA Yarmouth town

MD Allegany County

MD Annapolis city

MD Bel Air town

MD Berwyn Heights town

MD Bladensburg town

MD Bowie city

MD Brentwood town

MD Brookeville town

MD Capitol Heights town

MD Cecil County

MD Cheverly town

MD Chevy Chase Section Five village

MD Chevy Chase Section Three village

MD Chevy Chase town

MD Chevy Chase Village town

MD College Park city

MD Colmar Manor town

MD Cottage City town

MD Cumberland city

MD District Heights city

MD Edmonston town

MD Elkton town

MD Fairmount Heights town

MD Forest Heights town

MD Frederick city

MD Frostburg city

MD Funkstown town

MD Gaithersburg city

MD Garrett Park town

MD Glen Echo town

MD Glenarden town

MD Greenbelt city

MD Hagerstown city

MD Highland Beach town

MD Hyattsville city

MD Kensington town

MD Landover Hills town

MD Laurel city

MD Martin’s Additions village

MD Morningside town

MD Mount Rainier city

MD New Carrollton city

MD North Brentwood town

MD Riverdale town

MD Rockville city

MD Seat Pleasant city

MD Smithsburg town

MD Somerset town

MD Takoma Park city

MD University Park town

MD Walkersville town

MD Washington Grove town

MD Williamsport town

ME Androscoggin County

ME Auburn city

ME Bangor city

ME Berwick town

ME Brewer city

ME Cape Elizabeth town

ME Cumberland County

ME Eliot town

ME Falmouth town

ME Gorham town

ME Kittery town

ME Lebanon town

ME Lewiston city

ME Lisbon town

ME Old Town city

ME Orono town

ME Penobscot County

ME Penobscot Indian Island Reservation

ME Portland city

ME Sabattus town

ME Scarborough town

ME South Berwick town

ME South Portland city

ME Veazie town

ME Westbrook city

ME York County

MI Ada township

MI Allegan County

MI Allen Park city

MI Alpine township

MI Ann Arbor township

MI Auburn Hills city

MI Bangor township

MI Bath township

MI Battle Creek city

MI Bay City city

MI Bay County

MI Bedford township

MI Belleville city

MI Benton Charter township

MI Benton Harbor city

MI Berkley city

MI Berlin township

MI Berrien County

MI Beverly Hills village

MI Bingham Farms village

MI Birmingham city

MI Blackman township

MI Bloomfield Hills city

MI Bloomfield township

MI Bridgeport township

MI Brownstown township

MI Buena Vista Charter township

MI Burtchville township

MI Burton city

MI Byron township

MI Calhoun County

MI Canton township

MI Carrollton township

MI Cascade township

MI Cass County

MI Center Line city

MI Chesterfield township

MI Clarkston village

MI Clawson city

MI Clay township

MI Clayton township

MI Clinton County

MI Clinton township

MI Clio city

MI Clyde township

MI Commerce township

MI Comstock township

MI Cooper township

MI Dalton township

MI Davison city

MI Davison township

MI De Witt township

MI Dearborn city

MI Dearborn Heights city

MI Delhi Charter township

MI Delta township

MI Detroit city

MI East China township

MI East Detroit city

MI East Grand Rapids city

MI East Lansing city

MI Eaton County

MI Ecorse city

MI Emmett township

MI Erie township

MI Essexville city

MI Farmington city

MI Farmington Hills city

MI Ferndale city

MI Fillmore township

MI Flat Rock city

MI Flint township

MI Flushing city

MI Flushing township

MI Fort Gratiot township

MI Frankenlust township

MI Franklin village

MI Fraser city

MI Fruitport township

MI Gaines township

MI Garden City city

MI Genesee County

MI Genesee township

MI Georgetown township

MI Gibraltar city

MI Grand Blanc city

MI Grand Blanc township

MI Grand Rapids Charter township

MI Grandville city

MI Grosse Ile township

MI Grosse Pointe city

MI Grosse Pointe Farms city

MI Grosse Pointe Park city

MI Grosse Pointe Shores village

MI Grosse Pointe Woods city

MI Hampton township

MI Hamtramck city

MI Harper Woods city

MI Harrison township

MI Hazel Park city

MI Highland Park city

MI Highland township

MI Holland city

MI Holland township

MI Howard township

MI Hudsonville city

MI Huntington Woods city

MI Huron township

MI Independence township

MI Ingham County

MI Inkster city

MI Ira township

MI Jackson city

MI Jackson County

MI James township

MI Kalamazoo city

MI Kalamazoo County

MI Kalamazoo township

MI Keego Harbor city

MI Kent County

MI Kentwood city

MI Kimball township

MI Kochville township

MI Lake Angelus city

MI Laketon township

MI Laketown township

MI Lansing city

MI Lansing township

MI Lathrup Village city

MI Leoni township

MI Lincoln Park city

68820 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

MI Lincoln township

MI Livonia city

MI Macomb County

MI Macomb township

MI Madison Heights city

MI Marysville city

MI Melvindale city

MI Meridian township

MI Milford township

MI Milton township

MI Monitor township

MI Monroe County

MI Mount Clemens city

MI Mount Morris city

MI Mount Morris township

MI Mundy township

MI Muskegon city

MI Muskegon County

MI Muskegon Heights city

MI Muskegon township

MI New Baltimore city

MI Niles city

MI Niles township

MI North Muskegon city

MI Northville city

MI Northville township

MI Norton Shores city

MI Novi city

MI Novi township

MI Oak Park city

MI Oakland Charter township

MI Oakland County

MI Orchard Lake Village city

MI Orion township

MI Oshtemo township

MI Ottawa County

MI Parchment city

MI Park township

MI Pavilion township

MI Pennfield township

MI Pittsfield township

MI Plainfield township

MI Pleasant Ridge city

MI Plymouth city

MI Plymouth township

MI Pontiac city

MI Port Huron city

MI Port Huron township

MI Portage city

MI Portsmouth township

MI Redford township

MI Richfield township

MI River Rouge city

MI Riverview city

MI Rochester city

MI Rochester Hills city

MI Rockwood city

MI Romulus city

MI Roosevelt Park city

MI Roseville city

MI Ross township

MI Royal Oak city

MI Royal Oak township

MI Saginaw city

MI Saginaw County

MI Saginaw township

MI Schoolcraft township

MI Scio township

MI Shelby township

MI Shoreham village

MI Sodus township

MI South Rockwood village

MI Southfield city

MI Southfield township

MI Southgate city

MI Spaulding township

MI Spring Arbor township

MI Springfield city

MI Springfield township

MI St. Clair city

MI St. Clair County

MI St. Clair Shores city

MI St. Clair township

MI St. Joseph Charter township

MI St. Joseph city

MI Stevensville village

MI Sullivan township

MI Summit township

MI Sumpter township

MI Superior township

MI Swartz Creek city

MI Sylvan Lake city

MI Taylor city

MI Texas township

MI Thetford township

MI Thomas township

MI Trenton city

MI Troy city

MI Utica city

MI Van Buren township

MI Vienna township

MI Walker city

MI Walled Lake city

MI Washington township

MI Washtenaw County

MI Waterford township

MI Wayne city

MI West Bloomfield township

MI Westland city

MI White Lake township

MI Whiteford township

MI Williamstown township

MI Wixom city

MI Wolverine Lake village

MI Woodhaven city

MI Wyandotte city

MI Wyoming city

MI Ypsilanti city

MI Ypsilanti township

MI Zeeland city

MI Zilwaukee city

MN Andover city

MN Anoka city

MN Anoka County

MN Apple Valley city

MN Arden Hills city

MN Benton County

MN Birchwood Village city

MN Blaine city

MN Bloomington city

MN Brooklyn Center city

MN Brooklyn Park city

MN Burnsville city

MN Carver County

MN Cascade township

MN Champlin city

MN Chanhassen city

MN Circle Pines city

MN Clay County

MN Coon Rapids city

MN Cottage Grove city

MN Credit River township

MN Crystal city

MN Dakota County

MN Dayton city

MN Deephaven city

MN Dilworth city

MN Duluth city

MN Eagan city

MN East Grand Forks city

MN Eden Prairie city

MN Excelsior city

MN Falcon Heights city

MN Farmington city

MN Fort Snelling unorg.

MN Fridley city

MN Gem Lake city

MN Golden Valley city

MN Grant township

MN Greenwood city

MN Ham Lake city

MN Haven township

MN Hennepin County

MN Hermantown city

MN Hilltop city

MN Hopkins city

MN Houston County

MN Inver Grove Heights city

MN La Crescent city

MN La Crescent township

MN Lake Elmo city

MN Lakeville city

MN Landfall city

MN Lauderdale city

MN Le Sauk township

MN Lexington city

MN Lilydale city

MN Lino Lakes city

MN Little Canada city

MN Long Lake city

MN Loretto city

MN Mahtomedi city

MN Maple Grove city

MN Maple Plain city

MN Maplewood city

MN Marion township

MN Medicine Lake city

MN Medina city

MN Mendota city

MN Mendota Heights city

MN Midway township

MN Minden township

MN Minnetonka Beach city

MN Minnetonka city

MN Minnetrista city

MN Moorhead city

MN Moorhead township

MN Mound city

MN Mounds View city

MN New Brighton city

MN New Hope city

MN Newport city

MN North Oaks city

MN North St. Paul city

MN Oakdale city

MN Oakport township

MN Olmsted County

MN Orono city

MN Osseo city

MN Plymouth city

MN Polk County

MN Prior Lake city

MN Proctor city

MN Ramsey city

MN Robbinsdale city

MN Rochester city

MN Rochester township

MN Rosemount city

MN Roseville city

MN Sartell city

MN Sauk Rapids city

MN Sauk Rapids township

MN Savage city

MN Scott County

MN Sherburne County

MN Shoreview city

MN Shorewood city

MN South St. Paul city

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68821

MN Spring Lake Park city

MN Spring Park city

MN St. Anthony city

MN St. Cloud city

MN St. Cloud township

MN St. Louis County

MN St. Paul Park city

MN Stearns County

MN Sunfish Lake city

MN Tonka Bay city

MN Vadnais Heights city

MN Victoria city

MN Waite Park city

MN Washington County

MN Wayzata city

MN West St. Paul city

MN White Bear Lake city

MN White Bear township

MN Willernie city

MN Woodbury city

MN Woodland city

MN Wright County

MO Airport Drive village

MO Airport township

MO Andrew County

MO Arnold city

MO Avondale city

MO Ballwin city

MO Battlefield town

MO Bella Villa city

MO Bellefontaine Neighbors city

MO Bellerive village

MO Bel-Nor village

MO Bel-Ridge village

MO Belton city

MO Berkeley city

MO Beverly Hills city

MO Big Creek township

MO Birmingham village

MO Black Jack city

MO Blanchette township

MO Blue Springs city

MO Blue township

MO Bonhomme township

MO Boone County

MO Boone township

MO Breckenridge Hills village

MO Brentwood city

MO Bridgeton city

MO Brooking township

MO Buchanan County

MO Calverton Park village

MO Campbell No. 1 township

MO Campbell No. 2 township

MO Carl Junction city

MO Carroll township

MO Carterville city

MO Cass County

MO Cedar township

MO Center township

MO Charlack city

MO Chesterfield city

MO Chouteau township

MO Christian County

MO Clarkson Valley city

MO Clay County

MO Clay township

MO Claycomd village

MO Clayton city

MO Clayton township

MO Cliff Village village

MO Columbia city

MO Columbia township

MO Concord township

MO Cool Valley city

MO Cottleville town

MO Cottleville township

MO Country Club Hills city

MO Country Club village

MO Country Life Acres village

MO Crestwood city

MO Creve Coeur city

MO Creve Coeur township

MO Crystal Lake Park city

MO Dardenne township

MO Dellwood city

MO Dennis Acres village

MO Des Peres city

MO Duquesne village

MO Edmundson village

MO Ellisville city

MO Fenton city

MO Ferguson city

MO Ferguson township

MO Flordell Hills city

MO Florissant city

MO Florissant township

MO Fox township

MO Friedens township

MO Frontenac city

MO Galena township

MO Gallatin township

MO Gladstone city

MO Glen Echo Park village

MO Glenaire village

MO Glendale city

MO Grandview city

MO Grantwood Village town

MO Gravois township

MO Greendale city

MO Greene County

MO Hadley township

MO Hanley Hills village

MO Harvester township

MO Hazelwood city

MO High Ridge township

MO Hillsdale village

MO Houston Lake city

MO Huntleigh city

MO Imperial township

MO Iron Gates village

MO Jackson County

MO Jasper County

MO Jefferson County

MO Jefferson township

MO Jennings city

MO Joplin city

MO Joplin township

MO Kickapoo township

MO Kimmswick city

MO Kinloch city

MO Kirkwood city

MO Ladue city

MO Lake St. Louis city

MO Lake Tapawingo city

MO Lake Waukomis city

MO Lakeshire city

MO Leawood village

MO Lee’s Summit city

MO Lemay township

MO Lewis and Clark township

MO Liberty city

MO Liberty township

MO Mac Kenzie village

MO Manchester city

MO Maplewood city

MO Marlborough village

MO Maryland Heights city

MO May township

MO Meramec township

MO Midland township

MO Mineral township

MO Missouri River township

MO Missouri township

MO Moline Acres city

MO Mount Pleasant township

MO Newton County

MO Normandy city

MO Normandy township

MO North Campbell No. 1 township

MO North Campbell No. 2 township

MO North Campbell No. 3 township

MO North Kansas City city

MO North View township

MO Northmoor city

MO Northwest township

MO Northwoods city

MO Norwood Court town

MO Oakland city

MO Oakland Park village

MO Oaks village

MO Oakview village

MO Oakwood Park village

MO Oakwood village

MO O’Fallon city

MO O’Fallon township

MO Olivette city

MO Overland city

MO Pagedale city

MO Parkdale town

MO Parkville city

MO Pasadena Hills city

MO Pasadena Park village

MO Pettis township

MO Pine Lawn city

MO Platte County

MO Platte township

MO Platte Woods city

MO Pleasant Valley city

MO Prairie township

MO Queeny township

MO Randolph village

MO Raymore city

MO Raymore township

MO Raytown city

MO Redings Mill village

MO Richmond Heights city

MO Rivers township

MO Riverside city

MO Riverview village

MO Rock Hill city

MO Rock township

MO Rocky Fork township

MO Saginaw village

MO Shoal Creek Drive village

MO Shoal Creek township

MO Shrewsbury city

MO Silver Creek village

MO Sioux township

MO Sni-A-Bar township

MO Spanish Lake township

MO Spencer Creek township

MO St. Ann city

MO St. Charles city

MO St. Ferdinand township

MO St. George city

MO St. John city

MO St. Joseph city

MO St. Louis city

MO St. Peters city

MO St. Peters township

MO Sugar Creek city

MO Sunset Hills city

MO Sycamore Hills village

MO Town and Country city

MO Twin Groves township

MO Twin Oaks village

MO Unity Village village

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MO University City city

MO Uplands Park village

MO Valley Park city

MO Velda Village city

MO Velda Village Hills village

MO Vinita Park city

MO Vinita Terrace village

MO Warson Woods city

MO Washington township

MO Wayne township

MO Weatherby Lake city

MO Webb City city

MO Webster Groves city

MO Wellston city

MO Wentzville township

MO Westwood village

MO Wilbur Park village

MO Wilson township

MO Winchester city

MO Windsor township

MO Woodson Terrace city

MO Zumbehl township

MS Bay St. Louis city

MS Biloxi city

MS Brandon city

MS Clinton city

MS DeSoto County

MS D’Iberville city

MS Flowood town

MS Forrest County

MS Gautier city

MS Gulfport city

MS Hancock County

MS Harrison County

MS Hattiesburg city

MS Hinds County

MS Horn Lake city

MS Jackson County

MS Lamar County

MS Long Beach city

MS Madison city

MS Madison County

MS Moss Point city

MS Ocean Springs city

MS Pascagoula city

MS Pass Christian city

MS Pearl city

MS Petal city

MS Rankin County

MS Richland city

MS Ridgeland city

MS Southaven city

MS Waveland city

MT Billings city

MT Cascade County

MT Great Falls city

MT Missoula city

MT Missoula County

MT Yellowstone County

NC Alamance County

NC Apex town

NC Archdale city

NC Asheville city

NC Belmont city

NC Belville town

NC Bessemer City city

NC Biltmore Forest town

NC Black Mountain town

NC Brookford town

NC Brunswick County

NC Buncombe County

NC Burke County

NC Burlington city

NC Cabarrus County

NC Carrboro town

NC Cary town

NC Catawba County

NC Chapel Hill town

NC China Grove town

NC Clemmons village

NC Concord city

NC Conover city

NC Cramerton town

NC Dallas town

NC Davidson County

NC Durham County

NC Edgecombe County

NC Elon College town

NC Fletcher town

NC Forsyth County

NC Garner town

NC Gaston County

NC Gastonia city

NC Gibsonville town

NC Goldsboro city

NC Graham city

NC Greenville city

NC Guilford County

NC Harnett County

NC Haw River town

NC Henderson County

NC Hickory city

NC High Point city

NC Hildebran town

NC Hope Mills town

NC Indian Trail town

NC Jacksonville city

NC Jamestown town

NC Kannapolis city

NC Landis town

NC Leland town

NC Long View town

NC Lowell city

NC Matthews town

NC McAdenville town

NC Mebane city

NC Mecklenburg County

NC Mint Hill town

NC Montreat town

NC Mount Holly city

NC Nash County

NC New Hanover County

NC Newton city

NC Onslow County

NC Orange County

NC Pineville town

NC Pitt County

NC Randolph County

NC Ranlo town

NC Rocky Mount city

NC Rowan County

NC Rural Hall town

NC Spring Lake town

NC Stallings town

NC Thomasville city

NC Union County

NC Wake County

NC Walkertown town

NC Wayne County

NC Weaverville town

NC Wilmington city

NC Winterville town

NC Woodfin town

NC Wrightsville Beach town

ND Barnes township

ND Bismarck city

ND Bismarck unorg.

ND Burleigh County

ND Captain’s Landing township

ND Cass County

ND Fargo city

ND Grand Forks city

ND Grand Forks County

ND Grand Forks township

ND Hay Creek township

ND Lincoln city

ND Mandan city

ND Mandan unorg.

ND Morton County

ND Reed township

ND West Fargo city

NE Bellevue city

NE Bellevue No. 2 precinct

NE Benson precinct

NE Boys Town village

NE Chicago precinct

NE Covington precinct

NE Dakota County

NE Douglas County

NE Douglas precinct

NE Florence precinct

NE Garfield precinct

NE Gilmore No. 1 precinct

NE Gilmore No. 2 precinct

NE Gilmore No. 3 precinct

NE Grant precinct

NE Highland No. 1 precinct

NE Highland No. 2 precinct

NE Jefferson precinct

NE La Platte precinct

NE La Vista city

NE Lancaster County

NE Lancaster precinct

NE McArdle precinct

NE Millard precinct

NE Papillion city

NE Papillion No. 2 precinct

NE Pawnee precinct

NE Ralston city

NE Richland No. 1 precinct

NE Richland No. 2 precinct

NE Richland No. 3 precinct

NE Sarpy County

NE South Sioux City city

NE Union precinct

NE Yankee Hill precinct

NH Amherst town

NH Auburn town

NH Bedford town

NH Dover city

NH Durham town

NH Goffstown town

NH Hillsborough County

NH Hollis town

NH Hooksett town

NH Hudson town

NH Litchfield town

NH Londonderry town

NH Madbury town

NH Manchester city

NH Merrimack County

NH Merrimack town

NH Nashua city

NH New Castle town

NH Newington town

NH Pelham town

NH Plaistow town

NH Portsmouth city

NH Rochester city

NH Rockingham County

NH Rollinsford town

NH Rye town

NH Salem town

NH Somersworth city

NH Strafford County

NH Windham town

NJ Aberdeen township

NJ Absecon city

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NJ Allendale borough

NJ Allenhurst borough

NJ Alpha borough

NJ Alpine borough

NJ Asbury Park city

NJ Atlantic City city

NJ Atlantic County

NJ Atlantic Highlands borough

NJ Audubon borough

NJ Audubon Park borough

NJ Avon-by-the-Sea borough

NJ Barrington borough

NJ Bay Head borough

NJ Bayonne city

NJ Beachwood borough

NJ Bedminster township

NJ Belleville township

NJ Bellmawr borough

NJ Belmar borough

NJ Bergenfield borough

NJ Berkeley Heights township

NJ Berkeley township

NJ Berlin borough

NJ Berlin township

NJ Bernards township

NJ Bernardsville borough

NJ Beverly city

NJ Bloomfield township

NJ Bloomingdale borough

NJ Bogota borough

NJ Boonton town

NJ Boonton township

NJ Bordentown city

NJ Bordentown township

NJ Bound Brook borough

NJ Bradley Beach borough

NJ Branchburg township

NJ Brick township

NJ Bridgewater township

NJ Brielle borough

NJ Brigantine city

NJ Brooklawn borough

NJ Buena borough

NJ Buena Vista township

NJ Burlington city

NJ Burlington County

NJ Burlington township

NJ Butler borough

NJ Byram township

NJ Caldwell Borough township

NJ Camden city

NJ Cape May County

NJ Carlstadt borough

NJ Carneys Point township

NJ Carteret borough

NJ Cedar Grove township

NJ Chatham borough

NJ Chatham township

NJ Cherry Hill township

NJ Chesilhurst borough

NJ Chester township

NJ Chesterfield township

NJ Cinnaminson township

NJ City of Orange township

NJ Clark township

NJ Clayton borough

NJ Clementon borough

NJ Cliffside Park borough

NJ Clifton city

NJ Closter borough

NJ Collingswood borough

NJ Colts Neck township

NJ Commercial township

NJ Cranford township

NJ Cresskill borough

NJ Cumberland County

NJ Deal borough

NJ Delanco township

NJ Delran township

NJ Demarest borough

NJ Denville township

NJ Deptford township

NJ Dover town

NJ Dover township

NJ Dumont borough

NJ Dunellen borough

NJ East Brunswick township

NJ East Greenwich township

NJ East Hanover township

NJ East Newark borough

NJ East Orange city

NJ East Rutherford borough

NJ Eastampton township

NJ Eatontown borough

NJ Edgewater borough

NJ Edgewater Park township

NJ Edison township

NJ Egg Harbor township

NJ Elizabeth city

NJ Elk township

NJ Elmwood Park borough

NJ Emerson borough

NJ Englewood city

NJ Englewood Cliffs borough

NJ Englishtown borough

NJ Essex Fells township

NJ Evesham township

NJ Ewing township

NJ Fair Haven borough

NJ Fair Lawn borough

NJ Fairfield township

NJ Fairview borough

NJ Fanwood borough

NJ Fieldsboro borough

NJ Florence township

NJ Florham Park borough

NJ Fort Lee borough

NJ Franklin Lakes borough

NJ Franklin township

NJ Freehold borough

NJ Freehold township

NJ Galloway township

NJ Garfield city

NJ Garwood borough

NJ Gibbsboro borough

NJ Glassboro borough

NJ Glen Ridge Borough township

NJ Glen Rock borough

NJ Gloucester City city

NJ Gloucester County

NJ Gloucester township

NJ Green Brook township

NJ Greenwich township

NJ Guttenberg town

NJ Hackensack city

NJ Haddon Heights borough

NJ Haddon township

NJ Haddonfield borough

NJ Hainesport township

NJ Haledon borough

NJ Hamilton township

NJ Hanover township

NJ Harding township

NJ Harrington Park borough

NJ Harrison town

NJ Hasbrouck Heights borough

NJ Haworth borough

NJ Hawthorne borough

NJ Hazlet township

NJ Helmetta borough

NJ Highland Park borough

NJ Highlands borough

NJ Hillsborough township

NJ Hillsdale borough

NJ Hillside township

NJ Hi-Nella borough

NJ Hoboken city

NJ Ho-Ho-Kus borough

NJ Holmdel township

NJ Hopatcong borough

NJ Hopewell township

NJ Howell township

NJ Hunterdon County

NJ Interlaken borough

NJ Irvington township

NJ Island Heights borough

NJ Jackson township

NJ Jamesburg borough

NJ Jefferson township

NJ Jersey City city

NJ Keansburg borough

NJ Kearny town

NJ Kenilworth borough

NJ Keyport borough

NJ Kinnelon borough

NJ Lakehurst borough

NJ Lakewood township

NJ Laurel Springs borough

NJ Lavallette borough

NJ Lawnside borough

NJ Lawrence township

NJ Leonia borough

NJ Lincoln Park borough

NJ Linden city

NJ Lindenwold borough

NJ Linwood city

NJ Little Falls township

NJ Little Ferry borough

NJ Little Silver borough

NJ Livingston township

NJ Loch Arbour village

NJ Lodi borough

NJ Long Branch city

NJ Longport borough

NJ Lopatcong township

NJ Lumberton township

NJ Lyndhurst township

NJ Madison borough

NJ Magnolia borough

NJ Mahwah township

NJ Manalapan township

NJ Manasquan borough

NJ Manchester township

NJ Mantoloking borough

NJ Mantua township

NJ Manville borough

NJ Maple Shade township

NJ Maplewood township

NJ Margate City city

NJ Marlboro township

NJ Matawan borough

NJ Maywood borough

NJ Medford Lakes borough

NJ Medford township

NJ Mendham borough

NJ Mendham township

NJ Mercer County

NJ Merchantville borough

NJ Metuchen borough

NJ Middlesex borough

NJ Middlesex County

NJ Middletown township

NJ Midland Park borough

NJ Millburn township

NJ Millstone borough

NJ Milltown borough

NJ Millville city

NJ Mine Hill township

68824 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

NJ Monmouth Beach borough

NJ Monmouth County

NJ Monroe township

NJ Montclair township

NJ Montvale borough

NJ Montville township

NJ Moonachie borough

NJ Moorestown township

NJ Morris County

NJ Morris Plains borough

NJ Morris township

NJ Morristown town

NJ Mount Arlington borough

NJ Mount Ephraim borough

NJ Mount Holly township

NJ Mount Laurel township

NJ Mount Olive township

NJ Mountain Lakes borough

NJ Mountainside borough

NJ National Park borough

NJ Neptune City borough

NJ Neptune township

NJ Netcong borough

NJ New Brunswick city

NJ New Milford borough

NJ New Providence borough

NJ Newark city

NJ Newfield borough

NJ North Arlington borough

NJ North Bergen township

NJ North Brunswick township

NJ North Caldwell township

NJ North Haledon borough

NJ North Plainfield borough

NJ Northfield city

NJ Northvale borough

NJ Norwood borough

NJ Nutley township

NJ Oakland borough

NJ Oaklyn borough

NJ Ocean City city

NJ Ocean County

NJ Ocean Gate borough

NJ Ocean township

NJ Oceanport borough

NJ Old Bridge township

NJ Old Tappan borough

NJ Oradell borough

NJ Palisades Park borough

NJ Palmyra borough

NJ Paramus borough

NJ Park Ridge borough

NJ Parsippany-Troy Hills township

NJ Passaic city

NJ Passaic County

NJ Passaic township

NJ Paterson city

NJ Paulsboro borough

NJ Pennington borough

NJ Penns Grove borough

NJ Pennsauken township

NJ Pennsville township

NJ Pequannock township

NJ Perth Amboy city

NJ Phillipsburg town

NJ Pine Beach borough

NJ Pine Hill borough

NJ Pine Valley borough

NJ Piscataway township

NJ Pitman borough

NJ Pittsgrove township

NJ Plainfield city

NJ Pleasantville city

NJ Pohatcong township

NJ Point Pleasant Beach borough

NJ Point Pleasant borough

NJ Pompton Lakes borough

NJ Prospect Park borough

NJ Rahway city

NJ Ramsey borough

NJ Randolph township

NJ Raritan borough

NJ Readington township

NJ Red Bank borough

NJ Ridgefield borough

NJ Ridgefield Park village

NJ Ridgewood village

NJ Ringwood borough

NJ River Edge borough

NJ River Vale township

NJ Riverdale borough

NJ Riverside township

NJ Riverton borough

NJ Rochelle Park township

NJ Rockaway borough

NJ Rockaway township

NJ Rockleigh borough

NJ Roseland borough

NJ Roselle borough

NJ Roselle Park borough

NJ Roxbury township

NJ Rumson borough

NJ Runnemede borough

NJ Rutherford borough

NJ Saddle Brook township

NJ Saddle River borough

NJ Salem County

NJ Sayreville borough

NJ Scotch Plains township

NJ Sea Bright borough

NJ Sea Girt borough

NJ Seaside Heights borough

NJ Seaside Park borough

NJ Secaucus town

NJ Shamong township

NJ Shrewsbury borough

NJ Shrewsbury township

NJ Somerdale borough

NJ Somers Point city

NJ Somerset County

NJ Somerville borough

NJ South Amboy city

NJ South Belmar borough

NJ South Bound Brook borough

NJ South Brunswick township

NJ South Hackensack township

NJ South Orange Village township

NJ South Plainfield borough

NJ South River borough

NJ South Toms River borough

NJ Spotswood borough

NJ Spring Lake borough

NJ Spring Lake Heights borough

NJ Springfield township

NJ Stanhope borough

NJ Stratford borough

NJ Summit city

NJ Sussex County

NJ Tabernacle township

NJ Tavistock borough

NJ Teaneck township

NJ Tenafly borough

NJ Teterboro borough

NJ Tinton Falls borough

NJ Totowa borough

NJ Trenton city

NJ Union Beach borough

NJ Union City city

NJ Union township

NJ Upper Saddle River borough

NJ Upper township

NJ Ventnor City city

NJ Verona township

NJ Victory Gardens borough

NJ Vineland city

NJ Voorhees township

NJ Waldwick borough

NJ Wall township

NJ Wallington borough

NJ Wanaque borough

NJ Warren County

NJ Warren township

NJ Washington township

NJ Watchung borough

NJ Waterford township

NJ Wayne township

NJ Weehawken township

NJ Wenonah borough

NJ West Caldwell township

NJ West Deptford township

NJ West Long Branch borough

NJ West New York town

NJ West Orange township

NJ West Paterson borough

NJ Westampton township

NJ Westfield town

NJ Westville borough

NJ Westwood borough

NJ Wharton borough

NJ Willingboro township

NJ Winfield township

NJ Winslow township

NJ Woodbridge township

NJ Woodbury city

NJ Woodbury Heights borough

NJ Woodcliff Lake borough

NJ Woodlynne borough

NJ Wood-Ridge borough

NJ Wyckoff township

NM Bernalillo County

NM Corrales village

NM Dona Ana County

NM Las Cruces city

NM Los Ranchos de Albuquerque village

NM Mesilla town

NM Rio Rancho city

NM Sandoval County

NM Santa Fe city

NM Santa Fe County

NM Sunland Park city

NY Albany city

NY Albany County

NY Amherst town

NY Amityville village

NY Ardsley village

NY Ashland town

NY Atlantic Beach village

NY Babylon town

NY Babylon village

NY Baldwinsville village

NY Ballston town

NY Barker town

NY Baxter Estates village

NY Bayville village

NY Beacon city

NY Bedford town

NY Belle Terre village

NY Bellerose village

NY Bellport village

NY Bethlehem town

NY Big Flats town

NY Binghamton city

NY Binghamton town

NY Blasdell village

NY Boston town

NY Briarcliff Manor village

NY Brighton town

NY Brightwaters village

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NY Bronxville village

NY Brookhaven town

NY Brookville village

NY Broome County

NY Brunswick town

NY Buchanan village

NY Buffalo city

NY Camillus town

NY Camillus village

NY Carmel town

NY Cayuga Heights village

NY Cedarhurst village

NY Charlton town

NY Cheektowaga town

NY Chemung County

NY Chenango town

NY Chestnut Ridge village

NY Chili town

NY Cicero town

NY Clarence town

NY Clarkstown town

NY Clay town

NY Clayville village

NY Clifton Park town

NY Clinton village

NY Cohoes city

NY Colonie town

NY Colonie village

NY Conklin town

NY Cornwall on Hudson village

NY Cornwall town

NY Cortlandt town

NY Croton-on-Hudson village

NY De Witt town

NY Deerfield town

NY Depew village

NY Dickinson town

NY Dobbs Ferry village

NY Dryden town

NY Dutchess County

NY East Fishkill town

NY East Greenbush town

NY East Hills village

NY East Rochester village

NY East Rockaway village

NY East Syracuse village

NY East Williston village

NY Eastchester town

NY Elma town

NY Elmira city

NY Elmira Heights village

NY Elmira town

NY Elmsford village

NY Endicott village

NY Erie County

NY Evans town

NY Fairport village

NY Farmingdale village

NY Fayetteville village

NY Fenton town

NY Fishkill town

NY Fishkill village

NY Floral Park village

NY Flower Hill village

NY Floyd town

NY Fort Edward town

NY Fort Edward village

NY Frankfort town

NY Freeport village

NY Garden City village

NY Gates town

NY Geddes town

NY Glen Cove city

NY Glens Falls city

NY Glenville town

NY Grand Island town

NY Grand View-on-Hudson village

NY Great Neck Estates village

NY Great Neck Plaza village

NY Great Neck village

NY Greece town

NY Green Island village

NY Greenburgh town

NY Guilderland town

NY Halfmoon town

NY Hamburg town

NY Hamburg village

NY Harrison village

NY Hastings-on-Hudson village

NY Haverstraw town

NY Haverstraw village

NY Hempstead town

NY Hempstead village

NY Henrietta town

NY Herkimer County

NY Hewlett Bay Park village

NY Hewlett Harbor village

NY Hewlett Neck village

NY Hillburn village

NY Horseheads town

NY Horseheads village

NY Hudson Falls village

NY Huntington Bay village

NY Huntington town

NY Hyde Park town

NY Irondequoit town

NY Irvington village

NY Island Park village

NY Islandia village

NY Islip town

NY Ithaca city

NY Ithaca town

NY Johnson City village

NY Kenmore village

NY Kensington village

NY Kent town

NY Kings Point village

NY Kingsbury town

NY Kirkland town

NY Kirkwood town

NY La Grange town

NY Lackawanna city

NY LaFayette town

NY Lake Grove village

NY Lake Success village

NY Lancaster town

NY Lancaster village

NY Lansing town

NY Lansing village

NY Larchmont village

NY Lattingtown village

NY Lawrence village

NY Lee town

NY Lewiston town

NY Lewiston village

NY Lindenhurst village

NY Liverpool village

NY Lloyd Harbor village

NY Lloyd town

NY Long Beach city

NY Lynbrook village

NY Lysander town

NY Malta town

NY Malverne village

NY Mamaroneck town

NY Mamaroneck village

NY Manlius town

NY Manlius village

NY Manorhaven village

NY Marcy town

NY Massapequa Park village

NY Matinecock village

NY Menands village

NY Mill Neck village

NY Mineola village

NY Minoa village

NY Monroe County

NY Montebello village

NY Montgomery town

NY Moreau town

NY Mount Kisco village

NY Mount Pleasant town

NY Mount Vernon city

NY Munsey Park village

NY Muttontown village

NY New Castle town

NY New Hartford town

NY New Hartford village

NY New Hempstead village

NY New Hyde Park village

NY New Rochelle city

NY New Square village

NY New Windsor town

NY New York Mills village

NY Newburgh city

NY Newburgh town

NY Niagara County

NY Niagara Falls city

NY Niagara town

NY Niskayuna town

NY North Castle town

NY North Greenbush town

NY North Hempstead town

NY North Hills village

NY North Syracuse village

NY North Tarrytown village

NY North Tonawanda city

NY Northport village

NY Nyack village

NY Ogden town

NY Old Brookville village

NY Old Westbury village

NY Oneida County

NY Onondaga County

NY Onondaga town

NY Orange County

NY Orangetown town

NY Orchard Park town

NY Orchard Park village

NY Oriskany village

NY Ossining town

NY Ossining village

NY Oswego County

NY Owego town

NY Oyster Bay town

NY Paris town

NY Patchogue village

NY Patterson town

NY Peekskill city

NY Pelham Manor village

NY Pelham town

NY Pelham village

NY Pendleton town

NY Penfield town

NY Perinton town

NY Philipstown town

NY Phoenix village

NY Piermont village

NY Pittsford town

NY Pittsford village

NY Plandome Heights village

NY Plandome Manor village

NY Plandome village

NY Pleasant Valley town

NY Pleasantville village

NY Poestenkill town

NY Pomona village

NY Poospatuck Reservation

68826 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

NY Poquott village

NY Port Chester village

NY Port Dickinson village

NY Port Jefferson village

NY Port Washington North village

NY Poughkeepsie city

NY Poughkeepsie town

NY Pound Ridge town

NY Putnam County

NY Putnam Valley town

NY Queensbury town

NY Ramapo town

NY Rensselaer city

NY Rensselaer County

NY Riverhead town

NY Rochester city

NY Rockville Centre village

NY Rome city

NY Roslyn Estates village

NY Roslyn Harbor village

NY Roslyn village

NY Rotterdam town

NY Russell Gardens village

NY Rye Brook village

NY Rye city

NY Rye town

NY Saddle Rock village

NY Salina town

NY Sands Point village

NY Saratoga County

NY Scarsdale town

NY Scarsdale village

NY Schaghticoke town

NY Schenectady city

NY Schenectady County

NY Schodack town

NY Schroeppel town

NY Schuyler town

NY Scotia village

NY Sea Cliff village

NY Shoreham village

NY Sloan village

NY Sloatsburg village

NY Smithtown town

NY Solvay village

NY Somers town

NY South Floral Park village

NY South Glens Falls village

NY South Nyack village

NY Southampton town

NY Southport town

NY Spencerport village

NY Spring Valley village

NY Stewart Manor village

NY Stony Point town

NY Suffern village

NY Suffolk County

NY Syracuse city

NY Tarrytown village

NY Thomaston village

NY Tioga County

NY Tompkins County

NY Tonawanda city

NY Tonawanda town

NY Troy city

NY Tuckahoe village

NY Ulster County

NY Union town

NY Upper Brookville village

NY Upper Nyack village

NY Utica city

NY Valley Stream village

NY Van Buren town

NY Vestal town

NY Veteran town

NY Village of the Branch village

NY Wappinger town

NY Wappingers Falls village

NY Warren County

NY Washington County

NY Waterford town

NY Waterford village

NY Watervliet city

NY Webster town

NY Webster village

NY Wesley Hills village

NY West Haverstraw village

NY West Seneca town

NY Westbury village

NY Westchester County

NY Western town

NY Wheatfield town

NY White Plains city

NY Whitesboro village

NY Whitestown town

NY Williamsville village

NY Williston Park village

NY Woodsburgh village

NY Yonkers city

NY Yorktown town

NY Yorkville village

OH Addyston village

OH Allen County

OH Allen township

OH Amberley village

OH Amelia village

OH American township

OH Amherst city

OH Amherst township

OH Anderson township

OH Arlington Heights village

OH Auglaize County

OH Aurora city

OH Austintown township

OH Avon city

OH Avon Lake city

OH Bainbridge township

OH Barberton city

OH Batavia township

OH Bath township

OH Bay Village city

OH Beachwood city

OH Beaver township

OH Beavercreek city

OH Beavercreek township

OH Bedford city

OH Bedford Heights city

OH Bellaire city

OH Bellbrook city

OH Belmont County

OH Belpre city

OH Belpre township

OH Bentleyville village

OH Berea city

OH Bethel township

OH Bexley city

OH Blendon township

OH Blue Ash city

OH Boardman township

OH Brady Lake village

OH Bratenahl village

OH Brecksville city

OH Brice village

OH Bridgeport village

OH Brilliant village

OH Brimfield township

OH Broadview Heights city

OH Brook Park city

OH Brookfield township

OH Brooklyn city

OH Brooklyn Heights village

OH Brookside village

OH Brown township

OH Brownhelm township

OH Brunswick city

OH Brunswick Hills township

OH Butler County

OH Butler township

OH Campbell city

OH Canfield city

OH Canfield township

OH Canton city

OH Canton township

OH Carlisle township

OH Carlisle village

OH Centerville city

OH Chagrin Falls township

OH Chagrin Falls village

OH Champion township

OH Chesapeake village

OH Cheviot city

OH Chippewa township

OH Cincinnati city

OH Clark County

OH Clear Creek township

OH Clermont County

OH Cleveland city

OH Cleveland Heights city

OH Cleves village

OH Clinton township

OH Coal Grove village

OH Coitsville township

OH Colerain township

OH Columbia township

OH Concord township

OH Copley township

OH Coventry township

OH Cridersville village

OH Cross Creek township

OH Cuyahoga County

OH Cuyahoga Falls city

OH Cuyahoga Heights village

OH Deer Park city

OH Deerfield township

OH Delaware County

OH Delhi township

OH Doylestown village

OH Dublin city

OH Duchouquet township

OH East Cleveland city

OH Eastlake city

OH Eaton township

OH Elmwood Place village

OH Elyria city

OH Elyria township

OH Englewood city

OH Erie County

OH Etna township

OH Euclid city

OH Evendale village

OH Fairborn city

OH Fairfax village

OH Fairfield city

OH Fairfield County

OH Fairfield township

OH Fairlawn city

OH Fairport Harbor village

OH Fairview Park city

OH Fayette township

OH Forest Park city

OH Fort Shawnee village

OH Franklin city

OH Franklin County

OH Franklin township

OH Gahanna city

OH Garfield Heights city

OH Geauga County

OH Genoa township

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68827

OH German township

OH Girard city

OH Glendale village

OH Glenwillow village

OH Golf Manor village

OH Goshen township

OH Grand River village

OH Grandview Heights city

OH Green township

OH Green village

OH Greene County

OH Greenhills village

OH Grove City city

OH Groveport village

OH Hamilton city

OH Hamilton County

OH Hamilton township

OH Hanging Rock village

OH Hanover township

OH Harbor View village

OH Harrison township

OH Hartville village

OH Heath city

OH Highland Heights city

OH Hilliard city

OH Hills and Dales village

OH Hinckley township

OH Holland village

OH Howland township

OH Hubbard city

OH Hubbard township

OH Huber Heights city

OH Hudson township

OH Hudson village

OH Independence city

OH Ironton city

OH Island Creek township

OH Jackson township

OH Jefferson County

OH Jefferson township

OH Jerome township

OH Kent city

OH Kettering city

OH Kirtland city

OH Lake County

OH Lake township

OH Lakeline village

OH Lakemore village

OH Lakewood city

OH Lawrence County

OH Lawrence township

OH Lemon township

OH Lexington village

OH Liberty township

OH Licking County

OH Licking township

OH Lima city

OH Lima township

OH Lincoln Heights city

OH Linndale village

OH Lockland village

OH Lorain city

OH Lorain County

OH Louisville city

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OH Lowellville village

OH Lucas County

OH Lyndhurst city

OH Macedonia city

OH Mad River township

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OH Madison township

OH Mahoning County

OH Maineville village

OH Mansfield city

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OH Marble Cliff village

OH Mariemont village

OH Martins Ferry city

OH Mason city

OH Massillon city

OH Maumee city

OH Mayfield Heights city

OH Mayfield village

OH McDonald village

OH Mead township

OH Medina County

OH Mentor city

OH Mentor-on-the-Lake city

OH Meyers Lake village

OH Miami County

OH Miami township

OH Miamisburg city

OH Middleburg Heights city

OH Middletown city

OH Mifflin township

OH Milford city

OH Millbury village

OH Millville village

OH Minerva Park village

OH Mingo Junction city

OH Mogadore village

OH Monclova township

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OH Monroe village

OH Montgomery city

OH Montgomery County

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OH Moraine city

OH Moreland Hills village

OH Mount Healthy city

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OH New Miami village

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OH Newark city

OH Newark township

OH Newburgh Heights village

OH Newton township

OH Newtown village

OH Niles city

OH Nimishillen township

OH North Bend village

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OH Northfield Center township

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OH Norton city

OH Norwich township

OH Norwood city

OH Oakwood city

OH Oakwood village

OH Obetz village

OH Ohio township

OH Olmsted Falls city

OH Olmsted township

OH Ontario village

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OH Orange village

OH Oregon city

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OH Painesville city

OH Painesville township

OH Palmyra township

OH Parma city

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OH Perrysburg city

OH Perrysburg township

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OH Poland village

OH Portage County

OH Powell village

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OH Pultney township

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OH Ravenna city

OH Ravenna township

OH Reading city

OH Reminderville village

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OH Richfield township

OH Richfield village

OH Richland County

OH Richmond Heights city

OH Riveredge township

OH Riverlea village

OH Riverside village

OH Rocky River city

OH Rome township

OH Ross township

OH Rossford city

OH Russell township

OH Russia township

OH Sagamore Hills township

OH Seven Hills city

OH Shadyside village

OH Shaker Heights city

OH Sharon township

OH Sharonville city

OH Shawnee Hills village

OH Shawnee township

OH Sheffield Lake city

OH Sheffield township

OH Sheffield village

OH Silver Lake village

OH Silverton city

OH Solon city

OH South Amherst village

OH South Euclid city

OH South Point village

OH South Russell village

OH Springboro city

OH Springdale city

OH Springfield city

OH Springfield township

OH St. Bernard city

OH St. Clair township

OH Stark County

OH Steubenville city

OH Steubenville township

OH Stow city

OH Strongsville city

OH Struthers city

OH Suffield township

OH Sugar Bush Knolls village

OH Sugar Creek township

OH Summit County

OH Sycamore township

OH Sylvania city

OH Sylvania township

OH Symmes township

OH Tallmadge city

OH Terrace Park village

OH The Village of Indian Hill city

68828 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

OH Timberlake village

OH Trenton city

OH Trotwood city

OH Troy township

OH Trumbull County

OH Truro township

OH Turtle Creek township

OH Tuscarawas township

OH Twinsburg city

OH Twinsburg township

OH Union city

OH Union County

OH Union township

OH University Heights city

OH Upper Arlington city

OH Upper township

OH Urbancrest village

OH Valley View village

OH Valleyview village

OH Vandalia city

OH Vermilion city

OH Vermilion township

OH Violet township

OH Wadsworth city

OH Wadsworth township

OH Waite Hill village

OH Walbridge village

OH Walton Hills village

OH Warren city

OH Warren County

OH Warren township

OH Warrensville Heights city

OH Warrensville township

OH Washington County

OH Washington township

OH Wayne County

OH Wayne township

OH Weathersfield township

OH Wells township

OH West Carrollton City city

OH West Milton village

OH Westerville city

OH Westlake city

OH Whitehall city

OH Whitewater township

OH Wickliffe city

OH Willoughby city

OH Willoughby Hills city

OH Willowick city

OH Wintersville village

OH Wood County

OH Woodlawn village

OH Woodmere village

OH Worthington city

OH Wyoming city

OH Youngstown city

OK Arkoma town

OK Bethany city

OK Bixby city

OK Broken Arrow city

OK Canadian County

OK Catoosa city

OK Choctaw city

OK Cleveland County

OK Comanche County

OK Creek County

OK Del City city

OK Edmond city

OK Forest Park town

OK Hall Park town

OK Harrah town

OK Jenks city

OK Jones town

OK Lake Aluma town

OK Lawton city

OK Le Flore County

OK Logan County

OK Midwest City city

OK Moffett town

OK Moore city

OK Mustang city

OK Nichols Hills city

OK Nicoma Park city

OK Norman city

OK Oklahoma County

OK Osage County

OK Pottawatomie County

OK Rogers County

OK Sand Springs city

OK Sequoyah County

OK Smith Village town

OK Spencer city

OK The Village city

OK Tulsa County

OK Valley Brook town

OK Wagoner County

OK Warr Acres city

OK Woodlawn Park town

OK Yukon city

OR Central Point city

OR Columbia County

OR Durham city

OR Jackson County

OR Keizer city

OR King City city

OR Lane County

OR Marion County

OR Maywood Park city

OR Medford city

OR Phoenix city

OR Polk County

OR Rainier city

OR Springfield city

OR Troutdale city

OR Tualatin city

OR Wood Village city

PA Abington township

PA Adamsburg borough

PA Alburtis borough

PA Aldan borough

PA Aleppo township

PA Aliquippa city

PA Allegheny County

PA Allegheny township

PA Allen township

PA Allenport borough

PA Alsace township

PA Altoona city

PA Ambler borough

PA Ambridge borough

PA Amwell township

PA Antis township

PA Antrim township

PA Archbald borough

PA Arnold city

PA Ashley borough

PA Aspinwall borough

PA Aston township

PA Avalon borough

PA Avoca borough

PA Baden borough

PA Baldwin borough

PA Baldwin township

PA Beaver borough

PA Beaver County

PA Beaver Falls city

PA Bell Acres borough

PA Belle Vernon borough

PA Bellevue borough

PA Ben Avon borough

PA Ben Avon Heights borough

PA Bensalem township

PA Berks County

PA Bern township

PA Bethel Park borough

PA Bethel township

PA Bethlehem city

PA Bethlehem township

PA Big Beaver borough

PA Birdsboro borough

PA Birmingham township

PA Blair County

PA Blair township

PA Blakely borough

PA Blawnox borough

PA Boyertown borough

PA Brackenridge borough

PA Braddock borough

PA Braddock Hills borough

PA Bradfordwoods borough

PA Brentwood borough

PA Bridgeport borough

PA Bridgeville borough

PA Bridgewater borough

PA Brighton township

PA Bristol borough

PA Bristol township

PA Brookhaven borough

PA Brownstown borough

PA Brownsville borough

PA Brownsville township

PA Bryn Athyn borough

PA Buckingham township

PA Bucks County

PA California borough

PA Caln township

PA Cambria County

PA Camp Hill borough

PA Canonsburg borough

PA Canton township

PA Carbondale city

PA Carbondale township

PA Carnegie borough

PA Carroll township

PA Castle Shannon borough

PA Catasauqua borough

PA Cecil township

PA Center township

PA Centre County

PA Chalfant borough

PA Chalfont borough

PA Charleroi borough

PA Charlestown township

PA Chartiers township

PA Cheltenham township

PA Chester city

PA Chester County

PA Chester Heights borough

PA Chester township

PA Cheswick borough

PA Chippewa township

PA Churchill borough

PA Clairton city

PA Clarks Green borough

PA Clarks Summit borough

PA Clifton Heights borough

PA Coal Center borough

PA Coatesville city

PA Colebrookdale township

PA College township

PA Collegeville borough

PA Collier township

PA Collingdale borough

PA Columbia borough

PA Colwyn borough

PA Concord township

PA Conemaugh township

PA Conestoga township

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68829

PA Conewago township

PA Conshohocken borough

PA Conway borough

PA Coplay borough

PA Coraopolis borough

PA Courtdale borough

PA Crafton borough

PA Crescent township

PA Cumberland County

PA Cumru township

PA Daisytown borough

PA Dale borough

PA Dallas borough

PA Dallas township

PA Dallastown borough

PA Darby borough

PA Darby township

PA Daugherty township

PA Dauphin County

PA Delaware County

PA Delmont borough

PA Derry township

PA Dickson City borough

PA Donora borough

PA Dormont borough

PA Douglass township

PA Dover borough

PA Dover township

PA Downingtown borough

PA Doylestown borough

PA Doylestown township

PA Dravosburg borough

PA Duboistown borough

PA Duncansville borough

PA Dunlevy borough

PA Dunmore borough

PA Dupont borough

PA Duquesne city

PA Duryea borough

PA East Allen township

PA East Bradford township

PA East Brandywine township

PA East Caln township

PA East Conemaugh borough

PA East Coventry township

PA East Deer township

PA East Fallowfield township

PA East Goshen township

PA East Hempfield township

PA East Lampeter township

PA East Lansdowne borough

PA East McKeesport borough

PA East Norriton township

PA East Pennsboro township

PA East Petersburg borough

PA East Pikeland township

PA East Pittsburgh borough

PA East Rochester borough

PA East Taylor township

PA East Vincent township

PA East Washington borough

PA East Whiteland township

PA Easton city

PA Easttown township

PA Eastvale borough

PA Economy borough

PA Eddystone borough

PA Edgewood borough

PA Edgeworth borough

PA Edgmont township

PA Edwardsville borough

PA Elco borough

PA Elizabeth borough

PA Elizabeth township

PA Ellport borough

PA Ellwood City borough

PA Emmaus borough

PA Emsworth borough

PA Erie city

PA Erie County

PA Etna borough

PA Exeter borough

PA Exeter township

PA Export borough

PA Fairfield township

PA Fairview township

PA Fallowfield township

PA Falls township

PA Fallston borough

PA Farrell city

PA Fayette City borough

PA Fayette County

PA Fell township

PA Ferguson township

PA Ferndale borough

PA Findlay township

PA Finleyville borough

PA Folcroft borough

PA Forest Hills borough

PA Forks township

PA Forty Fort borough

PA Forward township

PA Fountain Hill borough

PA Fox Chapel borough

PA Franconia township

PA Franklin borough

PA Franklin County

PA Franklin Park borough

PA Franklin township

PA Frankstown township

PA Frazer township

PA Freedom borough

PA Freemansburg borough

PA Geistown borough

PA Glassport borough

PA Glendon borough

PA Glenfield borough

PA Glenolden borough

PA Green Tree borough

PA Greensburg city

PA Hallam borough

PA Hampden township

PA Hampton township

PA Hanover township

PA Harborcreek township

PA Harmar township

PA Harmony township

PA Harris township

PA Harrisburg city

PA Harrison township

PA Harveys Lake borough

PA Hatboro borough

PA Hatfield borough

PA Hatfield township

PA Haverford township

PA Haysville borough

PA Heidelberg borough

PA Hellam township

PA Hellertown borough

PA Hempfield township

PA Hepburn township

PA Hermitage city

PA Highspire borough

PA Hilltown township

PA Hollidaysburg borough

PA Homestead borough

PA Homewood borough

PA Hopewell township

PA Horsham township

PA Houston borough

PA Hughestown borough

PA Hulmeville borough

PA Hummelstown borough

PA Hunker borough

PA Indiana township

PA Ingram borough

PA Irwin borough

PA Ivyland borough

PA Jackson township

PA Jacobus borough

PA Jeannette city

PA Jefferson borough

PA Jenkins township

PA Jenkintown borough

PA Jermyn borough

PA Jessup borough

PA Johnstown city

PA Juniata township

PA Kenhorst borough

PA Kennedy township

PA Kilbuck township

PA Kingston borough

PA Kingston township

PA Koppel borough

PA Lackawanna County

PA Laflin borough

PA Lancaster city

PA Lancaster County

PA Lancaster township

PA Langhorne borough

PA Langhorne Manor borough

PA Lansdale borough

PA Lansdowne borough

PA Larksville borough

PA Laurel Run borough

PA Laureldale borough

PA Lawrence County

PA Lawrence Park township

PA Lebanon County

PA Leesport borough

PA Leet township

PA Leetsdale borough

PA Lehigh County

PA Lehman township

PA Lemoyne borough

PA Liberty borough

PA Limerick township

PA Lincoln borough

PA Lititz borough

PA Logan township

PA Loganville borough

PA London Britain township

PA Londonderry township

PA Lorain borough

PA Lower Allen township

PA Lower Alsace township

PA Lower Burrell city

PA Lower Chichester township

PA Lower Frederick township

PA Lower Gwynedd township

PA Lower Heidelberg township

PA Lower Macungie township

PA Lower Makefield township

PA Lower Merion township

PA Lower Moreland township

PA Lower Nazareth township

PA Lower Paxton township

PA Lower Pottsgrove township

PA Lower Providence township

PA Lower Salford township

PA Lower Saucon township

PA Lower Southampton township

PA Lower Swatara township

PA Lower Yoder township

PA Loyalsock township

PA Luzerne borough

PA Luzerne County

PA Luzerne township

68830 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

PA Lycoming County

PA Lycoming township

PA Macungie borough

PA Madison borough

PA Maidencreek township

PA Malvern borough

PA Manchester township

PA Manheim township

PA Manor borough

PA Manor township

PA Marcus Hook borough

PA Marple township

PA Marshall township

PA Marysville borough

PA Mayfield borough

PA McCandless township

PA McKean township

PA McKees Rocks borough

PA McKeesport city

PA Mechanicsburg borough

PA Media borough

PA Mercer County

PA Middle Taylor township

PA Middletown borough

PA Middletown township

PA Millbourne borough

PA Millcreek township

PA Millersville borough

PA Millvale borough

PA Modena borough

PA Mohnton borough

PA Monaca borough

PA Monessen city

PA Monongahela city

PA Monroe township

PA Montgomery County

PA Montgomery township

PA Montoursville borough

PA Moon township

PA Moosic borough

PA Morrisville borough

PA Morton borough

PA Mount Lebanon township

PA Mount Oliver borough

PA Mount Penn borough

PA Mountville borough

PA Muhlenberg township

PA Munhall borough

PA Municipality of Monroeville borough

PA Municipality of Murrysville borough

PA Nanticoke city

PA Narberth borough

PA Nether Providence township

PA Neville township

PA New Brighton borough

PA New Britain borough

PA New Britain township

PA New Cumberland borough

PA New Eagle borough

PA New Galilee borough

PA New Garden township

PA New Hanover township

PA New Kensington city

PA New Sewickley township

PA New Stanton borough

PA Newell borough

PA Newport township

PA Newton township

PA Newtown borough

PA Newtown township

PA Norristown borough

PA North Belle Vernon borough

PA North Braddock borough

PA North Catasauqua borough

PA North Charleroi borough

PA North Coventry township

PA North Franklin township

PA North Huntingdon township

PA North Irwin borough

PA North Londonderry township

PA North Sewickley township

PA North Strabane township

PA North Versailles township

PA North Wales borough

PA North Whitehall township

PA North York borough

PA Northampton borough

PA Northampton County

PA Northampton township

PA Norwood borough

PA Oakmont borough

PA O’Hara township

PA Ohio township

PA Old Forge borough

PA Old Lycoming township

PA Olyphant borough

PA Ontelaunee township

PA Osborne borough

PA Paint borough

PA Paint township

PA Palmer township

PA Palmyra borough

PA Parkside borough

PA Patterson Heights borough

PA Patterson township

PA Patton township

PA Paxtang borough

PA Penbrook borough

PA Penn borough

PA Penn Hills township

PA Penn township

PA Penndel borough

PA Pennsbury Village borough

PA Pequea township

PA Perkiomen township

PA Perry County

PA Perry township

PA Peters township

PA Phoenixville borough

PA Pine township

PA Pitcairn borough

PA Pittsburgh city

PA Pittston city

PA Pittston township

PA Plains township

PA Pleasant Hills borough

PA Plum borough

PA Plymouth borough

PA Plymouth township

PA Port Vue borough

PA Potter township

PA Pottstown borough

PA Pringle borough

PA Prospect Park borough

PA Pulaski township

PA Radnor township

PA Rankin borough

PA Ransom township

PA Reading city

PA Red Lion borough

PA Reserve township

PA Richland township

PA Ridley Park borough

PA Ridley township

PA Robinson township

PA Rochester borough

PA Rochester township

PA Rockledge borough

PA Roscoe borough

PA Rose Valley borough

PA Ross township

PA Rosslyn Farms borough

PA Rostraver township

PA Royalton borough

PA Royersford borough

PA Rutledge borough

PA Salem township

PA Salisbury township

PA Scalp Level borough

PA Schuylkill township

PA Schwenksville borough

PA Scott township

PA Scranton city

PA Sewickley borough

PA Sewickley Heights borough

PA Sewickley Hills borough

PA Sewickley township

PA Shaler township

PA Sharon city

PA Sharon Hill borough

PA Sharpsburg borough

PA Sharpsville borough

PA Shenango township

PA Shillington borough

PA Shiremanstown borough

PA Silver Spring township

PA Sinking Spring borough

PA Skippack township

PA Somerset County

PA Souderton borough

PA South Abington township

PA South Coatesville borough

PA South Fayette township

PA South Greensburg borough

PA South Hanover township

PA South Heidelberg township

PA South Heights borough

PA South Huntingdon township

PA South Park township

PA South Pymatuning township

PA South Strabane township

PA South Whitehall township

PA South Williamsport borough

PA Southmont borough

PA Southwest Greensburg borough

PA Speers borough

PA Spring City borough

PA Spring Garden township

PA Spring township

PA Springdale borough

PA Springdale township

PA Springettsbury township

PA Springfield township

PA St. Lawrence borough

PA State College borough

PA Steelton borough

PA Stockdale borough

PA Stonycreek township

PA Stowe township

PA Sugar Notch borough

PA Summit township

PA Susquehanna township

PA Sutersville borough

PA Swarthmore borough

PA Swatara township

PA Swissvale borough

PA Swoyersville borough

PA Tarentum borough

PA Taylor borough

PA Telford borough

PA Temple borough

PA Thornburg borough

PA Thornbury township

PA Throop borough

PA Tinicum township

PA Towamencin township

PA Trafford borough

PA Trainer borough

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68831

PA Trappe borough

PA Tredyffrin township

PA Tullytown borough

PA Turtle Creek borough

PA Union township

PA Upland borough

PA Upper Allen township

PA Upper Chichester township

PA Upper Darby township

PA Upper Dublin township

PA Upper Gwynedd township

PA Upper Leacock township

PA Upper Macungie township

PA Upper Makefield township

PA Upper Merion township

PA Upper Milford township

PA Upper Moreland township

PA Upper Pottsgrove township

PA Upper Providence township

PA Upper Saucon township

PA Upper Southampton township

PA Upper St. Clair township

PA Upper Yoder township

PA Uwchlan township

PA Valley township

PA Vanport township

PA Verona borough

PA Versailles borough

PA Wall borough

PA Warminster township

PA Warrington township

PA Warrior Run borough

PA Warwick township

PA Washington city

PA Washington County

PA Washington township

PA Wayne township

PA Wernersville borough

PA Wesleyville borough

PA West Bradford township

PA West Brownsville borough

PA West Chester borough

PA West Conshohocken borough

PA West Deer township

PA West Earl township

PA West Easton borough

PA West Elizabeth borough

PA West Fairview borough

PA West Goshen township

PA West Hanover township

PA West Hempfield township

PA West Homestead borough

PA West Lampeter township

PA West Lawn borough

PA West Manchester township

PA West Mayfield borough

PA West Middlesex borough

PA West Mifflin borough

PA West Newton borough

PA West Norriton township

PA West Pikeland township

PA West Pittston borough

PA West Pottsgrove township

PA West Reading borough

PA West Taylor township

PA West View borough

PA West Whiteland township

PA West Wyoming borough

PA West York borough

PA Westmont borough

PA Westmoreland County

PA Westtown township

PA Wheatland borough

PA Whitaker borough

PA White Oak borough

PA White township

PA Whitehall township

PA Whitemarsh township

PA Whitpain township

PA Wilkes-Barre city

PA Wilkes-Barre township

PA Wilkins township

PA Wilkinsburg borough

PA Williams township

PA Williamsport city

PA Willistown township

PA Wilmerding borough

PA Wilson borough

PA Windber borough

PA Windsor borough

PA Windsor township

PA Worcester township

PA Wormleysburg borough

PA Wrightsville borough

PA Wyoming borough

PA Wyomissing borough

PA Wyomissing Hills borough

PA Yardley borough

PA Yatesville borough

PA Yeadon borough

PA Yoe borough

PA York city

PA York County

PA York township

PA Youngwood borough

PR Aibonita

PR Anasco

PR Aquada

PR Aquadilla

PR Aquas Buenas

PR Arecibo

PR Bayamon

PR Cabo Rojo

PR Caguas

PR Camuy

PR Canovanas

PR Catano

PR Cayey

PR Cidra

PR Dorado

PR Guaynabo

PR Gurabo

PR Hatillo

PR Hormigueros

PR Humacao

PR Juncos

PR Las Piedras

PR Loiza

PR Manati

PR Mayaguez

PR Moca

PR Naguabo

PR Naranjito

PR Penuelas

PR Ponce

PR Rio Grande

PR San German

PR San Lorenzo

PR Toa Alta

PR Toa Baja

PR Trujillo Alto

PR Vega Alta

PR Vega Baja

PR Yabucao

RI Barrington town

RI Bristol town

RI Burrillville town

RI Central Falls city

RI Coventry town

RI Cranston city

RI Cumberland town

RI East Greenwich town

RI East Providence city

RI Glocester town

RI Jamestown town

RI Johnston town

RI Lincoln town

RI Middletown town

RI Newport city

RI Newport County

RI North Kingstown town

RI North Providence town

RI North Smithfield town

RI Pawtucket city

RI Portsmouth town

RI Providence city

RI Providence County

RI Scituate town

RI Smithfield town

RI Tiverton town

RI Warren town

RI Warwick city

RI Washington County

RI West Greenwich town

RI West Warwick town

RI Woonsocket city

SC Aiken city

SC Aiken County

SC Anderson city

SC Anderson County

SC Arcadia Lakes town

SC Berkeley County

SC Burnettown town

SC Cayce city

SC Charleston city

SC Charleston County

SC City View town

SC Columbia city

SC Cowpens town

SC Darlington County

SC Dorchester County

SC Edgefield County

SC Florence city

SC Florence County

SC Folly Beach city

SC Forest Acres city

SC Fort Mill town

SC Georgetown County

SC Goose Creek city

SC Hanahan city

SC Horry County

SC Irmo town

SC Isle of Palms city

SC Lexington County

SC Lincolnville town

SC Mount Pleasant town

SC Myrtle Beach city

SC North Augusta city

SC North Charleston city

SC Pickens County

SC Pineridge town

SC Quinby town

SC Rock Hill city

SC South Congaree town

SC Spartanburg city

SC Spartanburg County

SC Springdale town

SC Sullivan’s Island town

SC Summerville town

SC Sumter city

SC Sumter County

SC Surfside Beach town

SC West Columbia city

SC York County

SD Big Sioux township

SD Central Pennington unorg.

SD Lincoln County

SD Mapleton township

68832 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

SD Minnehaha County

SD North Sioux City city

SD Pennington County

SD Rapid City city

SD Split Rock township

SD Union County

SD Wayne township

TN Alcoa city

TN Anderson County

TN Bartlett town

TN Belle Meade city

TN Berry Hill city

TN Blount County

TN Brentwood city

TN Bristol city

TN Carter County

TN Church Hill town

TN Clarksville city

TN Collegedale city

TN Davidson County

TN East Ridge city

TN Elizabethton city

TN Farragut town

TN Forest Hills city

TN Germantown city

TN Goodlettsville city

TN Hamilton County

TN Hawkins County

TN Hendersonville city

TN Jackson city

TN Johnson City city

TN Jonesborough town

TN Kingsport city

TN Knox County

TN Lakesite city

TN Lakewood city

TN Lookout Mountain town

TN Loudon County

TN Madison County

TN Maryville city

TN Montgomery County

TN Mount Carmel town

TN Mount Juliet city

TN Oak Hill city

TN Red Bank city

TN Ridgeside city

TN Rockford city

TN Shelby County

TN Signal Mountain town

TN Soddy-Daisy city

TN Sullivan County

TN Sumner County

TN Washington County

TN Williamson County

TN Wilson County

TX Addison city

TX Alamo city

TX Alamo Heights city

TX Allen city

TX Archer County

TX Azle city

TX Balch Springs city

TX Balcones Heights city

TX Bayou Vista village

TX Baytown city

TX Bedford city

TX Bell County

TX Bellaire city

TX Bellmead city

TX Belton city

TX Benbrook city

TX Beverly Hills city

TX Bexar County

TX Blue Mound city

TX Bowie County

TX Brazoria County

TX Brazos County

TX Brookside Village city

TX Brownsville city

TX Bryan city

TX Buckingham town

TX Bunker Hill Village city

TX Cameron County

TX Carrollton city

TX Castle Hills city

TX Cedar Hill city

TX Cedar Park city

TX Chambers County

TX Cibolo city

TX Clear Lake Shores city

TX Clint town

TX Cockrell Hill city

TX College Station city

TX Colleyville city

TX Collin County

TX Comal County

TX Combes town

TX Converse city

TX Copperas Cove city

TX Corinth town

TX Coryell County

TX Crowley city

TX Dallas County

TX Dalworthington Gardens city

TX Deer Park city

TX Denison city

TX Denton city

TX Denton County

TX DeSoto city

TX Dickinson city

TX Donna city

TX Double Oak town

TX Duncanville city

TX Ector County

TX Edgecliff village

TX Edinburg city

TX El Lago city

TX El Paso County

TX Ellis County

TX Euless city

TX Everman city

TX Farmers Branch city

TX Flower Mound town

TX Forest Hill city

TX Fort Bend County

TX Friendswood city

TX Galena Park city

TX Galveston city

TX Galveston County

TX Grand Prairie city

TX Grapevine city

TX Grayson County

TX Gregg County

TX Groves city

TX Guadalupe County

TX Haltom City city

TX Hardin County

TX Harker Heights city

TX Harlingen city

TX Harrison County

TX Hedwig Village city

TX Hewitt city

TX Hickory Creek town

TX Hidalgo County

TX Highland Park town

TX Highland Village city

TX Hill Country Village city

TX Hilshire Village city

TX Hitchcock city

TX Hollywood Park town

TX Howe town

TX Humble city

TX Hunters Creek Village city

TX Hurst city

TX Hutchins city

TX Impact town

TX Jacinto City city

TX Jefferson County

TX Jersey Village city

TX Johnson County

TX Jones County

TX Katy city

TX Kaufman County

TX Keller city

TX Kemah city

TX Kennedale city

TX Killeen city

TX Kirby city

TX Kleberg County

TX La Marque city

TX La Porte city

TX Lacy-Lakeview city

TX Lake Dallas city

TX Lake Worth city

TX Lakeside City town

TX Lakeside town

TX Lampasas County

TX Lancaster city

TX League City city

TX Leander city

TX Leon Valley city

TX Lewisville city

TX Live Oak city

TX Longview city

TX Lubbock County

TX Lumberton city

TX Martin County

TX McAllen city

TX McLennan County

TX Meadows city

TX Midland city

TX Midland County

TX Mission city

TX Missouri City city

TX Montgomery County

TX Morgan’s Point city

TX Nash city

TX Nassau Bay city

TX Nederland city

TX Nolanville city

TX North Richland Hills city

TX Northcrest town

TX Nueces County

TX Odessa city

TX Olmos Park city

TX Palm Valley town

TX Palmview city

TX Pantego town

TX Parker County

TX Pearland city

TX Pflugerville city

TX Pharr city

TX Piney Point Village city

TX Port Arthur city

TX Port Neches city

TX Portland city

TX Potter County

TX Primera town

TX Randall County

TX Richardson city

TX Richland Hills city

TX River Oaks city

TX Robinson city

TX Rockwall city

TX Rockwall County

TX Rollingwood city

TX Rose Hill Acres city

TX Rowlett city

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68833

TX Sachse city

TX Saginaw city

TX San Angelo city

TX San Benito city

TX San Juan city

TX San Patricio County

TX Sansom Park city

TX Santa Fe city

TX Schertz city

TX Seabrook city

TX Seagoville city

TX Selma city

TX Shavano Park city

TX Sherman city

TX Shoreacres city

TX Smith County

TX Socorro town

TX South Houston city

TX Southside Place city

TX Spring Valley city

TX Stafford town

TX Sugar Land city

TX Sunset Valley city

TX Tarrant County

TX Taylor County

TX Taylor Lake Village city

TX Temple city

TX Terrell Hills city

TX Texarkana city

TX Texas City city

TX Tom Green County

TX Travis County

TX Tye town

TX Tyler city

TX Universal City city

TX University Park city

TX Victoria city

TX Victoria County

TX Wake Village city

TX Waller County

TX Watauga city

TX Webb County

TX Webster city

TX Weslaco city

TX West Lake Hills city

TX West University Place city

TX Westover Hills town

TX Westworth village

TX White Oak city

TX White Settlement city

TX Wichita County

TX Wichita Falls city

TX Williamson County

TX Wilmer city

TX Windcrest city

TX Woodway city

UT American Fork city

UT Bluffdale city

UT Bountiful city

UT Cache County

UT Cedar Hills town

UT Centerville city

UT Clearfield city

UT Clinton city

UT Davis County

UT Draper city

UT Farmington city

UT Farr West city

UT Fruit Heights city

UT Harrisville city

UT Highland city

UT Hyde Park city

UT Kaysville city

UT Layton city

UT Lehi city

UT Lindon city

UT Logan city

UT Mapleton city

UT Midvale city

UT Millville city

UT Murray city

UT North Logan city

UT North Ogden city

UT North Salt Lake city

UT Ogden city

UT Orem city

UT Pleasant Grove city

UT Pleasant View city

UT Providence city

UT Provo city

UT River Heights city

UT Riverdale city

UT Riverton city

UT Roy city

UT Sandy city

UT Smithfield city

UT South Jordan city

UT South Ogden city

UT South Salt Lake city

UT South Weber city

UT Springville city

UT Sunset city

UT Syracuse city

UT Uintah town

UT Utah County

UT Washington Terrace city

UT Weber County

UT West Bountiful city

UT West Jordan city

UT West Point city

UT West Valley City city

UT Woods Cross city

VA Albemarle County

VA Alexandria city

VA Amherst County

VA Bedford County

VA Botetourt County

VA Bristol city

VA Campbell County

VA Charlottesville city

VA Colonial Heights city

VA Danville city

VA Dinwiddie County

VA Fairfax city

VA Falls Church city

VA Fredericksburg city

VA Gate City town

VA Gloucester County

VA Hanover County

VA Herndon town

VA Hopewell city

VA James City County

VA Loudoun County

VA Lynchburg city

VA Manassas city

VA Manassas Park city

VA Occoquan town

VA Petersburg city

VA Pittsylvania County

VA Poquoson city

VA Prince George County

VA Richmond city

VA Roanoke city

VA Roanoke County

VA Salem city

VA Scott County

VA Spotsylvania County

VA Stafford County

VA Suffolk city

VA Vienna town

VA Vinton town

VA Washington County

VA Weber City town

VA Williamsburg city

VA York County

VT Burlington city

VT Chittenden County

VT Colchester town

VT Essex Junction village

VT Essex town

VT Shelburne town

VT South Burlington city

VT Williston town

VT Winooski city

WA Algona city

WA Auburn city

WA Beaux Arts Village town

WA Bellevue city

WA Bellingham city

WA Benton County

WA Bonney Lake city

WA Bothell city

WA Bremerton city

WA Brier city

WA Clyde Hill town

WA Cowlitz County

WA Des Moines city

WA DuPont city

WA Edmonds city

WA Everett city

WA Fife city

WA Fircrest town

WA Franklin County

WA Gig Harbor city

WA Hunts Point town

WA Issaquah city

WA Kelso city

WA Kennewick city

WA Kent city

WA Kirkland city

WA Kitsap County

WA Lacey city

WA Lake Forest Park city

WA Longview city

WA Lynnwood city

WA Marysville city

WA Medina city

WA Mercer Island city

WA Mill Creek city

WA Millwood town

WA Milton city

WA Mountlake Terrace city

WA Mukilteo city

WA Normandy Park city

WA Olympia city

WA Pacific city

WA Pasco city

WA Port Orchard city

WA Puyallup city

WA Redmond city

WA Renton city

WA Richland city

WA Ruston town

WA Selah city

WA Steilacoom town

WA Sumner city

WA Thurston County

WA Tukwila city

WA Tumwater city

WA Union Gap city

WA Vancouver city

WA West Richland city

WA Whatcom County

WA Woodway city

WA Yakima city

WA Yakima County

WA Yarrow Point town

WI Algoma town

68834 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

WI Allouez village

WI Altoona city

WI Appleton city

WI Ashwaubenon village

WI Bayside village

WI Bellevue town

WI Beloit city

WI Beloit town

WI Big Bend village

WI Black Wolf town

WI Blooming Grove town

WI Brookfield city

WI Brookfield town

WI Brown County

WI Brown Deer village

WI Brunswick town

WI Buchanan town

WI Burke town

WI Butler village

WI Caledonia town

WI Calumet County

WI Campbell town

WI Cedarburg city

WI Cedarburg town

WI Chippewa County

WI Chippewa Falls city

WI Clayton town

WI Combined Locks village

WI Cudahy city

WI Dane County

WI De Pere city

WI De Pere town

WI Delafield town

WI Douglas County

WI Dunn town

WI Eagle Point town

WI Eau Claire city

WI Eau Claire County

WI Elm Grove village

WI Elmwood Park village

WI Fitchburg city

WI Fox Point village

WI Franklin city

WI Germantown town

WI Germantown village

WI Glendale city

WI Grafton town

WI Grafton village

WI Grand Chute town

WI Green Bay city

WI Greendale village

WI Greenfield city

WI Greenville town

WI Hales Corners village

WI Hallie town

WI Harmony town

WI Harrison town

WI Hobart town

WI Holmen village

WI Howard village

WI Janesville city

WI Janesville town

WI Kaukauna city

WI Kenosha city

WI Kenosha County

WI Kimberly village

WI Kohler village

WI La Crosse city

WI La Crosse County

WI La Prairie town

WI Lafayette town

WI Lannon village

WI Lima town

WI Lisbon town

WI Little Chute village

WI Madison town

WI Maple Bluff village

WI Marathon County

WI McFarland village

WI Medary town

WI Menasha city

WI Menasha town

WI Menomonee Falls village

WI Mequon city

WI Middleton city

WI Middleton town

WI Monona city

WI Mount Pleasant town

WI Muskego city

WI Neenah city

WI Neenah town

WI Nekimi town

WI New Berlin city

WI North Bay village

WI Norway town

WI Oak Creek city

WI Onalaska city

WI Onalaska town

WI Oshkosh city

WI Oshkosh town

WI Outagamie County

WI Ozaukee County

WI Pewaukee town

WI Pewaukee village

WI Pleasant Prairie town

WI Pleasant Prairie village

WI Racine city

WI Racine County

WI Rib Mountain town

WI River Hills village

WI Rock County

WI Rock town

WI Rothschild village

WI Salem town

WI Schofield city

WI Scott town

WI Sheboygan city

WI Sheboygan County

WI Sheboygan Falls city

WI Sheboygan Falls town

WI Sheboygan town

WI Shelby town

WI Shorewood Hills village

WI Shorewood village

WI Somers town

WI South Milwaukee city

WI St. Francis city

WI Stettin town

WI Sturtevant village

WI Superior city

WI Superior village

WI Sussex village

WI Thiensville village

WI Turtle town

WI Union town

WI Vandenbroek town

WI Vernon town

WI Washington County

WI Washington town

WI Waukesha city

WI Waukesha County

WI Waukesha town

WI Wausau city

WI Wauwatosa city

WI West Allis city

WI West Milwaukee village

WI Weston town

WI Westport town

WI Wheaton town

WI Whitefish Bay village

WI Wilson town

WI Wind Point village

WI Winnebago County

WV Bancroft town

WV Barboursville village

WV Belle town

WV Benwood city

WV Berkeley County

WV Bethlehem village

WV Brooke County

WV Cabell County

WV Cedar Grove town

WV Ceredo city

WV Charleston city

WV Chesapeake town

WV Clearview village

WV Dunbar city

WV East Bank town

WV Follansbee city

WV Glasgow town

WV Glen Dale city

WV Hancock County

WV Huntington city

WV Hurricane city

WV Kanawha County

WV Kenova city

WV Marmet city

WV Marshall County

WV McMechen city

WV Mineral County

WV Moundsville city

WV Nitro city

WV North Hills town

WV Ohio County

WV Parkersburg city

WV Poca town

WV Putnam County

WV Ridgeley town

WV South Charleston city

WV St. Albans city

WV Triadelphia town

WV Vienna city

WV Wayne County

WV Weirton city

WV Wheeling city

WV Wood County

WY Casper city

WY Cheyenne city

WY Evansville town

WY Laramie County

WY Mills town

WY Natrona County

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68835

Appendix 7 of Preamble—

Governmental Entities (Located Outside

of an Urbanized Area) That Must Be

Examined By the NPDES Permitting

Authority for Potential Designation

Under § 123.35(b)(2)

(All listed entities have a population of at

least 10,000 and a population density of at

least 1,000. A listed entity would only be

potentially designated if it operates a small

MS4. See § 122.26(b)(16) for the definition of

a small MS4.)

(This list does not include all operators of

small MS4s that may be designated by the

NPDES permitting authority. Operators of

small MS4s in areas with populations below

10,000 and densities below 1,000 may also be

designated but examination of them is not

required. Also, entities such as military

bases, large hospitals, prison complexes,

universities, sewer districts, and highway

departments that operate a small MS4 in an

area listed here, or in an area otherwise

designated by the NPDES permitting

authority, may be designated and become

subject to permitting regulations.) (Source:

1990 Census of Population and Housing, U.S.

Bureau of the Census. This list is subject to

change with the Decennial Census)

AL Daphne city

AL Jacksonville city

AL Selma city

AR Arkadelphia city

AR Benton city

AR Blytheville city

AR Conway city

AR El Dorado city

AR Hot Springs city

AR Magnolia city

AR Rogers city

AR Searcy city

AR Stuttgart city

AZ Douglas city

CA Arcata city

CA Arroyo Grande city

CA Atwater city

CA Auburn city

CA Banning city

CA Brawley city

CA Calexico city

CA Clearlake city

CA Corcoran city

CA Delano city

CA Desert Hot Springs city

CA Dinuba city

CA Dixon city

CA El Centro city

CA El Paso de Robles (Paso Robles) city

CA Eureka city

CA Fillmore city

CA Gilroy city

CA Grover City city

CA Hanford city

CA Hollister city

CA Lemoore city

CA Los Banos city

CA Madera city

CA Manteca city

CA Oakdale city

CA Oroville city

CA Paradise town

CA Petaluma city

CA Porterville city

CA Red Bluff city

CA Reedley city

CA Ridgecrest city

CA Sanger city

CA Santa Paula city

CA Selma city

CA South Lake Tahoe city

CA Temecula city

CA Tracy city

CA Tulare city

CA Turlock city

CA Ukiah city

CA Wasco city

CA Woodland city

CO Canon City city

CO Durango city

CO Lafayette city

CO Louisville city

CO Loveland city

CO Sterling city

FL Bartow city

FL Belle Glade city

FL De Land city

FL Eustis city

FL Haines City city

FL Key West city

FL Leesburg city

FL Palatka city

FL Plant City city

FL St. Augustine city

FL St. Cloud city

GA Americus city

GA Carrollton city

GA Cordele city

GA Dalton city

GA Dublin city

GA Griffin city

GA Hinesville city

GA Moultrie city

GA Newnan city

GA Statesboro city

GA Thomasville city

GA Tifton city

GA Valdosta city

GA Waycross city

IA Ames city

IA Ankeny city

IA Boone city

IA Burlington city

IA Fort Dodge city

IA Fort Madison city

IA Indianola city

IA Keokuk city

IA Marshalltown city

IA Mason City city

IA Muscatine city

IA Newton city

IA Oskaloosa city

IA Ottumwa city

IA Spencer city

ID Caldwell city

ID Coeur d’Alene city

ID Lewiston city

ID Moscow city

ID Nampa city

ID Rexburg city

ID Twin Falls city

IL Belvidere city

IL Canton city

IL Carbondale city

IL Centralia city

IL Charleston city

IL Danville city

IL De Kalb city

IL Dixon city

IL Effingham city

IL Freeport city

IL Galesburg city

IL Jacksonville city

IL Macomb city

IL Mattoon city

IL Mount Vernon city

IL Ottawa city

IL Pontiac city

IL Quincy city

IL Rantoul village

IL Sterling city

IL Streator city

IL Taylorville city

IL Woodstock city

IN Bedford city

IN Columbus city

IN Crawfordsville city

IN Frankfort city

IN Franklin city

IN Greenfield city

IN Huntington city

IN Jasper city

IN La Porte city

IN Lebanon city

IN Logansport city

IN Madison city

IN Marion city

IN Martinsville city

IN Michigan City city

IN New Castle city

IN Noblesville city

IN Peru city

IN Plainfield town

IN Richmond city

IN Seymour city

IN Shelbyville city

IN Valparaiso city

IN Vincennes city

IN Wabash city

IN Warsaw city

IN Washington city

KS Arkansas City city

KS Atchison city

KS Coffeyville city

KS Derby city

KS Dodge City city

KS El Dorado city

KS Emporia city

KS Garden City city

KS Great Bend city

KS Hays city

KS Hutchinson city

KS Junction City city

KS Leavenworth city

KS Liberal city

KS Manhattan city

KS McPherson city

KS Newton city

KS Ottawa city

KS Parsons city

KS Pittsburg city

KS Salina city

KS Winfield city

KY Bowling Green city

KY Danville city

KY Frankfort city

KY Georgetown city

KY Glasgow city

KY Hopkinsville city

KY Madisonville city

KY Middlesborough city

KY Murray city

KY Nicholasville city

KY Paducah city

KY Radcliff city

KY Richmond city

KY Somerset city

KY Winchester city

68836 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

LA Abbeville city

LA Bastrop city

LA Bogalusa city

LA Crowley city

LA Eunice city

LA Hammond city

LA Jennings city

LA Minden city

LA Morgan City city

LA Natchitoches city

LA New Iberia city

LA Opelousas city

LA Ruston city

LA Thibodaux city

MA Amherst town

MA Clinton town

MA Milford town

MA Newburyport city

MD Aberdeen town

MD Cambridge city

MD Salisbury city

MD Westminster city

ME Waterville city

MI Adrian city

MI Albion city

MI Alpena city

MI Big Rapids city

MI Cadillac city

MI Escanaba city

MI Grand Haven city

MI Marquette city

MI Midland city

MI Monroe city

MI Mount Pleasant city

MI Owosso city

MI Sturgis city

MI Traverse City city

MN Albert Lea city

MN Austin city

MN Bemidji city

MN Brainerd city

MN Faribault city

MN Fergus Falls city

MN Hastings city

MN Hutchinson city

MN Mankato city

MN Marshall city

MN New Ulm city

MN North Mankato city

MN Northfield city

MN Owatonna city

MN Stillwater city

MN Willmar city

MN Winona city

MO Cape Girardeau city

MO Farmington city

MO Hannibal city

MO Jefferson City city

MO Kennett city

MO Kirksville city

MO Marshall city

MO Maryville city

MO Poplar Bluff city

MO Rolla city

MO Sedalia city

MO Sikeston city

MO Warrensburg city

MO Washington city

MS Brookhaven city

MS Canton city

MS Clarksdale city

MS Cleveland city

MS Columbus city

MS Greenville city

MS Greenwood city

MS Grenada city

MS Indianola city

MS Laurel city

MS McComb city

MS Meridian city

MS Natchez city

MS Starkville city

MS Vicksburg city

MS Yazoo City city

MT Bozeman city

MT Havre city

MT Helena city

MT Kalispell city

NC Albemarle city

NC Asheboro city

NC Boone town

NC Eden city

NC Elizabeth City city

NC Havelock city

NC Henderson city

NC Kernersville town

NC Kinston city

NC Laurinburg city

NC Lenoir city

NC Lexington city

NC Lumberton city

NC Monroe city

NC New Bern city

NC Reidsville city

NC Roanoke Rapids city

NC Salisbury city

NC Sanford city

NC Shelby city

NC Statesville city

NC Tarboro town

NC Wilson city

ND Dickinson city

ND Jamestown city

ND Minot city

ND Williston city

NE Beatrice city

NE Columbus city

NE Fremont city

NE Grand Island city

NE Hastings city

NE Kearney city

NE Norfolk city

NE North Platte city

NE Scottsbluff city

NJ East Windsor township

NJ Plainsboro township

NJ Bridgeton city

NJ Princeton borough

NM Alamogordo city

NM Artesia city

NM Clovis city

NM Deming city

NM Farmington city

NM Gallup city

NM Hobbs city

NM Las Vegas city

NM Portales city

NM Roswell city

NM Silver City town

NV Elko city

NY Amsterdam city

NY Auburn city

NY Batavia city

NY Canandaigua city

NY Corning city

NY Cortland city

NY Dunkirk city

NY Fredonia village

NY Fulton city

NY Geneva city

NY Gloversville city

NY Jamestown city

NY Kingston city

NY Lockport city

NY Massena village

NY Middletown city

NY Ogdensburg city

NY Olean city

NY Oneonta city

NY Oswego city

NY Plattsburgh city

NY Potsdam village

NY Watertown city

OH Alliance city

OH Ashland city

OH Ashtabula city

OH Athens city

OH Bellefontaine city

OH Bowling Green city

OH Bucyrus city

OH Cambridge city

OH Chillicothe city

OH Circleville city

OH Coshocton city

OH Defiance city

OH Delaware city

OH Dover city

OH East Liverpool city

OH Findlay city

OH Fostoria city

OH Fremont city

OH Galion city

OH Greenville city

OH Lancaster city

OH Lebanon city

OH Marietta city

OH Marion city

OH Medina city

OH Mount Vernon city

OH New Philadelphia city

OH Norwalk city

OH Oxford city

OH Piqua city

OH Portsmouth city

OH Salem city

OH Sandusky city

OH Sidney city

OH Tiffin city

OH Troy city

OH Urbana city

OH Washington city

OH Wilmington city

OH Wooster city

OH Xenia city

OH Zanesville city

OK Ada city

OK Altus city

OK Bartlesville city

OK Chickasha city

OK Claremore city

OK McAlester city

OK Miami city

OK Muskogee city

OK Okmulgee city

OK Owasso city

OK Ponca City city

OK Stillwater city

OK Tahlequah city

OK Weatherford city

OR Albany city

OR Ashland city

OR Astoria city

OR Bend city

OR City of the Dalles city

OR Coos Bay city

OR Corvallis city

OR Grants Pass city

OR Hermiston city

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68837

OR Klamath Falls city

OR La Grande city

OR Lebanon city

OR McMinnville city

OR Newberg city

OR Pendleton city

OR Roseburg city

OR Woodburn city

PA Berwick borough

PA Bloomsburg town

PA Butler city

PA Carlisle borough

PA Chambersburg borough

PA Ephrata borough

PA Hanover borough

PA Hazleton city

PA Indiana borough

PA Lebanon city

PA Meadville city

PA New Castle city

PA Oil City city

PA Pottsville city

PA Sunbury city

PA Uniontown city

PA Warren city

RI Narragansett town

SC Clemson city

SC Easley city

SC Gaffney city

SC Greenwood city

SC Newberry town

SC Orangeburg city

SD Aberdeen city

SD Brookings city

SD Huron city

SD Mitchell city

SD Vermillion city

SD Watertown city

SD Yankton city

TN Brownsville city

TN Cleveland city

TN Collierville town

TN Cookeville city

TN Dyersburg city

TN Greeneville town

TN Lawrenceburg city

TN McMinnville city

TN Millington city

TN Morristown city

TN Murfreesboro city

TN Shelbyville city

TN Springfield city

TN Union City city

TX Alice city

TX Alvin city

TX Andrews city

TX Angleton city

TX Bay City city

TX Beeville city

TX Big Spring city

TX Borger city

TX Brenham city

TX Brownwood city

TX Burkburnett city

TX Canyon city

TX Cleburne city

TX Conroe city

TX Coppell city

TX Corsicana city

TX Del Rio city

TX Dumas city

TX Eagle Pass city

TX El Campo city

TX Gainesville city

TX Gatesville city

TX Georgetown city

TX Henderson city

TX Hereford city

TX Huntsville city

TX Jacksonville city

TX Kerrville city

TX Kingsville city

TX Lake Jackson city

TX Lamesa city

TX Levelland city

TX Lufkin city

TX Mercedes city

TX Mineral Wells city

TX Mount Pleasant city

TX Nacogdoches city

TX New Braunfels city

TX Palestine city

TX Pampa city

TX Pecos city

TX Plainview city

TX Port Lavaca city

TX Robstown city

TX Rosenberg city

TX Round Rock city

TX San Marcos city

TX Seguin city

TX Snyder city

TX Stephenville city

TX Sweetwater city

TX Taylor city

TX The Colony city

TX Uvalde city

TX Vernon city

TX Vidor city

UT Brigham City city

UT Cedar City city

UT Spanish Fork city

UT Tooele city

VA Blacksburg town

VA Christiansburg town

VA Front Royal town

VA Harrisonburg city

VA Leesburg town

VA Martinsville city

VA Radford city

VA Staunton city

VA Waynesboro city

VA Winchester city

VT Rutland city

WA Aberdeen city

WA Anacortes city

WA Centralia city

WA Ellensburg city

WA Moses Lake city

WA Mount Vernon city

WA Oak Harbor city

WA Port Angeles city

WA Pullman city

WA Sunnyside city

WA Walla Walla city

WA Wenatchee city

WI Beaver Dam city

WI Fond du Lac city

WI Fort Atkinson city

WI Manitowoc city

WI Marinette city

WI Marshfield city

WI Menomonie city

WI Monroe city

WI Oconomowoc city

WI Stevens Point city

WI Sun Prairie city

WI Two Rivers city

WI Watertown city

WI West Bend city

WI Whitewater city

WI Wisconsin Rapids city

WV Beckley city

WV Bluefield city

WV Clarksburg city

WV Fairmont city

WV Martinsburg city

WV Morgantown city

WY Evanston city

WY Gillette city

WY Green River city

WY Laramie city

WY Rock Springs city

WY Sheridan city

For the reasons set forth in the

preamble, chapter I of title 40 of the

Code of Federal Regulations is amended

as follows:

PART 9—OMB APPROVALS UNDER

THE PAPERWORK REDUCTION ACT

1. The authority citation for part 9

continues to read as follows:

Authority: 7 U.S.C. 135 et seq., 136–136y;

15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671;

21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33

U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318,

1321, 1326, 1330, 1342, 1344, 1345 (d) and

(e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,

1971–1975 Comp. p. 973; 42 U.S.C. 241,

242b, 243, 246, 300f, 300g, 300g–1, 300g–2,

300g–3, 300g–4, 300g–5, 300g–6, 300j–1,

300j–2, 300j–3, 300j–4, 300j–9, 1857 et seq.,

6901–6992k, 7401–7671q, 7542, 9601–9657,

11023, 11048.

2. In § 9.1 the table is amended by

adding entries in numerical order under

the indicated heading to read as follows:

§ 9.1 OMB approvals under the Paperwork

Reduction Act.

* * * * *

68838 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

40 CFR citation OMB control

No.

*******

EPA Administered Permit Programs: The National Pollutant Discharge Elimination System

*******

122.26(g) .............................................................................................................................................................................................. 2040–0211

*******

State Permit Requirements

*******

123.35(b) .............................................................................................................................................................................................. 2040–0211

*******

PART 122—EPA ADMINISTERED

PERMIT PROGRAMS: THE NATIONAL

POLLUTANT DISCHARGE

ELIMINATION SYSTEM

1. The authority citation for part 122

continues to read as follows:

Authority: The Clean Water Act, 33 U.S.C.

1251 et seq.

2. Revise § 122.21(c)(1) to read as

follows:

§ 122.21 Application for a permit

(applicable to State programs, see § 123.25).

* * * * *

(c) Time to apply. (1) Any person

proposing a new discharge, shall submit

an application at least 180 days before

the date on which the discharge is to

commence, unless permission for a later

date has been granted by the Director.

Facilities proposing a new discharge of

storm water associated with industrial

activity shall submit an application 180

days before that facility commences

industrial activity which may result in

a discharge of storm water associated

with that industrial activity. Facilities

described under § 122.26(b)(14)(x) or

(b)(15)(i) shall submit applications at

least 90 days before the date on which

construction is to commence. Different

submittal dates may be required under

the terms of applicable general permits.

Persons proposing a new discharge are

encouraged to submit their applications

well in advance of the 90 or 180 day

requirements to avoid delay. See also

paragraph (k) of this section and

§ 122.26(c)(1)(i)(G) and (c)(1)(ii).

* * * * *

3. Amend § 122.26 as follows:

a. Revise paragraphs (a)(9), (b)(4)(i),

(b)(7)(i), (b)(14) introductory text,

(b)(14)(x), (b)(14)(xi);

b. Redesignate paragraph (b)(15) as

paragraph (b)(20) and add new

paragraphs (b)(15) through (b)(19); c. Revise the heading for paragraph

(c), the first sentence of paragraph (c)(1)

introductory text, the first sentence of

paragraph (c)(1)(ii) introductory text,

paragraphs (e) heading and introductory

text, (e)(1), (e)(5) introductory text, and

(e)(5)(i);

d. Add paragraphs (e)(8) and (e)(9);

and

e. Revise paragraphs (f)(4), (f)(5), and

(g).The additions and revisions 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 required by

paragraph (a)(1) of this section to obtain

a permit, operators shall be required to

obtain a NPDES permit only if: (A) The discharge is from a small MS4

required to be regulated pursuant to

§ 122.32;

(B) The discharge is a storm water

discharge associated with small

construction activity pursuant to

paragraph (b)(15) of this section; (C) The Director, or in States with

approved NPDES programs either the

Director or the EPA Regional

Administrator, determines that storm

water controls are needed for the

discharge based on wasteload

allocations that are part of ‘‘total

maximum daily loads’’ (TMDLs) that

address the pollutant(s) of concern; or (D) The Director, or in States with

approved NPDES programs either the

Director or the EPA Regional

Administrator, determines that the

discharge, or category of discharges

within a geographic area, contributes to

a violation of a water quality standard

or is a significant contributor of

pollutants to waters of the United

States.

(ii) Operators of small MS4s

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. 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)(1) of this section.

(iii) 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).

(b) * * *

(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

* * * * *

(14) Storm water discharge associated

with industrial activity means the

discharge from any conveyance that is

used for collecting and conveying storm

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68839

water and that is directly related to

manufacturing, processing or raw

materials storage areas at an industrial

plant. The term does not include

discharges from facilities or activities

excluded from the NPDES program

under this part 122. 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 part 401 of this

chapter); 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 final products; and

areas where industrial activity has taken

place in the past and significant

materials remain and are exposed to

storm water. For the purposes of this

paragraph, material handling activities

include storage, loading and unloading,

transportation, or conveyance of any

raw material, intermediate product,

final product, by-product or waste

product. 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. Industrial facilities

(including industrial facilities that are

federally, State, or municipally owned

or operated that meet the description of

the facilities listed in paragraphs

(b)(14)(i) through (xi) of this section)

include those facilities designated under

the provisions of paragraph (a)(1)(v) of

this section. The following categories of

facilities are considered to be engaging

in ‘‘industrial activity’’ for purposes of

paragraph (b)(14):

* * * * *

(x) Construction activity including

clearing, grading and excavation, except

operations that result in the disturbance

of less than five acres of total land area.

Construction activity also includes the

disturbance of less than five acres of

total land area that is a part of a larger

common plan of development or sale if

the larger common plan will ultimately

disturb five acres or more;

(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, and 4221–

25;

(15) Storm water discharge associated

with small construction activity means

the discharge of storm water from:

(i) Construction activities including

clearing, grading, and excavating that

result in land disturbance of equal to or

greater than one acre and less than five

acres. Small construction activity also

includes the disturbance of less than

one acre of total land area that is part

of a larger common plan of development

or sale if the larger common plan will

ultimately disturb equal to or greater

than one and less than five acres. Small

construction activity does not include

routine maintenance that is performed

to maintain the original line and grade,

hydraulic capacity, or original purpose

of the facility. The Director may waive

the otherwise applicable requirements

in a general permit for a storm water

discharge from construction activities

that disturb less than five acres where:

(A) The value of the rainfall erosivity

factor (‘‘R’’ in the Revised Universal Soil

Loss Equation) is less than five during

the period of construction activity. The

rainfall erosivity factor is determined in

accordance with Chapter 2 of

Agriculture Handbook Number 703,

Predicting Soil Erosion by Water: A

Guide to Conservation Planning With

the Revised Universal Soil Loss

Equation (RUSLE), pages 21–64, dated

January 1997. The Director of the

Federal Register approves this

incorporation by reference in

accordance with 5 U.S.C 552(a) and 1

CFR part 51. Copies may be obtained

from EPA’s Water Resource Center, Mail

Code RC4100, 401 M St. S.W.,

Washington, DC 20460. A copy is also

available for inspection at the U.S. EPA

Water Docket , 401 M Street S.W.,

Washington, DC. 20460, or the Office of

the Federal Register, 800 N. Capitol

Street N.W. Suite 700, Washington, DC.

An operator must certify to the Director

that the construction activity will take

place during a period when the value of

the rainfall erosivity factor is less than

five; or

(B) Storm water controls are not

needed based on a ‘‘total maximum

daily load’’ (TMDL) approved or

established by EPA that addresses the

pollutant(s) of concern or, for nonimpaired waters that do not require

TMDLs, an equivalent analysis that

determines allocations for small

construction sites for the pollutant(s) of

concern or that determines that such

allocations are not needed to protect

water quality based on consideration of

existing in-stream concentrations,

expected growth in pollutant

contributions from all sources, and a

margin of safety. For the purpose of this

paragraph, the pollutant(s) of concern

include sediment or a parameter that

addresses sediment (such as total

suspended solids, turbidity or siltation)

and any other pollutant that has been

identified as a cause of impairment of

any water body that will receive a

discharge from the construction activity.

The operator must certify to the Director

that the construction activity will take

place, and storm water discharges will

occur, within the drainage area

addressed by the TMDL or equivalent

analysis.

(ii) Any other construction activity

designated by the Director, or in States

with approved NPDES programs either

the Director or the EPA Regional

Administrator, 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.

EXHIBIT 1 TO § 122.26(B)(15).—SUMMARY OF COVERAGE OF ‘‘STORM WATER DISCHARGES ASSOCIATED WITH SMALL

CONSTRUCTION ACTIVITY’’ UNDER THE NPDES STORM WATER PROGRAM

Automatic Designation: Required Nationwide

Coverage.

• Construction activities that result in a land disturbance of equal to or greater than one acre

and less than five acres.

• Construction activities disturbing less than one acre if part of a larger common plan of development or sale with a planned disturbance of equal to or greater than one acre and less

than five acres. (see § 122.26(b)(15)(i).)

Potential Designation: Optional Evaluation and

Designation by the NPDES Permitting Authority or EPA Regional Administrator..

• Construction activities that result in a land disturbance of less than one acre based on the

potential for contribution to a violation of a water quality standard or for significant contribution of pollutants. (see § 122.26(b)(15)(ii).)

68840 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

EXHIBIT 1 TO § 122.26(B)(15).—SUMMARY OF COVERAGE OF ‘‘STORM WATER DISCHARGES ASSOCIATED WITH SMALL

CONSTRUCTION ACTIVITY’’ UNDER THE NPDES STORM WATER PROGRAM—Continued

Potential Waiver: Waiver from Requirements as

Determined by the NPDES Permitting Authority..

Any automatically designated construction activity where the operator certifies: (1) A rainfall

erosivity factor of less than five, or (2) That the activity will occur within an area where controls are not needed based on a TMDL or, for non-impaired waters that do not require a

TMDL, an equivalent analysis for the pollutant(s) of concern. (see § 122.26(b)(15)(i).)

(16) Small municipal separate storm

sewer system means all separate storm

sewers that are:

(i) Owned or operated by the United

States, a State, city, town, borough,

county, parish, 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.

(ii) Not defined 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)(1)(v) of

this section.

(iii) This term includes systems

similar to separate storm sewer systems

in municipalities, such as systems at

military bases, large hospital or prison

complexes, and highways and other

thoroughfares. The term does not

include separate storm sewers in very

discrete areas, such as individual

buildings.

(17) Small MS4 means a small

municipal separate storm sewer system.

(18) Municipal separate storm sewer

system means all separate storm sewers

that are defined as ‘‘large’’ or ‘‘medium’’

or ‘‘small’’ municipal separate storm

sewer systems pursuant to paragraphs

(b)(4), (b)(7), and (b)(16) of this section,

or designated under paragraph (a)(1)(v)

of this section.

(19) MS4 means a municipal separate

storm sewer system.

* * * * *

(c) Application requirements for storm

water discharges associated with

industrial activity and storm water

discharges associated with small

construction activity—(1) Individual

application. Dischargers of storm water

associated with industrial activity and

with small construction activity are

required to apply for an individual

permit or seek coverage under a

promulgated storm water general

permit. * * *

* * * * *

(ii) An 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 small construction

activity solely under paragraph (b)(15)

of this section, is exempt from the

requirements of § 122.21(g) and

paragraph (c)(1)(i) of this section. * * *

* * * * *

(e) Application deadlines. Any

operator of a point source required to

obtain a permit under this section that

does not have an effective NPDES

permit authorizing discharges from its

storm water outfalls shall submit an

application in accordance with the

following deadlines:

(1) Storm water discharges associated

with industrial activity. (i) Except as

provided in paragraph (e)(1)(ii) of this

section, for any storm water discharge

associated with industrial activity

identified in paragraphs (b)(14)(i)

through (xi) of this section, that is not

part of a group application as described

in paragraph (c)(2) of this section or that

is not authorized by a storm water

general permit, a permit application

made pursuant to paragraph (c) of this

section must be submitted to the

Director by October 1, 1992;

(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, other

than an airport, powerplant, or

uncontrolled sanitary landfill, the

permit application must be submitted to

the Director by March 10, 2003.

* * * * *

(5) A permit application shall be

submitted to the Director within 180

days of notice, unless permission for a

later date is granted by the Director (see

§ 124.52(c) of this chapter), for:

(i) A storm water discharge that the

Director, or in States with approved

NPDES programs, either the Director or

the EPA Regional Administrator,

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 (see paragraphs (a)(1)(v)

and (b)(15)(ii) of this section);

* * * * *

(8) For any storm water discharge

associated with small construction

activity identified in paragraph (b)(15)(i)

of this section, see § 122.21(c)(1).

Discharges from these sources require

permit authorization by March 10, 2003,

unless designated for coverage before

then.

(9) For any discharge from a regulated

small MS4, the permit application made

under § 122.33 must be submitted to the

Director by:

(i) March 10, 2003 if designated under

§ 122.32(a)(1) unless your MS4 serves a

jurisdiction with a population under

10,000 and the NPDES permitting

authority has established a phasing

schedule under § 123.35(d)(3) (see

§ 122.33(c)(1)); or

(ii) Within 180 days of notice, unless

the NPDES permitting authority grants a

later date, if designated under

§ 122.32(a)(2) (see § 122.33(c)(2)).

(f) * * *

(4) Any person may petition the

Director for the designation of a large,

medium, or small municipal separate

storm sewer system as defined by

paragraph (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 MS4 in which case the Director

shall make a final determination on the

petition within 180 days after its

receipt.

(g) Conditional exclusion for ‘‘no

exposure’’ of industrial activities and

materials to storm water. Discharges

composed entirely of storm water are

not storm water discharges associated

with industrial activity if there is ‘‘no

exposure’’ of industrial materials and

activities to rain, snow, snowmelt and/

or runoff, and the discharger satisfies

the conditions in paragraphs (g)(1)

through (g)(4) of this section. ‘‘No

exposure’’ means that all industrial

materials and activities are protected by

a storm resistant shelter to prevent

exposure to rain, snow, snowmelt, and/

or runoff. Industrial materials or

activities include, but are not limited to,

material handling equipment or

activities, industrial machinery, raw

materials, intermediate products, byproducts, final products, or waste

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68841

products. Material handling activities

include the storage, loading and

unloading, transportation, or

conveyance of any raw material,

intermediate product, final product or

waste product.

(1) Qualification. To qualify for this

exclusion, the operator of the discharge

must:

(i) Provide a storm resistant shelter to

protect industrial materials and

activities from exposure to rain, snow,

snow melt, and runoff;

(ii) Complete and sign (according to

§ 122.22) a certification that there are no

discharges of storm water contaminated

by exposure to industrial materials and

activities from the entire facility, except

as provided in paragraph (g)(2) of this

section;

(iii) Submit the signed certification to

the NPDES permitting authority once

every five years;

(iv) Allow the Director to inspect the

facility to determine compliance with

the ‘‘no exposure’’ conditions;

(v) Allow the Director to make any

‘‘no exposure’’ inspection reports

available to the public upon request;

and

(vi) For facilities that discharge

through an MS4, upon request, submit

a copy of the certification of ‘‘no

exposure’’ to the MS4 operator, as well

as allow inspection and public reporting

by the MS4 operator.

(2) Industrial materials and activities

not requiring storm resistant shelter. To

qualify for this exclusion, storm

resistant shelter is not required for:

(i) Drums, barrels, tanks, and similar

containers that are tightly sealed,

provided those containers are not

deteriorated and do not leak (‘‘Sealed’’

means banded or otherwise secured and

without operational taps or valves);

(ii) Adequately maintained vehicles

used in material handling; and

(iii) Final products, other than

products that would be mobilized in

storm water discharge (e.g., rock salt).

(3) Limitations. (i) Storm water

discharges from construction activities

identified in paragraphs (b)(14)(x) and

(b)(15) are not eligible for this

conditional exclusion.

(ii) This conditional exclusion from

the requirement for an NPDES permit is

available on a facility-wide basis only,

not for individual outfalls. If a facility

has some discharges of storm water that

would otherwise be ‘‘no exposure’’

discharges, individual permit

requirements should be adjusted

accordingly.

(iii) If circumstances change and

industrial materials or activities become

exposed to rain, snow, snow melt, and/

or runoff, the conditions for this

exclusion no longer apply. In such

cases, the discharge becomes subject to

enforcement for un-permitted discharge.

Any conditionally exempt discharger

who anticipates changes in

circumstances should apply for and

obtain permit authorization prior to the

change of circumstances.

(iv) Notwithstanding the provisions of

this paragraph, the NPDES permitting

authority retains the authority to require

permit authorization (and deny this

exclusion) upon making a determination

that the discharge causes, has a

reasonable potential to cause, or

contributes to an instream excursion

above an applicable water quality

standard, including designated uses.

(4) Certification. The no exposure

certification must require the

submission of the following

information, at a minimum, to aid the

NPDES permitting authority in

determining if the facility qualifies for

the no exposure exclusion:

(i) The legal name, address and phone

number of the discharger (see

§ 122.21(b));

(ii) The facility name and address, the

county name and the latitude and

longitude where the facility is located;

(iii) The certification must indicate

that none of the following materials or

activities are, or will be in the

foreseeable future, exposed to

precipitation:

(A) Using, storing or cleaning

industrial machinery or equipment, and

areas where residuals from using,

storing or cleaning industrial machinery

or equipment remain and are exposed to

storm water;

(B) Materials or residuals on the

ground or in storm water inlets from

spills/leaks;

(C) Materials or products from past

industrial activity;

(D) Material handling equipment

(except adequately maintained

vehicles);

(E) Materials or products during

loading/unloading or transporting

activities;

(F) Materials or products stored

outdoors (except final products

intended for outside use, e.g., new cars,

where exposure to storm water does not

result in the discharge of pollutants);

(G) Materials contained in open,

deteriorated or leaking storage drums,

barrels, tanks, and similar containers;

(H) Materials or products handled/

stored on roads or railways owned or

maintained by the discharger;

(I) Waste material (except waste in

covered, non-leaking containers, e.g.,

dumpsters);

(J) Application or disposal of process

wastewater (unless otherwise

permitted); and

(K) Particulate matter or visible

deposits of residuals from roof stacks/

vents not otherwise regulated, i.e.,

under an air quality control permit, and

evident in the storm water outflow;

(iv) All ‘‘no exposure’’ certifications

must include the following certification

statement, and be signed in accordance

with the signatory requirements of

§ 122.22: ‘‘I certify under penalty of law

that I have read and understand the

eligibility requirements for claiming a

condition of ‘‘no exposure’’ and

obtaining an exclusion from NPDES

storm water permitting; and that there

are no discharges of storm water

contaminated by exposure to industrial

activities or materials from the

industrial facility identified in this

document (except as allowed under

paragraph (g)(2)) of this section. I

understand that I am obligated to submit

a no exposure certification form once

every five years to the NPDES

permitting authority and, if requested,

to the operator of the local MS4 into

which this facility discharges (where

applicable). I understand that I must

allow the NPDES permitting authority,

or MS4 operator where the discharge is

into the local MS4, to perform

inspections to confirm the condition of

no exposure and to make such

inspection reports publicly available

upon request. I understand that I must

obtain coverage under an NPDES permit

prior to any point source discharge of

storm water from the facility. I certify

under penalty of law that this document

and all attachments were prepared

under my direction or supervision in

accordance with a system designed to

assure that qualified personnel properly

gathered and evaluated the information

submitted. Based upon my inquiry of

the person or persons who manage the

system, or those persons directly

involved in gathering the information,

the information submitted is to the best

of my knowledge and belief true,

accurate and complete. I am aware there

are significant penalties for submitting

false information, including the

possibility of fine and imprisonment for

knowing violations.’’

4. Revise § 122.28(b)(2)(v) to read as

follows:

§ 122.28 General permits (applicable to

State NPDES programs, see § 123.25).

* * * * *

(b) * * *

(2) * * *

(v) Discharges other than discharges

from publicly owned treatment works,

combined sewer overflows, municipal

68842 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

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. In

making such a finding, the Director

shall consider: the type of discharge; the

expected nature of the discharge; the

potential for toxic and conventional

pollutants in the discharges; the

expected volume of the discharges;

other means of identifying discharges

covered by the permit; and the

estimated number of discharges to be

covered by the permit. The Director

shall provide in the public notice of the

general permit the reasons for not

requiring a notice of intent.

* * * * *

5. Add §§ 122.30 through 122.37 to

subpart B to read as follows:

§ 122.30 What are the objectives of the

storm water regulations for small MS4s?

(a) Sections 122.30 through 122.37 are

written in a ‘‘readable regulation’’

format that includes both rule

requirements and EPA guidance that is

not legally binding. EPA has clearly

distinguished its recommended

guidance from the rule requirements by

putting the guidance in a separate

paragraph headed by the word

‘‘guidance’’.

(b) 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. (Because 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.)

(c) Storm water runoff continues to

harm the nation’s waters. Runoff from

lands modified by human activities can

harm surface water resources in several

ways including 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.

(d) 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.

§ 122.31 As a Tribe, what is my role under

the NPDES 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 as a State under §§ 123.31

through 123.34 of this chapter. (If you

do not have an authorized NPDES

program, EPA implements the program

for discharges on your reservation as

well as other Indian country, generally.);

(b) Be classified as an owner of a

regulated small MS4, as defined in

§ 122.32. (Designation of your Tribe as

an owner of a small MS4 for purposes

of this part is an approach that is

consistent with EPA’s 1984 Indian

Policy of operating on a government-togovernment 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 MS4, you

are subject to the requirements under

§§ 122.33 through 122.35. If you are not

designated as a regulated small MS4,

you may ask EPA to designate you as

such for the purposes of this part.); or

(c) Be a discharger of storm water

associated with industrial activity or

small construction 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 is

generally EPA, unless you are

authorized to administer the NPDES

program.

§ 122.32 As an operator of a small MS4,

am I regulated under the NPDES storm

water program?

(a) Unless you qualify for a waiver

under paragraph (c) of this section, you

are regulated if you operate a small

MS4, including but not limited to

systems operated by federal, State,

Tribal, and local governments,

including State departments of

transportation; and:

(1) Your small MS4 is located in an

urbanized area as determined by the

latest Decennial Census by the Bureau

of the Census. (If your small MS4 is not

located entirely within an urbanized

area, only the portion that is within the

urbanized area is regulated); or

(2) You are designated by the NPDES

permitting authority, including where

the designation is pursuant to

§§ 123.35(b)(3) and (b)(4) of this chapter,

or is based upon a petition under

§ 122.26(f).

(b) You may be the subject of a

petition to the NPDES permitting

authority to require an NPDES permit

for your discharge of storm water. If the

NPDES permitting authority determines

that you need a permit, you are required

to comply with §§ 122.33 through

122.35.

(c) The NPDES permitting authority

may waive the requirements otherwise

applicable to you if you meet the criteria

of paragraph (d) or (e) of this section. If

you receive a waiver under this section,

you may subsequently be required to

seek coverage under an NPDES permit

in accordance with § 122.33(a) if

circumstances change. (See also

§ 123.35(b) of this chapter.)

(d) The NPDES permitting authority

may waive permit coverage if your MS4

serves a population of less than 1,000

within the urbanized area and you meet

the following criteria:

(1) Your system is not contributing

substantially to the pollutant loadings of

a physically interconnected MS4 that is

regulated by the NPDES storm water

program (see § 123.35(b)(4) of this

chapter); and

(2) If you discharge any pollutant(s)

that have been identified as a cause of

impairment of any water body to which

you discharge, storm water controls are

not needed based on wasteload

allocations that are part of an EPA

approved or established ‘‘total

maximum daily load’’ (TMDL) that

addresses the pollutant(s) of concern.

(e) The NPDES permitting authority

may waive permit coverage if your MS4

serves a population under 10,000 and

you meet the following criteria:

(1) The permitting authority has

evaluated all waters of the U.S.,

including small streams, tributaries,

lakes, and ponds, that receive a

discharge from your MS4;

(2) For all such waters, the permitting

authority has determined that storm

water controls are not needed based on

wasteload allocations that are part of an

EPA approved or established TMDL that

addresses the pollutant(s) of concern or,

if a TMDL has not been developed or

approved, an equivalent analysis that

determines sources and allocations for

the pollutant(s) of concern;

(3) For the purpose of this paragraph

(e), the pollutant(s) of concern include

biochemical oxygen demand (BOD),

sediment or a parameter that addresses

sediment (such as total suspended

solids, turbidity or siltation), pathogens,

oil and grease, and any pollutant that

has been identified as a cause of

impairment of any water body that will

receive a discharge from your MS4; and

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68843

(4) The permitting authority has

determined that future discharges from

your MS4 do not have 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.

§ 122.33 If I am an operator of a regulated

small MS4, how do I apply for an NPDES

permit and when do I have to apply?

(a) If you operate a regulated small

MS4 under § 122.32, you must seek

coverage under a NPDES permit issued

by your NPDES permitting authority. 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.

(b) You must seek authorization to

discharge under a general or individual

NPDES permit, as follows:

(1) If your NPDES permitting

authority has issued a general permit

applicable to your discharge and you are

seeking coverage under the general

permit, you must submit a Notice of

Intent (NOI) that includes the

information on your best management

practices and measurable goals required

by § 122.34(d). You may file your own

NOI, or you and other municipalities or

governmental entities may jointly

submit an NOI. If you want to share

responsibilities for meeting the

minimum measures with other

municipalities or governmental entities,

you must submit an NOI that describes

which minimum measures you will

implement and identify the entities that

will implement the other minimum

measures within the area served by your

MS4. The general permit will explain

any other steps necessary to obtain

permit authorization.

(2)(i) If you are seeking authorization

to discharge under an individual permit

and wish to implement a program under

§ 122.34, you must submit an

application to your NPDES permitting

authority that includes the information

required under §§ 122.21(f) and

122.34(d), an estimate of square mileage

served by your small MS4, and any

additional information that your NPDES

permitting authority requests. A storm

sewer map that satisfies the requirement

of § 122.34(b)(3)(i) will satisfy the map

requirement in § 122.21(f)(7).

(ii) If you are seeking authorization to

discharge under an individual permit

and wish to implement a program that

is different from the program under

§ 122.34, you will need to comply with

the permit application requirements of

§ 122.26(d). You must submit both Parts

of the application requirements in

§§ 122.26(d)(1) and (2) by March 10,

2003. You do not need to submit the

information required by

§§ 122.26(d)(1)(ii) and (d)(2) regarding

your legal authority, unless you intend

for the permit writer to take such

information into account when

developing your other permit

conditions.

(iii) If allowed by your NPDES

permitting authority, you and another

regulated entity may jointly apply under

either paragraph (b)(2)(i) or (b)(2)(ii) of

this section to be co-permittees under an

individual permit.

(3) If your small MS4 is in the same

urbanized area as a medium or large

MS4 with an NPDES storm water permit

and that other MS4 is willing to have

you participate in its storm water

program, you and the other MS4 may

jointly seek a modification of the other

MS4 permit to include you as a limited

co-permittee. As a limited co-permittee,

you will be responsible for compliance

with the permit’s conditions applicable

to your jurisdiction. If you choose this

option you will need to comply with the

permit application requirements of

§ 122.26, rather than the requirements of

§ 122.34. You do not need to comply

with the specific application

requirements of § 122.26(d)(1)(iii) and

(iv) and (d)(2)(iii) (discharge

characterization). You may satisfy the

requirements in § 122.26 (d)(1)(v) and

(d)(2)(iv) (identification of a

management program) by referring to

the other MS4’s storm water

management program.

(4) Guidance: In referencing an MS4’s

storm water management program, you

should briefly describe how the existing

plan will address discharges from your

small MS4 or would need to be

supplemented in order to adequately

address your discharges. You should

also explain your role in coordinating

storm water pollutant control activities

in your MS4, and detail the resources

available to you to accomplish the plan.

(c) If you operate a regulated small

MS4:

(1) Designated under § 122.32(a)(1),

you must apply for coverage under an

NPDES permit, or apply for a

modification of an existing NPDES

permit under paragraph (b)(3) of this

section by March 10, 2003, unless your

MS4 serves a jurisdiction with a

population under 10,000 and the

NPDES permitting authority has

established a phasing schedule under

§ 123.35(d)(3) of this chapter.

(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 (b)(3) of this

section, within 180 days of notice,

unless the NPDES permitting authority

grants a later date.

§ 122.34 As an operator of a regulated

small MS4, what will my NPDES MS4 storm

water permit require?

(a) Your NPDES MS4 permit will

require at a minimum that you develop,

implement, and enforce a storm water

management program designed to

reduce the discharge of pollutants from

your MS4 to the maximum extent

practicable (MEP), to protect water

quality, and to satisfy the appropriate

water quality requirements of the Clean

Water Act. Your storm water

management program must include the

minimum control measures described in

paragraph (b) of this section unless you

apply for a permit under § 122.26(d).

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 to protect water quality.

Implementation of 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 constitutes

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. (i) 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 the public can take to

reduce pollutants in storm water runoff.

(ii) Guidance: You may use storm

water educational materials provided by

your State, Tribe, EPA, environmental,

public interest or trade organizations, or

other MS4s. The public education

program should inform individuals and

households about the steps they can

take to reduce storm water pollution,

such as ensuring proper septic system

maintenance, ensuring the proper use

and disposal of landscape and garden

chemicals including fertilizers and

pesticides, protecting and restoring

riparian vegetation, and properly

disposing of used motor oil or

68844 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

household hazardous wastes. EPA

recommends that the program inform

individuals and groups how to become

involved in local stream and beach

restoration activities as well as activities

that are coordinated by youth service

and conservation corps or other citizen

groups. EPA recommends that the

public education program be tailored,

using a mix of locally appropriate

strategies, to target specific audiences

and communities. Examples of

strategies include distributing brochures

or fact sheets, sponsoring speaking

engagements before community groups,

providing public service

announcements, implementing

educational programs targeted at school

age children, and conducting

community-based projects such as storm

drain stenciling, and watershed and

beach cleanups. In addition, EPA

recommends that some of the materials

or outreach programs be directed toward

targeted groups of commercial,

industrial, and institutional entities

likely to have significant storm water

impacts. For example, providing

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

any special concerns relating to

children.

(2) Public involvement/participation.

(i) You must, at a minimum, comply

with State, Tribal and local public

notice requirements when

implementing a public involvement/

participation program.

(ii) Guidance: EPA recommends that

the public be included in developing,

implementing, and reviewing your

storm water management program and

that the public participation process

should make efforts to reach out and

engage all economic and ethnic groups.

Opportunities for members of the public

to participate in program development

and implementation 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. (Citizens should

obtain approval where necessary for

lawful access to monitoring sites.)

(3) Illicit discharge detection and

elimination. (i) You must develop,

implement and enforce a program to

detect and eliminate illicit discharges

(as defined at § 122.26(b)(2)) into your

small MS4.

(ii) You must:

(A) Develop, if not already completed,

a storm sewer system map, showing the

location of all outfalls and the names

and location of all waters of the United

States that receive discharges from those

outfalls;

(B) To the extent allowable under

State, Tribal or local law, effectively

prohibit, through ordinance, or other

regulatory mechanism, non-storm water

discharges into your storm sewer system

and implement appropriate enforcement

procedures and actions;

(C) Develop and implement a plan to

detect and address non-storm water

discharges, including illegal dumping,

to your system; and

(D) Inform public employees,

businesses, and the general public of

hazards associated with illegal

discharges and improper disposal of

waste.

(iii) You need address the following

categories of non-storm water discharges

or flows (i.e., illicit discharges) only if

you identify them as significant

contributors of pollutants to your small

MS4: water line flushing, landscape

irrigation, diverted stream flows, rising

ground waters, uncontaminated ground

water infiltration (as defined at 40 CFR

35.2005(20)), uncontaminated pumped

ground water, discharges from potable

water sources, foundation drains, air

conditioning condensation, irrigation

water, springs, water from crawl space

pumps, footing drains, lawn watering,

individual residential car washing,

flows from riparian habitats and

wetlands, dechlorinated swimming pool

discharges, and street wash water

(discharges or flows from fire fighting

activities are excluded from the effective

prohibition against non-storm water and

need only be addressed where they are

identified as significant sources of

pollutants to waters of the United

States).

(iv) Guidance: EPA recommends that

the plan to detect and address illicit

discharges include the following four

components: procedures for locating

priority areas likely to have illicit

discharges; procedures for tracing the

source of an illicit discharge; procedures

for removing the source of the

discharge; and procedures for program

evaluation and assessment. EPA

recommends visually screening outfalls

during dry weather and conducting field

tests of selected pollutants as part of the

procedures for locating priority areas.

Illicit discharge education 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. (i) You must develop,

implement, and enforce a program to

reduce pollutants in any storm water

runoff to your small MS4 from

construction activities that result in a

land disturbance of greater than or equal

to one acre. Reduction of storm water

discharges from construction activity

disturbing less than one acre must be

included in your program if that

construction activity is part of a larger

common plan of development or sale

that would disturb one acre or more. If

the NPDES permitting authority waives

requirements for storm water discharges

associated with small construction

activity in accordance with

§ 122.26(b)(15)(i), you are not required

to develop, implement, and/or enforce a

program to reduce pollutant discharges

from such sites.

(ii) Your program must include the

development and implementation of, at

a minimum:

(A) An ordinance or other regulatory

mechanism to require erosion and

sediment controls, as well as sanctions

to ensure compliance, to the extent

allowable under State, Tribal, or local

law;

(B) Requirements for construction site

operators to implement appropriate

erosion and sediment control best

management practices;

(C) Requirements for construction site

operators to control waste such as

discarded building materials, concrete

truck washout, chemicals, litter, and

sanitary waste at the construction site

that may cause adverse impacts to water

quality;

(D) Procedures for site plan review

which incorporate consideration of

potential water quality impacts;

(E) Procedures for receipt and

consideration of information submitted

by the public, and

(F) Procedures for site inspection and

enforcement of control measures.

(iii) Guidance: Examples of sanctions

to ensure compliance include nonmonetary penalties, fines, bonding

requirements and/or permit denials for

non-compliance. EPA recommends that

procedures for site plan review include

the review of individual preconstruction site plans to ensure

consistency with local sediment and

erosion control requirements.

Procedures for site inspections and

enforcement of control measures could

include steps to identify priority sites

for inspection and enforcement based

on the nature of the construction

activity, topography, and the

characteristics of soils and receiving

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68845

water quality. You are encouraged to

provide appropriate educational and

training measures for construction site

operators. You may wish to require a

storm water pollution prevention plan

for construction sites within your

jurisdiction that discharge into your

system. See § 122.44(s) (NPDES

permitting authorities’ option to

incorporate qualifying State, Tribal and

local erosion and sediment control

programs into NPDES permits for storm

water discharges from construction

sites). Also see § 122.35(b) (The NPDES

permitting authority may recognize that

another government entity, including

the permitting authority, may be

responsible for implementing one or

more of the minimum measures on your

behalf.)

(5) Post-construction storm water

management in new development and

redevelopment.

(i) You must develop, implement, and

enforce a program to address storm

water runoff from new development and

redevelopment projects that disturb

greater than or equal to one acre,

including projects less than one acre

that are part of a larger common plan of

development or sale, that discharge into

your small MS4. Your program must

ensure that controls are in place that

would prevent or minimize water

quality impacts.

(ii) You must:

(A) Develop and implement strategies

which include a combination of

structural and/or non-structural best

management practices (BMPs)

appropriate for your community;

(B) Use an ordinance or other

regulatory mechanism to address postconstruction runoff from new

development and redevelopment

projects to the extent allowable under

State, Tribal or local law; and

(C) Ensure adequate long-term

operation and maintenance of BMPs.

(iii) Guidance: If water quality

impacts are considered from the

beginning stages of a project, new

development and potentially

redevelopment provide more

opportunities for water quality

protection. EPA recommends that the

BMPs chosen: be appropriate for the

local community; minimize water

quality impacts; and attempt to

maintain pre-development runoff

conditions. In choosing appropriate

BMPs, EPA encourages you to

participate in locally-based watershed

planning efforts which attempt to

involve a diverse group of stakeholders

including interested citizens. When

developing a program that is consistent

with this measure’s intent, EPA

recommends that you adopt a planning

process that identifies the

municipality’s program goals (e.g.,

minimize water quality impacts

resulting from post-construction runoff

from new development and

redevelopment), implementation

strategies (e.g., adopt a combination of

structural and/or non-structural BMPs),

operation and maintenance policies and

procedures, and enforcement

procedures. In developing your

program, you should consider assessing

existing ordinances, policies, programs

and studies that address storm water

runoff quality. In addition to assessing

these existing documents and programs,

you should provide opportunities to the

public to participate in the development

of the program. Non-structural BMPs are

preventative actions that involve

management and source controls such

as: policies and ordinances that provide

requirements and standards to direct

growth to identified areas, protect

sensitive areas such as wetlands and

riparian areas, maintain and/or increase

open space (including a dedicated

funding source for open space

acquisition), provide buffers along

sensitive water bodies, minimize

impervious surfaces, and minimize

disturbance of soils and vegetation;

policies or ordinances that encourage

infill development in higher density

urban areas, and areas with existing

infrastructure; education programs for

developers and the public about project

designs that minimize water quality

impacts; and measures such as

minimization of percent impervious

area after development and

minimization of directly connected

impervious areas. Structural BMPs

include: storage practices such as wet

ponds and extended-detention outlet

structures; filtration practices such as

grassed swales, sand filters and filter

strips; and infiltration practices such as

infiltration basins and infiltration

trenches. EPA recommends that you

ensure the appropriate implementation

of the structural BMPs by considering

some or all of the following: preconstruction review of BMP designs;

inspections during construction to

verify BMPs are built as designed; postconstruction inspection and

maintenance of BMPs; and penalty

provisions for the noncompliance with

design, construction or operation and

maintenance. Storm water technologies

are constantly being improved, and EPA

recommends that your requirements be

responsive to these changes,

developments or improvements in

control technologies.

(6) Pollution prevention/good

housekeeping for municipal operations.

(i) You must develop and implement an

operation and maintenance program

that includes a training component and

has the ultimate goal of preventing or

reducing pollutant runoff from

municipal operations. Using training

materials that are available from EPA,

your State, Tribe, or other organizations,

your program must include employee

training to prevent and reduce storm

water pollution from activities such as

park and open space maintenance, fleet

and building maintenance, new

construction and land disturbances, and

storm water system maintenance.

(ii) Guidance: 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 nonstructural 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, fleet or maintenance shops with

outdoor storage areas, salt/sand storage

locations and snow disposal areas

operated by you, and waste transfer

stations; procedures for properly

disposing of waste removed from the

separate storm sewers 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.

Operation and maintenance should be

an integral component of all storm water

management programs. This measure is

intended to improve the efficiency of

these programs and require new

programs where necessary. Properly

developed and implemented operation

and maintenance programs reduce the

risk of water quality problems.

(c) If an existing qualifying local

program requires you to implement one

or more of the minimum control

measures of paragraph (b) of this

section, the NPDES permitting authority

may include conditions in your NPDES

permit that direct you to follow that

qualifying program’s requirements

rather than the requirements of

paragraph (b) of this section. A

qualifying local program is a local, State

or Tribal municipal storm water

management program that imposes, at a

minimum, the relevant requirements of

paragraph (b) of this section.

(d)(1) In your permit application

(either a notice of intent for coverage

68846 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

under a general permit or an individual

permit application), you must identify

and submit to your NPDES permitting

authority the following information:

(i) The best management practices

(BMPs) that you or another entity will

implement for each of the storm water

minimum control measures at

paragraphs (b)(1) through (b)(6) of this

section;

(ii) The measurable goals for each of

the BMPs including, as appropriate, the

months and years in which you will

undertake required actions, including

interim milestones and the frequency of

the action; and

(iii) The person or persons

responsible for implementing or

coordinating your storm water

management program.

(2) If you obtain coverage under a

general permit, you are not required to

meet any measurable goal(s) identified

in your notice of intent in order to

demonstrate compliance with the

minimum control measures in

paragraphs (b)(3) through (b)(6) of this

section unless, prior to submitting your

NOI, EPA or your State or Tribe has

provided or issued a menu of BMPs that

addresses each such minimum measure.

Even if no regulatory authority issues

the menu of BMPs, however, you still

must comply with other requirements of

the general permit, including good faith

implementation of BMPs designed to

comply with the minimum measures.

(3) Guidance: Either EPA or your State

or Tribal permitting authority will

provide a menu of BMPs. You may

choose BMPs from the menu or select

others that satisfy the minimum control

measures.

(e)(1) You must comply with any

more stringent effluent limitations in

your permit, including permit

requirements that modify, or are in

addition to, the minimum control

measures based on an approved total

maximum daily load (TMDL) or

equivalent analysis. The permitting

authority may include such more

stringent limitations based on a TMDL

or equivalent analysis that determines

such limitations are needed to protect

water quality.

(2) Guidance: EPA strongly

recommends that until the evaluation of

the storm water program in § 122.37, no

additional requirements beyond the

minimum control measures be imposed

on regulated small MS4s without the

agreement of the operator of the affected

small MS4, except where an approved

TMDL or equivalent analysis provides

adequate information to develop more

specific measures to protect water

quality.

(f) You must comply with other

applicable NPDES permit requirements,

standards and conditions established in

the individual or general permit,

developed consistent with the

provisions of §§ 122.41 through 122.49,

as appropriate.

(g) 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.

Note to Paragraph (g)(1): 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) Recordkeeping. 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 a description of 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.)

(3) Reporting. Unless you are relying

on another entity to satisfy your NPDES

permit obligations under § 122.35(a),

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;

(iv) A change in any identified best

management practices or measurable

goals for any of the minimum control

measures; and

(v) Notice that you are relying on

another governmental entity to satisfy

some of your permit obligations (if

applicable).

§ 122.35 As an operator of a regulated

small MS4, may I share the responsibility to

implement the minimum control measures

with other entities?

(a) You may rely on another entity to

satisfy your NPDES permit obligations

to implement a minimum control

measure if:

(1) The other entity, in fact,

implements the control measure;

(2) The particular control measure, or

component thereof, is at least as

stringent as the corresponding NPDES

permit requirement; and

(3) The other entity agrees to

implement the control measure on your

behalf. In the reports you must submit

under § 122.34(g)(3), you must also

specify that you rely on another entity

to satisfy some of your permit

obligations. If you are relying on another

governmental entity regulated under

section 122 to satisfy all of your permit

obligations, including your obligation to

file periodic reports required by

§ 122.34(g)(3), you must note that fact in

your NOI, but you are not required to

file the periodic reports. 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) In some cases, the NPDES

permitting authority may recognize,

either in your individual NPDES permit

or in an NPDES general permit, that

another governmental entity is

responsible under an NPDES permit for

implementing one or more of the

minimum control measures for your

small MS4 or that the permitting

authority itself is responsible. Where the

permitting authority does so, you are

not required to include such minimum

control measure(s) in your storm water

management program. (For example, if a

State or Tribe is subject to an NPDES

permit that requires it to administer a

program to control construction site

runoff at the State or Tribal level and

that program satisfies all of the

requirements of § 122.34(b)(4), you

could avoid responsibility for the

construction measure, but would be

responsible for the remaining minimum

control measures.) Your permit may be

reopened and modified to include the

requirement to implement a minimum

control measure if the entity fails to

implement it.

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68847

§ 122.36 As an operator of a regulated

small MS4, 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, Tribal, or local law.

Compliance with a permit issued

pursuant to section 402 of the Clean

Water Act is deemed compliance, for

purposes of sections 309 and 505, with

sections 301, 302, 306, 307, and 403,

except any standard imposed under

section 307 for toxic pollutants

injurious to human health. If you are

covered as a co-permittee under an

individual permit or under a general

permit by means of a joint Notice of

Intent you remain subject to the

enforcement actions and penalties for

the failure to comply with the terms of

the permit in your jurisdiction except as

set forth in § 122.35(b).

§ 122.37 Will the small MS4 storm water

program regulations at §§ 122.32 through

122.36 and § 123.35 of this chapter change

in the future?

EPA will evaluate the small MS4

regulations at §§ 122.32 through 122.36

and § 123.35 of this chapter after

December 10, 2012 and make any

necessary revisions. (EPA intends to

conduct an enhanced research effort and

compile a comprehensive evaluation of

the NPDES MS4 storm water program.

EPA will re-evaluate the regulations

based on data from the NPDES MS4

storm water program, from research on

receiving water impacts from storm

water, and the effectiveness of best

management practices (BMPs), as well

as other relevant information sources.)

6. In § 122.44, redesignate paragraphs

(k)(2) and (k)(3) as paragraphs (k)(3) and

(k)(4), remove the comma at the end of

newly redesignated paragraph (k)(3) and

add a semicolon in its place, and add

new paragraphs (k)(2) and (s) to read as

follows:

§ 122.44 Establishing limitations,

standards, and other permit conditions

(applicable to State NPDES programs, see

§ 123.25).

* * * * *

(k) * * *

(2) Authorized under section 402(p) of

CWA for the control of storm water

discharges;

* * * * *

(s) Qualifying State, Tribal, or local

programs. (1) For storm water

discharges associated with small

construction activity identified in

§ 122.26(b)(15), the Director may

include permit conditions that

incorporate qualifying State, Tribal, or

local erosion and sediment control

program requirements by reference.

Where a qualifying State, Tribal, or local

program does not include one or more

of the elements in this paragraph (s)(1),

then the Director must include those

elements as conditions in the permit. A

qualifying State, Tribal, or local erosion

and sediment control program is one

that includes:

(i) Requirements for construction site

operators to implement appropriate

erosion and sediment control best

management practices;

(ii) Requirements for construction site

operators to control waste such as

discarded building materials, concrete

truck washout, chemicals, litter, and

sanitary waste at the construction site

that may cause adverse impacts to water

quality;

(iii) Requirements for construction

site operators to develop and implement

a storm water pollution prevention plan.

(A storm water pollution prevention

plan includes site descriptions,

descriptions of appropriate control

measures, copies of approved State,

Tribal or local requirements,

maintenance procedures, inspection

procedures, and identification of nonstorm water discharges); and

(iv) Requirements to submit a site

plan for review that incorporates

consideration of potential water quality

impacts.

(2) For storm water discharges from

construction activity identified in

§ 122.26(b)(14)(x), the Director may

include permit conditions that

incorporate qualifying State, Tribal, or

local erosion and sediment control

program requirements by reference. A

qualifying State, Tribal or local erosion

and sediment control program is one

that includes the elements listed in

paragraph (s)(1) of this section and any

additional requirements necessary to

achieve the applicable technology-based

standards of ‘‘best available technology’’

and ‘‘best conventional technology’’

based on the best professional judgment

of the permit writer.

7. Add § 122.62(a)(14) to read as

follows:

§ 122.62 Modification or revocation and

reissuance of permits (applicable to State

programs, see § 123.25).

* * * * *

(a) * * *

(14) For a small MS4, to include an

effluent limitation requiring

implementation of a minimum control

measure or measures as specified in

§ 122.34(b) when:

(i) The permit does not include such

measure(s) based upon the

determination that another entity was

responsible for implementation of the

requirement(s); and

(ii) The other entity fails to implement

measure(s) that satisfy the

requirement(s).

* * * * *

8. Revise Appendices F, G, H, and I

to Part 122 to read as follows:

APPENDIX F TO PART 122.—INCORPORATED PLACES WITH POPULATIONS GREATER THAN 250,000

ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF

THE CENSUS

State Incorporated Place

Alabama .................... Birmingham.

Arizona ...................... Phoenix.

Tucson.

California ................... Long Beach.

Los Angeles.

Oakland.

Sacramento.

San Diego.

San Francisco.

San Jose.

Colorado .................... Denver.

District of Columbia

Florida Jacksonville.

Miami.

Tampa.

Georgia. .................... Atlanta.

Illinois ........................ Chicago.

Indiana ...................... Indianapolis.

Kansas ...................... Wichita.

Kentucky ................... Louisville.

Louisiana ................... New Orleans.

Maryland ................... Baltimore.

Massachusetts .......... Boston.

Michigan .................... Detroit.

Minnesota .................. Minneapolis.

St. Paul.

Missouri ..................... Kansas City.

St. Louis.

Nebraska ................... Omaha.

New Jersey ............... Newark.

New Mexico .............. Albuquerque.

New York .................. Buffalo.

Bronx Borough.

Brooklyn Borough.

Manhattan Borough.

Queens Borough.

Staten Island Borough.

North Carolina ........... Charlotte.

Ohio ........................... Cincinnati.

Cleveland.

Columbus.

Toledo.

Oklahoma .................. Oklahoma City.

Tulsa.

Oregon ...................... Portland.

Pennsylvania ............. Philadelphia.

Pittsburgh.

Tennessee ................ Memphis.

Nashville/Davidson.

Texas ........................ Austin.

Dallas.

El Paso.

Fort Worth.

Houston.

68848 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

APPENDIX F TO PART 122.—INCORPORATED PLACES WITH POPULATIONS GREATER THAN 250,000

ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF

THE CENSUS—Continued

State Incorporated Place

San Antonio.

Virginia ...................... Norfolk.

Virginia Beach.

Washington ............... Seattle.

Wisconsin .................. Milwaukee.

APPENDIX G TO PART 122.—INCORPORATED PLACES WITH POPULATIONS GREATER THAN 100,000

BUT LESS THAN 250,000 ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF THE CENSUS

State Incorporated place

Alabama .................... Huntsville.

Mobile.

Montgomery.

Alaska ....................... Anchorage.

Arizona ...................... Mesa.

Tempe.

Arkansas ................... Little Rock.

California ................... Anaheim.

Bakersfield.

Berkeley.

Chula Vista.

Concord.

El Monte.

Escondido.

Fremont.

Fresno.

Fullerton.

Garden Grove.

Glendale.

Hayward.

Huntington Beach.

Inglewood.

Irvine.

Modesto.

Moreno Valley.

Oceanside.

Ontario.

Orange.

Colorado .................... Aurora.

APPENDIX G TO PART 122.—INCORPORATED PLACES WITH POPULATIONS GREATER THAN 100,000

BUT LESS THAN 250,000 ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF THE CENSUS—Continued

State Incorporated place

Colorado Springs.

Lakewood.

Pueblo.

Connecticut ............... Bridgeport.

Hartford.

New Haven.

Stamford.

Waterbury.

Florida ....................... Fort Lauderdale.

Hialeah.

Hollywood.

Orlando.

St. Petersburg.

Tallahassee.

Georgia ..................... Columbus.

Macon.

Savannah.

Idaho ......................... Boise City.

Illinois ........................ Peoria.

Rockford.

Indiana ...................... Evansville.

Fort Wayne.

Gary.

South Bend.

Iowa ........................... Cedar Rapids.

Davenport.

Des Moines.

Kansas ...................... Kansas City.

Topeka.

Kentucky ................... Lexington-Fayette.

Louisiana ................... Baton Rouge.

Shreveport.

Massachusetts .......... Springfield.

Worcester.

Michigan .................... Ann Arbor.

Flint.

Grand Rapids.

Lansing.

Livonia.

Sterling Heights.

Warren.

Mississippi ................. Jackson.

Missouri ..................... Independence.

Springfield.

Nebraska ................... Lincoln.

Nevada ...................... Las Vegas.

Reno.

APPENDIX G TO PART 122.—INCORPORATED PLACES WITH POPULATIONS GREATER THAN 100,000

BUT LESS THAN 250,000 ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF THE CENSUS—Continued

State Incorporated place

New Jersey ............... Elizabeth.

Jersey City.

Paterson.

New York .................. Albany.

Rochester.

Syracuse.

Yonkers.

North Carolina ........... Durham.

Greensboro.

Raleigh.

Winston-Salem.

Ohio ........................... Akron.

Dayton.

Youngstown.

Oregon ...................... Eugene.

Pennsylvania ............. Allentown.

Erie.

Rhode Island ............. Providence.

South Carolina .......... Columbia.

Tennessee ................ Chattanooga.

Knoxville.

Texas ........................ Abilene.

Amarillo.

Arlington.

Beaumont.

Corpus Christi.

Garland.

Irving.

Laredo.

Lubbock.

Mesquite.

Pasadena.

Plano.

Waco.

Utah ........................... Salt Lake City.

Virginia ...................... Alexandria.

Chesapeake.

Hampton.

Newport News.

Portsmouth.

Richmond.

Roanoke.

Washington ............... Spokane.

Tacoma.

Wisconsin .................. Madison.

APPENDIX H TO PART 122.—COUNTIES WITH UNINCORPORATED URBANIZED AREAS WITH A POPULATION OF 250,000 OR

MORE ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF THE CENSUS

State County

Unincorporated urbanized population

California .................................................................................. Los Angeles ............................................................................. 886,780

Sacramento ............................................................................. 594,889

San Diego ................................................................................ 250,414

Delaware .................................................................................. New Castle .............................................................................. 296,996

Florida ...................................................................................... Dade ........................................................................................ 1,014,504

Georgia .................................................................................... DeKalb ..................................................................................... 448,686

Hawaii ...................................................................................... Honolulu 1 ................................................................................ 114,506

Maryland .................................................................................. Anne Arundel ........................................................................... 344,654

Baltimore ................................................................................. 627,593

Montgomery ............................................................................. 599,028

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68849

APPENDIX H TO PART 122.—COUNTIES WITH UNINCORPORATED URBANIZED AREAS WITH A POPULATION OF 250,000 OR

MORE ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF THE CENSUS—Continued

State County

Unincorporated urbanized population

Prince George’s ....................................................................... 494,369

Texas ....................................................................................... Harris ....................................................................................... 729,206

Utah ......................................................................................... Salt Lake ................................................................................. 270,989

Virginia ..................................................................................... Fairfax ...................................................................................... 760,730

Washington .............................................................................. King ......................................................................................... 520,468

1 County was previously listed in this appendix; however, population dropped to below 250,000 in the 1990 Census.

APPENDIX I TO PART 122.—COUNTIES WITH UNINCORPORATED URBANIZED AREAS GREATER THAN 100,000 BUT LESS

THAN 250,000 ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF THE CENSUS

State County

Unincorporated urbanized population

Alabama ................................................................................... Jefferson .................................................................................. 78,608

Arizona ..................................................................................... Pima ........................................................................................ 162,202

California .................................................................................. Alameda .................................................................................. 115,082

Contra Costa ........................................................................... 131,082

Kern ......................................................................................... 128,503

Orange ..................................................................................... 223,081

Riverside .................................................................................. 166,509

San Bernardino ....................................................................... 162,202

Colorado .................................................................................. Arapahoe ................................................................................. 103,248

Florida ...................................................................................... Broward ................................................................................... 142,329

Escambia ................................................................................. 167,463

Hillsborough ............................................................................. 398,593

Lee ........................................................................................... 102,337

Manatee ................................................................................... 123,828

Orange ..................................................................................... 378,611

Palm Beach ............................................................................. 360,553

Pasco ....................................................................................... 148,907

Pinellas .................................................................................... 255,772

Polk .......................................................................................... 121,528

Sarasota .................................................................................. 172,600

Seminole .................................................................................. 127,873

Georgia .................................................................................... Clayton .................................................................................... 133,237

Cobb ........................................................................................ 322,595

Fulton ....................................................................................... 127,776

Gwinnett .................................................................................. 237,305

Richmond ................................................................................ 126,476

Kentucky .................................................................................. Jefferson .................................................................................. 239,430

Louisiana .................................................................................. East Baton Rouge ................................................................... 102,539

Parish ...................................................................................... 331,307

Jefferson Parish ...................................................................... ..............................

Maryland .................................................................................. Howard .................................................................................... 157,972

North Carolina .......................................................................... Cumberland ............................................................................. 146,827

Nevada ..................................................................................... Clark ........................................................................................ 327,618

Oregon ..................................................................................... Multnomah 1 ............................................................................. 52,923

Washington .............................................................................. 116,687

South Carolina ......................................................................... Greenville ................................................................................ 147,464

Richland ................................................................................... 130,589

Virginia ..................................................................................... Arlington .................................................................................. 170,936

Chesterfield ............................................................................. 174,488

Henrico .................................................................................... 201,367

Prince William .......................................................................... 157,131

Washington .............................................................................. Pierce ...................................................................................... 258,530

Snohomish ............................................................................... 157,218

1 County was previously listed in this appendix; however, population dropped to below 100,000 in the 1990 Census.

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.

1251 et seq.

2. Amend § 123.25 by removing the

word ‘‘and’’ at the end of paragraph

(a)(37), by removing the period at the

end of paragraph (a)(38) and adding a

semicolon in its place, and by adding

paragraphs (a)(39) through (a)(45) to

read as follows:

§ 123.25 Requirements for permitting.

(a) * * *

68850 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

(39) § 122.30 (What are the objectives

of the storm water regulations for small

MS4s?);

(40) § 122.31 (For Indian Tribes only)

(As a Tribe, what is my role under the

NPDES storm water program?);

(41) § 122.32 (As an operator of a

small MS4, am I regulated under the

NPDES storm water program?);

(42) § 122.33 (If I am an operator of a

regulated small MS4, how do I apply for

an NPDES permit? When do I have to

apply?);

(43) § 122.34 (As an operator of a

regulated small MS4, what will my

NPDES MS4 storm water permit

require?);

(44) § 122.35 (As an operator of a

regulated small MS4, may I share the

responsibility to implement the

minimum control measures with other

entities?); and

(45) § 122.36 (As an operator of a

regulated small MS4, what happens if I

don’t comply with the application or

permit requirements in §§ 122.33

through 122.35?).

* * * * *

3. Add § 123.35 to subpart B to read

as follows:

§ 123.35 As the NPDES Permitting

Authority for regulated small MS4s, 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 MS4 storm water

program.)

(b) You must develop a process, as

well as criteria, to designate small MS4s

other than those described in

§ 122.32(a)(1) of this chapter, as

regulated small MS4s to be covered

under the NPDES storm water discharge

control program. This process must

include the authority to designate a

small MS4 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 designations of

small MS4s, you must:

(1)(i) 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.

(ii) Guidance: For determining other

significant water quality impacts, EPA

recommends a balanced consideration

of the following designation criteria on

a watershed or other local basis:

discharge to sensitive waters, high

growth or growth potential, high

population density, contiguity to an

urbanized area, significant contributor

of pollutants to waters of the United

States, and ineffective protection of

water quality by other programs;

(2) Apply such criteria, at a minimum,

to any small MS4 located outside of an

urbanized area serving a jurisdiction

with a population density of at least

1,000 people per square mile and a

population of at least 10,000;

(3) Designate any small MS4 that

meets your criteria by December 9,

2002. You may wait until December 8,

2004 to apply the designation criteria on

a watershed basis if you have developed

a comprehensive watershed plan. You

may apply these criteria to make

additional designations at any time, as

appropriate; and

(4) Designate any small MS4 that

contributes substantially to the

pollutant loadings of a physically

interconnected municipal separate

storm sewer that is regulated by the

NPDES storm water program.

(c) You must make a final

determination within 180 days from

receipt of a petition under § 122.26(f) of

this chapter (or analogous State or

Tribal law). If you do not do so within

that time period, 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 MS4s. You

may waive or phase in the requirements

otherwise applicable to regulated small

MS4s, as defined in § 122.32(a)(1) of this

chapter, under the following

circumstances:

(1) You may waive permit coverage

for each small MS4s in jurisdictions

with a population under 1,000 within

the urbanized area where all of the

following criteria have been met:

(i) Its discharges are not contributing

substantially to the pollutant loadings of

a physically interconnected regulated

MS4 (see paragraph (b)(4) of this

section); and

(ii) If the small MS4 discharges any

pollutant(s) that have been identified as

a cause of impairment of any water body

to which it discharges, storm water

controls are not needed based on

wasteload allocations that are part of an

EPA approved or established ‘‘total

maximum daily load’’ (TMDL) that

address the pollutant(s) of concern.

(2) You may waive permit coverage

for each small MS4 in jurisdictions with

a population under 10,000 where all of

the following criteria have been met:

(i) You have evaluated all waters of

the U.S., including small streams,

tributaries, lakes, and ponds, that

receive a discharge from the MS4

eligible for such a waiver.

(ii) For all such waters, you have

determined that storm water controls

are not needed based on wasteload

allocations that are part of an EPA

approved or established TMDL that

addresses the pollutant(s) of concern or,

if a TMDL has not been developed or

approved, an equivalent analysis that

determines sources and allocations for

the pollutant(s) of concern.

(iii) For the purpose of paragraph

(d)(2)(ii) of this section, the pollutant(s)

of concern include biochemical oxygen

demand (BOD), sediment or a parameter

that addresses sediment (such as total

suspended solids, turbidity or siltation),

pathogens, oil and grease, and any

pollutant that has been identified as a

cause of impairment of any water body

that will receive a discharge from the

MS4.

(iv) You have determined that current

and future discharges from the MS4 do

not have the potential to result in

exceedances of water quality standards,

including impairment of designated

uses, or other significant water quality

impacts, including habitat and

biological impacts.

(v) Guidance: To help determine other

significant water quality impacts, EPA

recommends a balanced consideration

of the following criteria on a watershed

or other local basis: discharge to

sensitive waters, high growth or growth

potential, high population or

commercial density, significant

contributor of pollutants to waters of the

United States, and ineffective protection

of water quality by other programs.

(3) You may phase in permit coverage

for small MS4s serving jurisdictions

with a population under 10,000 on a

schedule consistent with a State

watershed permitting approach. Under

this approach, you must develop and

implement a schedule to phase in

permit coverage for approximately 20

percent annually of all small MS4s that

qualify for such phased-in coverage.

Under this option, all regulated small

MS4s are required to have coverage

under an NPDES permit by no later than

March 8, 2007. Your schedule for

phasing in permit coverage for small

MS4s must be approved by the Regional

Administrator no later than December

10, 2001.

(4) If you choose to phase in permit

coverage for small MS4s in jurisdictions

with a population under 10,000, in

accordance with paragraph (d)(3) of this

section, you may also provide waivers

in accordance with paragraphs (d)(1)

and (d)(2) of this section pursuant to

your approved schedule.

Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations 68851

(5) If you do not have an approved

schedule for phasing in permit coverage,

you must make a determination whether

to issue an NPDES permit or allow a

waiver in accordance with paragraph

(d)(1) or (d)(2) of this section, for each

eligible MS4 by December 9, 2002.

(6) You must periodically review any

waivers granted in accordance with

paragraph (d)(2) of this section to

determine whether any of the

information required for granting the

waiver has changed. At a minimum, you

must conduct such a review once every

five years. In addition, you must

consider any petition to review any

waiver when the petitioner provides

evidence that the information required

for granting the waiver has substantially

changed.

(e) You must specify a time period of

up to 5 years from the date of permit

issuance for operators of regulated small

MS4s to fully develop and implement

their storm water program.

(f) You must include the requirements

in §§ 122.33 through 122.35 of this

chapter in any permit issued for

regulated small MS4s or develop permit

limits based on a permit application

submitted by a regulated small MS4.

(You may include conditions in a

regulated small MS4 NPDES permit that

direct the MS4 to follow an existing

qualifying local program’s requirements,

as a way of complying with some or all

of the requirements in § 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 issue a general permit to

authorize storm water discharges from

small MS4s, you must make available a

menu of BMPs to assist regulated small

MS4s in the design and implementation

of municipal storm water management

programs to implement the minimum

measures specified in § 122.34(b) of this

chapter. EPA plans to develop a menu

of BMPs that will apply in each State or

Tribe that has not developed its own

menu. Regardless of whether a menu of

BMPs has been developed by EPA, EPA

encourages State and Tribal permitting

authorities to develop a menu of BMPs

that is appropriate for local conditions.

EPA also intends to provide guidance

on developing BMPs and measurable

goals and modify, update, and

supplement such guidance based on the

assessments of the NPDES MS4 storm

water program and research to be

conducted over the next thirteen years.

(h)(1) You must incorporate any

additional measures necessary to ensure

effective implementation of your State

or Tribal storm water program for

regulated small MS4s.

(2) Guidance: EPA recommends

consideration of the following:

(i) You are encouraged to use a

general permit for regulated small MS4s;

(ii) To the extent that your State or

Tribe administers a dedicated funding

source, you should play an active role

in providing financial assistance to

operators of regulated small MS4s;

(iii) 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;

(iv) 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;

(v) Where appropriate, you may

recognize existing responsibilities

among governmental entities for the

control measures in an NPDES small

MS4 permit (see § 122.35(b) of this

chapter); and

(vi) You are encouraged to provide a

brief (e.g., two page) reporting format to

facilitate compiling and analyzing data

from submitted reports under

§ 122.34(g)(3) of this chapter. EPA

intends to develop a model form for this

purpose.

PART 124—PROCEDURES FOR

DECISIONMAKING

1. The authority citation for part 124

continues to read as follows:

Authority: Resource Conservation and

Recovery Act, 42 U.S.C. 6901 et seq.; Safe

Drinking Water Act, 42 U.S.C. 300(f) et seq.;

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

Clean Air Act, 42 U.S.C. 7401 et seq.

2. Revise § 124.52(c) to read as

follows:

§ 124.52 Permits required on a case-bycase basis.

* * * * *

(c) Prior to a case-by-case

determination that an individual permit

is required for a storm water discharge

under this section (see § 122.26(a)(1)(v),

(c)(1)(v), and (a)(9)(iii) of this chapter),

the Regional Administrator may require

the discharger to submit a permit

application or other information

regarding the discharge under section

308 of the CWA. In requiring such

information, the Regional Administrator

shall notify the discharger in writing

and shall send an application form with

the notice. The discharger must apply

for a permit within 180 days of notice,

unless permission for a later date is

granted by the Regional Administrator.

The question whether the initial

designation was proper will remain

open for consideration during the public

comment period under § 124.11 or

§ 124.118 and in any subsequent

hearing.

[FR Doc. 99–29181 Filed 12–7–99; 8:45 am]

BILLING CODE 6560–50–P