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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 regulated 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 authority. 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 general 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 Intent (NOI) consistent with § 122.28(b)(2) that includes 

the information on your best management practices and measurable goals required by §122.34(d). You 

The operator may file your its own NOI, or the operator 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 governmental entities, the operator you must submit an 

NOI that describes which minimum measures it you 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 submit an application to the appropriate your NPDES 

permitting authority that includes the information required 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 implement 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 responsible for implementing or coordinating the storm water management 

program; 

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

(E) any additional information that your the NPDES permitting authority requests. A storm sewer map that 

satisfies the requirement of §122.34(b)(3)(i) will satisfy the map requirement in §122.21(f)(7). 
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(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 §122.34, 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 information 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 either 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 willing 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-permittee. As a limited co-permittee, 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 chooses 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 characterization). 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 supplemented 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 available 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 paragraph (b)(3) of this section by March 10, 2003, 

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

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

(2) 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 existing NPDES permit under paragraph (b)(3) of this 

section, within 180 days of notice, unless the NPDES permitting authority grants a later date. 

§122.34 As an operator of a regulated small MS4, what will my NPDES MS4 storm water 

permit require? 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 water management program designed In each permit 

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

measurable terms what is required to reduce the discharge 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 water management program must include the minimum 

control measures described in paragraph (b) of this section unless you apply for a permit under 
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§122.26(d). For the purposes of this section, narrative 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 the most appropriate form of effluent limitations 

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

extent practicable) and to protect water quality. Implementation of best management practices consistent 

with the provisions of the storm water management program required pursuant to this section and the 

provisions of the permit required pursuant to §122.33 constitutes compliance with the standard of 

reducing pollutants to the “maximum extent practicable.” Your NPDES permitting authority will For permits 

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 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 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. — 

(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 regulated 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 storm water pollution, such as ensuring proper septic 

system maintenance, ensuring the proper use and disposal of landscape and garden chemicals including 

fertilizers and pesticides, protecting and restoring riparian vegetation, and properly disposing of used 

motor oil or household hazardous wastes. EPA recommends that the program inform individuals and 

groups how to become involved in local stream and beach restoration activities as well as activities that 

are coordinated by youth service and conservation corps or other citizen groups. EPA recommends that 

the permit require the permittee to tailor the public education program be tailored, using a mix of locally 

appropriate strategies, to target specific audiences and communities. Examples of strategies include 

distributing brochures or fact sheets, sponsoring speaking engagements before community groups, 

providing public service announcements, implementing educational programs targeted at school age 

children, and conducting community-based projects such as storm drain stenciling, and watershed and 

beach cleanups. In addition, EPA recommends that the permit require that some of the materials or 

outreach programs be directed toward targeted groups of commercial, industrial, and institutional entities 

likely to have significant storm water impacts. For example, providing information to restaurants on the 

impact of grease clogging storm drains and to garages on the impact of oil discharges. 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 public notice requirements when implementing a public 

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

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

reviewing your the storm water management program and that the public participation process should 

make efforts to reach out and engage all economic and ethnic groups. Opportunities for members of the 

public to participate in program development and implementation include serving as citizen 

representatives on a local storm water management panel, attending public hearings, working as citizen 

volunteers to educate other individuals about the program, assisting in program coordination with other 

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

where necessary for lawful access to monitoring sites.) 

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

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

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

must require the permittee to: 

(ii) You must: 

(A) Develop, if not already completed, a storm sewer system map, showing the location of all outfalls and 

the names and location of all waters of the United States that receive discharges from those outfalls; 

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

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

implement appropriate enforcement procedures and actions; 

(C) Develop and implement a plan to detect and address non-storm water discharges, including illegal 

dumping, to your system; and 

(D) Inform public employees, businesses, and the general public of hazards associated with illegal 

discharges and improper disposal of waste. 

(iii) The permit must require the permittee to You 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 your small MS4: water line flushing, landscape irrigation, diverted stream 

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

uncontaminated pumped ground water, discharges from potable water sources, foundation drains, air 

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

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

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

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

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

(iv 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; procedures for tracing the source of an illicit 

discharge; procedures for removing the source of the discharge; and procedures for program evaluation 

and assessment. EPA recommends that the permit require the permittee to visually screening outfalls 

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

priority areas. Illicit discharge education actions may include storm drain stenciling, a program to promote, 

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

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

develop, implement, and enforce a program to reduce pollutants 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 construction activity disturbing less than one acre must 

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

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

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

§122.26(b)(15)(i), the permittee is you 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 sanitary waste at the construction site that may cause 

adverse impacts to water quality; 

(D) Procedures for site plan review which incorporate consideration of potential water quality impacts; 

(E) Procedures for receipt and consideration of information submitted by the public, and 

(F) Procedures for site inspection and enforcement of control measures. 

(iii) Guidance for permit writers and 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 erosion control requirements. 

Procedures for site inspections and enforcement of control measures could include steps to identify 

priority sites for inspection and enforcement based on the nature of the construction activity, topography, 

and the characteristics of soils and receiving water 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 permit 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 the your system. See §122.44(s) (NPDES permitting 

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

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

NPDES permitting authority may recognize that another government entity, including the permitting 

authority, may be responsible for implementing one or more of the minimum measures on your behalf.) 

(5) Post-construction storm water management in new development and redevelopment. (i) 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 acre, including projects less than one acre that are part of a larger 

common plan of development or sale, that discharge into 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 combination of structural and/or non-structural best 

management practices (BMPs) appropriate for the your community; 
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(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 recommends 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 appropriate BMPs, EPA encourages the permittee you to 

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

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

measure's intent, EPA recommends that the permit require the permittee to you 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 redevelopment), implementation strategies (e.g., adopt a 

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

procedures, and enforcement procedures. In developing the your program, the permit should also require 

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

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

programs, 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: policies and ordinances that provide requirements and 

standards to direct growth to identified areas, protect sensitive areas such as wetlands and riparian 

areas, maintain and/or increase open space (including a dedicated funding source for open space 

acquisition), provide buffers along sensitive water bodies, minimize impervious surfaces, and minimize 

disturbance of soils and vegetation; policies or ordinances that encourage infill development in higher 

density urban areas, and areas with existing infrastructure; education programs for developers and the 

public about project designs that minimize water quality impacts; and measures such as minimization of 

percent impervious area after development and minimization of directly connected impervious areas. 

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

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

infiltration basins and infiltration trenches. EPA recommends that 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 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 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 develop and implement an operation and maintenance 

program that includes a training component and has the ultimate goal of preventing or reducing pollutant 

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

Tribe, or other organizations, the your program must include employee training to prevent and reduce 

storm water pollution from activities such as park and open space maintenance, fleet and building 

maintenance, new construction and land disturbances, and storm water system maintenance. 

(ii) Guidance for permit writers and regulated small MS4s: EPA recommends 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 procedures for structural and non-structural storm 

water controls to reduce floatables and other pollutants 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 areas 
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listed above (such as dredge spoil, accumulated sediments, floatables, and other debris); and ways to 

ensure that new flood management projects assess the impacts on water quality and examine existing 

projects for incorporating additional water quality protection devices or practices. Operation and 

maintenance should be an integral component of all storm water management programs. This measure is 

intended to improve the efficiency of these programs and require new programs where necessary. 

Properly developed and implemented operation and maintenance programs reduce the risk of water 

quality problems. 

[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 requirements of paragraph (b) of this section. A 

qualifying local program is a local, State or Tribal municipal storm water management program that 

imposes, at a minimum, the relevant requirements of paragraph (b) of this section. 

(d)(1) In your permit application (either a notice of intent for coverage 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 practices (BMPs) that you 

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

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

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

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

(iii) The person or persons responsible for implementing or coordinating your storm water management 

program. 

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

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

in paragraphs (b)(3) through (b)(6) of this section unless, prior to submitting your NOI, EPA or your State 

or Tribe has provided or issued a menu of BMPs that addresses each such minimum measure. Even if no 

regulatory authority issues the menu of BMPs, however, you still must comply with other requirements of 

the general permit, including good faith implementation of BMPs designed to comply with the minimum 

measures. 

(3) Guidance: Either EPA or your State or Tribal permitting authority will provide a menu of BMPs. You 

may choose BMPs from the menu or select others that satisfy the minimum control measures. 

(e 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 limitations based on a TMDL or equivalent analysis that 

determines such limitations are needed to protect water quality. 

(2) Guidance: EPA strongly recommends that until the evaluation of the storm water program in §122.37, 

no additional requirements beyond the minimum control measures be imposed on regulated small MS4s 

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

equivalent analysis provides adequate information to develop more specific measures to protect water 

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

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

§§122.41 through 122.49, as appropriate. 

(g d) Evaluation and assessment requirements. The permit must require the permittee to.—(1) Evaluation.

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

management practices, and progress towards achieving your identified measurable goals. 

NOTE 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 NPDES permit for at least 3 years. You must 

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

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

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

during regular business hours (see §122.7 for confidentiality 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 another 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 reports. Your The report must include: 

(i) The status of compliance with permit conditions, an assessment of the 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, including monitoring data, if any, during the reporting 

period; 

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

cycle; 

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

control measures; and 

(v) Notice that the permittee is you are relying on another 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 measures of paragraph (b) of this section, the NPDES 

permitting authority may include conditions in your NPDES 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 requirements of paragraph (b) of this section. 

§122.35 As an operator of a regulated small MS4, may I share the responsibility to implement the 

minimum control measures with other entities? 

(a) You may rely on another entity to satisfy your NPDES permit obligations to implement a minimum 

control measure if: 
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(1) The other entity, in fact, implements the control measure; 

(2) The particular control measure, or component thereof, is at least as stringent as the corresponding 

NPDES permit requirement; and 

(3) The other entity agrees to implement the control measure on your behalf. In the reports you must 

submit under §122.34(g 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(g 

d)(3), you must note that fact in your NOI, but you are not required to file the periodic reports. You remain 

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

measure (or component thereof). Therefore, EPA encourages you to enter into a legally binding 

agreement with that entity if you want to minimize any uncertainty about compliance with your permit. 

[Subsection (b) unchanged, omitted here] 

 
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Attachment A

Narrative Description of Each Proposed Regulatory Modification

   
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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 MS4 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 Territory, 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 “You” and replace it with “The operator of 

any regulated small MS4” in the introductory language, revise the first sentence in paragraph 

(b)(1) to delete “your NPDES permitting authority has issued a general permit applicable to your 

discharge and you are seeking coverage under the general permit, you”, add “seeking coverage 

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

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

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

“The operator,” delete “you” and replace it with “the operator” within 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 must seek authorization to discharge under a 

general or individual NPDES permit, as follows:

(1) If seeking coverage under a general permit issued by the Director, the operator must 
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submit a Notice of Intent (NOI) consistent with §122.28(b)(2). The operator may file its own 

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

NOI. If the operator wants to share responsibilities for meeting 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 that will implement the 

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

3. Revise paragraph (b)(2)(i) of § 122.33 to delete “you are”, replace “wish” with wishing”, 

replace “you” with the “the 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 MS4” with “the small MS4”, replace “your NPDES 

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

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

replace it with “the operator”, replace “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” with “the operator intends”, 

delete “your” following “developing” in the third 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 authorization to discharge under an individual permit and wishing to 

implement a program under § 122.34, the operator must submit an application to the appropriate 
Page 13 of 25

NPDES permitting authority that includes the 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 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 

responsible for implementing or coordinating 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 authorization to discharge under an individual 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 application 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 individual 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 writer 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 “the small MS4” twice, and delete “you and the other MS4” and 

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

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

and replace it with “the operator of the small 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 paragraph (b)(4), delete “you” and replace 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 second 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 colon 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 redesignate 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 MS4 permits. In each permit issued under this 

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

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

maximum extent practicable (MEP), to protect water 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 permits 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 for 
Page 16 of 25

the permittee to fully comply with the conditions of the permit and to implement necessary 

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

quality conditions, record of BMP effectiveness, and other 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 education program, using a mix of locally 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 directed toward targeted 

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

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

address the viewpoints and concerns of all communities, particularly 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 implementing” and replace it with 

“The permit must require implementation of” and 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 permit 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 regulated 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 illicit discharges (as defined 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 illicit 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 replace “your” with “the”, to revise paragraph 

(b)(3)(iii) to delete “You need” and replace it with “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 “EPA 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 illicit 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, effectively prohibit, through 

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

system and implement appropriate enforcement procedures and actions; 

* * * * * 

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

water discharges or flows (i.e., illicit discharges) only if they are identified 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; procedures for tracing the 

source of an illicit discharge; procedures for removing the source of the discharge; and 

procedures for program evaluation and assessment. EPA recommends that the permit require the 

permittee to visually screen outfalls during dry weather and conduct field 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)(iii) 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 permittee to” in the fourth sentence, replace “You 

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

require”, replace “your” with “the MS4’s”, replace “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 reduce pollutants in any storm water runoff to the 

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

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

acre must be included in the program if that construction activity is part of a larger common plan 
Page 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 review of individual pre-construction site plans to 

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

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

inspection and enforcement based on the nature of the construction activity, topography, and the 

characteristics of soils and receiving 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 also 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. See §122.44(s) (NPDES permitting authorities' option 

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

NPDES permits for storm water discharges from construction sites). * * *

13. Revise paragraph (b)(5)(i) to delete “You 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 with “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)(iii) 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 paragraph (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 add “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 sentence, to delete “you” and replace it with “the 

permit require the permittee to” in the fourth sentence, 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 ninth sentence, and delete 

“your” and replace it with “the permit” before “requirements” 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 and
Page 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 municipal operations. (i) The permit must 

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

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

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

State, Tribe, or other organizations, 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, maintenance 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 sewers; controls for reducing or eliminating the 

discharge of pollutants from streets, roads, highways, municipal parking lots, maintenance and 
Page 23 of 25

storage yards, fleet or maintenance shops with outdoor 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 separate 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.  

NOTE 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 must
Page 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.* * *

* * * * *