United States Office of Water EPA 833-F-99-011

Environmental Protection (4203) April 1999

Agency Fact Sheet 2.9

Storm Water Phase II

Proposed Rule

Permitting and Reporting:

The Process and Requirements

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.

As proposed, owners and operators of small municipal separate storm sewer systems (MS4s)

covered by the Storm Water Phase II program would be required to obtain National Pollutant

Discharge Elimination System (NPDES) storm water permit coverage because storm water discharges

from MS4s are considered a “point source” of pollution. All point source discharges, unlike nonpoint

sources such as agricultural runoff, are required under the Clean Water Act (CWA) to be covered by

federally enforceable NPDES permits. It is important to note that any owner or operator of an MS4

already permitted under the NPDES Phase I storm water program, even one serving less than 100,000

people, should not, and can not, obtain a Phase II storm water permit.

NPDES storm water permits are issued by an NPDES permitting authority, which may be a NPDESdelegated State or a U.S. EPA Region in non-delegated States (see the For Additional Information

section of this fact sheet for a list of NPDES permitting authorities). Once a permit application is

submitted by the owner or operator of a regulated small MS4 and a permit is obtained, the conditions

of the permit would need to be satisfied (i.e., development and implementation of a storm water

management program) and periodic reports would need to be submitted on the status and effectiveness

of the program.

This fact sheet explains the various permit options that are expected to be available for owners or

operators of regulated small MS4s and details their proposed permit application and reporting

requirements. Important compliance deadlines also are highlighted. The proposed program coverage

and program requirements for Phase II small MS4s are explained in Fact Sheets 2.0 through 2.8.

What Permitting Options Would Be Available for Owners or Operators of

Regulated Small MS4s?

Unlike the Phase I program that primarily utilizes individual permits for medium and large MS4s,

the proposed Phase II approach would allow owners or operators of regulated small MS4s to

choose from as many as three permitting options. The actual available options, however, would be at

the discretion of the NPDES permitting authority. Potential options are listed below:

 General Permits

• General permits are strongly encouraged by EPA. The Phase II program has been designed

specifically to accommodate a general permit approach.

• General permits prescribe one set of requirements for all applicable permittees. General

permits are drafted by the NPDES permitting authority, then published for public comment

before being finalized and issued.

• A Notice of Intent (NOI) serves as the application for the general permit. The permittee

would first read the requirements specified in the permit, then submit an NOI informing the

NPDES permitting authority of how they are planning to comply with the permit. As

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 2.9 – Permitting and Reporting: The Process and Requirements Page 2

proposed, a Phase II permittee would have the flexibility

to develop individualized storm water programs that

address their particular characteristics and needs as long

as their programs satisfy the basic requirements of the

general permit. The specific information to be included

in an NOI is described under the next question below.

• The permittee would follow Phase II permit application

requirements (see discussion below).

• In the general permit, the NPDES permitting authority

could reference existing responsibilities among

governmental entities for one or more minimum

measures, thereby relieving the permittee of the

responsibility of implementing that particular minimum

control measure or measures. For example, the NPDES

permitting authority could reference an existing county

erosion and sediment control program for construction

sites that they deem as equivalent to the Phase II

construction site runoff control minimum measure. The

permittee, if located in the referenced county, would not,

then, be required to develop and implement their own

construction program, since construction activity would

already be adequately addressed by the county.

 Individual Permits

• Individual permits are required for Phase I “medium”

and “large” MS4s, but not recommended by EPA for

Phase II program implementation.

• Individual permits are permits written by the NPDES

permitting authority for a particular permittee. A

comprehensive application is submitted by the permittee

and permit requirements are established by the NPDES

permitting authority based on the information in the

application. The result is a permit tailored specifically

for the permittee. The draft individual permit is

published for public comment and then finalized.

• The permittee would follow Phase II permit application

requirements and provide an estimate of square mileage

served by the system and any additional information

requested by the NPDES permitting authority.

• The NPDES permitting authority could reference

existing responsibilities of governmental entities in the

individual permit, as explained above in the last bullet

under General Permits.

 Modification of a Phase I Individual Permit –

A Co-Permittee Option

• The owner/operator of a regulated small MS4 could

participate as a co-permittee in a neighboring Phase I

MS4’s storm water management program by seeking a

modification of the existing Phase I individual permit. 

A list of Phase I medium and large MS4s can be

obtained from the EPA Office of Wastewater

Management or downloaded from the OWM web site.

• The permittee would follow Phase I permit application

requirements (with some exclusions).

• The permittee would comply with the applicable terms of

the Phase I individual permit rather than the minimum

control measures in the Phase II proposal.

What Would the Permit Application Require?

Owners/operators of regulated small MS4s would be required

to submit in their NOI or individual permit application the

following information:

 Best management practices (BMPs) that will be

implemented for each of the six minimum control

measures:

Public education and outreach on storm water

impacts

 Public participation/involvement

 Illicit discharge detection and elimination

 Construction site storm water runoff control

 Post-construction storm water management in new

development/redevelopment

 Pollution prevention/good housekeeping for

municipal operations

(See Fact Sheets 2.3 through 2.8 for full descriptions of

each measure, including examples of BMPs and

measurable goals)

 Measurable goals for each minimum control measure 

(i.e, narrative or numeric standards used to gauge

program effectiveness);

 Estimated months and years in which actions to

implement each measure will be started and completed;

and

 The person or persons responsible for implementing or

coordinating the storm water program.

Relying on Another Entity

The Phase II permittee would have the option of relying on other

entities already performing one or more of the minimum control

measures, provided that the existing control measure,

or component thereof, is at least as stringent as the Phase II rule

requirements. For example, a county already may have an illicit
Fact Sheet 2.9 – Permitting and Reporting: The Process and Requirements Page 3

discharge detection and elimination program in place and may

allow an owner/operator of a regulated small MS4 within the their 

jurisdiction to rely on the county program instead of formulating

and implementing a new program. In such a case, the permittee

would not need to implement the particular measure, but would

still remain ultimately responsible for its effective

implementation. For this reason, EPA recommends that the

permittee enter into a legally binding agreement with the other

entity. If the permittee chooses to rely on another entity, they

would need to note this in their permit application and subsequent

reports.

What Would the Permit Require?

The owner/operator of a regulated small MS4 would have the

flexibility to determine the BMPs and measurable goals, for

each minimum control measure, that are most appropriate for

them. Their chosen BMPs and measurable goals, submitted in

their permit application, would become their required program; 

however, the NPDES permitting authority could require changes

in the mix of chosen BMPs and measurable goals if all or some of

them are found to be inconsistent with the provisions of the final

Phase II rule. Likewise, the permittee could change their mix of

BMPs if they determine that their program is not as effective as it

could be. Fact Sheets 2.3 through 2.8 further describe each of the

minimum control measures, while the proposed permit

requirements for evaluation/assessment and recordkeeping

activities are described in separate sections below.

Menu of BMPs

The BMPs for minimum measures 3 through 6 (as listed in the

permit application requirements section, above) would not be

enforceable until the NPDES permitting authority has issued a

list, or “menu,” of BMPs from which a regulated owner/operator

could choose. The NPDES permitting authority would be

required to provide this menu as an aid for those owners/operators

that are unsure of the most appropriate and effective BMPs to use. 

Since the menu would serve as guidance only, the owners/

operators would not be restricted to implement only those BMPs

provided in the menu.

What Standards Would Apply?

APhase II small MS4 owner/operator would be required to

design its program in such a way as to:

 Reduce the discharge of pollutants to the “maximum

extent practicable” (MEP); and

 Protect water quality.

The successful implementation of approved BMPs would be

considered compliance with the technical standard of MEP. The

Phase II Proposed Rule considers narrative effluent limitations

that require the implementation of BMPs and the achievement of

measurable goals as the most appropriate form of effluent

limitations to achieve the protection of water quality, rather than

requiring storm water discharges to meet numeric effluent

limitations.

EPA intends to issue Phase II NPDES permits consistent with its

August 1, 1996, Interim Permitting Approach policy, which calls

for 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

which information exists to develop more specific conditions or

limitations to meet water quality standards, these conditions or

limitations should be incorporated into the storm water permit. 

Monitoring would not be required under the Phase II proposal,

but the NPDES permitting authority would have the discretion to

require monitoring if deemed necessary.

What Evaluation/Reporting Efforts Would Be

Required?

Frequency of Reports

Reports would need to be submitted annually during the first

permit term. For subsequent permit terms, reports would need to 

be submitted in years 2 and 4 only, unless the NPDES permitting

authority requests more frequent reports.

Required Report Content

The reports would be required to include the following:

 The status of compliance with permit conditions,

including an evaluation of the appropriateness of the

selected BMPs based on their effectiveness in reducing

the discharge of pollutants from the system to the MEP

and in protecting water quality;

 An assessment of the progress toward achieving the

program’s measurable goals for each minimum control

measure;

 Results of any information collected and analyzed,

including monitoring data, if any; 

 A summary of the storm water activities planned for the

next reporting cycle; and

 A change in any identified measurable goals.

A Change in Selected BMPs

If, upon evaluation of the program, improved controls are

identified as necessary, permittees could revise their mix of BMPs

to provide for a more effective program. Such a change, and an

explanation of the change, would be required to be included in a

report to the NPDES permitting authority.
Fact Sheet 2.9 – Permitting and Reporting: The Process and Requirements Page 4

Would There Be Recordkeeping Requirements?

Yes. Records required by the NPDES permitting authority

would need to be kept for at least 3 years and made

accessible to the public at reasonable times during regular

business hours. Records would not need to be submitted to the

NPDES permitting authority unless the permittee is requested to

do so.

What Are the Proposed Deadlines for Compliance?

 Storm Water Phase II Final Rule scheduled for publication

in November 1999

 The NPDES permitting authority issues general permits for

regulated small MS4s within 3 years from the date of

publication of the final rule

 Owners/operators of regulated small MS4s submit their

permit applications within 3 years and 90 days from the

date of publication of the final rule

 Regulated small MS4 storm water management programs

fully developed and implemented by the end of the first

permit term, typically a 5-year period

Would There Be Penalties for Not Complying with

the Requirements?

Yes. The NPDES permit that the owner/operator of a

regulated small MS4 would be required to obtain is federally

enforceable, thus subjecting the permittee to potential

enforcement actions and penalties by the NPDES permitting

authority if the permittee does not fully comply with application

or permit requirements. This federal enforceability also includes

the right for interested parties to sue under the citizen suit

provision (Section 405) of the CWA.

For Additional Information

Contacts

 U.S. EPA Regional Storm Water Coordinators1

Region 1 {ME2, NH2, VT, MA2, RI, CT}: Thelma Hamilton 617 565-3569

Region 2 {NY, NJ, PR2

, VI}: Sergio Bosques 787 729-6951(x 255)

Region 3 {PA, DE, DC2

, MD, VA, WV}: Mary Letzkus 215 814-2087

Region 4 {KY, TN, NC, SC, MS, AL, GA, FL2

}: Michael Mitchell 404 562-9303

Region 5 {MN, WI, IL, MI, IN, OH}: Peter Swenson 312 886-0236

Region 6 {NM2

, TX2, OK, AR, LA}: Brent Larsen 214 665-7523

Region 7 {NE, KS, IA, MO}: Ralph Summers 913 551-7418

Region 8 {MT, ND, WY, SD, UT, CO}: Vernon Berry 303 312-6234

Region 9 {CA, NV, AZ2

, HI}: Eugene Bromley 415 744-1906

Region 10 {WA, OR, ID2

, AK2}: Bob Robichaud 206 553-1448

1 The U.S. EPA is the NPDES permitting authority for all federally recognized Indian Country Lands and for Federal facilities in CO,

DE, FL, VT, VI, and WA.

2

 Denotes a non-delegated State for the NPDES storm water program. For these States only, the U.S. EPA Region is the NPDES

permitting authority. All other States serve as NPDES permitting authorities for the storm water program. (Note: FL and TX will

become NPDES permitting authorities for storm water in 2000.)

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

• Internet: www.epa.gov/owm/sw2.htm