Page 1 of 25 Changes proposed under MS4 General Permit Remand Rule.

Text is CFR (e-CFR, current as of September 29, 2015). Strikeout reflects draft text

proposed to be deleted. Underline reflects draft text proposed to be added.

The narrative description of each of these proposed modifications is included below in

Attachment A.

§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? Requirements for obtaining permit coverage for regulated

small MS4s.

(a) If you operate a The operator of any regulat ed small MS4 under §122.32, you must seek coverage

under a an NPDES permit issued by your the applicable NPDES permitting authority. If you are the small

MS4 is located in an NPDES authorized State, Tribe, or Territory, then that State, Tribe, or Territory is

your the NPDES permitting author ity. Otherwise, your the NPDES permitting authority is the EPA

Regional Office.

(b) You The operator of any regulated small MS4 must seek authorization to discharge under a general or

individual NPDES permit, as follows:

(1) If your NPDES permitting authority has issued a g eneral permit applicable to your discharge and you

are seeking coverage under the general permit, you seeking coverage under a general permit issued by

the Director, the operator must submit a Notice of Int ent (NOI) consistent with § 122.28(b)(2) that includes

the information on your best management practice s and measurable goals requi red by §122.34(d). You

The operator may file your its own NOI, or the ope rator you and other municipalities or governmental

entities may jointly submit an NOI. If the operator you wants to share responsibilities for meeting the

minimum measures with other municipalities or gover nmental entities, the opera tor you must submit an

NOI that describes which minimum measures it y ou will implement and identify the entities that will

implement the other minimum measures within the area served by the 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 wishing to implement a

program under §122.34, the operator you must subm it an application to the appropriate your NPDES

permitting authority that includes the information r equired under §§122.21(f) and 122.34(d), the following:

[Text in (A), (B), and (C) was moved from §122.34(d)(1)] (A) the best management practices (BMPs)

that the operator or another entity proposes to impl ement for each of the storm water minimum control

measures described in §122. 34(b)(1) through (b)(6);

(B) the measurable goals for each of the BMPs including, as appropriate, the months and years in which

the operator will undertake required actions, including interim milestones and the frequency of the action;

(C) the person or persons respon sible for implementing or coordinating the storm water management

program;

(D) an estimate of square mileage se rved by your the small MS4; and

(E) any additional information that your the NPDES pe rmitting 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).Page 2 of 25 (ii) If you are seeking authorization to discharge under an individual permit and wishing to implement a

program that is different from the program under §12 2.34, the operator you will need to comply with the

permit application requirements of in §122.26(d). The operator will need to You must submit both Parts of

the application requirements in §§122.26(d)(1) and (2 ) at least 180 days before the operator proposes to

be covered by an individual permit by March 10, 2003. The operator does You do not need to submit the

information required by §§122.26(d)(1 )(ii) and (d)(2) regarding its your legal authority, unless the operator

you intends for the permit writer to take such inform ation into account when developing your other permit

conditions.

(iii) If allowed by the Director your NPDES permitting authority, the operator of the regulated small MS4

you and another regulated entity may jointly apply under ei ther paragraph (b)(2)(i) or (b)(2)(ii) of this

section to be co-permittees under an individual permit.

(3) If the regulated 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 w illing to have the small MS4 you participate in its

storm water program, you and the other MS4 the parties may jointly seek a modification of the other MS4

permit to include the small MS4 you as a limited co-per mittee. As a limited co-per mittee, the operator of

the small MS4 you will be responsible for compliance with the permit's conditions applicable to its your

jurisdiction. If the operator of the small MS4 you choo ses this option it you will need to comply with the

permit application requirements of §122.26, rather than the requirements of §122.33(b)(2)(i) 122.34. The

operator of the small MS4 You does not need to comply with the specific application requirements of

§122.26(d)(1)(iii) and (iv) and (d)(2)(iii) (discharge ch aracterization). The operator of the small MS4 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 for paragraph (b)(3) : In referencing an MS4's storm water management program, the

regulated small MS4 you should briefly describe how the existing program plan will address discharges

from the your small MS4 or would need to be su pplemented in order to adequately address the your

discharges. The regulated small MS4 You should also explain its your role in coordinating storm water

pollutant control activities in the your MS4, and detail the resources avail able to the MS4 you to

accomplish the program plan.

(c) If the 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 par agraph (b)(3) of this section by March 10, 2003,

unless your MS4 serves a jurisdiction with a popul ation under 10,000 and the NPDES permitting authority

has established a phasing schedule under §123.35(d)(3) of this chapter.

(2) is D designated under §122.32(a)(2), the operator of the MS4 you must apply for coverage under an

NPDES permit, or apply for a modification of an exis ting 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? Minimum permit requirements for regulated small MS4s.

(a) General requirements for regulated small MS4s. Your NPDES MS4 permit will require at a minimum

that you develop, implement, and enforce a storm wa ter management program designed In each permit

issued under this section, the Director must include pe rmit conditions that establish in specific, clear, and

measurable terms what is required to reduce the di scharge of pollutants from the 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 wa ter management program must include the minimum

control measures described in paragraph (b) of this section unless you apply for a permit underPage 3 of 25 §122.26(d). For the purposes of this section, nar rative effluent limitations may be expressed as

requirements to implement requiring implementation of best management practices (BMPs) with clear,

specific, and measurable requirements, including, but not limited to, specific tasks, BMP design

requirements, performance requirements or benchmarks, schedules for implementation and

maintenance, and frequency of actions are generally t he most appropriate form of effluent limitations

when designed to satisfy technology requirements (i ncluding reductions of pollutants to the maximum

extent practicable) and to protect water quality. Im plementation 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 For permits

being issued to a small MS4 for the first time, the Direct or may specify a time period of up to 5 years from

the date of permit issuance for the permittee to fully comply with the conditions of the permit and to

implement necessary BMPs you to develop and implement your program. Each successive permit must

meet the requirements of this section based on current water quality conditions, record of BMP

effectiveness, and other relevant information.

(b) Minimum control measures. The permit must include requir ements that ensure the permittee

implements, or continues to implement, the minimum control measures in subparagraphs (1) through (6)

of this paragraph during the permit term. The permit mu st also require a written storm water management

program document or documents that, at a minimum, describes how the permittee intends to comply with

the permit’s requirements for ea ch minimum control measure.

—

(1) Public education and outreach on storm water impacts. (i) You must implement The permit must

require implementation of 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 for permitting authorities and regul ated small MS4s: The permittee You may use storm

water educational materials provided by the 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 st orm water pollution, such as ensuring proper septic

system maintenance, ensuring the proper use and disp osal 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. EPA reco mmends 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 ci tizen groups. EPA recommends that

the permit require the permittee to tailor the public e ducation 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, sponsorin g speaking engagements before community groups,

providing public service announcements, implementin g 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 reco mmends that the permit require t hat 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 ex ample, providing information to restaurants on the

impact of grease clogging storm drains and to garages on the impact of oil discharges. The permit should

You are encouraged the permittee to tailor the 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) The permit must require implementation of You must, at a

minimum, comply with State, Tribal and local p ublic notice requirements when implementing a public

involvement/ participation program that complies with State, Tribal, and local public notice requirements.Page 4 of 25 (ii) Guidance for permitting author ities and regulated small MS4s: EPA recommends that the permit

include provisions addressing t he need for the public to be included in developing, implementing, and

reviewing your the storm water management prog ram 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 progr am, assisting in program coordination with other

pre-existing programs, or participating in volunteer monitoring efforts. (Citizens should obtain approval

where necessary for lawful ac cess to monitoring sites.)

(3) Illicit discharge detection and elimination. (i) The permit must require the development,

implementation, and enforcement of You must devel op, implement and enforce a program to detect and

eliminate illicit discharges (as defined at §122.26(b)(2)) into t he your small MS4. At a minimum, the permit

must require the permittee to:

(ii) You must:

(A) Develop, if not already complet ed, 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 St ate, Tribal or local law, effectively prohibit, through ordinance, or

other regulatory mechanism, non-stor m water discharges into the your storm sewer system and

implement appropriate enforcement procedures and actions;

(C) Develop and implement a plan to detect and addres s 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) The permit must require the permittee to Y ou need address the following categories of non-storm

water discharges or flows (i.e., illicit discharges) only if they are identified you identify them as significant

contributors of pollutants to the y our small MS4: water line flushing, landscape irrigation, diverted stream

flows, rising ground waters, uncontaminated ground wa ter infiltration (as defined at 40 CFR 35.2005(20)),

uncontaminated pumped ground water, discharges fr om potable water sources, foundation drains, air

conditioning condensation, irrigation water, springs, water from crawl space pumps, footing drains, lawn

watering, individual residential car washing, flow s from riparian habitats and wetlands, dechlorinated

swimming pool discharges, and street wash water (disc harges or flows from fire fighting activities are

excluded from the effective prohibition against non-s torm water and need only be addressed where they

are identified as significant sources of po llutants to waters of the United States).

(iv iii) Guidance for permit writers and regulated smal l MS4s: EPA recommends that the permit require the

plan to detect and address illicit discharges include the following four components: procedures for

locating priority areas likely to have illicit discharges; pr ocedures 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 that the permit require the permittee to visually screening outfalls

during dry weather and conducting field tests of select ed pollutants as part of the procedures for locating

priority areas. Illicit di scharge education actions may include storm drain stencilin g, a program to promote,

publicize, and facilitate public reporting of illicit c onnections or discharges, and distribution of outreach

materials.Page 5 of 25 (4) Construction site stor m water runoff control. (i) The permit must require the permittee to You must

develop, implement, and enforce a program to reduce po llutants in any storm water runoff to the 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 constr uction activity disturbing less than one acre must

be included in the your program if that constructi on activity is part of a larger common plan of

development or sale that would di sturb one acre or more. If the NPDES permitting authority waives

requirements for storm water discharges associated wi th small construction activity in accordance with

§122.26(b)(15)(i), the permittee is y ou are not required to develop, implement, and/or enforce a program

to reduce pollutant discharges from such sites. The permit must require

(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 sanita ry waste at the construction site that may cause

adverse impacts to water quality;

(D) Procedures for site plan review which incorpor ate 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 for permit writers an d regulated small MS4s: Examples of sanctions to ensure compliance

include non-monetary penalties, fines, bonding requirements and/or permit denials for non-compliance.

EPA recommends that the procedures for site plan review include the review of individual preconstruction site plans to ensure consistency with local sediment and erosi on 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 wa ter quality. EPA also recommends that the permit

encourage the permittee to You are encouraged to provide appropriate educational and training

measures for construction site operators. The permi t should also include a requirement for the permittee

to require You may wish to require a storm water pollution prevention plan for construction sites within the

MS4’s your jurisdiction that discharge into t he your system. See §122.44(s) (NPDES permitting

authorities' option to incorporate qualifying State, Tr ibal and local erosion and sediment control programs

into NPDES permits for storm water discharges fr om construction sites). Also see §122.35(b) (The

NPDES permitting authority may recognize that anot her 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) The permit

must require the development, implementation, and enforcement of 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 ac re, including projects less than one acre that are part of a larger

common plan of development or sale, that discharge in to the your small MS4. The permit Your program

must ensure that controls are in place that would prevent or minimize water quality impacts. The permit

You must require the permittee to:

(A) Develop and implement strategies which include a co mbination of structural a nd/or non-structural best

management practices (BMPs) appropriate for the your community;Page 6 of 25 (B) 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; and

(C) Ensure adequate long-term operation and maintenance of BMPs.

(ii) Guidance for permit writers and regulated small MS4s: 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 recommend s that the permit ensure that BMPs chosen: be

appropriate for the local community; minimize water quality impacts; and attempt to maintain predevelopment runoff conditions. In choosing appropria te BMPs, EPA encourages the permittee you to

participate in locally-based watershed planning effort s which attempt to involve a diverse group of

stakeholders including interested citizens. When dev eloping a program that is consistent with this

measure's intent, EPA recommends that the permit requi re the permittee to y ou adopt a planning process

that identifies the municipality's program goals (e.g., minimize water quality impacts resulting from postconstruction runoff from new development and redevel opment), implementation strategies (e.g., adopt a

combination of structural and/ or non-structural BMPs), operat ion and maintenance policies and

procedures, and enforcement procedu res. In developing the your progr am, the permit should also require

the permittee to assess you should consider asse ssing existing ordinances, policies, programs and

studies that address storm water runoff quality. In addition to assessing these existing documents and

programs, the permit should require the permittee to 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: policie s 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 (inc luding 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 or dinances that encourage infill development in higher

density urban areas, and areas with existing infras tructure; 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 minimi zation of directly connected impervious areas.

Structural BMPs include: storage practices such as wet ponds and extended-det ention outlet structures;

filtration practices such as grassed swales, sand filter s and filter strips; and infiltration practices such as

infiltration basins and infiltration trenches. EPA reco mmends that the permit you ensure the appropriate

implementation of the structural BMPs by considering some or all of the following: pre-construction review

of BMP designs; inspections during co nstruction to verify BMPs are built as designed; post-construction

inspection and maintenance of BMPs; and penalty provisions for the noncompliance with design,

construction or operation and maintenance. Storm wa ter technologies are constantly being improved, and

EPA recommends that the permit your requirements be responsive to these changes, developments or

improvements in control technologies.

(6) Pollution prevention/good housekeeping for municipal operations. (i) The permit must require the

development and implementation of You must dev elop 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 materi als that are available from EPA, the your State,

Tribe, or other organizations, the your program mu st 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 dist urbances, and storm water system maintenance.

(ii) Guidance for permit writer s and regulated small MS4s: EPA reco mmends that the permit address the

following: , at a minimum, you consider the following in developing your program: maintenance activities,

maintenance schedules, and long-term inspection proc edures for structural a nd non-structural storm

water controls to reduce floatables and other polluta nts discharged from the 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 the permittee you, and waste transfer

stations; procedures for properly disposing of waste removed from the separate storm sewers and areasPage 7 of 25 listed above (such as dredge spoil, accumulated sedi ments, floatables, and other debris); and ways to

ensure that new flood management projects assess t he 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 a ll 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 main tenance programs reduce the risk of water

quality problems.

[Text in (c) moved below to (e)] (c) Qualifying local program . 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 r equirements 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 requir ements of paragraph (b) of this section.

(d)(1) In your permit application (either a notice of intent for coverage under a general permit or an

individual permit application), you must identify and submit to your NPDES permitting authority the

following information:

[Text in (i), (ii), and (iii) moved to §122.33(b)(2)(i)] (i) The best management prac tices (BMPs) that you

or another entity will implement for each of the st orm water minimum control measures at paragraphs

(b)(1) through (b)(6) of this section;

(ii) The measurable goals for each of the BMPs incl uding, 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 implem enting or coordinating your storm water management

program.

(2) If you obtain coverage under a general permit, y ou are not required to meet any measurable goal(s)

identified in your notice of intent in order to dem onstrate compliance with the minimum control measures

in paragraphs (b)(3) throug h (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 t hat 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 othe rs that satisfy the minimum control measures.

(e c) Other applicable requirements. (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 limitati ons 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 contro l measures be imposed on regulated small MS4s

without the agreement of the operator of the affe cted small MS4, except where an approved TMDL or

equivalent analysis provides adequate information to de velop more specific measures to protect water

quality.Page 8 of 25 (f c)(2) You must comply with other Other applicable NPDES permit requirements, standards and

conditions established in the individual or general pe rmit, developed consistent with the provisions of

§§122.41 through 122.49, as appropriate.

(g d) Evaluation and assessment requirements. The permit must require the permittee to

. —(1) Evaluation.

You must e Evaluate permit program compliance, th e appropriateness of its your identified best

management practices, and progress towards ac hieving your identified measurable goals.

N OTE TO PARAGRAPH (g)(d)(1): The NPDES permitting authority may determine monitoring requirements for the

permittee you in accordance with State/Tribal monitoring plans appropriate to your the watershed. Participation in a

group monitoring program is encouraged.

(2) Recordkeeping. You must kKeep records required by the NP DES permit for at least 3 years. You must

and submit such your records to the NPDES permitti ng authority only when specifically asked to do so.

You must make your The permit must require t he permittee to make records, including a written

description of the your storm water management progra m, available to the public at reasonable times

during regular business hours (see §122.7 for confiden tiality provision). (You The permittee may assess a

reasonable charge for copying. The permit may allow the permittee to You may require a member of the

public to provide advance notice.)

(3) Reporting. Unless the permittee is you are relying on anot her entity to satisfy its your NPDES permit

obligations under §122.35(a), the permit must require the permittee to you must submit annual reports to

the NPDES permitting authority for your first permit term. For subsequent permit terms, the permit must

require the permittee to you must submit reports in year two and four unless the NPDES permitting

authority requires more frequent repo rts. Your The report must include:

(i) The status of compliance with permit condit ions, an assessment of t he appropriateness of the

permittee’s your identified best management practices and progress towards achieving its your identified

measurable goals for each of the minimum control measures;

(ii) Results of information collected and analyzed, in cluding monitoring data, if any, during the reporting

period;

(iii) A summary of the storm water activities the per mittee you plans to undertake during the next reporting

cycle;

(iv) A change in any identified best management pr actices or measurable goals for any of the minimum

control measures; and

(v) Notice that the permittee is you are relying on anot her governmental entity to satisfy some of the your

permit obligations (if applicable), consistent with §122.35(a).

(e) Qualifying local program . If an existing qualifying local program requires the permittee you to

implement one or more of the minimum control meas ures of paragraph (b) of this section, the NPDES

permitting authority may include conditions in your NP DES permit that direct the permittee 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 requir ements of paragraph (b) of this section.

§122.35 As an operator of a regulated small MS 4, 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:Page 9 of 25 (1) The other entity, in fact, implements the control measure;

(2) The particular control measure, or component t hereof, 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 d)(3), you must also specify that you rely on another entity to satisfy some of

your permit obligations. If you are relying on anothe r 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

d)(3), you must note that fact in your NOI, but you ar e not required to file the per iodic reports. You remain

responsible for compliance with your permit obligations if the other entity fails to implement the control

measure (or comp onent 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.

[Subsection (b) unchanged, omitted here]Page 10 of 25 

## Attachment A

Narrative Description of Each Proposed Regulatory ModificationPage 11 of 25 

### 1. Revise the title to § 122.33 and revise paragraph (a) to read as follows:

§122.33 Requirements for obtaining permit coverage for regulated small MS4s.



### (a) The operator of any regulated small MS 4 under §122.32 must seek coverage under an

NPDES permit issued by the applicable NPDES permitting authority. If the small MS4 is located

in an NPDES authorized State, Tribe, or Territor y, then that State, Tribe, or Territory is the

NPDES permitting authority. Otherwise, the NPDES permitting authority is the EPA Regional

Office.

2. Revise paragraph (b) of § 122.33 to delete “Y ou” and replace it with “The operator of

any regulated small MS4” in the introductory la nguage, revise the firs t sentence in paragraph

(b)(1) to delete “your NPDES perm itting authority has issued a ge neral permit applicable to your

discharge and you are seeking c overage under the gene ral permit, you”, add “seeking coverage

under a general permit issued by th e Director the operator”, delete “that includes the information

on your best management prac tices and measurable goals required by §122.34(d)” and add

“consistent with §122.28(b)(2)”; revi se the second sentence to delete “You” and replace it with

“The operator,” delete “you” and replace it with “the operator” w ithin the sentence, and replace

“your” with “its”; delete “You” and replace it with “The operator” at the beginning of the third

sentence, replace “want” with “wants”, delete “you” and replace it with “the operator” within the

sentence, delete “you” and replace it with “it” and delete “your” and replace it with “the” also in

the third sentence, to read as follows:

(b) The operator of any regulated small MS4 mu st seek authorization to discharge under a

general or individual NPDES permit, as follows:

(1) If seeking coverage unde r a general permit issued by the Director, the operator mustPage 12 of 25 

### submit a Notice of Intent (NOI) consistent wi th §122.28(b)(2). The opera tor may file its own

NOI, or the operator and other municipalities or governmental entities may jointly submit an

NOI. If the operator wants to sh are responsibilities for meeti ng the minimum measures with

other municipalities or governmental entities, the operator must submit an NOI that describes

which minimum measures it will implement and identify the entities th at will implement the

other minimum measures within the area served by the MS4.* * *

3. Revise paragraph (b)(2)(i) of § 122.33 to de lete “you are”, replace “w ish” with wishing”,

replace “you” with the “t he operator”, replace “your” with “the”, replace “122.34(d)” with “the

following:”, insert after “the following:” the text from existing 122.34(d )(1)(i)-(iii) with minor

edits as indicated below, replace “your small MS 4” with “the small MS4”, replace “your NPDES

permitting authority” with “NPDES permitting author ity”, revise paragraph (b)(2)(ii) to delete

“you are ” after “If” in the first sentence, repl ace “wish” with “wishing”, delete the “you” and

replace it with “the operator”, re place “of” with “in”, also at the end of the first sentence, replace

“122.26(d)” with “§122.26(d)(1) and (2) for its initial application for an individual permit and

submit the application at least 180 days before the operator proposes to be covered by an

individual permit”, delete the second sentence , and delete “You do” and replace it with “The

operator does”, replace “your” with “its”, replace “you intend” w ith “the operator intends”,

delete “your” following “developing” in the thir d sentence, and delete “your NPDES permitting

authority” and replace it with “the Director”, delete “you” and replace it with “the operator of the

regulated small MS4” in paragraph (b)(2)(iii), to read as follows.

(2)(i) If seeking authoriza tion to discharge under an indi vidual permit and wishing to

implement a program under § 122.34, the operator mu st submit an applicati on to the appropriatePage 13 of 25 

### NPDES permitting authority that includes th e information required under §§122.21(f) and the

following: (A) the best management practices (BMPs) that the operator or another entity

proposes to implement for each of the storm wa ter minimum control measures described in

§122.34(b)(1) through (b)(6) ; (B) the measurable goals for each of the BMPs including, as

appropriate, the months and years in which the operator will unde rtake required actions,

including interim milestones a nd the frequency of the action ; (C) the person or persons

responsible for implementing or coordina ting the storm water management program ; (D) an

estimate of square mileage served by the small MS4 ; and (E) any additional information that the

NPDES permitting authority requests.* * *

(ii) If seeking authorizati on to discharge under an indivi dual permit and wishing to

implement a program that is different from the program under §122.34, the operator will need to

comply with the permit applic ation requirements in §122.26. The operator will need to submits

both Parts of the application requirements in §§ 122.26 (d)(1) and (2) at least 180 days before the

operator proposes to be covered by an individu al permit. The operator does not need to submit

the information required by §§122.26( d)(1)(ii) and (d )(2) regarding its legal authority, unless the

operator intends for the permit wr iter to take such information into account when developing

other permit conditions.

(iii) If allowed by the Director, the operator of the regulated small MS4 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.



### 4. Revise paragraph (b)(3) of § 122.33 to delete “your” and replace it with “the regulated”,

delete “you” and replace it with “t he small MS4” twice, and dele te “you and the other MS4” and

replace it with “the parties” in the first senten ce, delete “you” and replace it with “the operator of

the small MS4,” and delete “your” and replace it w ith “its” in the second sentence, delete “you”Page 14 of 25 

### and replace it with “the operator of the sm all MS4,” replace “choose” with “chooses”, delete

“you” and replace it with “it” and delete the cross reference to §122.34 and replace it with a

cross-reference to §122.33( b)(2)(i) in the third sentence, and delete “You” and replace it with

“The operator of the small MS4” in the fourth and fifth sentences to read as follows below. In

addition revise the title to paragr aph (b)(4), delete “you” and replac e it with “the regulated small

MS4” and delete “your” and replace it with “the” in the first sentence, delete “you” and replace it

with “the regulated small MS4” , delete “your” and replace it with “its”, delete “your” and

replace it with “the”, and replace “you” with “the MS4” in the sec ond sentence to read as

follows:

(3) If the regulated 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 the small MS4 participate in its storm

water program, the parties may jointly seek a modification of the other MS4 permit to include the small

MS4 as a limited co

‐ permittee. As a limited co

‐ permittee, the operator of the small MS4 will be

responsible for compliance with the permit's conditions applicable to its jurisdiction. If the operator of

the small MS4 chooses this option it will need to comply with the permit application requirements of

§122.26, rather than the requirements of §122.33(b)(2)(i). The operator of the small MS4 does not need

to comply with the specific application requirements of §122.26(d)(1)(iii) and (iv) and (d)(2)(iii)

(discharge characterization). The operator of the small MS4 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 for paragraph (b)(3): In referencing an MS4’s storm water management program, the

regulated small MS4 should briefly describe how the existing plan will address discharges from the small

MS4 or would need to be supplemented in order to adequately address the discharges. The regulated

small MS4 should also explain its role in coordinating storm water pollutant control activities in the MS4,

and detail the resources available to the MS4 to accomplish the plan.



### 5. Revise paragraph (c) of § 122.33 to delete “you operate a” and replace it with “the” in the

introductory language, add “is” and delete the co lon at the end of the introductory language,

remove existing paragraph (c)(1), delete “you” and replace it with “the operator of the MS4” in

existing paragraph (c)(2), and rede signate existing paragraph (c)(2) as part of paragraph (c) to

read as follows:Page 15 of 25 (c) If the regulated small MS4 is designated under §122.32(a)(2), the operator of the MS4 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.

6. Revise § 122.34 of this Part to change the title and revise paragraph (a) to add “In each permit

issued under this section, the Director must include permit conditions that establish in specific, clear,

and measurable terms what is required”, delete “Your NPDES MS4 permit will require at a minimum

that you develop, implement, and enforce a storm water management program designed”, and replace

“your MS4” with “the MS4”, in the first sentence, delete the second sentence, in the third sentence

delete “narrative”, “requiring implementation of”, and “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”, and add “may be

expressed as requirements to implement” after “effluent limitations”, add “with clear, specific, and

measurable requirements, including, but not limited to, specific tasks, BMP design requirements,

performance requirements or benchmarks, schedules for implementation and maintenance, and

frequency of actions” following “(BMPs)”, delete the existing fourth sentence, in the fifth sentence

delete “Your NPDES permitting authority will” and replace it with “For permits being issued to a small

MS4 for the first time, the Director may”, delete “you to develop and implement your program”, add

“the permittee to fully comply with the conditions of the permit and to implement necessary BMPs”,

and add a final sentence “Each successive permit must meet the requirements of this section based on

current water quality conditions, record of BMP effectiveness, and other relevant information” to read

as follows:

§ 122.34 Minimum permit requirements for regulated small MS4 permits.



### (a) General requirement for regulated small MS 4 permits. In each permit issued under this

section, the Director must include permit conditi ons that establish in specific, clear, and

measurable terms what is required to reduce th e discharge of pollutants from the MS4 to the

maximum extent practicable (MEP), to protect wa ter quality, and to satisfy the appropriate water

quality requirements of the Clean Water Act. For the purposes of this section, effluent limitations

may be expressed as requirements to implement best management practices (BMPs) with clear,

specific, and measurable requirements, including, but not limited to, specific tasks, BMP design

requirements, performance requirements or benchmarks, schedules for implementation and

maintenance, and frequency of actions. For perm its being issued to a small MS4 for the first

time, the Director may specify a time period of up to 5 years from the date of permit issuance forPage 16 of 25 

### the permittee to fully comply with the conditi ons of the permit and to implement necessary

BMPs. Each successive permit must meet the requir ements of this section based on current water

quality conditions, record of BMP effectiveness, and ot her relevant information.

7. Revise paragraph (b) of § 122.34 to add introductory language to read as follows:

(b) Minimum control measures

. The permit must include requirements that ensure the permittee

implements, or continues to implement, the minimum control measures in subparagraphs (1) through

(6) of this paragraph during the permit term. The permit must also require a written storm water

management program document or documents that, at a minimum, describes how the permittee

intends to comply with the permit’s requirements for each minimum control measure.

8. Revise paragraph (b)(1)(i) to delete “You must implement” and replace it with “The permit must

require implementation of” to read as follows:

(1) Public education and outreach on storm water impacts. (i) The permit must require

implementation of 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.

9. Revise the title to (b)(1)(ii), remove “You” and replace it with “The permittee” and remove

“your” and replace it with “the” in the first sentence, delete “be tailored” and replace it with “permit

require the permittee to tailor the” in the fourth sentence, add “that the permit should require” in the

sixth sentence, and delete “You are encouraged” and replace it with “The permit should encourage the

permittee” and replace “your” with “the” in the last sentence to read as follows:



### (b)(1)(ii) Guidance for permitting authorities and regulated small MS4s: The permittee may

use storm water educational materials provided by the State, Tribe, EPA, environmental, public

interest or trade organizations, or other MS4s. * * * EPA recommends that the permit require the

permittee to tailor the public ed ucation program, using a mix of lo cally appropriate strategies, to

target specific audiences and communities. * * * In addition, EPA recommends that the permit

should require that some of the materials or outreach programs be dire cted toward targeted

groups of commercial, industrial, and institutiona l entities likely to have significant storm water

impacts. * * * The permit should encourage the permittee to tailor the outreach program toPage 17 of 25 

### address the viewpoints and concer ns of all communities, particul arly minority and disadvantaged

communities, as well as any special concerns relating to children.

* * * * *

10. Revise the introduction to paragraph (b)(2)(i) to delete “You must, at a minimum, comply

with State, Tribal and local public notice requirements when im plementing” and replace it with

“The permit must require implementation of” a nd adding “that complies with State Tribal and

local public notice requirements”, as well as to revise the title to paragraph (b)(2)(ii) and insert

“the permit include provisions addressing the need for” after “EPA recommends that,” add “to”

following “the public” and to delete “your” and replace it with “the” in the first sentence, to read

as follows:

(2) Public involvement/participation. (i) The pe rmit must require implementation of a public

involvement/ participation program that complies with State, Tribal, and local public notice

requirements.

(ii) Guidance for permitting authorities and re gulated small MS4s: EPA recommends that the

permit include provisions addressing the need for the public to be included in developing,

implementing, and reviewing the storm water management program and that the public

participation process should make efforts to reach out and engage all economic and ethnic

groups.* * *

11. Revise the first sentence in paragraph (b)( 3)(i) to delete “You must develop, implement

and enforce a program to detect and eliminate i llicit discharges (as defi ned at §122.26(b)(2)) into

your small MS4

. 

### ” and replace it with “The permit must require the development,Page 18 of 25 

### implementation, and enforcement of a program to detect and eliminate i llicit discharges (as

defined at §122.26(b)(2)) into the small MS4. At a minimum, the permit must require the

permittee to:”, and to revise (b)(3)(i)(B) to re place “your” with “the”, to revise paragraph

(b)(3)(iii) to delete “You need” and replace it w ith “The permit must require the permittee to”

and to replace “your with “the”, to revise the title to paragraph (b)(3)(iv) and insert “the permit

require” after “EPA recommends that ” in the first sentence and insert “that the permit require the

permittee to” in the second sentence after “E PA recommends”, replace “screening” with

“screen” and “conducting” with “conduct”, and to remove (b)(3)(ii) and redesignate (b)(3)(iii)

and (iv) as (b)(3)(ii) and (iii), to read as follows:

(3) Illicit discharge detection and elimination. (i) The permit must require the development,

implementation, and enforcement of a program to detect and eliminate i llicit discharges (as

defined at §122.26(b)(2)) into the small MS4. At a minimum, the permit must require the

permittee to:

* * * * *

(B) To the extent allowable under State, Tribal or local law, effec tively prohibit, through

ordinance, or other regulatory mechanism, non- storm water discharges into the storm sewer

system and implement appropriate en forcement procedures and actions;

* * * * *

(ii) The permit must require the permittee to address the following cat egories of non-storm

water discharges or flows (i.e., illicit discharg es) only if they are id entified as significant

contributors of pollutants to the small MS4: * * *Page 19 of 25 

### (iii) Guidance for permit writers and regulated small MS4s: EPA recommends that the permit

require the plan to detect and address illicit discharges include the following four components:

procedures for locating priority areas likely to have illicit discharges; pr ocedures 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 that the permit require the

permittee to visually screen outfalls during dr y weather and conduct fiel d tests of selected

pollutants as part of the procedures for locating priority areas.* * *

12. Revise paragraph (b)(4)(i) to remove “You must” and replace it with “The permit must

require the permittee to” in the first sentence, delete “your” and replace it with “the” in the first

and second sentences, replace “you are” with “the permittee is” in the third sentence, , add a

fourth sentence “The permit must require the development and implementation of the following,

at a minimum:” remove paragraph (b )(4)(ii), revise paragraph (b)(4)(i ii) to revise the title, insert

“the” before “procedures” in the second sentence, replace “You are encouraged” with “EPA also

recommends that the permit encourage the permi ttee to” in the fourth sentence, replace “You

may wish to require” with “The permit should al so include a requirement for the permittee to

require”, replace “your” with “the MS4’s”, repla ce “your” with “the” in the fifth sentence, and

redesignate paragraph (b)(4 )(iii) as (b)(4)(ii), to read as follows:

(4) Construction site storm water runoff control. (i) The permit must require the permittee to

develop, implement, and enforce a program to re duce pollutants in any storm water runoff to the

small MS4 from construction activities that result in a land disturbance of gr eater than or equal to

one acre. Reduction of storm water discharges from construction activity disturbing less than one

acre must be included in the program if that cons truction activity is part of a larger common planPage 20 of 25 

### 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), the permittee is not required to develop, implement, and/or

enforce a program to reduce pollutant discharges from such sites. The permit must require the

development and implementation of, at a minimum:

* * * * *

(ii) Guidance for permit writers and regulated small MS4s: * * * EPA recommends that the

procedures for site plan review include the revi ew of individual pre-cons truction site plans to

ensure consistency with local sediment and eros ion control requirements. Procedures for site

inspections and enforcement of control measures c ould include steps to identify priority sites for

inspection and enforcement based on the nature of the construc tion activity, topography, and the

characteristics of soils and receiving water quality. EPA also recommends that the permit

encourage the permittee to provide appropriate educational and training measures for

construction site operators. The permit should al so include a requirement for the permittee to

require a storm water pollution prevention plan for construction sites within the MS4’s

jurisdiction that discharge into the system. S ee §122.44(s) (NPDES permitting authorities' option

to incorporate qualifying State, Tribal and lo cal erosion and sediment control programs into

NPDES permits for storm water discharg es from construction sites). * * *

13. Revise paragraph (b)(5)(i) to delete “Y ou must develop, implement, and enforce” and

replace it with “The permit must require the development, implementation, and enforcement of”

and delete “your” and replace it w ith “the” in the first sentence , to delete “Your program” and

replace it with “The permit” in the second sentence, to make paragraph (b)(5 )(ii) part of (b)(5)(i)Page 21 of 25 

### and to renumber paragraph (b)(5)(ii i) as (b)(5)(ii), to delete “You must” and replace it with “the

permit must require the permittee to” in the last sentence of of paragra ph (b)(5)(i), to delete

“your” and replace it with “the,” in new paragraph (b)(5)(i)(A) , to revise the title to new

paragraph (b)(5)(ii) to ad d “for permit writers and regulated MS4s”, to insert “that the permit

ensure” after “EPA recommends” in the second sentence of new (b)(5)(ii), to delete “you” and

replace it with “the permittee,” in the third se ntence, to delete “you” and replace it with “the

permit require the permittee to” in the fourth se ntence, replace the fifth sentence with “In

developing the program, the permit should also require the permittee to assess existing

ordinances, policies, programs and studies that address potential impacts of storm water runoff to

water quality”, replace “you should” with “the permit should require the permittee to” in the

sixth sentence, to delete “you” and replace it with “the permit,” in the ni nth sentence, and delete

“your” and replace it with “the permit” before “re quirements” in the tenth (and last) sentence, to

read as follows:

(5) Post

‐ construction storm water management in new development and redevelopment. (i) The

permit must require the development, implementation, and enforcement of 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 the small MS4. The permit must ensure that controls are in place that would

prevent or minimize water quality impacts. The permit must require the permittee to:

(A) Develop and implement strategies which include a combination of structural and/or non

‐

structural best management practices (BMPs) appropriate for the community;

* * * * *

(ii) Guidance for permit writers and regulated small MS4s: * * * EPA recommends that the permit

ensure that 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

the permittee 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 the permit require the permittee to 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 andPage 22 of 25 maintenance policies and procedures, and enforcement procedures. In developing the program, the

permit should also require the permittee to assess existing ordinances, policies, programs and studies

that address potential impacts of storm water runoff to water quality. In addition to assessing these

existing documents and programs, the permit should require the permittee to provide opportunities to

the public to participate in the development of the program.* * * EPA recommends that the permit

ensure the appropriate implementation of the structural BMPs by considering some or all of the

following: pre

‐ construction review of BMP designs; inspections during construction to verify BMPs are

built as designed; post

‐ construction 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 the permit requirements be responsive to these

changes, developments or improvements in control technologies.

14. Revise paragraph (b)(6)(i) to delete “You must develop and implement” and replace it with “The

permit must require the development and implementation of” in the first sentence, and to delete

“your” and replace it with “the” twice in the second sentence, to revise the title to paragraph (b)(6)(ii)

and delete “, at a minimum, you consider the following in developing your program” and replace it with

“the permit address” after “EPA recommends,” to delete “your” and replace it with “the” and delete

“you” and replace it with “the permittee” after “operated by” in the first sentence to read as follows:



### (6) Pollution prevention/good housekeeping for m unicipal operations. (i) The permit must

require the development and implementation of an operation and maintenance program that

includes a training component and has the ultim ate goal of preventing or reducing pollutant

runoff from municipal operations . Using training materials that are available from EPA, the

State, Tribe, or other organiza tions, the 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 for permit writers and regulated small MS4s: EPA recommends that the permit

address the following: maintenance activities, ma intenance schedules, and long-term inspection

procedures for structural and non- structural storm water controls to reduce floatables and other

pollutants discharged from the separate storm se wers; controls for reducing or eliminating the

discharge of pollutants from streets, roads, hi ghways, municipal parking lots, maintenance andPage 23 of 25 

### storage yards, fleet or maintenance shops with ou tdoor storage areas, salt/sand storage locations

and snow disposal areas operated by the permittee, and waste transfer stations; procedures for

properly disposing of waste removed from the sepa rate storm sewers and areas listed above (such

as dredge spoil, accumulated sediments, floatables, and other debris); * * *

15. Redesignate existing paragraph (c) of §122.34 as paragraph (e) of § 122.34. Revise redesignated

122.34(e) to include the title “Qualifying local program.” Delete “you” and replace it with the “the

permittee”, delete “your” and replace it with “the”, delete “you” and replace it with “the permittee” in

the first sentence, and delete “, at a minimum,” in the second sentence, to read as follows:

(e) Qualifying local program. If an existing qualifying local program requires the permittee to

implement one or more of the minimum control measures of paragraph (b) of this section, the NPDES

permitting authority may include conditions in the NPDES permit that direct the permittee 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 stormwater management program that

imposes the relevant requirements of paragraph (b) of this section.

16. Redesignate existing paragraphs (d)(1)(i)

– (iii) of § 122.34 and move them to § 122.33(b)(2)(i)

after “the following:” in the first sentence and delete the introductory language “In your permit

application (either a notice of intent for coverage under a general permit or an individual permit

application), you must identify and submit to your NPDES permitting authority the following

information,” as shown in the new text for 122.33(b)(2)(i) above.



### 17. Remove existing paragraphs (d)(2) and (d)(3) of § 122.34.

18. Redesignate existing paragraph (e)(1) as paragraph (c) and revise redesignated (c) to delete “You

must comply with any” and replace it with “Other applicable requirements. (1) Any”, delete “in your

permit” in the first sentence, and delete “The permitting authority may include such more stringent

limitations based on a TMDL or equivalent analysis” in the second sentence, remove existing paragraph

(e)(2), to read as follows:

(c) Other applicable requirements. (1) Any more stringent effluent limitations, 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 that determines such limitations are needed to

protect water quality.

19. Redesignate paragraph (f) as paragraph (c)(2) and revise (c)(2) to delete “You must comply with

other” and replace it with “Other” to read as follows:Page 24 of 25 (2) 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.

20. Redesignate paragraph (g) as paragraph (d).

21. Revise the newly designated paragraph (d) to add “requirements” to the title, to add following

the title “the permit must require the permittee to:”

, revise newly designated paragraph (d)(1) to delete

“you must”, delete “program” and replace it with “permit” after “Evaluate,” delete “your” and replace it

with “its,” delete the second occurrence of “yours”, and redesignate the note to paragraph (g)(1) as the

note to paragraph (d)(1) and delete “you” and replace it with “the permittee” and replace “your” with

“the”, in the first sentence, revise the newly designated paragraph (d)(2) to delete “You must” at the

beginning of the first sentence, connect the first two sentences with “and to”, delete “You must” at the

beginning of the existing second sentence, replace “your” with “such” and delete “only” in the existing

second sentence, delete “You” and replace it with “The permit must require the permittee”, delete

“your” twice in the third sentence and insert “the” before “storm water management program”, and

delete “You” and replace it with “The permittee” in the fourth sentence, delete “You” and insert “The

permittee” in the fourth sentence, delete “You” and insert “The permit may allow the pemittee to” in

the fifth sentence, revise the newly designated paragraph (d)(3) to delete “You are” and replace it with

“The permit is”, delete “your” and replace it with “its”, replace “you must” and replace it with “the

permit must require the permittee to”, replace “your” with “the”, in the first sentence, to delete “you

must” and replace it with “the permit must require that permittee to” in the second sentence, and

delete “Your” and replace it with “The” in the third sentence, to revise newly designated (d)(3)(i) to

replace “your” with “the permittee’s” and replace “your” with “it’s”, to revise the newly designated

paragraph (d)(3)(iii) to delete “you” and replace it with “the permittee”, and to revise the new

paragraph (d)(3)(v) to delete “you” and replace it with “the permittee is”, replace “your” with “the”, and

add “, consistent with 122.35(a)” at the end, to read as follows:

(d) Evaluation and assessment requirements. The permit must require the permittee to:

(1) Evaluation. Evaluate permit compliance, the appropriateness of its identified best management

practices, and progress towards achieving identified measurable goals.

N OTE TO PARAGRAPH (d)(1): The NPDES permitting authority may determine monitoring requirements

for the permittee in accordance with State/Tribal monitoring plans appropriate to the watershed. * * *

(2) Recordkeeping

. Keep records required by the NPDES permit for at least 3 years, and to submit

such records to the NPDES permitting authority when specifically asked to do so. The permit must

require the permittee to make records, including a written description of the storm water management

program, available to the public at reasonable times during regular business hours (see §122.7 for

confidentiality provision). (The permittee may assess a reasonable charge for copying. The permit may

allow the permittee to require a member of the public to provide advance notice.)

(3) Reporting

. Unless the permittee is relying on another entity to satisfy its NPDES permit

obligations under § 122.35(a), the permit must require the permittee to submit annual reports to the

NPDES permitting authority for the first permit term. For subsequent permit terms, the permit mustPage 25 of 25 require that permittee to submit reports in year two and four unless the NPDES permitting authority

requires more frequent reports. The report must include:

(i) The status of compliance with permit conditions, an assessment of the appropriateness of the

permittee’s identified best management practices and progress towards achieving its identified

measurable goals for each of the minimum control measures;

(ii)* * *

(iii) A summary of the storm water activities the permittee plans to undertake during the next

reporting cycle;

(iv) * * *

(v) Notice that the permittee is relying on another governmental entity to satisfy some of the permit

obligations (if applicable), consistent with §122.35(a).

[64 FR 68843, Dec. 8, 1999]

22. Revise paragraph (a)(3) of §122.35, to delete the cross

‐ references to 122.34(g)(3) and replace it

with cross

‐ references to 122.34(d)(3) to reflect new designations resulting from other proposed

revisions, to read as follows:

§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) * * *

(3) * * * In the reports you must submit under §122.34(d)(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(d)(3), you must note that fact in your NOI, but you are not

required to file the periodic reports.* * *

* * * * *