United States Office of Water EPA 833-F-99-012

Environmental Protection (4203) April 1999

Agency Fact Sheet 2.10

Storm Water Phase II

Proposed Rule

Federal and State-Owned MS4s:

Program Implementation

This fact sheet is based on the Storm Water Phase II Proposed Rule. Therefore, the information provided herein is subject to

change upon publication of the final Phase II rule in November 1999. A revised series of fact sheets will be provided at that

time. A comprehensive list of the current fact sheets is in the text box at left.

The program for small municipal separate storm sewer systems (MS4s) under the Storm Water

Phase II Proposed Rule would include, in addition to local government jurisdictions, certain

Federal and State-owned and operated small MS4s. Federal facilities currently are not regulated as

part of the existing NPDES storm water program for MS4s; however, the proposed rule would amend

the definition of an MS4 to include the “United States” as an owner or operator of an MS4, thereby

including Federal owners/operators in the NPDES Phase II storm water program. Federal and Stateowned/operated small MS4s can include universities, prisons, hospitals, roads (i.e., departments of

transportation), military bases (e.g., State Army National Guard barracks), parks, and office buildings/

complexes. For more information on the proposed Phase II coverage of Federal and State MS4s, see

Fact Sheet 2.1.

The proposed small MS4 program, largely designed with municipally-owned and operated small

MS4s in mind, could raise implementation issues for Federal and State owners/operators. Federal and

State owners/operators of regulated small MS4s would need to obtain an NPDES permit that would

require the development and implementation of a storm water management program that includes the

following six minimum control measures: public education and outreach, public participation/

involvement, illicit discharge detection and elimination, construction site runoff control, postconstruction runoff control, and good housekeeping/pollution prevention for municipal operations

(for more information on each measure, see Fact Sheets 2.3 through 2.8). This fact sheet highlights

potential implementation issues related to the minimum control measures, then discusses the

implementation options included in the proposed rule that may resolve these issues.

What Are Some Implementation Concerns?

This section profiles the three most common implementation issues raised in the public comments

submitted regarding the Phase II Proposed Rule.

How Does the Proposed Rule Account for Unique Characteristics?

Federal and State small MS4s possess a number of characteristics that set them apart from their

municipal counterparts. For example, whereas municipally-owned MS4s largely serve resident

populations, many Federal or State-owned MS4s, such as medical clinics and departments of

transportation (DOTs), do not. Other types of Federal and State MS4s, such as military bases,

prisons, and State universities, serve a population that is different from a typical municipal population. 

Their unique characteristics could lead Federal or State owners/operators to question either the need

to implement the entire suite of minimum control measures or their ability to fully comply with their

Phase II storm water permit. It would be the responsibility of the Federal or State-owned MS4 to

develop a program to address the minimum measures in a way that best matches the MS4’s unique

characteristics.

Storm Water Phase II

Proposed Rule

Fact Sheet Series

Overview

1.0 – Storm Water Phase II

Proposed Rule Overview

Small MS4 Program

2.0 – Small MS4 Storm Water

Program Overview

2.1 – Who’s Covered? Designation

and Waivers of Regulated Small

MS4s

2.2 – Urbanized Areas: Definition

and Description

Minimum Control Measures

2.3 – Public Education and

Outreach Minimum Control

Measure

2.4 – Public Participation/

Involvement Minimum Control

Measure

2.5 – Illicit Discharge Detection and

Elimination Minimum Control

Measure

2.6 – Construction Site Runoff

Control Minimum Control Measure

2.7 – Post-Construction Runoff

Control Minimum Control Measure

2.8 – Pollution Prevention/Good

Housekeeping Minimum Control

Measure

2.9 – Permitting and Reporting:

The Process and Requirements

2.10 – Federal and State-Owned

MS4s: Program Implementation

Construction Program

3.0 – Construction Program

Overview

Industrial “No Exposure”

4.0 – Conditional No Exposure

Exemption for Industrial Activity
Fact Sheet 2.10 – Federal and State Owned Small MS4s: Program Implementation Page 2

What If the Owner/Operator Appears to Be Lacking the

Necessary Legal Authority?

Three of the minimum control measures (illicit discharge

detection and elimination, and the two construction-related

measures) would require enforceable controls on third party

activities to help ensure successful implementation of the

measure. Some Federal and State owners/operators, however,

may not have the necessary legal regulatory authority to adopt

these enforceable controls in the same manner as do local

governments. For example, a State DOT that is responsible for

the portions of its roads running through urbanized areas may not

have the legal authority to impose restrictions on, and penalties

against, illicit (i.e., non-storm water) discharges into its MS4 if

the source of the discharge is outside the DOT’s right-of-way or

jurisdiction. As in the case of local governments that may lack

such authority, State and Federal MS4s would be expected to

utilize the authority they do possess and to seek cooperative

arrangements where they lack necessary authority.

How Would the Program Be Implemented Among with

Multiple Regulated Jurisdictions?

Since the proposed rule provides automatic coverage of all small

MS4s within an urbanized area, regardless of political boundaries,

the result will likely be coverage of multiple governments and

agencies with multiple jurisdictions in a single area. For example,

a city government located within an urbanized area that owns or

operates a small MS4 would be designated alongside the county,

State, and Federal DOTs if they all own or operate a portion of

the roads in the city. All four entities would be responsible for

developing a storm water management program for their MS4s

(or portions thereof) within the city limits. EPA would encourage

State and Federal small MS4s to establish cooperative agreements

with cities and counties in implementing their storm water

programs.

What Are the Implementation Strategies that

Would Help Address the Issues?

This section offers two hypothetical strategies for resolving the

implementation issues raised above. The best solution may

include a creative combination of strategies.

STRATEGY #1

A Focus on Choosing Appropriate BMPs

The proposed rule would require the permittee to choose

appropriate best management practices (BMPs) for each

minimum control measure. In other words, EPA would expect

Phase II permittees to tailor their storm water management plans

and their BMPs to fit the particular characteristics and needs of

the permittee and the area served by their MS4. Therefore, the

Federal or State owner/operator of a regulated storm sewer system

could take advantage of the flexibility provided in the proposed

rule by applying each minimum control measure in a way that best

fits their MS4. Below is an example of tailored activities and

BMPs that Federal or State owners/operators could identify and

implement for each measure:

 Public Education and Outreach. Distribute brochures

and post fliers to educate employees of a Federal hospital

about the problems associated with storm water runoff

and the steps they can take to reduce pollutants in storm

water discharges. For example, employees could be

advised against carelessly discarding trash on the ground

or allowing their cars to leak oil/fluids in the parking lot.

 Public Participation/Involvement. Provide notice of

storm water management plan development and hold

meetings at which employees of a Federal office complex

are encouraged to voice their ideas and opinions about the

effort. Request volunteers to help develop the plan.

 Illicit Discharge Detection and Elimination. Develop a

map of the storm sewer system on a military base. 

Perform visual dry weather monitoring of any outfalls to

detect if any non-storm water is being discharged into the

storm sewer from the base. If a dry weather flow is

found, trace it back to the extent possible and stop the

discharge. In the case of a Federal or State DOT, the

DOT could develop and implement a program to detect

and eliminate illicit discharges, but when a discharge is

discovered and traced to the boundary of its system, they

could then refer the discharge to the adjoining regulated

MS4 for further action.

 Construction Site Runoff Control. Require the

implementation of erosion and sediment controls, and

control of other waste, for any construction concerning

Federal or State DOT’s roads. Review site plans for

proper controls, perform periodic inspections, and

establish penalties in the construction contract if controls

are not implemented. If construction is done directly by

the regulated DOT, it could be penalized by the NPDES

permitting authority for non-compliance with its small

MS4 permit if controls are not properly implemented.

 Post-Construction Runoff Control. Require the

consideration and implementation of post-construction

storm water controls for any new construction on the

grounds of a prison. This can be required as part of a

construction contract, instituted as internal policy, and

considered during site plan review.

 Pollution Prevention/Good Housekeeping for

Municipal Operations. Train maintenance staff at a

State university to employ pollution prevention

techniques whenever possible. For example, routinely

pick up trash/litter from the university grounds, use less

salt on the parking lots and access roads in the winter,

perform any maintenance of university vehicles under

shelter only, limit pesticide use to the minimum needed,

add vegetative buffer strips in the parking lots to filter

runoff, and keep dumpster lids closed.
Fact Sheet 2.10 – Federal and State Owned Small MS4s: Program Implementation Page 3

STRATEGY #2

Working with Other Entities

There could be instances when the Federal or State permittee has

limited capabilities to satisfy one or more of the minimum control

measures. For example, as discussed above, the permittee could

lack the proper legal authority to enforce controls (although it

should try to obtain the necessary legal authority if at all

possible).

In the case of limited capabilities, the permittee could work

with neighboring owners/operators of regulated small MS4s,

preferably on a watershed basis, to form a shared storm water

management program in which each permittee is responsible for

activities that are within individual legal authorities and abilities. 

The proposed rule would allow the permittee to rely on other

entities, with their permission, to implement those minimum

measures that the permittee is otherwise unable to implement. 

Three examples:

 A State DOT with limited regulatory legal authority could

reference a local sewer district’s illicit detection and

elimination program in its permit application, but only to

the extent that the program sufficiently addresses the

measure with respect to discharges into the DOT’s storm

sewer system.

 The permittee or NPDES permitting authority could

reference such programs as coastal nonpoint pollution

control programs, State or local watershed programs,

State or local construction programs, and environmental

education efforts by public or private entities.

 The permittee also could become a co-permittee with a

neighboring Phase I MS4 through a modification of the

Phase I MS4's individual permit. This may be the most

logical and preferable option for those Federal and State

entities located in Phase I municipal areas.

Choosing to work with other governmental entities as a copermittee, or referencing parts of each other’s plans, could help to

resolve issues that may arise due to multiple regulated

jurisdictions in the same area. If multiple jurisdictions work

together, they could avoid duplicative efforts, as well as territorial

or regulatory disputes. See Fact Sheet 2.9 for more information

on permitting options for regulated small MS4s.

Suggested Steps to Working with Other Entities

(1) Identify the boundaries of the urbanized area (see Fact

Sheet 2.2 for more information on urbanized areas)

(2) Identify the owners and operators of the storm sewer

systems or portions of the systems within the urbanized

area such as local, State, Tribal or Federal governments

or other entities.

(3) In seeking permit coverage, choose to:

(A) Identify where another entity may satisfy one or

more minimum control measure. If its program is

the equivalent to a minimum control measure’s

required elements, the owner/operator of the

regulated small MS4 may reference the existing

program if the other entity gives it permission to do

so. While such an arrangement would relieve the

owner/operator from performing the minimum

measure itself, the owner/operator would remain

ultimately responsible for the measure’s effective

implementation (see Fact Sheet 2.9 for more

information on this option)

OR

(B) Team with an owner or operator of a Phase I MS4

and become a co-permittee on its existing Phase I

individual permit (see Fact Sheet 2.9 for more

information on this option)

For Additional Information

Contact

 U.S. EPA Office of Wastewater Management

• Phone : 202 260-5816

• E-mail: SW2@epa.gov 

• Internet: www.epa.gov/owm/sw2.htm

Reference Documents

 Storm Water Phase II Proposed Rule Fact Sheet

Series. 

• Contact the U.S. EPA Water Resource Center at

202 260-7786 or at waterpubs@epa.gov 

• Internet: www.epa.gov/owm/sw2.htm

 Storm Water Phase II Proposed Rule, published on

Jan. 9, 1998 in the Federal Register (63 FR 1536).

• Internet: www.epa.gov/owm/sw2.htm