### 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 watercompared 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 separatestorm 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


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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

Statement2. 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.


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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


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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 fromindustrial 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.


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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.’’


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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


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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


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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 duringconstruction, 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 averagedmore 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 duringconstruction, 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


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

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. Section402(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 section301 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


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

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 activitiesdisturbing 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


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

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 isregulated 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.


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

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.



### E XHIBIT 

### 2–STORM 

### WATER 

### P HASE 

### II ACTIONS 

### D EADLINES

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 publicati on 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


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

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


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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 NPDESapproach 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


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

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


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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. Forexample, 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 theNPDES 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.


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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 intwo 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).


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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. EPAmay 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 abalanced 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 conditionsand 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


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


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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


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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


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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, NPDESpermitting 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 tothe 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


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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


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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


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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 ofdevelopment 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 approachand 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


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based on Census data from 1980 to 1990, the national average rate of growth in the United States during that 10-year period was more than 4 percent. For the same period, the average growth within urbanized areas was 15.7 percent and the average for outside of urbanized areas was just more than 1 percent. The new development occurring in these growing areas can provide some of the best opportunities for implementing cost-effective storm water management

controls.

EPA received many comments on the proposal to designate discharges based

on location within urbanized areas. EPA considered numerous other approaches,

several of which are discussed in the proposal to today’s final rule. Several commenters wanted designation to be based on proven water quality problems

rather than inclusion in an urbanized area. One commenter proposed an approach based on the CWA 303(d) listing of impaired waters and the

wasteload allocation conducted under the TMDL process. (See section II.L. on the section 303(d) and TMDL process). The commenter’s proposal would designate small MS4s on a case-by-case basis, covering only those discharges where receiving streams are shown to have water quality problems, particularly a failure to meet water quality standards, including designated

uses. The commenter further described a non-NPDES approach where a State would require cost-effective measures based on a proportionate share under a waste load allocation, equitably allocated among all pollutant

contributors. These waste load allocations would be developed with input from all stakeholders, and

remedial measures would be implemented in a phased manner based on the probability of results and/or economic feasibility. The States would then periodically reassess the receiving

streams to determine whether the remedial measures are working, and if not, require additional control measures using the same procedure used to

establish the initial measures. What the

commenter describes is almost a TMDL.

EPA considered a remedial approach based on water quality impairment and rejected it for failure to prevent almost certain degradation caused by urban

storm water. EPA’s main concern in opting not to take a case-by-case approach to designation was that this approach would not provide controls for storm water discharges in receiving streams until after a site-specific demonstration of adverse water quality impact. The commenter’s suggestion would do nothing to prevent pollution in waters that may be meeting water quality standards, including supporting designated uses. The approach would also rely on identifying storm water management programs following comprehensive watershed plans and TMDL development. In most States, water quality assessments have traditionally been conducted for principal mainstream rivers and their major tributaries, not all surface waters.

The establishment of TMDLs nationwide will take many years, and many States will conduct additional monitoring to determine water quality conditions prior to establishing TMDLs. In addition, a case-by-case approach would not address the problem of

‘‘donut holes’’ within urbanized areas and a lack of consistency among similarly situated municipal systems would remain commonplace. After
careful consideration of all comments, EPA still believes that the approach in today’s rule is the most appropriate to protect water quality. Protection includes prevention as well as

remediation.

d. Municipal Designation by the Permitting Authority

Today’s final rule also allows NPDES permitting authorities to designate MS4s

that should be included in the storm water program as regulated small MS4s

but are not located within urbanized areas. The final rule requires, at a minimum, that a set of designation criteria be applied to all small MS4s within a jurisdiction that serves a population of at least 10,000 and has a population density of at least 1,000. Appendix 7 to this preamble provides an illustrative list of places that the Agency anticipates meet this criteria. In addition, any small MS4 may be the subject of a petition to the NPDES permitting authority for designation. See Section II.G, NPDES Permitting Authority’s Role for more details on the designation and petition processes. EPA believes that the approach of combining nationwide and local designation to determine municipal coverage balances the potential for significant adverse impacts on water quality with local watershed protection and planning

efforts.

e. Waiving the Requirements for Small

MS4s

Today’s final rule includes some flexibility in the nationwide coverage of

all small MS4s located in urbanized areas by providing the NPDES permitting authority with the discretion to waive the otherwise applicable requirements of the smallest MS4s that are not causing the impairment of a receiving water body. Qualifications for the waiver vary depending on whether the MS4 serves a population under 1,000 or a population between 1,000
and 10,000. Note that even if a small MS4 has requirements waived, it can subsequently be brought back into the program if circumstances change. See Section II.G, NPDES Permitting Authority’s Role, for more details on this process.

3. Municipal Permit Requirements

a. Overview

i. Summary of Permitting Options. Today’s rule outlines six minimum

control measures that constitute the framework for a storm water discharge control program for regulated small MS4s that, when properly implemented, will reduce pollutants to the maximum extent practicable (MEP). These six

minimum control measures are specified in § 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


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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 InterimPermitting 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 MS4permits 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 analternative 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


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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


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more support for the program (including funding initiatives). In addition, compliance with the program will probably be greater if the public understands the personalresponsibilities 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 educationrequirement. 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, assistingin 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


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actually include. In response, the actual requirements are minimal, but the Agency’s recommendations are more comprehensive. The public participation program must only comply with applicable State and local public notice requirements. The remainder of the preamble, as well as the Explanatory Note accompanying the regulatory text, provide guidance to the MS4s concerning what elements a successful and inclusive program should include. EPA will provide technical support as part of the tool box (i.e., providing model public involvement programs, conducting public workshops, etc. ) to assist MS4 operators meet the intent of

this measure.

Finally, the Agency encourages MS4s to seek public participation prior to submitting an NOI. For example, public participation at this stage will allow the MS4 to involve the public in developing the BMPs and measurable goals for their

NOI.

iii. Illicit Discharge Detection and

Elimination. Discharges from small

MS4s often include wastes and

wastewater from non-storm water ‘‘illicit’’ discharges. Illicit discharge is defined at 40 CFR 122.26(b)(2) as any discharge to a municipal separate storm sewer that is not composed entirely of storm water, except discharges pursuant to an NPDES permit and discharges resulting from fire fighting activities. As
detailed below, other sources of 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


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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 regulatedunder 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.


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One commenter specifically requested clarification on the relationship betweenthe 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 theproposed 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


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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 expressedconfusion 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 stormwater 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


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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 streetcurb 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


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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 BMPsat certain redevelopment projects. Nonstructural BMPs may be the most appropriate approach for smaller redevelopment projects.

EPA received comments requestingclarification on what is meant by ‘‘predevelopment’’ conditions within thecontext 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-developmentrunoff conditions’’ and that ‘‘postdevelopment conditions should not be different than pre-development conditions in a way that adversely affects water quality.’’ Many commentsexpressed 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. Similarreferences 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 inspectionprocedures 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


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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


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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 untilmenus 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


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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


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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


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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 notrequired 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


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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). Anotherparty 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 thirdparty 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


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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 theoperators 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 agreementof 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.


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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 doesnot 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


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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


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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


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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


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‘‘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 sitesshould 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


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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 throughNPDES 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 thefollowing 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 alsoavailable 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


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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 thatwaivers 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


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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 neededbased 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


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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 inthe 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


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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, inspectionprocedures, 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.


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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 thesources 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


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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


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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 determinewhether 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 section402(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


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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


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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 onCongress’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 ‘‘noexposure’’ certification is nontransferable. In the event that the facility operator changes, the new discharger must submit a new ‘‘no exposure’’

certification.


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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’’.


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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, rawmaterials, 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 facilityoperator 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


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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.


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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 InterimPermitting 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 questionsregarding 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 onwhich 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


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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 thecollective 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 frequentlydesignated uses without regard to sitespecific wet weather conditions. Because certain uses (swimming, forexample) 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 usedescriptions 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 waterquality-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


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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, includingnarrative 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 torecognize 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 operatorcould 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


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(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.



### E XHIBIT 

### 3.—COMPARISON OF 

### ANNUAL 

### COMPLIANCE 

### COST AND 

### B ENEFIT 

### E STIMATES 1

Monetized benefits National water quality model (millions of 1998 dollars) National waterquality 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.

2 Total may not add due to rounding.

A. Costs

1. Municipal Costs

Initially, to determine municipal costs for the proposed rule, EPA used anticipated expenditure data included in permit applications from a sample of

21 Phase I MS4s. Certain commenters criticized the Agency for using anticipated expenditures because they could be significantly different from the actual expenditures. These commenters suggested that the Agency use the actual cost incurred by the Phase I MS4s.

Other comments stated that because the Phase I MS4s, in general, are large municipalities, they may not be representative of the Phase II MS4s for estimating regulatory costs. Finally, one commenter noted that the sample of 21 municipalities used to project cost was relatively small. To address the concerns of the
commenters, EPA utilized a National

Association of Flood and Stormwater Management Agencies (NAFSMA) survey of the Phase II community to

obtain incremental cost estimates for Phase II municipalities. Using the list of potential Phase II designees published

in the Federal Register (63 FR 1616),
NAFSMA contacted more than 1,600 jurisdictions. The goal of the survey was

to solicit information from those communities about the proposed Phase II NPDES storm water program. Several of the survey questions corresponded directly to the minimum measures required by the Phase II rule. One hundred twenty-one surveys were

returned to NAFSMA and were used to develop municipal costs.

Using the NAFSMA information, EPA estimated average annual per household program costs for automatically designated municipalities. EPA also estimated an average annual per

household administrative cost for municipalities to address application, record keeping, and reporting requirements of the Rule. The total average per household cost of the rule is expected to $9.16 per household.

To determine potential national level costs for municipalities, EPA multiplied the number of households (32.5 million) by the per household cost ($9.16). EPA

estimates the annual cost of the Phase II municipal program at $298 million.

As an alternative method, and point of comparison, to the NAFSMA-based approach, EPA reviewed actual expenditures reported from 35 Phase I MS4s. The Agency targeted these 35 Phase I MS4s because they had participated in the NPDES program for


### 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 thepotential 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


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

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 areseparately 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.



### E XHIBIT 

### 4.—LOCAL AND 

### N ON



### - LOCAL 

### B ENEFITS 

### E STIMATES 

### D UE TO 

### P HASE 

### II CONTROLS 

### N ATIONAL 

### WATER 

### Q UALITY



### M ODEL 

### E STIMATE

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

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

While the numbers of miles that are estimated to change their use support
are small, the benefits estimates are quite significant. This is because urban runoff and, to a large extent, construction activity occurs where the people actually reside and the water quality changes mostly occur close to these population centers. NWPCAM indicates that changes in pollution loads have the most effect immediately downstream of pollution changes. As a result, the aggregate WTP is large because large numbers of households in these population centers are associated

with the local waters that reflect improvement in designated use support.

2. National Water Quality Assessment

EPA also estimated benefits of the Phase II Storm Water program using the 1998 National Water Quality Inventory (305(b)) Report to Congress, rather than the NWPCAM as a basis for estimating impairment addressed by the rule. The Water Quality Assessment method separately estimates benefits associated with improvements to fresh water,

marine water and construction site controls, and then aggregates these separate categories into an estimate of

total annual benefits.

a. Municipal Measures

i. Fresh Waters Benefits

In order to develop estimates for the potential value of the municipal measures (except storm water runoff controls for construction sites), EPA applied Carson & Mitchell WTP values to estimated existing and projected future fresh water impairment. Carson &
Mitchell did not evaluate marine waters, so only fresh water values were

available from their research. Even though the Carson and Mitchell estimates apply to all fresh water, it is

not clear how these values would be apportioned among rivers, lakes, and
the Great Lakes. The 305(b) data

indicate that lakes are the most impaired by urban runoff/storm sewers, followed closely by the Great Lakes, and then rivers. Therefore, EPA applied the WTP values to the categories separately and assumed that the higher resulting value for lakes represents the high end of the range (i.e. , assuming that lake impairment is more indicative of national fresh water impairment) and that the lower resulting value for impaired rivers represents the low end of a value range for all fresh waters (i.e.

, assuming that river impairment is more

indicative of national fresh water impairment). In addition, EPA estimated that the post-construction runoff


### 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 notbeen 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.



### E XHIBIT 

### 5.—POTENTIAL 

### ANNUAL 

### B ENEFITS OF THE 

### P HASE 

### II STORM 

### WATER 

### R ULE 

### N ATIONAL 

### WATER 

### Q UALITY



### ASSESSMENT 

### E STIMATE

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.

2 Based on research by Carson and Mitchell (1993). Fresh water value only. Does not include commercial fishery, navigation, or diversionary (e.g. municipal drinking water cost savings or risk reductions) benefits. May not fully capture human health risk reduction or ecolog ical values.

3 Based on research by Paterson et al. (1993). Although the survey’s description of the benefits of reducing soil erosion from construction sites included reduced dredging, avoided flooding, and water storage capacity benefits, these benefit categories may not be fully incorporated in the WTP values. Small streams may account for over 2% of total benefits.

C. Qualitative Benefits

There are additional benefits to storm water control that cannot be quantified or monetized. Thus, the current estimate of monetized benefits may understate

the true value of storm water controls because it omits many ways in which society is likely to benefit from reduced storm water pollution, such as improved


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

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.



### E XHIBIT 

### 6.—AVERAGE 

### ANNUAL 

### B URDEN AND 

### COST 

### E STIMATES FOR 

### P HASE 

### II R ESPONDENTS

Information collection activity A Respondents

per year (projected) 1 B

Burden hoursper 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

E XHIBIT 

### 6.—AVERAGE 

### ANNUAL 

### B URDEN AND 

### COST 

### E STIMATES FOR 

### P HASE 

### II R ESPONDENTS

### —Continued

Information collection activity A Respondents

per year (projected) 1 B

Burden hoursper 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:

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

2 The total number of potential no exposure respondents was divided by 5 to estimate an annual total. It was assumed that the ann ual number of respondents for the no exposure certification would be spread over the five year period the exclusion applies.

3 The number of respondents in each category represents only those respondents located within the 44 NPDES-authorized States and Territories. The burden and cost estimates provided in this section are for the NPDES-authorized States in their role as the permitting authority for municipal designations and industrial no exposure.

4 The number of respondents for this activity, 15, represents the number of NPDES-authorized States and Territories that must develop designation criteria and assess small MS4s located outside of an urbanized area for possible Phase II coverage divided by the three year ICR period.

Given the requirements of today’s regulation, EPA believes there will be no capital startup and no operation and

maintenance costs associated with information collection requirements of

the rule.

The government burden associated with today’s rule will impact State, Tribal, and Territorial governments (NPDES-authorized governmental entities) that have storm water program authority, as well as the federal government (i.e. , EPA), where it is the NPDES permitting authority. As of March 1999, 43 States and the Virgin Islands had NPDES authority.

The annual burden imposed upon authorized governmental entities (delegated States and the Virgin Islands) and the federal government for the next three years is estimated to be 19,992 hours ($537,985) and 4,087 hours ($115,948) respectively, for a total of 24,079 hours ($653,933). This estimate is based on the average time that governments will expend to carry out the following activities: designate additional MS4s (332.8 hours) and process and review ‘‘no exposure’’ certificates from industrial dischargers (0.5 hour).

Under the existing rule, storm water discharges from light industrial

activities identified under § 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


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written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives andadopt 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


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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. Staterepresentatives 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


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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


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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. Staterepresentatives 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,


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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


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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 

### P REAMBLE

### —F EDERALLY

### -R ECOGNIZED 

### AMERICAN 

### I NDIAN 

### A REAS 

### LOCATED 

### F ULLY OR 

### PARTIALLY IN



### B UREAU OF THE 

### C ENSUS 

### U RBANIZED 

### A REAS

[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).


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APPENDIX 

### 1 TO 

### P REAMBLE

### —F EDERALLY

### -R ECOGNIZED 

### AMERICAN 

### I NDIAN 

### A REAS 

### LOCATED 

### F ULLY OR 

### PARTIALLY IN



### B UREAU OF THE 

### C ENSUS 

### U RBANIZED 

### A REAS

### —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 (Ph ase 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


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BILLING CODE 6560–50–C


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

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


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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


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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


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

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 watermanagement 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 thisprovision 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


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

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


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

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


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

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


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

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


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

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


### 68822 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

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


### 68823 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

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


### 68825 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

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


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

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 OH Loveland city OH Lowellville village OH Lucas County OH Lyndhurst city OH Macedonia city OH Mad River township OH Madeira city OH Madison township OH Mahoning County OH Maineville village OH Mansfield city OH Maple Heights city 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 OH Monroe township OH Monroe village OH Montgomery city OH Montgomery County OH Moorefield township OH Moraine city OH Moreland Hills village OH Mount Healthy city OH Munroe Falls village OH New Miami village OH New Middletown village OH New Rome village 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 OH North Canton city OH North College Hill city OH North Olmsted city OH North Randall village OH North Ridgeville city OH North Royalton city OH Northfield Center township OH Northfield village OH Northwood city 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 OH Orange township OH Orange village OH Oregon city OH Ottawa County OH Ottawa Hills village OH Painesville city OH Painesville township OH Palmyra township OH Parma city OH Parma Heights city OH Pease township OH Pepper Pike city OH Perry township OH Perrysburg city OH Perrysburg city OH Perrysburg township OH Pierce township OH Plain township OH Pleasant township OH Poland township OH Poland village OH Portage County OH Powell village OH Prairie township OH Proctorville village OH Pultney township OH Randolph township OH Ravenna city OH Ravenna township OH Reading city OH Reminderville village OH Reynoldsburg city 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


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

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


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

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


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

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


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

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


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

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


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

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 thepollutant(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.



### E XHIBIT 

### 1 TO 

### § 122.26( B

### )(15).—S UMMARY OF 

### COVERAGE OF 

### ‘‘STORM 

### WATER 

### D ISCHARGES 

### ASSOCIATED WITH 

### S MALL


### CONSTRUCTION 

### ACTIVITY

### ’’ U NDER THE 

### NPDES STORM 

### WATER 

### P ROGRAM

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 thepotential 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

E XHIBIT 

### 1 TO 

### § 122.26( B

### )(15).—S UMMARY OF 

### COVERAGE OF 

### ‘‘STORM 

### WATER 

### D ISCHARGES 

### ASSOCIATED WITH 

### S MALL


### CONSTRUCTION 

### ACTIVITY

### ’’ U NDER THE 

### NPDES STORM 

### WATER 

### P ROGRAM

### —Continued

Potential Waiver: Waiver from Requirements as

Determined by the NPDES Permitting Authority.. Any automatically designated construction activity where the operator certifies: (1) A rainfallerosivity 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, rawmaterials, intermediate products, byproducts, final products, or waste


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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


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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 IndianPolicy 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


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(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


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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 sanctionsto ensure compliance include nonmonetary penalties, fines, bonding requirements and/or permit denials for non-compliance. EPA recommends that procedures for site plan review includethe 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


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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 otherregulatory 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 consideringsome or all of the following: preconstruction review of BMP designs; inspections during construction toverify 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 inspectionprocedures 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.


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

§ 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, inspectionprocedures, 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.—I NCOR



### PORATED 

### P LACES 

### W ITH 

### POPU



### LATIONS 

### G REATER 

### THAN 

### 250,000

ACCORDING TO THE 

### 1990 D ECEN



### NIAL 

### C ENSUS BY THE 

### B UREAU OF

THE 

### C ENSUS

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.—I NCOR



### PORATED 

### P LACES 

### W ITH 

### POPU



### LATIONS 

### G REATER 

### THAN 

### 250,000

ACCORDING TO THE 

### 1990 D ECEN



### NIAL 

### C ENSUS BY THE 

### B UREAU OF

THE 

### C ENSUS

### —Continued

State Incorporated Place

San Antonio. Virginia ...................... Norfolk. Virginia Beach. Washington ............... Seattle.

Wisconsin .................. Milwaukee.



### APPENDIX 

### G TO 

### PART 

### 122.—I NCOR



### PORATED 

### P LACES 

### W ITH 

### POPU



### LATIONS 

### G REATER 

### THAN 

### 100,000

B UT 

### L ESS 

### THAN 

### 250,000 ACCORD



### ING TO THE 

### 1990 D ECENNIAL 

### C EN



### SUS BY THE 

### B UREAU OF THE 

### C EN



### SUS

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. 

### A PPENDIX 

### G TO 

### PART 

### 122.—I NCOR



### PORATED 

### P LACES 

### W ITH 

### POPU



### LATIONS 

### G REATER 

### THAN 

### 100,000

B UT 

### L ESS 

### THAN 

### 250,000 ACCORD



### ING TO THE 

### 1990 D ECENNIAL 

### C EN



### SUS BY THE 

### B UREAU OF THE 

### C EN



### SUS

### —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.—I NCOR



### PORATED 

### P LACES 

### W ITH 

### POPU



### LATIONS 

### G REATER 

### THAN 

### 100,000

B UT 

### L ESS 

### THAN 

### 250,000 ACCORD



### ING TO THE 

### 1990 D ECENNIAL 

### C EN



### SUS BY THE 

### B UREAU OF THE 

### C EN



### SUS

### —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 

### W ITH 

### U NINCORPORATED 

### U RBANIZED 

### A REAS 

### W ITH A 

### POPULATION OF 

### 250,000 OR



### M ORE 

### ACCORDING TO THE 

### 1990 D ECENNIAL 

### C ENSUS BY THE 

### B UREAU OF THE 

### C ENSUS

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


### 68849 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

APPENDIX 

### H TO 

### PART 

### 122.—COUNTIES 

### W ITH 

### U NINCORPORATED 

### U RBANIZED 

### A REAS 

### W ITH A 

### POPULATION OF 

### 250,000 OR



### M ORE 

### ACCORDING TO THE 

### 1990 D ECENNIAL 

### C ENSUS BY THE 

### B UREAU OF THE 

### C ENSUS

### —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 

### W ITH 

### U NINCORPORATED 

### U RBANIZED 

### A REAS 

### G REATER 

### THAN 

### 100,000 B UT 

### L ESS



### THAN 

### 250,000 ACCORDING TO THE 

### 1990 D ECENNIAL 

### C ENSUS BY THE 

### B UREAU OF THE 

### C ENSUS

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.


### 68851 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations

(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]

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