April 16, 2004 

MEMORANDUM 

Subject: Implementing the Partial Remand of the Stormwater Phase II Regulations 

Regarding Notices of Intent & NPDES General Permitting for Phase II MS4s 

From: James A. Hanlon /s/ 

Director, Office of Wastewater Management 

To: Water Management Division Directors, Regions I - X 

The purpose of this memorandum is to provide guidance on implementing a partial 

remand of the Stormwater Phase II regulations. The U.S. Court of Appeals for the Ninth Circuit 

recently denied EPA’s petition for rehearing in the Phase II litigation. Environmental Defense 

Center, et al. v. EPA, No. 70014 & consolidated cases (9th Cir., Sept. 15, 2003). The Department 

of Justice has informed us that further review by the U.S. Supreme Court is not available. This 

memorandum provides interim guidance to EPA and State NPDES permitting authorities 

pending a rulemaking to conform the Phase II rule to the court's order. 

The Relevant Provisions of the Rules 

This case challenged the NPDES stormwater regulations issued pursuant to Clean Water 

Act (“CWA”) section 402(p)(6). That section directs EPA to “establish a comprehensive 

program to regulate” stormwater discharges designated by EPA. We commonly describe these 

regulations as stormwater “Phase II.” The regulations require NPDES permits for discharges 

from certain municipal separate storm sewer systems (“MS4s”) for which NPDES permits were 

not required under CWA section 402(p)(2) and the Phase 1 regulations. 

The Phase II regulations require that MS4s reduce the discharge of pollutants “to the 

maximum extent practicable” (or “the MEP standard”). The regulations also require the MS4s 

to develop, implement and enforce a stormwater management program containing, among other 

things, best management practices (“BMPs”) identified by the discharger. The regulations 

authorize the use of “general permits” and require that these BMPs (as well as measurable goals 

associated with these BMPs) be identified in the Notice of Intent (“NOI”) filed by the MS4 in 

seeking authorization under a general permit. Relying on the “traditional” general permit model, 

the Agency did not require NOIs to be subject to public hearings. 
The Ninth Circuit’s Decision 

The Ninth Circuit held that these NOI requirements violated various provisions of CWA 

section 402. They concluded that “the EPA’s failure to require review of NOIs, which are the 

functional equivalents of permits under the Phase II General Permit option, and its failure to 

make NOIs available to the public or subject to public hearings contravene the express 

requirements of the Clean Water Act.” The remand raises important questions regarding the 

procedures that would be appropriate for authorization of Phase II MS4 discharges other than 

through an individual permit. 

In denying EPA’s motion for rehearing the court “vacated” the portions of the Phase II 

rule that address the procedural issues relating to the general permitting option for Phase II 

MS4s. Therefore, the Agency needs to take affirmative action to clarify the general permitting 

option for Phase II MS4s. In any such action, we believe it is imperative that implementation of 

the MEP standard remain an “iterative” process that optimizes the reduction of stormwater 

pollutants, rather than a static pollution reduction requirement. 

In looking at options for implementing the court’s decision, we want to continue to 

provide States with maximum flexibility. Some State Phase II MS4 permitting procedures 

already appear to meet the court’s intent and will not need changes. However, the general 

permits and procedures of other States, along with the provisions developed by EPA in States 

where EPA has program implementation responsibilities, will need to change. To assist MS4 

permitting authorities in moving forward with implementing program revisions where needed, 

EPA provides the following recommendations to address the court's decision. 

Guidance for Issuance of New General Permits 

1. Public availability of NOIs The Phase II rules already require that Phase II MS4 

permittees make the records of their stormwater management plans publicly available at 

reasonable times during regular business hours. 40 C.F.R. 122.34(g)(2). NOIs (which essentially 

summarize stormwater management plans) should also be made publicly available. Permitting 

authorities can ensure the public availability of Phase II MS4 NOIs by providing notice on the 

web of the facilities applying for coverage under a general permit with either an electronic 

posting of the NOIs or information on how NOIs can be accessed. NOIs could also be public 

noticed in a newspaper, or by another effective manner. 

Unless a permitting authority has already otherwise incorporated public notice procedures 

into its processes for issuance of Phase II MS4 general permits, NPDES agencies that have not 

yet issued final permits should include permit language explaining that (and how) NOIs will be 

made available to the public with sufficient time to allow for meaningful public comment. EPA 

recommends that permitting authorities make the NOIs available to the public at least thirty days 

before authorization to discharge. 

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2. Opportunity for public hearing The court’s decision requires that the public be given 

an opportunity to request a public hearing. If the Phase II MS4 general permittee provides public 

notice for the NOI, the permitting authority will still need to provide the public an opportunity to 

request a hearing. EPA recommends that permitting authorities include permit language 

explaining the process for requesting a public hearing on an NOI, the standard by which such 

requests will be judged, the procedures for conducting public hearing requests that are granted, 

and the procedures for permitting authority consideration of the information submitted at the 

hearing in determining whether to grant authorization to discharge to the submitter of the NOI. If 

a public hearing is requested, the permitting authority should consider both whether to grant a 

hearing and the range of options for the conduct of the hearing, including, for example, a single 

public hearing for consideration of multiple Phase II MS4 permittee NOIs. 

3. Permitting Authority reviews of NOIs The permitting authority will need to conduct 

an appropriate review of Phase II MS4s’ NOIs to ensure consistency with the permit. General 

permits should, to the extent practicable, specify in objective terms what is expected of a Phase II 

MS4 in order to meet the MEP standard. Due to the iterative nature of the MEP standard, we do 

not believe official “approval” of NOIs is necessary, but the general permits will need to specify 

when authorization occurs, such as after notice from the permitting authority that review is 

complete, or after a specified waiting period. EPA notes that this process does not preclude the 

permitting authority from denying an MS4 authorization to discharge. Either of these timing 

options should provide the permitting authority with sufficient time to review NOIs, to ensure 

that NOIs have been publicly available, and that there has been an opportunity to request a public 

hearing to provide input. 

Guidance for General Permits Already Issued for MS4s 

Permitting authorities that already have issued general permits should determine the most 

effective way to provide public notice and review of MS4 NOIs. Unless a permitting authority 

has already otherwise incorporated such procedures into its processes for issuance of Phase II 

MS4 general permits, NPDES agencies that have issued final permits should: 

• List on the State or EPA Region’s web site those MS4 permittees who have submitted 

NOIs and how NOIs can be reviewed by the public. Include information on how 

comments can be submitted and a hearing can be requested. If a public hearing is 

requested, the permitting authority should consider both whether to grant a hearing and 

the range of options for the conduct of the hearing, including, for example, a single public 

hearing for consideration of multiple Phase II MS4 permittee NOIs. 

• Conduct an appropriate review of submitted NOIs (to determine compliance with the 

permit) and contact the MS4 when changes appear to be needed. 

MS4s continue to have an obligation to apply for permit coverage, whether under an 

individual NPDES permit or an NPDES general permit. We do not believe that the court ruling 

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creates legal vulnerability for violations of the CWA for Phase II MS4 permittees that have filed 

timely applications, whether or not authorization has been granted. The Phase II regulations 

establish application deadlines, not authorization deadlines. Even when Phase II MS4 permittees 

are authorized, the regulations do not require immediate compliance with the MEP standard, i.e., 

development and full implementation of the Phase II MS4 stormwater management program. 

Instead, the permitting authority specifies the applicable time period, which maybe be as long as 

five years after permit issuance. 

We request that you communicate this guidance to States within your Region which are 

authorized to administer the NPDES program. If you have questions or concerns, please contact 

Linda Boornazian at (202) 564-0221 or Wendy Bell at (202) 564-0746. 

cc: Ben Grumbles, OW 

NPDES Branch Chiefs, EPA Regions I - X 

Susan Lepow, OGC 

Mark Pollins, ORE 

Robbi Savage, ASIWPCA 

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