Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 415 

from the remainder of the rule, EPA may 

adopt as final those parts of the rule that 

are not the subject of an adverse 

comment. For additional information, 

see the direct final rule which is located 

in the rules section of this Federal 

Register. 

List of Subjects in 40 CFR Part 62 

Environmental protection, Air 

pollution control, Administrative 

practice and procedure, 

Intergovernmental relations, Reporting 

and recordkeeping requirements, 

Sewage sludge incinerators. 

Dated: December 23, 2015. 

Mark Hague, 

Regional Administrator, Region 7. 

[FR Doc. 2015–33291 Filed 1–5–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 122 

[EPA–HQ–OW–2015–0671; FRL–9939–88– 

OW] 

RIN 2040–AF57 

National Pollutant Discharge 

Elimination System (NPDES) Municipal 

Separate Storm Sewer System General 

Permit Remand 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing changes to 

the regulations governing small 

municipal separate storm sewer system 

(MS4) permits to respond to a remand 

from the United States Court of Appeals 

for the Ninth Circuit in Environmental 

Defense Center, et al. v. EPA, 344 F.3d 

832 (9th Cir. 2003). In that decision, the 

court determined that the regulations for 

providing coverage under small MS4 

general permits did not provide for 

adequate public notice and opportunity 

to request a hearing. Additionally, the 

court found that EPA failed to require 

permitting authority review of the best 

management practices (BMPs) to be 

used at a particular MS4 to ensure that 

the small MS4 permittee reduces 

pollutants in the discharge from their 

systems to the ‘‘maximum extent 

practicable’’ (MEP), the standard 

established by the Clean Water Act for 

such permits. EPA’s proposal would 

revise the small MS4 regulations to 

ensure that the permitting authority 

determines the adequacy of BMPs and 

other requirements and provides public 

notice and the opportunity to request a 

public hearing on the requirements for 

each MS4. The proposal would not 

establish any new substantive 

requirements for small MS4s. 

DATES: Comments must be received on 

or before March 21, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OW–2015–0671, to the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or withdrawn. EPA may publish 

any comment received to its public 

docket. Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e. 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, the full EPA public comment 

policy, information about CBI or 

multimedia submissions, and general 

guidance on making effective 

comments, please visit http:// 

www2.epa.gov/dockets/commentingepa-dockets. 

FOR FURTHER INFORMATION CONTACT: Greg 

Schaner, Office of Wastewater 

Management, Water Permits Division 

(M4203), Environmental Protection 

Agency, 1200 Pennsylvania Ave. NW., 

Washington, DC 20460; telephone 

number: (202) 564–0721; email address: 

schaner.greg@epa.gov 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. General Information 

A. Does this action apply to me? 

B. What action is the Agency taking? 

C. What is the Agency’s authority for 

taking this action? 

II. Background 

A. Statutory and Regulatory Overview 

B. MS4 Permitting Requirements 

III. Judicial Review of the Phase II Rule and 

Partial Remand 

A. Decision in Environmental Defense 

Center et al. v. EPA 

B. EPA Action Following the Partial 

Remand of the Phase II Rule 

IV. Scope of This Rulemaking 

V. EPA’s Evaluation and Selection of 

Rulemaking Options 

A. Current Permitting Authority Practice 

B. Description of Process Used To Evaluate 

Options 

C. Considerations in Evaluating Options 

1. Permitting Authority Review 

2. Public Participation Requirements 

3. Other Factors Considered 

VI. Analysis of Options for Proposal 

A. Option 1—The Traditional General 

Permit Approach 

1. Current Examples of Clear, Specific, and 

Measurable Permit Requirements 

2. Types of Permit Language Lacking 

Sufficient Detail To Qualify as Clear, 

Specific, and Measurable 

3. Summary/Description of Proposed Rule 

Changes 

B. Option 2—Procedural Approach 

C. Option 3—State Choice Approach 

VII. Incremental Costs of Proposed Rule 

Options 

VIII. Statutory and Executive Orders Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. General Information 

A. Does this action apply to me? 

Entities potentially regulated by this 

proposed action include: 

Category Examples of regulated entities 

North 

American 

Industry 

Classification 

System 

(NAICS) code 

Federal and state government .................................................... EPA or state NPDES stormwater permitting authorities ........... 924110 


wgreen on DSK2VPTVN1PROD with PROPOSALS
416 Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 

Category Examples of regulated entities 

North 

American 

Industry 

Classification 

System 

(NAICS) code 

Local governments ...................................................................... Operators of small municipal separate storm sewer systems .. 924110 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

the types of entities that EPA is now 

aware could potentially be regulated or 

otherwise affected by this action. Other 

types of entities not listed in the table 

could also be regulated. To determine 

whether your entity is regulated by this 

action, you should carefully examine 

the applicability criteria found in 

§ 122.32 title 40 of the Code of Federal 

Regulations, and the discussion in the 

preamble. If you have questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed in the FOR FURTHER INFORMATION

CONTACT section. 

B. What action is the agency taking? 

EPA is proposing a change to its 

regulations governing the way in which 

small MS4s obtain coverage under 

National Pollutant Discharge 

Elimination System (NPDES) general 

permits. The proposal results from a 

decision by the Ninth Circuit U.S. Court 

of Appeals in Environmental Defense 

Center, et al. v. EPA, in 344 F.3d 832 

(9th Cir. 2003) (‘‘EDC decision’’), which 

found that EPA regulations for obtaining 

coverage under a small MS4 general 

permit did not provide for adequate 

public notice, the opportunity to request 

a hearing, or permit authority review to 

determine whether the BMPs selected 

by each MS4 in its stormwater 

management program (SWMP) meets 

the Clean Water Act (CWA) 

requirements including the requirement 

to ‘‘reduce pollutants to the maximum 

extent practicable.’’ The preamble 

discusses two options for addressing the 

remand, and a third option that is a 

hybrid of the two alternatives. One 

option (called the ‘‘Traditional General 

Permit Approach’’) would align the 

process for issuing small MS4 general 

permits with the way NPDES general 

permits are issued for other categories of 

discharges. This would entail requiring 

the permitting authority to establish 

within the permit all requirements that 

MS4s must meet within the term of the 

general permit to meet the standard 

applicable to MS4s (to reduce pollutants 

to the MEP, to protect water quality, and 

to satisfy the appropriate water quality 

requirements of the CWA), which would 

be subject to public notice and comment 

and an opportunity to request a hearing. 

A second option (called the ‘‘Procedural 

Approach’’) would add procedural 

requirements to the existing rule 

structure that would require the MS4 to 

inform the permitting authority in its 

Notice of Intent (NOI) to be covered by 

the permit of the BMPs it would 

undertake through its SWMP. Under the 

Procedural Approach, the public would 

be given an opportunity to comment on 

the proposed BMPs and request a 

hearing, and the permitting authority 

would have the opportunity to require 

changes to the proposed BMPs before 

the permitting authority authorizes a 

discharge under the general permit. A 

third option (called the ‘‘State Choice 

Approach’’) would enable the 

permitting authority to choose between 

the Traditional General Permit and 

Procedural Approaches, or to 

implement a combination of these 

approaches in issuing and authorizing 

coverage under a general permit. 

C. What is the agency’s authority for 

taking this action? 

The authority for this rule is the 

Federal Water Pollution Control Act, 33 

U.S.C. 1251 et seq., including sections 

402 and 501. 

II. Background 

A. Statutory and Regulatory Overview 

Stormwater discharges are a 

significant cause of water quality 

impairment because they contain a 

variety of pollutants such as sediment, 

nutrients, chlorides, pathogens, metals, 

and trash. Furthermore, the increased 

volume and velocity of stormwater 

discharges that result from the creation 

of impervious cover can alter streams 

and rivers by causing scouring and 

erosion. These surface water impacts 

threaten public health and safety due to 

flooding and pollutants; lead to 

economic losses to property and fishing 

industries; increase drinking water 

treatment costs; and decrease 

opportunities for recreation, swimming, 

and wildlife uses. 

Stormwater discharges are subject to 

regulation under section 402(p) of the 

CWA. Under this provision, Congress 

required only the following stormwater 

discharges to be subject to NPDES 

permitting requirements: Stormwater 

discharges for which NPDES permits 

were issued prior to February 4, 1987; 

discharges ‘‘associated with industrial 

activity’’; discharges from MS4s serving 

populations of 100,000 or more; and any 

stormwater discharge determined by 

EPA or a state to ‘‘contribute . . . to a 

violation of a water quality standard or 

to be a significant contributor of 

pollutants to waters of the United 

States.’’ With respect to MS4s, section 

402(p)(3)(B) provides that NPDES 

permits may be issued on a system-wide 

or jurisdiction-wide basis, and requires 

that MS4 NPDES permits ‘‘include a 

requirement to effectively prohibit nonstormwater discharges into the storm 

sewers’’ and require ‘‘controls to reduce 

the discharge of pollutants to the 

maximum extent practicable . . . and 

such other provisions as the 

Administrator or the State determines 

appropriate for the control of such 

pollutants.’’ 

EPA developed the stormwater 

regulations under section 402(p) in two 

phases, as directed by the statute. In the 

first phase, under section 402(p)(4), EPA 

promulgated regulations establishing 

application and other requirements for 

NPDES permits for stormwater 

discharges from medium (serving 

populations of 100,000 to 250,000) and 

large (serving populations of 250,000 or 

more) MS4s, and stormwater discharges 

associated with industrial activity. EPA 

published the final Phase I rule on 

November 16, 1990 (55 FR 47990). 

The Phase I rule, among other things, 

defined ‘‘municipal separate storm 

sewer’’ as publicly-owned conveyances 

or systems of conveyances that 

discharge to waters of the U.S. and are 

designed or used for collecting or 

conveying stormwater, are not 

combined sewers, and are not part of a 

publicly-owned treatment works at 40 

CFR 122.26(b)(8). EPA included 

construction sites disturbing five acres 

or more in the definition of ‘‘stormwater 

discharges associated with industrial 

activity’’ at 40 CFR 122.26(b)(14)(x). 

In the second phase, under section 

402(p)(5) and (6), EPA was required to 

conduct a study to identify other 

stormwater discharges that needed 

further controls ‘‘to protect water 


wgreen on DSK2VPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 417 

quality,’’ report to Congress on the 

results of the study, and to designate for 

regulation additional categories of 

stormwater discharges not regulated in 

Phase I on the basis of the study and in 

consultation with state and local 

officials. EPA promulgated the Phase II 

rule on December 8, 1999, designating 

discharges from certain small MS4s and 

from small construction sites (disturbing 

equal to or greater than one acre and 

less than five acres) and requiring 

NPDES permits for these discharges (64 

FR 68722, December 8, 1999). A 

regulated small MS4 is generally 

defined as any MS4 that is not already 

covered by the Phase I program and that 

is located within the urbanized area 

boundary as determined by the latest 

U.S. Decennial Census. Separate storm 

sewer systems such as those serving 

military bases, universities, large 

hospital or prison complexes, and 

highways are also included in the 

definition of ‘‘small MS4.’’ 40 CFR 

122.26(b)(16). In addition, the Phase II 

rule includes authority for EPA (or 

states authorized to administer the 

NPDES program) to require NPDES 

permits for currently unregulated 

stormwater discharges by a designation 

process. 40 CFR 122.26(a)(9)(i)(C) and 

(D). Other small MS4s located outside of 

an urbanized area may be designated as 

a regulated small MS4 if the NPDES 

permitting authority determines that its 

discharges cause, or have the potential 

to cause, an adverse impact on water 

quality. See 40 CFR 122.32(a)(2) and 

123.35(b)(3). 

B. MS4 Permitting Requirements 

The Phase I regulations are primarily 

application requirements that identify 

components that must be addressed in 

applications for individual permits from 

large and medium MS4s. The 

regulations at 40 CFR 122.26(d)(2)(iv) 

require these MS4s to develop a SWMP, 

which is considered by EPA or the 

authorized state permitting authority 

when establishing permit conditions to 

reduce pollutants to the MEP. 

Like the Phase I rule, the Phase II rule 

requires regulated small MS4s to 

develop and implement SWMPs. 40 

CFR 122.34(a) requires that SWMPs be 

designed to reduce pollutants 

discharged 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,’’ and requires 

that the SWMPs include six ‘‘minimum 

control measures.’’ The minimum 

control measures are: Public education 

and outreach, public participation and 

involvement, illicit discharge detection 

and elimination, construction site runoff 

control, post construction runoff 

control, pollution prevention and good 

housekeeping. 40 CFR 122.34(b). Under 

the Phase II rule, a regulated small MS4 

may seek coverage under an available 

general permit or may apply for an 

individual permit. To be authorized to 

discharge under a general permit, the 

rule requires submission of an NOI to be 

covered by the general permit 

containing a description of the BMPs to 

be implemented and the measurable 

goals for each of the BMPs, including 

timing and frequency, as appropriate. 40 

CFR 122.33(a)(1), 122.34(d)(1). 

EPA anticipated that under the first 

two or three permit cycles, whether 

individual permits or general permits, 

BMP-based SWMPs implementing the 

six minimum control measures would, 

if properly implemented, ‘‘be 

sufficiently stringent to protect water 

quality, including water quality 

standards, so that additional, more 

stringent and/or more prescriptive water 

quality based effluent limitations will be 

unnecessary.’’ (64 FR 68753, December 

8, 1999). In the final Phase II rule 

preamble, EPA also stated that it ‘‘has 

intentionally not provided a precise 

definition of MEP to allow maximum 

flexibility in MS4 permitting. MS4s 

need the flexibility to optimize 

reductions in storm water pollutants on 

a location-by-location basis. . . . 

Therefore, each permittee will 

determine appropriate BMPs to satisfy 

each of the six minimum control 

measures through an evaluative 

process.’’ (64 FR 68754, December 8, 

1999). 

The Agency described this process in 

the preamble to the Phase II rule as an 

‘‘iterative process’’ of developing, 

implementing, and improving 

stormwater control measures contained 

in SWMPs. As EPA further stated in the 

preamble to the Phase II rule, ‘‘MEP 

should continually adapt to current 

conditions and BMP effectiveness and 

should strive to attain water quality 

standards. Successive iterations of the 

mix of BMPs and measurable goals will 

be driven by the objective of assuring 

maintenance of water quality standards. 

. . . If, after implementing the six 

minimum control measures there is still 

water quality impairment associated 

with discharges from the MS4, after 

successive permit terms the permittee 

will need to expand or better tailor its 

BMPs within the scope of the six 

minimum control measures for each 

subsequent permit.’’ (64 FR 68754, 

December 8, 1999). 

III. Judicial Review of the Phase II Rule 

and Partial Remand 

A. Decision in Environmental Defense 

Center et al. v. EPA 

The Phase II rule was challenged in 

petitions for review filed by 

environmental groups, municipal 

organizations, and industry groups, 

resulting in a partial remand of the rule. 

Environmental Defense Center v. U.S. 

Environmental Protection Agency, 344 

F.3d. 832 (9th Cir. 2003). The court 

remanded the Phase II rule’s provisions 

for small MS4 NPDES general permits 

because they lacked procedures for 

permitting authority review and public 

notice and the opportunity to request a 

hearing on NOIs submitted under 

general MS4 permits. 

In reviewing how the Phase II rule 

provided for general permit coverage for 

small MS4s, the court found that NOIs 

under the rule were not like NOIs for 

other NPDES general permits. Other 

general permits contain the specific 

effluent limitations and conditions 

applicable to the class of dischargers for 

which the permit is available, and 

authorization to discharge under a 

general permit is obtained by filing an 

NOI in which the discharger agrees to 

comply with the terms of the general 

permit. In contrast, the court held that 

under the Phase II rule, because the NOI 

submitted by the MS4 contains the 

information as to what the MS4 decides 

it will do to reduce pollutants to the 

MEP, it is the ‘‘functional equivalent’’ of 

a permit application. Environmental 

Defense Center v. U.S. Environmental 

Protection Agency, 344 F.3d. at 857. 

Because the CWA requires public notice 

and the opportunity to request a public 

hearing for all permit applications, the 

court held that failure to require public 

notice and the opportunity for a public 

hearing for NOIs under the Phase II rule 

is contrary to the Act. 344 F.3d. at 858. 

Similarly, the court found the Phase 

II rule allows the MS4 to identify the 

BMPs that it will undertake in its 

SWMP without any permitting authority 

review. The court held that the lack of 

review ‘‘to ensure that the measures that 

any given operator of a small MS4 has 

decided to undertake will in fact reduce 

discharges of pollutants to the 

maximum extent practicable’’ also does 

not comport with CWA requirements. 

The court stated, ‘‘That the Rule allows 

a permitting authority to review an NOI 

is not enough; every permit must 

comply with the standards articulated 

by the Clean Water Act, and unless 

every NOI issued under general permit 

is reviewed, there is no way to ensure 

that such compliance has been 

achieved.’’ 344 F.3d. at 855 n.32. 


wgreen on DSK2VPTVN1PROD with PROPOSALS
418 Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 

1EPA. April 16, 2004. Memo from James Hanlon, 

Director, Office of Wastewater Management to EPA 

Water Management Division Directors in EPA 

Regions I–X. http://www.epa.gov/npdes/pubs/

hanlonphase2apr14signed.pdf. 

2http://www.epa.gov/region1/npdes/stormwater/

2003-permit-archives.html. 

3http://www.epa.gov/region6/water/npdes/sw/

sms4/sms4noi.htm. 

The court therefore vacated and 

remanded ‘‘those portions of the Phase 

II Rule that address these procedural 

issues . . . so that EPA may take 

appropriate action to comply with Clean 

Water Act.’’ 344 F.3d. at 858. 

B. EPA Action Following the Partial 

Remand of the Phase II Rule 

EPA issued interim guidance to 

address the need for permitting 

authority review of NOIs and to provide 

for public notice and opportunity for 

public hearing in April 2004. This 

guidance memorandum, Implementing 

the Partial Remand of the Stormwater 

Phase II Regulations Regarding Notices 

of Intent and NPDES General Permitting 

for Phase II MS4s, outlined 

recommendations as to how permitting 

authorities should retroactively provide 

for public notice and the opportunity to 

request a hearing, provided options for 

holding a public hearing if granting a 

request, and highlighted ways to 

conduct appropriate review of NOIs 

already submitted.1 The memorandum 

also provided guidance on ways to 

ensure the requisite public notice and 

review opportunities and permitting 

authority review of NOIs under new 

general permits. As a result of the EDC 

decision, EPA Regions that issue NPDES 

permits have taken various approaches 

to provide opportunity for public 

review. For example, EPA Region 1, the 

permitting authority for Massachusetts 

and New Hampshire, uses its Web site 

to post NOIs and notices of availability 

for public comment, as well as the 

annual reports submitted by each 

permitted MS4.2 EPA Region 6, the 

permitting authority in New Mexico and 

in Indian Country in Oklahoma and 

New Mexico, has established a Web site 

with information on how to submit 

comments and opportunity to request a 

public hearing, and posts the NOI and 

each MS4’s SWMP on its Web site.3

EPA Region 10, the permitting authority 

in Idaho, has only issued individual 

permits to small MS4s in that state. 

In addition, the EPA Regions and 

some authorized state permitting 

authorities have included more specific 

and definitive requirements in small 

MS4 general permits, rather than 

leaving the identification of stormwater 

controls needed to reduce pollutants to 

the MEP, protect water quality and meet 

the water quality requirements of the 

CWA up to the permittees. In the time 

since promulgation of the Phase II rule 

and the partial remand of the rule, 

permits for small MS4 discharges have 

evolved, both to reflect the advancement 

and improvement in stormwater 

management approaches and techniques 

and to reflect the need for the specific 

requirements for compliance with the 

CWA to be incorporated into MS4 

permits. Please see Section V.A of this 

preamble for a detailed discussion of 

current EPA and state permitting 

practices for small MS4 NPDES permits. 

IV. Scope of This Rulemaking 

The proposed revisions to the Phase 

II MS4 NPDES permitting requirements 

are solely for the purpose of responding 

to the partial remand of the Phase II rule 

in Environmental Defense Center v. U.S. 

Environmental Protection Agency, 344 

F.3d. 832 (9th Cir. 2003) with respect to 

small MS4 general permits. To conform 

to the court’s decision, the rule needs to 

ensure that permitting authorities 

determine what requirements are 

needed to reduce pollutants from each 

permitted small MS4 ‘‘to the maximum 

extent practicable (MEP), to protect 

water quality, and to satisfy the 

appropriate water quality requirements 

of the Clean Water Act,’’ as currently 

required for small MS4 permits under 

40 CFR 122.34(a). The proposed rule 

must also require NPDES permitting 

authorities to provide the public with 

the opportunity to review, submit 

comments, and request a public hearing 

on these requirements. 

EPA is not reopening any of the 

substantive requirements that were 

promulgated in the Phase II rule (nor is 

EPA reopening or seeking comment on 

any aspect of the Phase I rule, which is 

described in this preamble for 

informational purposes only). In 

addition, EPA will address the other 

aspect of the Ninth Circuit’s remand 

regarding possible regulation of 

stormwater discharges from forest roads 

in a separate action. 

V. EPA’s Evaluation and Selection of 

Rulemaking Options 

A. Current Permitting Authority Practice 

The EPA collected information on 

how NPDES permitting authorities have 

been administering their small MS4 

general permits in the years since the 

EDC decision and the issuance of the 

EPA’s guidance on implementing the 

remand and compiled this information 

in a state-by-state spreadsheet (titled 

Current NPDES Authority Practices in 

Administering Small MS4 General 

Permits, EPA, 2015), which is available 

in the docket for the proposed rule at 

http://www.regulations.gov under 

Docket ID No. EPA–HQ–OW–2015– 

0671. This information provides a basis 

for understanding how and to what 

degree different rule options would 

affect the current MS4 general permit 

programs in different states. 

This research indicates that 

permitting authorities are using an array 

of approaches to provide permit 

coverage to their small MS4s, many of 

which are unique to the specific state. 

EPA’s guidance following the EDC 

decision suggested ways to implement a 

general permit program that would be 

consistent with the court’s ruling. As 

mentioned, some states chose to 

develop more definitive general permits 

that do not rely on MS4 identification 

of BMPs to establish requirements that 

meet the applicable CWA standards. 

Other states require that each NOI 

undergo individualized permitting 

authority review and a dedicated public 

comment period prior to authorizing the 

discharge. Still other states require the 

MS4 to provide for public notice and 

the opportunity to submit comments on 

the NOI and the SWMP document being 

submitted. Notwithstanding the 

disparity in approaches between NPDES 

authorities, this information has 

equipped EPA with a sense of how the 

different options under consideration 

would be implemented if promulgated, 

and what types of adjustments may be 

necessary in some programs depending 

on the rule approach that is adopted. 

EPA used the approaches being 

implemented in certain states to inform 

the proposed rule options. 

Not surprisingly, general permits are 

used as the permitting vehicle to 

authorize small MS4 discharges in the 

vast majority of states (i.e., 43 of 50 

states, which represents 94 percent of 

the 6789 permitted small MS4s). In the 

remaining states, individual permits are 

issued to their small MS4 permittees. In 

the 43 states where general permits are 

used, 26 of these permitting authorities 

make their NOIs publicly available 

through a Web site or some other means, 

and 27 indicate that they provide a 

‘‘waiting period’’ of some length 

between the time the NOI is submitted 

and discharge authorization. Currently, 

most states are not providing a second 

public comment period for individual 

NOIs (in addition to the public 

comment period for the draft general 

permit). However, 12 states have 

established such a comment period. 

EPA notes that four states require the 

prospective small MS4 permittee to 

provide for its own public comment 

period for the NOI and, in some cases, 

the SWMP. In 23 states, the permitting 


wgreen on DSK2VPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 419 

authority requires the SWMP document 

to be submitted for review along with 

the NOI; in 14 of these states, the 

permitting authority reviews and 

approves the SMWP document. See 

Current NPDES Authority Practices in 

Administering Small MS4 General 

Permits, EPA, 2015. 

EPA also found some states that have 

moved to develop general permits with 

more clear and specific requirements as 

a way of cutting down on the need for 

additional review procedures for 

individual NOIs. For instance, rather 

than requiring NOIs with information 

on BMPs and measurable goals, 

California and Washington include in 

their general permits the specific tasks, 

milestones, and schedules that are to be 

met by each permittee. Therefore, once 

coverage under the general permit in 

these states is authorized, the 

enforceable components of the permit 

are locked in place for each permittee, 

and the permitting authority is no 

longer required to review the 

information submitted by individual 

MS4s prior to authorizing the discharge. 

What matters is whether the permittee 

is complying with the specific 

requirements of the permit. 

B. Description of Process Used To 

Evaluate Options 

EPA met separately with various 

categories of stakeholders during the 

development of the proposed 

rulemaking. The purpose of these 

meetings was to obtain individual 

feedback from stakeholders on the type 

of regulatory changes that would best 

address the court remand, and which 

would work best considering how Phase 

II general permits have been 

administered to date. The following is a 

summary of what EPA learned from 

these meetings. 

EPA participated in several meetings 

with the Association of Clean Water 

Administrators and their member state 

stormwater coordinators, and met with 

the Environmental Council of the States. 

Many state permitting authority staff 

appeared receptive to the idea of 

clarifying in the regulations that the 

general permit should define all of the 

applicable requirements necessary to 

reduce the discharge of pollutants from 

the MS4 to the MEP, to protect water 

quality, and to satisfy the appropriate 

water quality requirements of the CWA. 

At the same time, some state staff 

questioned how they would incorporate 

requirements into their general permits 

in a way that would work for all MS4s 

within their state, given the large 

number and diversity of the municipal 

entities regulated. Other state staff 

indicated a concern for retaining the 

correct balance between establishing 

detailed, prescriptive requirements and 

providing flexibility where appropriate. 

There are also a few state permitting 

authorities that are implementing an 

approach similar to what is being 

described as the ‘‘Procedural Approach’’ 

(see Section VI.B), and some expressed 

the interest in finding a way in the 

proposed rule to accommodate this 

approach. Most state permitting staff 

appeared concerned with the prospect 

of spending additional time and 

resources to implement a procedural 

approach requiring individualized 

review and public notice of all NOIs, as 

discussed in the court’s decision. Other 

state permitting staff suggested 

exploring the concept of allowing 

permitting authorities to choose which 

option to follow, without restricting the 

rule to one approach. Alternatively, a 

few state permitting staff suggested that 

permitting authorities be allowed to 

apply a hybrid of the two approaches, 

whereby a state could implement one 

permit using the Traditional General 

Permit Approach (e.g., for traditional 

MS4s) and another permit using the 

Procedural Approach (e.g., for nontraditional MS4s), or use a blend of the 

options for issuing a general permit and 

authorizing coverage under the permit. 

EPA met with organizations 

representing state and local elected 

officials, as well as with small MS4 

permittees and organizations that 

include small MS4s as members. MS4s, 

in particular, are interested in retaining 

the flexibility of the existing Phase II 

regulations, where they are able to make 

decisions on which BMPs are 

implemented locally based on factors 

that are unique to their municipality 

and environmental concerns. At the 

same time, many of these same MS4s 

understand the need for permit 

requirements that are clear to all parties 

and the public. 

EPA also met with representatives 

from a number of environmental, nonprofit organizations. Many of the 

representatives expressed an interest in 

seeing the quality of small MS4 permits 

improve, and appeared to be supportive 

of the concept of adopting the 

Traditional General Approach as a way 

of addressing the remand. Asked at 

what point in the current permitting 

process their organizations tend to 

provide input, most indicated that they 

focus their attention on providing 

comments at the proposed permit stage, 

as compared to submitting comments on 

individual NOIs. That being said, a few 

representatives indicated that they have 

submitted comments on individual 

NOIs pertaining to the proposed water 

quality implementation plans of several 

small MS4s. 

C. Considerations in Evaluating Options 

Any option for responding to the 

remand must meet the CWA 

requirements for public participation 

and transparency in section 402(b)(3), 

consistent with the Ninth Circuit’s 

decision. When individual permits are 

issued to small MS4s, the standard 

process for issuing an NPDES permit 

applies. This process provides for 

public participation and permitting 

authority determination as to what set of 

permit terms and conditions satisfy the 

requirement to reduce the discharge of 

pollutants from the MS4 to the MEP, to 

protect water quality, and to meet the 

applicable water quality requirements of 

the CWA. While the court’s opinion 

focused on the Phase II rule’s 

requirement for the NOI to be covered 

by a general permit, and the procedural 

steps that need to be taken with respect 

to the NOI in order for the rule to 

comply with the CWA, the court’s 

fundamental concern was that the 

permitting authority must determine 

which MS4 permit requirements are 

sufficient to reduce the discharge of 

pollutants to the MEP, to protect water 

quality, and to satisfy the appropriate 

water quality requirements of the CWA, 

and that the public have the opportunity 

to review and comment on those permit 

requirements and to request a hearing. 

For example, the court stated that 

‘‘every permit must comply with the 

standards articulated by the Clean Water 

Act, and unless every NOI issued under 

a general permit is reviewed, there is no 

way to ensure that such compliance has 

been achieved.’’ EDC v. EPA. 344 F.3d 

at 855, n. 32. Accordingly, EPA has 

determined that certain factors must be 

met by any option to revise the rule, as 

discussed in subsections 1 (Permitting 

Authority Review), 2 (Public 

Participation Requirements), and 3 

(Other Factors Considered). 

1. Permitting Authority Review 

The court viewed the NOI as the 

document that identifies the 

requirements necessary to meet the MEP 

standard: ‘‘Because a Phase II NOI 

establishes what the discharger will do 

to reduce discharges to the ‘maximum 

extent practicable,’ the Phase II NOI 

crosses the threshold from being an item 

of procedural correspondence to being a 

substantive component of a regulatory 

scheme.’’ 344 F.3d at 853. As a result, 

the role of the permitting authority to 

determine which requirements are 

necessary to meet the applicable 

statutory standard is not, according to 

the court, accomplished under this 


wgreen on DSK2VPTVN1PROD with PROPOSALS
420 Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 

4See http://www.epa.gov/npdes/pubs/

hanlonphase2apr14signed.pdf. 

scheme. In addition, the court observed 

that because 40 CFR 122.34(a) in the 

1999 Phase II rule states that 

compliance with the SWMP written by 

the MS4 constitutes compliance with 

the MEP standard (without providing 

for further action by the permitting 

authority), the regulation put the MS4 in 

charge of establishing its own 

requirements. ‘‘Therefore, under the 

Phase II Rule nothing prevents the 

operator of a small MS4 from 

misunderstanding or misrepresenting its 

own stormwater situation and proposing 

a set of minimum measures for itself 

that would reduce discharges by far less 

than the maximum extent practicable.’’ 

344 F.3d at 855. 

While EPA has always expected the 

permitting authority to establish the 

necessary requirements for reducing 

discharges to the MEP, protecting water 

quality, and satisfying the appropriate 

water quality requirements of the CWA, 

the existing regulations do not fully 

address the permitting authorities’ 

responsibilities in this regard. To be 

consistent with the court’s decision, one 

criterion that any option must meet is 

that it must ensure the permitting 

authority provides a final determination 

on whether the requirements to which 

the MS4 is subject, whether articulated 

fully in the permit itself or defined in 

whole or part by the MS4 operator in 

the NOI, meet the NPDES requirements 

to reduce discharges to the MEP, to 

protect water quality, and to satisfy the 

appropriate water quality requirements 

of the Act. 

2. Public Participation Requirements 

The court’s other concern was that 

MS4s would choose what requirements 

apply to them, without being subject to 

the public participation procedures 

applicable to all NPDES permit 

applications and permits, which is 

contrary to CWA section 402(b)(3). As 

discussed, the court found the NOI to be 

the ‘‘functional equivalent’’ of a permit 

application. The importance of the NOI 

as identified by the court was that the 

NOI contained the requirements that 

would be considered to meet the 

applicable standards and therefore this 

was the document that needed to be 

subject to public notice. See 344 F.3d at 

857. To be consistent with the court’s 

decision, any option chosen must 

provide for public notice and the 

opportunity to request a public hearing 

on what is considered necessary for a 

permitted MS4 to meet the requirement 

to reduce discharges to the MEP, to 

protect water quality, and to satisfy the 

appropriate water quality requirements 

of the CWA, regardless of where those 

requirements are defined. 

3. Other Factors Considered 

General permits are premised on the 

idea that the terms and conditions of the 

permit are the same for all entities 

covered by the general permit and that 

handling permitting for multiple entities 

in one proceeding is more efficient. In 

the context of MS4 permits, the Phase 

II rule sought to establish a general 

permit scheme that allows each MS4 to 

address the specific conditions that 

prevail in its jurisdiction. As stated in 

the Phase II preamble, ‘‘The pollutant 

reductions that represent MEP may be 

different for each small MS4, given the 

unique local hydrologic and geologic 

concerns that may exist and the 

differing possible pollutant control 

strategies. Therefore, each permittee 

will determine appropriate BMPs to 

satisfy each of the six minimum control 

measures through an evaluative 

process.’’ (64 FR 68754, December 8, 

1999). While the court clearly rejected 

EPA regulations to the extent that the 

court found they established a system of 

MS4 self-regulation, it also recognized 

the value in having MS4 input on what 

it could do to meet the MEP standard. 

‘‘Involving regulated parties in the 

development of individualized 

stormwater pollution control programs 

is a laudable step . . . But EPA is still 

required to ensure that the individual 

programs adopted are consistent with 

the law.’’ 344 F.3d at 856. There is a 

need for strong MS4 input into the 

implementation of the program, and for 

that reason EPA made flexibility an 

underlying principle of the Phase II 

regulations. Individual permits provide 

the greatest ability to define MS4- 

specific requirements and small MS4s 

always have the option of seeking an 

individual permit if this would best 

accommodate their specific 

circumstances. However, with over 94 

percent of regulated small MS4s 

currently covered by general permits, an 

important consideration for this 

rulemaking is how to provide flexibility 

to MS4s while retaining the general 

permit option in a manner that 

comports with the remand. The 

challenge is to balance the flexibility 

provided to the MS4 to determine how 

best it can meet the applicable 

regulatory requirements with the 

permitting authorities’ responsibility to 

ensure that the terms and conditions to 

which MS4s will be held accountable 

are adequate to reduce the discharge to 

the MEP, protect water quality, and 

satisfy the appropriate water quality 

requirements of the CWA. In selecting 

any regulatory option to comport with 

the court remand, EPA will consider the 

need for maintaining this balance in 

light of the nearly 15-year history of 

implementing the Phase II program, and 

the considerable knowledge and 

expertise about implementing 

stormwater controls that have emerged 

during that time. 

Another factor requiring 

consideration is the impact on existing 

authorized NPDES state permitting 

programs. Currently 46 states and one 

territory are authorized under section 

402(b) to administer the NPDES permit 

program in their jurisdictions. EPA 

recognizes that states have limited 

resources and face different challenges 

in meeting the permitting demands 

within their various NPDES programs. 

Immediately after the EDC decision, 

EPA sought to provide state permitting 

authorities with potential interim 

strategies that would balance the need 

to move forward with implementing the 

Phase II program, while acknowledging 

the need for state flexibility in how 

permitting decisions need to be made. 

See Implementing the Partial Remand of 

the Stormwater Phase II Regulations 

Regarding Notices of Intent & NPDES 

General Permitting for Phase II MS4s 

(EPA, 2004).4 As discussed more fully 

elsewhere in this preamble, authorized 

states [and EPA regional permitting 

authorities] have taken a variety of 

approaches in response to the court’s 

decision (and in some cases, decisions 

by state courts) and EPA guidance. A 

significant consideration in this 

rulemaking is the extent to which states 

would need to make changes to comply 

with the rule and consideration of the 

need to minimize disruption to existing 

state programs, particularly for those 

states that have chosen approaches that 

already comport with the EDC decision. 

EPA clarifies that if, upon promulgation 

of the final rule, a state is already 

implementing an approach that is 

consistent with the final rule EPA 

would not expect that the permitting 

authority would need to make any 

changes to its current approach. 

Similarly, it is EPA’s intention that 

permitting authorities that only issue 

individual permits to small MS4s (e.g., 

EPA Region 10 in Idaho, Delaware, 

Michigan, and Oregon) would not need 

to make any changes because the 

process for issuing individual permits 

already encompasses the necessary 

permitting attributes found missing in 

the Phase II regulations by the Ninth 

Circuit (i.e., permitting authority 

determination, public notice, and 

opportunity to request a hearing). 

However, state permitting authorities 

that are using general permits and are 


wgreen on DSK2VPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 421 

currently not implementing strategies 

that address the core problems found by 

the court will need to make some degree 

of change to their general permit process 

for small MS4s to comply with the 

modified regulations. 

VI. Analysis of Options for Proposal 

EPA is proposing three rule options 

for public comment, each of which 

would address the Ninth Circuit 

remand. Each of these options shares in 

common the fact that, as a result of the 

permitting process, the permitting 

authority must determine which 

requirements a small MS4 must meet in 

order to satisfy the Phase II regulatory 

requirement ‘‘to reduce the discharge of 

pollutants from [the] MS4 to the 

maximum extent practicable, to protect 

water quality, and to satisfy the 

appropriate water quality requirement 

of the Clean Water Act.’’ The key 

difference between the options, 

especially between the ‘‘Traditional 

General Permit Approach’’ (Option 1) 

and the ‘‘Procedural Approach’’ (Option 

2), is that they make this determination 

at different points in time during the 

permitting process. For Option 1 (the 

‘‘Traditional General Permit 

Approach’’), the determination as to 

what requirements are needed to reduce 

the discharge of pollutants to the MEP, 

to protect water quality, and to satisfy 

the appropriate water quality 

requirements of the CWA is made as 

part of the initial issuance of the general 

permit. By contrast, under Option 2 (the 

‘‘Procedural Approach’’), the permitting 

authority would make this 

determination after reviewing each 

individual NOI and after public 

comment and the opportunity for a 

hearing on the NOI. Each of these 

options is described more fully in this 

section, as is a third option (the ‘‘State 

Choice Approach’’), which would give 

the permitting authority the discretion 

to determine whether it will administer 

Option1 or Option 2, or a hybrid of 

options chosen for the final rule. 

A. Option 1—Traditional General 

Permit Approach 

The ‘‘Traditional General Permit 

Approach’’ provides a mechanism for 

addressing the procedural deficiencies 

identified by the court by requiring all 

substantive permit requirements to be in 

the general permit. The rationale behind 

the Traditional General Permit 

Approach is that by requiring permitting 

authorities to include any and all 

requirements that establish what is 

necessary to ‘‘. . . reduce the discharge 

of pollutants from the MS4 to the 

maximum extent practicable (MEP), to 

protect water quality, and to satisfy the 

appropriating water quality 

requirements of the Clean Water Act,’’ 

the minimum required procedural steps 

to issue a final general permit, including 

providing public notice and the 

minimum 30-day comment period on 

the draft permit, and the opportunity to 

request a public hearing, will fulfill the 

permitting authority review and public 

participation requirements of the CWA 

that the court found missing from the 

Phase II regulations. 

Under the proposed Traditional 

General Permit Approach, the NPDES 

authority must establish in any small 

MS4 general permit the full set of 

requirements that are deemed adequate 

‘‘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,’’ and the administrative 

record would explain the rationale for 

its determination. The permittee would 

have the opportunity, as it always has 

had, to provide feedback on what 

requirements are established in the 

general permit during the development 

of the draft permit and to submit 

comments during the public comment 

period. Furthermore, the permittee 

could continue to have flexibility in 

determining how it will implement the 

permit requirements based on 

considerations such as pollutant 

removal and cost effectiveness. 

However, once the permit is issued, and 

the terms and conditions in the permit 

are fixed for the term of the permit, 

neither the development of a SWMP 

document nor the submittal of an NOI 

for coverage would represent new 

permit requirements. In turn, because 

the permit contains all of the 

requirements that will be used to assess 

permittee compliance, the permitting 

authority would no longer need to rely 

on the MS4’s NOI as the mechanism for 

ascertaining what will occur during the 

permit term. Under this approach, the 

function of the NOI would be more 

similar to that of any other general 

permit NOI, and more specifically other 

stormwater general permits, where the 

NOI is used to establish certain 

minimum facts about the discharger, 

including the operator’s contact details, 

the discharge location(s), and 

confirmation that the operator is eligible 

for permit coverage and has agreed to 

comply with the terms of the permit. By 

removing the possibility that effluent 

limits could be proposed in the NOI 

(and for that matter in the SWMP) and 

made part of the permit once permit 

coverage is provided, the NOI would no 

longer look and function like an 

individual permit application, as the 

court found with respect to MS4 NOIs 

under the Phase II regulations currently 

in effect. Therefore, it would not be 

necessary to carry out the type of 

additional permitting authority review 

and public participation steps 

contemplated by the court. 

Under the proposed Traditional 

General Permit Approach, 40 CFR 

122.34(a) would be revised to expressly 

require the permitting authority to 

articulate in sufficient detail in the 

permit what is required to meet the 

minimum statutory and regulatory 

requirements, and to ensure that the 

applicable requirements are enforceable 

and understandable to the permittee and 

the public. A general permit would need 

to make it clear to all what level of effort 

is expected of the permittee during the 

permit term for each permit provision. 

These proposed revisions to 40 CFR 

122.34(a) respond to the court’s finding 

that under the Phase II rule, ‘‘the 

operator of a small MS4 has complied 

with the requirement of reducing 

discharges to the ‘maximum extent 

practicable’ when it implements its 

stormwater management program, i.e., 

when it implements its Minimum 

Measures. 40 CFR 122.34(a).’’ 344 F.3d 

at 856. The court continued, ‘‘Nothing 

in the Phase II regulations requires that 

NPDES permitting authorities review 

these Minimum Measures to ensure that 

the measures that any given operator of 

a small MS4 had decided to undertake 

will in fact reduce discharges to the 

maximum extent practicable.’’ 344 F.3d 

at 855. By clearly shifting the decision 

as to what is needed to meet the MEP 

standard and water quality requirements 

from the permittee to the permitting 

authority, the Traditional General 

Permit Approach would address the 

court’s concern. 

EPA continues to view MEP as 

iterative, in that each successive permit 

needs to define what is required to meet 

the MEP standard for that permit term. 

The Traditional General Permit 

Approach would clarify that the 

requirements for meeting MEP (and to 

protect water quality and satisfy CWA 

water quality requirements) would be 

required to be established in each 

successive permit by the permitting 

authority, while the SWMP 

implemented by the MS4 would be a 

planning and programmatic document 

that the MS4 would be able to update 

and revise during the permit term as 

necessary to comply with the terms of 

the permit. In other words, this option 

would make it clear that the SWMP 

document would not contain 

enforceable requirements. Likewise, it 

would be unnecessary for the NOI to 


wgreen on DSK2VPTVN1PROD with PROPOSALS
422 Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 

5EPA. 2010. MS4 Permit Improvement Guide. 

Office of Wastewater Management. Washington, DC. 

EPA 833–R–10–001. http://water.epa.gov/polwaste/ 

npdes/stormwater/upload/ms4permit_

improvement_guide.pdf. 

6EPA. November 26, 2014. Memo from Andrew 

Sawyers, Director, Office of Wastewater 

Management to EPA Water Management Division 

Directors in EPA Regions I–X. http://water.epa.gov/ 

polwaste/npdes/stormwater/upload/EPA_SW_

TMDL_Memo.pdf. 

identify the BMPs selected in the SWMP 

for each minimum control measure nor 

for it to undergo public or permitting 

authority review prior to discharge 

authorization under the general permit. 

Moreover, it was never EPA’s intent 

that the SWMP required by 40 CFR 

122.34(a) itself be considered 

enforceable under the permit. Rather, 

the SWMP was intended to be the 

means for the MS4 to engage in an 

adaptive management process during 

the term of the permit. ‘‘EPA envisions 

application of the MEP standards as an 

iterative process. MEP should 

continually adapt to current conditions 

and BMP effectiveness and should strive 

to attain water quality standards.’’ (64 

FR 68754, December 8, 1999). 

The Traditional General Permit 

Approach would include regulatory text 

to reflect EPA’s guidance to permitting 

authorities regarding the types of permit 

requirements for MS4s that are 

considered most effective. For instance, 

EPA advises permitting authorities to 

use permit conditions that are ‘‘clear, 

specific, and measurable.’’ See MS4 

Permit Improvement Guide 5 (p. 5–6), 

and Revisions to the November 22, 2002 

Memorandum Establishing Total 

Maximum Daily Load (TMDL) 

Wasteload Allocations (WLAs) for Storm 

Water Sources and NPDES Permit 

Requirements Based on Those WLAs 6

(p. 5). The MS4 Permit Improvement 

Guide explains EPA’s recommendation 

as follows: 

In order for permit language to be clear, 

specific, measurable and enforceable, each 

Permit Requirement will ideally specify: 

What needs to happen; Who needs to do it; 

How much they need to do; When they need 

to get it done; and Where it is to be done. 

For each Permit Requirement: ‘What’ is 

usually the stormwater control measure or 

activity required. ‘Who’ in most cases is 

implied as the permittee (although in some 

cases the permitting authority may need to 

specify who exactly will carry out the 

requirement if there are co-permittees or the 

MS4 will rely on another entity to implement 

one of the minimum control measures). ‘How 

much’ is the performance standard the 

permittee must meet (e.g., how many 

inspections). ‘When’ is a specific time (or a 

set frequency) when the stormwater control 

measure or activity must be completed. 

‘Where’ indicates the specific location or area 

(if necessary). These questions will help 

determine compliance with the permit 

requirement. 

The proposed rule for the Traditional 

General Permit Approach would 

obligate the permitting authority to 

establish requirements that are ‘‘clear, 

specific, and measurable.’’ See proposed 

40 CFR 122.34(a). The proposed rule 

further explains that effluent limitations 

may be expressed as BMPs that include, 

but are not limited to, ‘‘specific tasks, 

BMP design requirements, performance 

requirements or benchmarks, schedules 

for implementation and maintenance, 

and frequency of actions.’’ Id. Where 

permits incorporate clear, specific, and 

measurable requirements, EPA expects 

there to be greater certainty and 

understanding as to what must be 

accomplished during each permit term. 

A foundational principle of MS4 

permits is that from permit term to 

permit term iterative progress will be 

made towards meeting water quality 

objectives, and that adjustments in the 

form of modified permit requirements 

will be made where necessary to reflect 

current water quality conditions, BMP 

effectiveness, and other current relevant 

information. This principle is 

incorporated into the proposed 

Traditional General Permit Approach in 

the requirement for NPDES authorities 

to revisit permit requirements during 

the permit issuance process, and to 

make any necessary changes in order to 

ensure that the subsequent permit 

continues to meet the NPDES 

requirements ‘‘to reduce the discharge 

of pollutants from the MS4 to the 

maximum extent practicable (MEP), 

protect water quality, and to satisfy the 

water quality requirements of the Clean 

Water Act.’’ Thus, in advance of issuing 

any successive small MS4 general 

permit, the permitting authority would 

need to review, among other things, 

information on the relative progress 

made by permittees to meet applicable 

milestones, compliance problems that 

may have arisen, the effectiveness of the 

required activities and selected BMPs 

under the existing permit, and any 

improvements or degradation in water 

quality. Sources of this information 

include, but are not limited to: 

• Past annual reports; 

• Current SWMP documents; 

• NPDES MS4 audit reports, 

construction/industrial/commercial site 

inspection reports; 

• Monitoring and other information 

on quality of receiving waters; 

• Existing MS4 permit requirements; 

and 

• Approved TMDLs that include 

wasteload allocations applicable to 

small MS4s. 

1. Current Examples of Clear, Specific, 

and Measurable Permit Requirements 

As discussed in the previous section, 

a key component of the proposed 

Traditional General Permit Approach is 

that permits be written with sufficient 

clarity and specificity to enable 

permittees, the public, and regulatory 

authorities alike to understand what is 

required to measure progress. EPA 

acknowledges that meeting the 

requirement to include more detailed 

terms and conditions in small MS4 

permits and to ensure, among other 

things, that the permit terms satisfy the 

regulatory requirement to reduce 

pollutant discharges from the MS4 to 

the MEP (and meet the requirement to 

protect water quality and meet the 

appropriate water quality requirements 

of the CWA) will not be easy for some 

states. States that have not already 

written permits in this way would need 

to evaluate the quality of the existing 

SWMPs, the track record of each MS4 in 

implementing their respective SWMPs, 

the types of BMPs that have proven 

effective, and information that may 

suggest what is necessary to address 

existing water quality conditions, 

including whether additional 

requirements are needed to address an 

applicable TMDL. Among other factors 

that the state would need to consider 

when issuing a new, or the next, general 

permit are how long the MS4 has been 

permitted, the degree of progress made 

by the small MS4 permittees as a whole 

and for individual MS4s as well, the 

reasons for any lack of progress, and the 

capability of these MS4s to achieve 

more focused requirements. EPA finds 

promise in some of the strategies that 

EPA and state permitting authorities are 

already implementing, which will serve 

as useful models to those permitting 

authorities needing advice on how to 

write their permits under the proposed 

Traditional General Permit Approach. 

For example, permitting authorities may 

find that subcategorizing MS4s by 

experience, size, or other factors, and 

creating different requirements for each 

subcategory, may be desirable. 

Permitting authorities may also consider 

whether watershed-wide general 

permits may be an option, especially 

where the receiving waters are 

impaired. 

In addition to the model permit 

language in the MS4 Permit 

Improvement Guide, EPA recently 

compiled a number of examples where 

small MS4 general permits have already 

included requirements that are clear, 

specific, and measurable in a document 

entitled MS4 General Permits and the 

Six Minimum Control Measures: A 


wgreen on DSK2VPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 423 

7EPA. 2014. Municipal Separate Storm Sewer 

System Permits: Post-Construction Performance 

Standards & Water Quality-Based Requirements: A 

Compendium of Permitting Approaches. Office of 

Water. Washington, DC. EPA 833.R.14.003. http:// 

water.epa.gov/polwaste/npdes/stormwater/upload/

sw_ms4_compendium.pdf. 

National Compendium of Clear, 

Specific, and Measurable Requirements, 

which can be accessed in the docket for 

this proposed rule. Additional examples 

of clear, specific, and measurable permit 

requirements in MS4 general permits, 

focusing on post-construction 

requirements and water quality-based 

effluent limits, are included in EPA’s 

Municipal Separate Storm Sewer 

System Permits: Post-Construction 

Performance Standards & Water 

Quality-Based Requirements: A 

Compendium of Permitting 

Approaches.7 The fact that many 

permitting authorities have already 

included provisions that would qualify 

as clear, specific, and measurable under 

the proposed rule indicates that making 

this a requirement for all permits is 

reasonable and achievable. EPA requests 

comment on what additional examples 

should be highlighted as being clear, 

specific, and measurable in current 

small MS4 general permits. 

2. Types of Permit Language Lacking 

Sufficient Detail To Qualify as Clear, 

Specific, and Measurable 

Just as there are a number of examples 

to be highlighted where states are 

already writing their permits consistent 

with the proposed Traditional General 

Permit Approach, EPA also found 

permits that lack adequate detail and 

would not qualify as clear, specific, and 

measurable under the proposed rule 

modifications. Permit requirements that 

do not appear to have the type of detail 

that would be needed under the 

proposed rule approach may have some 

of the following characteristics: 

• Permit provisions that simply copy 

the language of the Phase II regulations 

verbatim without providing further 

detail on the level of effort required or 

that do not include the minimum 

actions that must be carried out during 

the permit term. For instance, where a 

permit includes the language in 40 CFR 

122.34(b)(4)(ii)(B) (i.e., requiring ‘‘. . . 

construction site operators to implement 

appropriate erosion and sediment 

control best management practices’’) 

and does not provide further details on 

the minimum set of accepted practices, 

the requirement would not provide 

clear, specific, and measurable 

requirements within the intended 

meaning of the proposed Traditional 

General Permit Approach. The same 

would also be true if the permit just 

copies the language from the other 

minimum control measure provisions in 

40 CFR 122.34(b) without further 

detailing the particular actions and 

schedules that must be achieved during 

the permit term. 

• Permit requirements that include 

‘‘caveat’’ language, such as ‘‘if feasible,’’ 

‘‘if practicable,’’ ‘‘to the maximum 

extent practicable,’’ and ‘‘as necessary’’ 

or ‘‘as appropriate’’ unless defined. 

Without defining parameters for such 

terms (for example, ‘‘infeasible’’ means 

‘‘not technologically possible or not 

economically practicable and achievable 

in light of best industry practices’’), this 

type of language creates uncertainty as 

to what specific actions the permittee is 

expected to take, and is therefore 

difficult to comply with and assess 

compliance. 

• Permit provisions that preface the 

requirement with non-mandatory 

words, such as ‘‘should’’ or ‘‘the 

permittee is encouraged to . . . .’’ This 

type of permit language makes it 

difficult to assess compliance since it is 

ultimately left to the judgment of the 

permittee as to whether it will comply. 

EPA notes that the Phase II regulations 

include ‘‘guidance’’ in places (e.g., 40 

CFR 122.34(b)(1)(ii), (b)(2)(ii), and 

(b)(3)(iv)), which suggest practices for 

adoption by MS4s and within permits, 

but does not mandate that they be 

adopted. This guidance language is 

intended for permitting authorities to 

consider in establishing their permit 

requirements. While permitting 

authorities may find it helpful to their 

permittees to include guidance language 

within their permits in order to provide 

suggestions to their permittees, such 

language would not qualify as a permit 

requirement under the proposed 

Traditional General Permit Approach. 

• Permit requirements that lack a 

measurable component. For instance, 

several permits include language 

implementing the construction 

minimum control measure that requires 

inspections ‘‘at a frequency determined 

by the permittee’’ based on a number of 

factors. This type of provision includes 

no minimum frequency that can be used 

to measure adequacy and, therefore, 

would not constitute a measurable 

requirement for the purposes of the 

proposed rule. 

• Permit requires the development of 

a plan to implement one of the 

minimum control measures, but does 

not include details on the minimum 

contents or requirements for the plan, or 

the required outcomes, deadlines, and 

corresponding milestones. For example, 

some permits require the MS4 to 

develop a plan to implement the public 

education minimum control measure, 

which informs the public about steps 

they can take to reduce stormwater 

pollution. The requirement leaves all of 

the decisions on what specific actions 

will be taken during the permit term to 

comply with this provision to the MS4 

permittee, thus enabling almost any 

type of activity, no matter how minor or 

insubstantial, to be considered 

compliance with the permit. In EPA’s 

view, this type of permit provision 

would not qualify as a clear, specific, 

and measurable requirement under the 

proposed Traditional General Permit 

Approach. 

3. Summary/Description of Proposed 

Rule Changes 

The following is a section-by-section 

summary of the proposed regulatory 

changes. 

Proposed Changes to 40 CFR 122.33 

The following changes to 40 CFR 

122.33 are proposed to complement the 

changes made to implement the 

Traditional General Permit Approach 

option: 

• Throughout the section references 

to ‘‘you’’ or ‘‘your’’ would be replaced 

with references to ‘‘the operator.’’ This 

change is proposed for consistency with 

revisions to 40 CFR 122.34 and 40 CFR 

122.35. 

• The requirements for obtaining 

coverage under a general permit would 

now be the same as those for any other 

general permit in 40 CFR 122.28(b)(2). 

The NOI would no longer be required to 

include information on the MS4’s BMPs 

and measurable goals. 

• The requirements for applying for 

an individual permit would be 

consolidated in 40 CFR 122.33(b)(2), 

whereas these requirements now appear 

in both 40 CFR 122.31 and in 40 CFR 

122.34(d). 

• The deadline of March 10, 2003 for 

MS4s wishing to implement a program 

that differed from 40 CFR 122.34 to 

submit an individual permit application 

would be removed since the date has 

passed and is no longer relevant. 

Similarly, the deadline of March 10, 

2003 for MS4s designated for regulation 

by 40 CFR 122.32(a)(1) would be deleted 

since the date has passed and is no 

longer relevant. 

Proposed Changes to 40 CFR 122.34 

Most of the proposed changes to 40 

CFR 122.34 are made to clarify that it is 

the permitting authority’s responsibility, 

and not that of the small MS4 permittee, 

to establish permit terms that meet the 

small MS4 regulatory standard (i.e., 

‘‘. . . to reduce the discharge of 

pollutants from the MS4 to the 

maximum extent practicable (MEP), to 


wgreen on DSK2VPTVN1PROD with PROPOSALS
424 Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 

protect water quality, and to satisfy the 

appropriate water quality requirements 

of the Clean Water Act.’’), and to 

delineate the requirements for 

implementing the six minimum control 

measures, other more stringent effluent 

limitations as necessary, as well as other 

requirements. The proposed 

modifications do not alter the existing, 

substantive requirements of the six 

minimum control measures in 40 CFR 

122.34(b), but instead emphasize the 

way in which the permitting authority 

makes the determination as to what 

requirements are included in small MS4 

permits, including general permits. For 

instance, a typical change in the 

proposed Traditional General Permit 

Approach is made in 40 CFR 

122.34(b)(3)(ii), which transfers the 

obligation to address certain categories 

of non-stormwater discharges from the 

small MS4 operator (referred to as 

‘‘you’’) to the permitting authority by 

requiring that ‘‘the permit must require 

the permittee to address the following 

categories of non-storm water 

discharges.’’ Otherwise, unless 

specified, there is no change to the 

language of the existing rule. 

Proposed Changes to 40 CFR 122.34(a) 

The following changes to 40 CFR 

122.34(a) are proposed: 

• The proposed regulatory text 

clarifies that the permitting authority is 

required to include in any small MS4 

permit conditions that ensure pollutant 

discharges from the MS4 are reduced to 

the MEP, are protective of water quality, 

and satisfy the water quality 

requirements of the CWA. In order to 

ensure that these permit conditions are 

of adequate detail and their meaning is 

clear to all parties, the proposed rule 

emphasizes that permit requirements 

must be written in a ‘‘clear, specific, and 

measurable’’ form. This language is 

consistent with the recommendation in 

EPA’s MS4 Permit Improvement Guide 

(2010), which advised permitting 

authorities to write MS4 permits with 

permit provisions that are ‘‘clear, 

specific, measurable, and enforceable.’’ 

In addition, the proposed regulatory text 

for the Traditional General Permit 

Approach emphasizes that the permit 

requirements must be adequate to 

collectively meet the regulatory 

standard, that is: ‘‘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 

(CWA).’’ EPA notes that no changes are 

proposed to the wording of this 

regulatory standard. 

• The proposed regulatory text 

reiterates that effluent limitations may 

be in the form of BMPs, and provides 

examples of how these BMP 

requirements may appear in the permit, 

such as in the form of specific tasks, 

BMP design requirements, performance 

requirements or benchmarks, schedules 

for implementation and maintenance, 

and the frequency of actions. This list of 

examples is not intended to be 

exclusive, and EPA anticipates that 

permitting authorities will, over time, 

develop other ways to establish 

requirements that are consistent with 

this language. It is EPA’s view that this 

proposed language serves the same 

underlying purpose as the provision it 

modifies in the current regulation (i.e., 

‘‘. . . narrative effluent limitations 

requiring implementation of best 

management practices (BMPs) are 

generally the most appropriate form of 

effluent limitations when designed 

satisfy technology requirements . . . 

and to protect water quality.’’) 

• The following provision from the 

existing regulations is proposed to be 

removed: ‘‘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.’ ’’ The 

court in EDC found this sentence to be 

particularly problematic in light of the 

lack of permitting authority review of 

NOIs. Based in part on this language, 

the court observed that ‘‘the operator of 

a small MS4 needs to do nothing more 

than decide for itself what reduction in 

discharges would be the maximum 

practical reduction.’’ EDC at 855. 

Furthermore, the court found that 

‘‘under the Phase II Rule, nothing 

prevents the operator of a small MS4 

from misunderstanding or 

misrepresenting its own stormwater 

situation and proposing a set of 

minimum measures for itself that would 

reduce discharges by far less than the 

maximum extent practicable.’’ Id. EPA 

addresses these concerns by removing 

this language, and instead clarifying, as 

it does through the other proposed 

changes to 40 CFR 122.34(a), that it is 

the permitting authority who is 

responsible for establishing 

requirements that constitute compliance 

with requirement to reduce the 

discharge of pollutants from the MS4 to 

the MEP, to protect water quality, and 

to satisfy the water quality requirements 

of the CWA. 

• The language in the existing 

regulations providing permittees with 

up to five years from the date of permit 

issuance to implement their SWMPs is 

modified to apply to new permittees, 

recognizing that this 5-year period has 

passed for existing permittees. Another 

clarification is included to explain that 

when a permit is expiring and a new 

permit is being developed, the 

permitting authority must ensure that 

the new permit meets the requirements 

of 40 CFR 122.34(a) based on current 

water quality conditions, the record of 

BMP effectiveness, and other current 

relevant information. This revision 

would not change the status quo; it 

merely recognizes that first-time small 

MS4 permittees have up to five years to 

develop and implement their SWMPs, 

while small MS4s that have already 

been permitted will have developed and 

implemented their SWMP when they 

reapply for permit coverage or submit 

an NOI under the next small MS4 

general permit. 

Proposed Changes to 40 CFR 122.34(b) 

The following changes are proposed 

to be made to 40 CFR 122.34(b): 

• In the proposed regulatory text, the 

small MS4 operator is still required to 

develop a SWMP; however, the stated 

purpose of the SWMP is clarified to 

emphasize the fact that it is a tool for 

describing how the permittee will 

comply with the permit requirements 

implementing the six minimum control 

measures, and does not contain effluent 

limitations or permit conditions. The 

effluent limitations and other 

enforceable conditions would be stated 

in the permit itself. The proposed 

regulatory text for the Traditional 

General Permit Approach would clarify 

that for general permits, documentation 

of the measurable goals in the SWMP 

should include schedules that are 

consistent with any deadlines already 

established in the general permit. The 

purpose of this proposed requirement is 

to preserve the SWMP as a tool for 

permittees to describe [in more detail] 

how the MS4 will implement the BMPs 

required by the permit and to document 

updates to the SWMP as needed during 

the permit term if changes are called for 

to comply with the permit. This 

language is intended to support the 

underlying clarification in the proposal 

that it is in the permit where the 

enforceable requirements are 

established, while the role of the SWMP 

document or other document(s) is to 

describe in writing how the permittee 

will comply with these requirements. 

Under this formulation, a permittee’s 

failure to develop a SWMP document 

would constitute a violation of the 

permit, but a permittee’s failure to 

install a specific control measure that is 


wgreen on DSK2VPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 425 

described in the SWMP document 

would not be a violation of the permit, 

unless the permit required that this 

specific control measure be installed as 

a required BMP. EPA notes that the 

proposed regulatory text also includes 

language to clarify that whether or not 

the SWMP can be found in one 

document or a series of documents, 

there should be a written description in 

some form that explains how the 

permittee will comply with the permit’s 

minimum control measure 

requirements. In other words, the 

‘‘SWMP document’’ refers to the 

documentation, whether located in one 

place or comprised of multiple 

documents (e.g., ordinances, manuals, 

documented procedures, and other 

documentation), that is the written form 

of the permittee’s SWMP. Reference to 

a ‘‘document’’ in the proposed rule is 

not intended to create a new 

documentation requirement. 

• Changes in various provisions in 40 

CFR 122.34(b)(1) through (6) are 

proposed to emphasize the permitting 

authority’s role in including 

requirements that address the minimum 

control measures as compared to the 

current regulations, which give this 

responsibility to the MS4. In most 

instances, the proposed modifications 

are merely changing a few words to 

switch from the first person (i.e., ‘‘you’’) 

to the third person (i.e., ‘‘the MS4’’). The 

proposed modifications do not alter the 

existing, substantive requirements of the 

six minimum control measures in 40 

CFR 122.34(b). 

Proposed Changes to 40 CFR 122.34(d) 

The following changes are proposed 

to be made to 40 CFR 122.34(d). 

• The proposed regulatory text for the 

Traditional General Permit Approach 

would remove existing paragraph (d) 

from 40 CFR 122.34. The information 

required to be included in permit 

applications for individual permits in 

paragraph (d)(1) would be moved to 40 

CFR 122.33(b)(2)(i). This information 

would no longer be required to be 

submitted with NOIs. Because EPA and 

many states have issued menus of 

BMPs, paragraph (d)(2) is no longer 

relevant, and under the Traditional 

General Permit Approach, paragraph 

(d)(3) would also no longer be needed. 

• For general permits, the information 

required to be included in the NOI 

would track with the requirements for 

general permits in 40 CFR 

122.28(b)(2)(ii). See discussion on 40 

CFR 122.33. There would be no change 

to the requirement that an MS4 seeking 

an individual permit must submit an 

application with its proposed BMPs to 

implement the six minimum control 

measures and measurable goals for BMP 

implementation. 

Proposed Changes to 40 CFR 122.34(e) 

and (f) 

The following changes are proposed 

to be made to 40 CFR 122.34(e) and (f): 

• The proposal would consolidate the 

current requirements in 40 CFR 

122.34(e)(1) and (f) under one section, 

40 CFR 122.34(c), entitled ‘‘Other 

applicable requirements.’’ 

• EPA proposes to remove the 

guidance in the current regulations at 

§ 122.34(e)(2). The guidance reflects 

EPA’s recommendation for the initial 

round of permit issuance, which has 

already occurred for all permitting 

authorities. The phrasing of the 

guidance language no longer represents 

EPA policy with respect to including 

additional, more stringent requirements. 

EPA has found that a number of 

permitting authorities are already 

including specific requirements in their 

small MS4 permits that address not only 

wasteload allocations in TMDLs, but 

also other more stringent requirements 

that are in addition to the six minimum 

measures irrespective of the status of 

EPA’s 40 CFR 122.37 evaluation. See 

EPA’s Municipal Separate Storm Sewer 

System Permits—Post-Construction 

Performance Standards & Water 

Quality-Based Requirements: A 

Compendium of Permitting Approaches 

(2014). Based on the advancements 

made by specific permitting programs, 

and information that points to 

stormwater discharges continuing to 

cause waterbody impairments around 

the country, EPA has advised in 

guidance that permitting authorities 

write MS4 permits with provisions that 

are ‘‘clear, specific, measurable, and 

enforceable,’’ incorporating such 

requirements as clear performance 

standards, and including measurable 

goals or quantifiable targets for 

implementation. See EPA’s MS4 Permit 

Improvement Guide (2010). This 

guidance is a more accurate reflection of 

the Agency’s current views on how the 

Phase II regulations should be 

implemented than the guidance 

currently in 40 CFR 122.34(e)(2). 

Proposed Renumbering of 40 CFR 

122.34(c) and (g) 

The following changes are proposed 

to be made to 40 CFR 122.34(c) and (g): 

• The existing ‘‘qualifying local 

program’’ provision currently in 40 CFR 

122.34(c) would be renumbered as 40 

CFR 122.34(e). 

• The ‘‘evaluation and assessment’’ 

provision currently in 40 CFR 122.34(g) 

would be renumbered as 40 CFR 

122.34(d). Conforming changes would 

be made to 40 CFR 122.35 to update the 

cross-references in that section. 

B. Option 2—Procedural Approach 

Another option, called the 

‘‘Procedural Approach,’’ for which EPA 

requests comment would address the 

remand by incorporating additional 

permitting authority and public review 

steps into the existing regulatory 

framework for providing coverage to 

small MS4s under general permits. EPA 

is not proposing specific regulatory text 

for this option, but has included a 

detailed description of how the 

Procedural Approach would work. In 

addition to comments on the merits of 

the option, EPA solicits comments 

recommending specific regulatory text 

for this option. 

Under the existing regulation, 40 CFR 

122.34(d)(1), MS4s seeking 

authorization to discharge under a 

general permit must submit an NOI that 

identifies the BMPs that the MS4 will 

implement for each of the six minimum 

control measures. The NOI must also 

state the measurable goals for each of 

the BMPs, including the timing and 

frequency of their implementation. 

Under the Procedural Approach, once 

an MS4 operator submits its NOI 

requesting coverage under the general 

permit, an additional step would take 

place in which the permitting authority 

would review, and the public would be 

given an opportunity to comment and 

request a hearing on, the merits of the 

MS4’s proposed BMPs and measurable 

goals for complying with the 

requirement to reduce discharges to the 

MEP, to protect water quality, and to 

satisfy the appropriate water quality 

requirements of the CWA. 

Under the ‘‘Procedural Approach’’ 

option, the existing regulatory 

requirement for the small MS4 to submit 

an NOI with the BMPS and measurable 

goals as provided in 40 CFR 122.34(d) 

and the requirement in 40 CFR 122.34(a) 

to develop, implement, and enforce a 

SWMP to meet the six minimum 

measures and to reduce pollutant 

discharges to the MEP, to protect water 

quality, and to satisfy the appropriate 

water quality requirements of the CWA 

would be retained. In this option, the 

NOI would continue to be used in the 

same way as the court considered the 

NOI in the EDC case. The NOI would 

continue to serve as the document that 

describes the BMPs and measurable 

goals that would be considered to be the 

enforceable requirements applicable to 

the permittee, in addition to the terms 

and conditions of the general permit. 

While a SWMP would still need to be 

developed, it would not establish 

enforceable requirements beyond those 


wgreen on DSK2VPTVN1PROD with PROPOSALS
426 Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 

identified in the NOI that would have 

undergone public notice and comment 

and permitting authority review. 

The process would occur in the 

following sequence: Following the 

receipt of an NOI for coverage under the 

general permit, the permitting authority 

would review the NOI to assess whether 

the proposed BMPs and measurable 

goals meet the requirements to reduce 

pollutants to the MEP, protect water 

quality, and satisfy the water quality 

requirements of the CWA. If not, the 

permitting authority would request 

supplemental information or revisions 

as necessary to ensure that the 

submission satisfies the regulatory 

requirements. Once satisfied with the 

submission, the Procedural Approach 

would require the permitting authority 

to provide public notice of the NOI and 

an opportunity to request a hearing on 

the NOI, in accordance with 40 CFR 

124.10 through 124.13. After 

consideration of comments received and 

a hearing, if held, the permitting 

authority would provide notice of its 

decision to authorize coverage under the 

general permit and with the specific 

requirements each MS4 must meet, in 

accordance with 40 CFR 124.15, or as 

provided by state law for providing 

notice of a final permit decision in 

authorized states. Upon completion of 

this process, the MS4-specific 

requirements in the NOI, together with 

the terms and conditions set forth in the 

general permit, would be incorporated 

as requirements of the permit for the 

particular MS4. 

Where the state is the permitting 

authority, it would also provide EPA an 

opportunity to review the individual 

NOIs and submit comments or 

objections to the state regarding the 

adequacy of the NOI before it is made 

available for public review, consistent 

with requirements under 40 CFR part 

124 for NPDES permit applications and 

under 40 CFR 123.44 for draft permits. 

This two-step Procedural Approach is 

similar to the procedure used to 

establish ‘‘terms of the nutrient 

management plan’’ permit requirements 

proposed by concentrated animal 

feeding operations (CAFOs) seeking 

coverage under a general permit under 

40 CFR 122.23(h). While Option 2 still 

relies on the use of a general permit, it 

follows several of the same process 

steps as those used for an individual 

permit. 

Some states, including Minnesota and 

Texas, have used a similar procedural 

approach as a way to address the 

problems identified in the EDC 

decision. In Minnesota, for example, the 

state has developed a detailed form that 

must be completed by any small MS4 

seeking coverage under the Minnesota 

general permit, which when completed 

will become in effect its SWMP 

document (referred to as a ‘‘Stormwater 

Pollution Prevention Plan Document’’ of 

‘‘SWPPP Document’’). The state then 

reviews the MS4’s submission and 

determines whether revisions are 

needed to meet the requirements of the 

permit. After any necessary revisions, 

the state provides public notice of the 

NOI and SWPPP Document, and makes 

them available for public review and 

comment, and for any requests to hold 

a public hearing. After considering 

public comments, the state then makes 

a final determination on whether to 

authorize coverage under the general 

permit, and, if authorized, the contents 

of the SWPPP Document (as revised 

when necessary following public 

comment) become enforceable under the 

general permit. The Minnesota approach 

gives MS4s flexibility by providing a 

range of options from which an MS4 can 

choose for its particular circumstances. 

It also provides the public with the 

opportunity to review the MS4’s 

proposed choices and the permitting 

authority’s determination of adequacy, 

and to provide comment and request a 

hearing. The MS4’s proposed program 

for implementing the six minimum 

measures goes into effect only after the 

state has made an affirmative 

determination that the MS4’s program 

has met the burden of showing that 

pollutant discharges will be reduced to 

the MEP, will be protective of water 

quality, and will satisfy the appropriate 

water quality goals of the CWA, thus 

providing the necessary permitting 

authority review. 

Texas also reviews individual MS4 

program documents to determine 

whether they meet the minimum permit 

and regulatory requirements. In contrast 

to the more detailed NOI checklist used 

by Minnesota, Texas uses a relatively 

short NOI form but requires the MS4 to 

submit its entire SWMP document for 

review after the general permit is issued. 

It does so with the intent to have the 

SWMP document identify the MS4- 

specific enforceable requirements, 

rather than to have this information 

contained in the NOI. Texas requires the 

MS4 to provide the public notice of the 

state’s preliminary determination to 

authorize coverage under the general 

permit in accordance with the SWMP 

document and an opportunity to 

comment on the SWMP document and 

request a hearing. Comments on the 

adequacy of the SWMP document and 

requests for public hearings are 

submitted directly to the state and the 

state also determines whether there is 

sufficient interest to hold a public 

hearing on the SWMP document. 

Under the Procedural Approach, EPA 

would preserve one of the core 

attributes of the existing regulations, 

that is the flexibility afforded the MS4 

to identify the BMPs that it determines 

are needed to meet the minimum 

regulatory requirements to reduce 

pollutant discharges to the MEP, to 

protect water quality, and to satisfy the 

water quality requirements of the CWA 

in its SWMP. This approach may appeal 

to states that accept the notion that the 

MS4 should have the initial opportunity 

to propose the BMPs that it believes will 

meet the regulatory requirements, and 

that each program may differ 

substantially from MS4 to MS4. 

However, the need to undergo a 

second round of public notice and 

comment at the state level, in addition 

to the one provided for the general 

permit, for approximately 6800 small 

MS4s, may be seen as a drawback due 

to the additional workload placed on 

permitting authorities that do not 

already follow this approach. The value 

added by the second comment period is 

also a consideration. Staff in 

Minnesota’s program reported that 

while they received over 1500 

comments in response to proposing the 

state-level general permits, only a 

handful of comments were submitted on 

the individual MS4 NOI and SWPPP 

Document submissions during the 

second public comment period. Staff in 

Texas’ program reported that the state 

received no comments when it provided 

public notice on the individual MS4 

SWMPs. 

Another factor to consider is that 

under the Procedural Approach some 

changes to the BMPs and measurable 

goals identified in the NOI during the 

term of the permit could constitute a 

modification to the permit, and would 

be subject to permit modification 

procedures applicable to all NPDES 

permits. See 40 CFR 122.62 and 122.63. 

For example, if the MS4 decides to 

discontinue implementing a particular 

BMP that it included in its NOI (and 

which became an enforceable permit 

requirement) and to substitute a 

different BMP, a permit modification 

would be needed. It is not clear whether 

states are currently using permit 

modification procedures to process 

changes to a MS4’s SWMP. One 

possibility for addressing the need for 

change would be for the permitting 

authority to establish in the general 

permit itself a process for making 

changes to the SWMP without triggering 

the permit modification procedures, as 

long as it identifies what changes could 

be made and under what circumstances. 


wgreen on DSK2VPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 427 

EPA seeks comment on whether to 

provide in the regulations the option for 

modifying the general permit under the 

minor modification procedures in 40 

CFR 122.63 for ‘‘nonsubstantial 

revisions’’ to BMPs, as provided for 

changes to terms of a CAFO’s nutrient 

management plan that are ‘‘not 

substantial’’ under 40 CFR 122.42(e)(6). 

EPA also seeks comment on what 

criteria should apply for distinguishing 

between when a change to BMPs is 

‘‘substantial’’ requiring a full public 

participation process or ‘‘not 

substantial’’ that would be subject to 

public notice but not public comment 

under a permit modification process 

similar to the process in 40 CFR 

122.42(e)(6). 

Like several other states, Texas 

requires the MS4s to provide local 

public notice and the opportunity to 

provide comments on individual MS4 

NOIs (or the SWMP, as in Texas). What 

stands out in the Texas approach is that, 

even though the MS4 must provide the 

necessary notice, public comments are 

submitted to the state agency, and the 

state clearly maintains the decision 

making over the adequacy of the MS4’s 

SWMP to meet permit and regulatory 

requirements. The state does so by 

reviewing the SWMP document before it 

is public noticed and evaluating for 

itself any public comments on the 

SWMP document and whether there is 

sufficient interest to require a public 

hearing. EPA seeks comment on 

whether a rule establishing a procedural 

approach should enable permitting 

authorities that rely on the MS4 to 

public notice its NOI to be able to use 

this approach to satisfy the public 

notice requirement for the individual 

NOIs. If allowed, should it be limited to 

when the State clearly makes the 

ultimate decisions about what 

requirements are sufficient to meet the 

MEP, to protect water quality, and to 

satisfy the appropriate water quality 

requirements of CWA? 

The Texas approach appears to differ 

from the current procedures that apply 

to NPDES permits outlined in 40 CFR 

part 124 in the level of detail about the 

various procedural requirements such as 

who must be notified of the proposed 

action. In this respect, the Texas 

program resembles EPA’s approach to 

establishing or changing terms of 

nutrient management plans under 

CAFO general permits by modifying 

selected elements of the public 

participation requirements that apply to 

individual permits, for example, by 

shortening the length of public 

comment period or the period for 

requesting a public hearing (see 40 CFR 

122.23(h)(1) and 122.42(e)(6)), or by 

allowing web-based public notice 

alternatives in addition to those 

identified in 40 CFR 124.10 (c). If EPA 

chooses to adopt this option, it would 

largely rely on the existing requirements 

in 40 CFR part 124 to govern what 

procedures are necessary to approve the 

BMPs in the NOI as enforceable 

provisions of the general permit. 

However, as discussed, EPA is 

considering some variations in these 40 

CFR part 124 procedural requirements 

similar to those applicable to 

incorporating terms of the nutrient 

management plan into CAFO permits. 

Based on the experiences of states that 

use a similar procedural approach, EPA 

estimates that conducting 

individualized reviews of NOIs and 

requiring an additional notice and 

comment period for the initial 

authorization and subsequent permit 

modifications in states that do not 

already provide it would require a 

significant dedication of staff time, in an 

amount estimated at 24 hours per MS4. 

Based on Minnesota’s experience, EPA 

expects the workload to be greatest in 

the first permit cycle but to decrease by 

some amount in subsequent cycles as 

the permitting authority takes advantage 

of efficiencies gained from having gone 

through the process before and as the 

quality of the MS4 submissions improve 

over time. For states that already use a 

two-step process, some modest amount 

of workload increase may be necessary 

to ensure that all of the process steps are 

carried out, including additional time 

needed to process and approve SWMP 

modifications that change the BMPs in 

the NOI that have been approved and 

have become enforceable terms of the 

permit. 

The following regulatory 

modifications are envisioned if the 

Procedural Approach is selected for the 

final rule. 

• Include additional language 

indicating that to the extent that the 

permitting authority chooses to rely on 

the MS4 operator to describe in its NOI 

the BMPs, measurable goals, schedules, 

and other activities in its SWMP that it 

plans to implement to reduce pollutant 

discharges to the MEP, to protect water 

quality, and to satisfy the appropriate 

water quality requirements of the CWA, 

the permitting authority will need to 

incorporate these as enforceable 

elements of the permit in accordance 

with the procedures for public notice, 

the opportunity to request a hearing, 

and permitting authority final 

determination in 40 CFR part 124. 

• With respect to determining the 

appropriate 40 CFR part 124 procedures 

to follow, one model that EPA could 

utilize in crafting applicable rule 

language is the regulatory procedures in 

40 CFR 122.23(h) for CAFO general 

permits. While the CAFO and MS4 

programs differ fundamentally from one 

another in many ways, there are some 

aspects of the CAFO general permit 

procedures that could be modified in a 

manner that would make them suitable 

to small MS4 general permits. Thus, 

based on some of the key elements of 

the CAFO general permit procedures in 

40 CFR 122.23(h), EPA is considering 

including the following provisions in 

revised 40 CFR 122.33(b)(1) as 

subparagraphs (i)–(iii): 

—At a minimum, the operator must 

include in the NOI the BMPs that it 

proposes to implement to comply 

with the permit, the measurable goals 

for each BMP, the person or persons 

responsible for implementing the 

SWMP, and any additional 

information required in the NOI by 

the general permit. 

—The Director must review the NOI to 

ensure that it includes adequate 

information to determine if the 

proposed BMPs, timelines, and any 

other actions are adequate to reduce 

the discharge of pollutants from the 

MS4 to the maximum extent 

practicable, to protect water quality, 

and to satisfy the appropriate water 

quality requirements of the Clean 

Water Act. When the Director finds 

that additional information is 

necessary to complete the NOI or 

clarify, modify, or supplement 

previously submitted material, the 

Director may request such additional 

information from the MS4 operator. 

—If the Director makes a preliminary 

determination that the NOI contains 

the required information and that the 

proposed BMPs, schedules, and any 

other actions necessary to reduce the 

discharge of pollutants from the MS4 

to the maximum extent practicable, to 

protect water quality, and to satisfy 

the appropriate water quality 

requirements of the Clean Water Act, 

the permitting authority must notify 

the public of its proposal to authorize 

the MS4 to discharge under the 

general permit and, consistent with 40 

CFR 124.10, make available for public 

review and comment and opportunity 

for public hearing the NOI, and the 

specific BMPs, milestones, and 

schedules from the NOI that the 

Director proposes to be incorporated 

into the permit as enforceable 

requirements. The process for 

submitting public comments and 

hearing requests, and the hearing 

process if a hearing is granted, must 

follow the procedures applicable to 

draft permits in 40 CFR 124.11 


wgreen on DSK2VPTVN1PROD with PROPOSALS
428 Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 

8http://water.epa.gov/polwaste/npdes/

stormwater/upload/msgp2015_finalpermit.pdf. 

through 124.13. The permitting 

authority must respond to significant 

comments received during the 

comment period, as provided in 40 

CFR 124.17, and, if necessary revise 

the proposed BMPs and/or timelines 

to be included as terms of the permit. 

—When the Director authorizes 

coverage for the MS4 to discharge 

under the general permit, the specific 

elements identified in the NOI are 

incorporated as terms and conditions 

of the general permit for that MS4. 

The permitting authority must, 

consistent with 40 CFR 124.15, notify 

the MS4 operator and inform the 

public that coverage has been 

authorized and of the elements from 

the NOI that are incorporated as terms 

and conditions of the general permit 

applicable to the MS4. 

• To accompany these regulatory 

changes, EPA is also considering 

specifying what specific information the 

MS4 will need to provide as part of the 

NOI in order to obtain coverage under 

a general permit that will use a 

procedural approach, such as the 

approach described previously. The 

MS4 would need to provide the same 

information as is required for an 

application for an individual permit 

under proposed 40 CFR 122.33(b)(2)(ii). 

This includes general background 

information as specified in § 122.21(f) as 

well as the information currently 

required by 40 CFR 122.34(d), and any 

other information requested by the 

permitting authority. 

• If the final rule includes the 

Procedural Approach or allows for a 

hybrid approach under Option 3 (the 

‘‘State Choice Approach’’), authorized 

states would need to revise their 

approved programs to include the 

option(s) chosen by the permitting 

authority and to establish or reference 

the public notice and comment, hearing 

request, and other procedures necessary 

to implement the chosen option(s). 

For both the Procedural Approach 

and State Choice Approach (see Section 

VI.C), the Agency chose to describe the 

regulatory changes that would 

accompany these options if promulgated 

as opposed to providing line-by-line 

rule text changes as it has for the 

Traditional General Permit Approach. In 

EPA’s view, presenting the rule 

language in this way will aid in the 

public’s review of the three different 

options as compared to presenting three 

different sets of line-by-line changes. 

EPA requests comment on whether 

the Agency should adopt as its final rule 

option the procedural approach for 

permitting small MS4s. EPA has 

concerns with adopting this approach as 

the sole rule option since it would 

require all but a handful of permitting 

authorities to change their permitting 

procedures to conform to this new 

approach. Due to these concerns, EPA 

also separately requests comment (see 

next section) on whether the final rule 

should give permitting authorities a 

choice of which approach, either the 

Traditional General Permit Approach or 

the Procedural Approach, to adopt for 

their permitting program, or whether 

there is support for allowing permitting 

authorities to use a combination of these 

two approaches. 

Among the concerns EPA has with 

choosing Option 2 for the final rule is 

the increase in workload for permitting 

authorities that would be associated 

with reviewing and approving, and 

providing for notice and comment, and 

providing public hearing opportunities, 

on each individual NOI. For many 

permitting authorities, the advantage of 

providing flexibility to MS4s to propose 

what they believe will meet the 

applicable regulatory standards will be 

outweighed by the resource-intensive 

procedures that this approach requires. 

In EPA’s discussions with state 

permitting authorities, the Agency heard 

a number of concerns about their ability 

to implement new procedures such as 

these from a staff and resource 

perspective. Permitting authorities are 

also concerned about making individual 

decisions on what set of MS4 actions are 

sufficient to meet the regulatory 

requirements without the benefit of 

established standards to assist them in 

making these determinations. Concerns 

were also raised by many MS4 

permittees, who emphasized the effects 

of these procedures on the timeliness of 

their discharge authorization, and the 

fear that states will turn to MS4s to 

conduct more notice and comment 

procedures on their behalf. EPA notes 

that there are also those states that are 

supportive of making the procedural 

approach a part of the final rule in some 

way or form. 

Beyond the workload concerns raised 

about this option, EPA observes that the 

need for flexibility among MS4s to 

develop and implement individually 

tailored SWMPs is different than the 

type of flexibility required for CAFO 

operators in developing and 

implementing nutrient management 

plans. AFO permit operators must 

consider where several key and 

interdependent variables must be 

considered to account for site-specific 

factors such as type of crop grown, soil 

type, terrain, choice of method for 

calculating application rates, in 

particular with respect to land 

application requirements. Each MS4 

faces unique circumstances, but for the 

most part, the BMPs used to meet 

minimum control measures are not 

interdependent in the same way as 

choices needed to develop land 

application rates under CAFO 

regulations. EPA and states have 

developed menus of different BMPs for 

the various minimum control measures. 

As discussed previously, some states 

have developed detailed manuals for the 

selection, design, installation, and 

maintenance of allowable BMPs, which 

further standardizes the practices to be 

used for pollutant control at MS4s. Also, 

the need for small MS4 flexibility may 

have been greater when the small MS4 

program was first established. However, 

this flexibility may be less critical now 

that most small MS4s have established 

programs, and they and the 

corresponding permitting authorities 

have gained experience in 

implementing various BMPs and 

evaluating the results. Permitting 

authorities already have the flexibility 

to issue different general permits or 

include different general permit terms 

and conditions for different categories of 

MS4, such as when there is a new group 

of MS4s that have not been previously 

regulated (for example, because a new 

Census is published creating additional 

urbanized areas) and a group of existing 

MS4s that may be on their third or 

fourth permit. By including specific 

requirements that only apply to some of 

the MS4s, they undergo permitting 

authority review and public comment as 

part of the process and can be part of the 

general permit itself. (This would be 

analogous to EPA’s Multi Sector General 

Permit for Stormwater from Industrial 

Activity, in which different 

requirements apply to different sectors 

in the Appendices to the permit).8 For 

truly unique situations or in instances 

where the MS4 wishes to implement a 

different program, individual permits 

are always an alternative. These factors 

point to the benefit of using the 

Traditional General Permit Approach as 

the preferred way to modify the general 

permitting regulations for small MS4s. 

Though there would certainly be 

increases in workload associated with 

the Traditional General Permit 

Approach, EPA’s permits and a growing 

number of state general permits are 

being written in this manner and 

therefore would not require significant 

alteration. Additionally, as the list of 

examples of clear, specific, and 

measurable provisions in general 

permits grows, presumably other states 

should be able to take advantage of 


wgreen on DSK2VPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 429 

these ideas for their own permits, and 

thereby save on permit development 

time. Requiring the procedural approach 

on a national level would impose 

pressures on state programs that 

arguably can be handled in the general 

permit itself, and therefore avoided. 

C. Option 3—State Choice Approach 

EPA requests comments on a third 

option, which would allow permitting 

authorities to choose either the 

Traditional General Permit Approach or 

the Procedural Approach, or some 

combination of the two as best suits 

their needs and circumstances. For 

example, a state could choose to use 

Option 1 for small MS4s that have fully 

established programs and uniform core 

requirements, and Option 2 for MS4s 

that it finds would benefit from the 

additional flexibility to address unique 

circumstances, such as some nontraditional MS4s. Alternatively, a state 

could apply a hybrid of the two 

approaches within one permit by 

defining some elements within the 

general permit, which are deemed to 

reduce the discharge of pollutants to the 

MEP, to protect water quality, and to 

satisfy the water quality requirements of 

the CWA, and enabling other elements 

to be established through a separate 

process that allows for more MS4- 

specific actions, using the Procedural 

Approach. An example of such a hybrid 

approach might be where a state 

incorporates into its general permit a 

requirement to implement certain 

minimum construction BMP 

requirements, such as implementation 

of provisions set forth in a separate 

statewide manual, which constitute 

compliance with the regulatory 

requirements, but leaves it to the MS4 

to propose the BMPs that it will 

implement to meet the public education 

and outreach requirements of the 

permit. The former permit requirements 

would implement the Traditional 

General Permit Approach and would 

require no further permitting authority 

review and public participation 

procedures during the process of 

authorizing individual MS4 discharges; 

however, for the management practices 

that the MS4 proposes for its public 

education and outreach, the permitting 

authority would need to follow the 

Procedural Approach for incorporating 

these standards into the permit as 

requirements of the permit. The benefit 

of the State Choice Approach is that the 

fundamental CWA requirements of 

permitting authority review and public 

participation would be met irrespective 

of whether this occurs as a result of the 

permit issuance itself or whether these 

procedures take place in a second step 

that occurs after permit issuance but 

before the MS4 is authorized to 

discharge under the permit. This 

approach would provide for more 

options for permit development other 

than traditional individual or general 

permits. EPA will continue to encourage 

greater specificity in establishing clear, 

specific, and measurable permit terms 

and conditions in the general permit 

itself, and expects to provide guidance 

to assist permitting authorities in 

accomplishing this objective. 

Nevertheless, the Agency recognizes 

that permitting authorities may prefer 

some flexibility in determining the 

balance between the efficiencies of a 

general permit and the desirability of 

providing maximum flexibility to small 

MS4s in how they will meet the MEP 

standard. 

The particular balance between 

specificity and flexibility a state chooses 

could evolve over time as the program 

continues to mature. The benefit of this 

option may be that it is the least 

disruptive to how state programs 

operate now and would impose the least 

burden on state permitting authorities, 

unless a state determines that for its 

situation (e.g., number and variability 

among small MS4s, available resources, 

requirements under state law, etc.) more 

choices in structuring permits would be 

desirable. If EPA adopts this option as 

part of the final rule, the following rule 

changes would be necessary: 

• Adopt the rule changes proposed in 

this document associated with the 

Traditional General Permit Approach, as 

modified pursuant to public comment; 

and 

• Adopt the rule changes described in 

the discussion under Option 2. 

EPA requests comment on whether 

the final rule should adopt Option 3, as 

opposed to selecting either Option 1 or 

Option 2 in the final rule. EPA is also 

interested in comments from permitting 

authorities as to which approach they 

are likely to choose (i.e., Option 1 or 

Option 2, or a hybrid) if Option 3 is 

finalized. 

EPA also requests comment on 

whether under Option 3, EPA should 

consider establishing which permit 

requirements must be developed using 

the Traditional General Permit 

Approach (Option 1), and which may be 

developed using the Procedural 

Approach (Option 2). For instance, EPA 

is interested in finding out whether 

there is support for requiring permitting 

authorities to use Option 1 to develop 

permit conditions implementing the 

minimum control measures in 40 CFR 

122.34(b), while providing the 

permitting authority with the choice of 

whether to use an Option 2 approach to 

establish any more stringent effluent 

limitations, such as those based on an 

approved TMDL. Using this approach, 

the general permit would define the 

specific actions, performance 

requirements, and implementation 

schedules considered necessary to 

reduce pollutant discharges to the MEP, 

to protect water quality, and to satisfy 

the water quality requirements of the 

CWA. However, this approach would 

provide the permitting authority the 

additional flexibility to allow the MS4 

to propose in its NOI the specific 

components of a TMDL implementation 

plan in order to comply with permit 

requirements based on applicable 

wasteload allocation(s). To ensure that 

the specific actions and timelines of the 

TMDL plan are properly incorporated as 

elements of the permit, the permitting 

authority would then be required to 

review and approve the small MS4’s 

proposed plan using the process 

required by the Procedural Approach 

(Option 2). Additionally, with respect to 

this concept of specifying which aspects 

of the small MS4 regulations must be 

incorporated into permits using the 

Option 1 approach, while allowing 

some permit conditions to be developed 

using the Option 2 approach, EPA 

requests comment on which permit 

requirements should be required to be 

established using Option 1 and which 

should be given the flexibility to be 

established using Option 2. 

VII. Incremental Costs of Proposed Rule 

Options 

The economic analysis estimates the 

incremental costs of modifying the 

Phase II MS4 regulations to address the 

court’s remand. EPA assumed that all 

other costs accrued as a result of the 

existing small MS4 program, which 

were accounted for in the economic 

analysis accompanying the 1999 final 

Phase II MS4 regulations, remain the 

same and are not germane to the 

economic analysis, unless the proposed 

rule change would affect the baseline 

program costs. In this respect, EPA 

focused only on new costs that may be 

imposed as a result of implementing any 

of the three options being proposed for 

comment. It is, therefore, unnecessary to 

reevaluate the total program costs of the 

Phase II rule, since those costs were part 

of the original economic analysis 

conducted for the 1999 Phase II rule (see 

64 FR 68722, December 8, 1999). For 

further information, refer to the 

Economic Analysis that is included in 

the proposed rule docket. 

The following table summarizes the 

estimated costs for each of the proposed 

rule options under consideration. 


wgreen on DSK2VPTVN1PROD with PROPOSALS
430 Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 

Proposed rule option Net present 

value 

Annualized 

cost 

1—Traditional General Permit Approach ................................................................................................................ $9,579,921 $802,477 

2—Procedural Approach ......................................................................................................................................... 8,279,962 693,584 

3—State Choice Approach ...................................................................................................................................... 9,189,933 769,809 

These estimates are all below the 

threshold level established by statute 

and various executive orders for 

determining that a rule has a significant 

or substantial impact on affected 

entities. See further discussion in 

Section VIII of this document. 

The Economic Analysis assumes that 

all costs will be borne by NPDES 

permitting authorities in the form of 

increased administrative costs to write 

more detailed permits for Option 1, or 

to review and approve and process 

comments on NOIs submitted for 

general permit coverage for Option 2. 

Likewise, Option 3 costs reflect the 

estimated increase in NPDES permitting 

authority workload (for both EPA and 

state permitting authorities), which is a 

function of an assumed amount of 

NPDES permitting authorities who will 

choose to implement Option 1 versus 

Option 2. EPA does not attribute new 

costs to regulated small MS4s beyond 

what they are already subject to under 

the Phase II regulations. This is because 

the focus of the proposed rule is on the 

administrative manner in which general 

permits are issued and/or coverage 

under those permits is granted. EPA is 

changing through this rulemaking any of 

the underlying requirements in the 

Phase II regulations to which small 

MS4s are subject. 

EPA chose conservative assumptions 

about impacts on state workloads, 

meaning that the estimated economic 

costs of the policy change are most 

likely lower than what is actually 

presented. For instance, EPA did not 

reduce the number of hours necessary 

for permitting authorities to draft 

specific permits pursuant to the Option 

1 requirements in the second and third 

permit term despite the fact that the 

Agency expects that most permitting 

authorities, after drafting a specific 

permit to address Option 1 for the first 

time would spend less time in 

subsequent rounds reissuing the same 

permit. Similarly, in its modeling of 

Option 2, EPA did not reduce the 

average number of hours to review each 

NOI in the second and third permit 

term, even though EPA expects that 

most NOIs would address any 

deficiencies after the first review, 

therefore resulting in less review time 

needed in subsequent rounds. 

EPA considers the cost assumptions 

in Option 1 to be conservative because 

as more permitting authorities write 

general permits to establish 

requirements consistent with the 

proposed Option 1, other permitting 

authorities could use and build on those 

examples, reducing the amount of time 

it takes to draft the permit requirements. 

EPA has issued guidance to permitting 

authorities on how to write better MS4 

permits (EPA 2010 and EPA 2014), and 

has included additional examples of 

permit language from existing permits 

in the docket for this rule. See General 

Permits and the Six Minimum Control 

Measures: A National Compendium of 

Clear, Specific, and Measurable 

Requirements. EPA also anticipates 

providing further guidance once the rule 

is promulgated to assist states in 

implementing the new rule 

requirements, which should make 

permit writing more efficient. 

VIII. Statutory and Executive Orders 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at http://www2.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is a significant regulatory 

action that was submitted to the Office 

of Management and Budget (OMB) for 

review. Any changes made in response 

to OMB recommendations have been 

documented in the docket for this 

action. In addition, EPA prepared an 

analysis of the potential costs associated 

with this action. This analysis, 

‘‘Economic Analysis for the Proposed 

Municipal Separate Storm Sewer 

System (MS4) General Permit Remand 

Rule,’’ is summarized in Section V.II 

and is available in the docket. 

B. Paperwork Reduction Act (PRA) 

This action does not impose any new 

information collection burden under the 

PRA. OMB has previously approved the 

information collection activities 

contained in the existing regulations 

and has assigned OMB control number 

2040–0004. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. Although small MS4s 

are regulated under the Phase II 

regulations, this rule does not propose 

changes to the underlying requirements 

to which these entities are subject. 

Instead, the focus of this rule is on 

ensuring that the process by which 

NPDES permitting authorities authorize 

discharges from small MS4s using 

general permits. This action will have 

an impact on state government agencies 

that administer the Phase II MS4 

permitting program. The impact to 

states that are NPDES permitting 

authorities may range from $6,792,106 

to $11,356,092 annually. Details of this 

analysis are presented in ‘‘Economic 

Analysis for the Proposed Municipal 

Separate Storm Sewer System (MS4) 

General Permit Remand Rule.’’ 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain an 

unfunded mandate of $100 million or 

more as described in UMRA, 2 U.S.C. 

1531–1538. This action does not 

significantly or uniquely affect small 

governments because this rulemaking 

only affects the way in which state 

permitting authorities administer 

general permit coverage to small MS4s. 

Nonetheless, EPA consulted with small 

governments concerning the regulatory 

requirements that might indirectly affect 

them, as described in section V.B. 

E. Executive Order 13132: Federalism 

This rule will not have substantial 

direct effects on the states, the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. The rule proposes 

changes to the way in which NPDES 

permitting authorities, including 

authorized state government agencies, 

provide general permit coverage to 

small MS4s. The impact to states which 

are NPDES permitting authorities may 

range from $6,792,106 to $11,356,092 

annually, depending upon the rule 

option that is finalized. Details of this 

analysis are presented in ‘‘Economic 

Analysis for the Proposed Municipal 

Separate Storm Sewer System (MS4) 

General Permit Remand Rule,’’ which is 

available in the docket for the proposed 

rule at http://www.regulations.gov 


wgreen on DSK2VPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 431 

under Docket ID No. EPA–HQ–OW– 

2015–0671. 

Keeping with the spirit of E.O. 13132 

and consistent with EPA’s policy to 

promote communications between EPA 

and state and local governments, EPA 

met with state and local officials 

throughout the process of developing 

the proposed rule and received feedback 

on how proposed options would affect 

them. EPA engaged in extensive 

outreach via conference calls to 

authorized states and regulated MS4s to 

gather input on how EPA’s current 

regulations are affecting them, and to 

enable officials of affected state and 

local governments to have meaningful 

and timely input into the development 

of the options presented in this 

proposed rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in Executive 

Order 13175 since it does not have a 

direct substantial impact on one or more 

federally recognized tribes. The 

proposed rule affects the way in which 

small MS4s are covered under a general 

permit for stormwater discharges and 

primarily affects the NPDES permitting 

authorities. No tribal governments are 

authorized NPDES permitting 

authorities. The rule could have an 

indirect impact on an Indian tribe that 

is a regulated MS4 in that the NOI 

required for coverage under a general 

permit may be changed as a result of the 

rule (if finalized) or may be subject to 

closer scrutiny by the permitting 

authority and more of the requirements 

could be established as enforceable 

permit conditions. However, the 

substance of what an MS4 must do in 

its SWMP will not change significantly 

as a result of this rule. Thus, Executive 

Order 13175 does not apply to this 

action. 

Consistent with the EPA Policy on 

Consultation and Coordination with 

Indian Tribes, EPA conducted outreach 

to tribal officials during the 

development of this action. EPA spoke 

with tribal members during a conference 

call with the National Tribal Water 

Council to gather input on how tribal 

governments are currently affected by 

MS4 regulations and may be affected by 

the options in this proposed rule. Based 

on this outreach and additional, internal 

analysis, EPA confirmed that this 

proposed action would have little tribal 

impact and would be of little interest to 

tribes. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

as applying only to those regulatory 

actions that concern environmental 

health or safety risks that EPA has 

reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211, because it does not 

significantly affect energy supply, 

distribution or use. 

I. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

EPA determined that the human 

health or environmental risk addressed 

by this action will not have potential 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income or indigenous 

populations. This action affects the 

procedures by which NPDES permitting 

authorities provide general permit 

coverage for small MS4s, to help ensure 

that small MS4s ‘‘reduce the discharge 

of pollutants to the maximum extent 

practicable (MEP), to protect water 

quality and to satisfy the water quality 

requirements of the Clean Water Act.’’ It 

does not change any current human 

health or environmental risk standards. 

List of Subjects in 40 CFR Part 122 

Environmental protection, Storm 

water, Water pollution. 

Dated: December 17, 2015. 

Gina McCarthy, 

Administrator. 

For the reasons set forth in the 

preamble, EPA proposes to amend 40 

CFR part 122 as follows: 

PART 122—EPA ADMINISTERED 

PERMIT PROGRAMS: THE NATIONAL 

POLLUTANT DISCHARGE 

ELIMINATION SYSTEM 

■ 1. The authority citation for part 122 

continues to read as follows: 

Authority: The Clean Water Act, 33 U.S.C. 

1251 et seq. 

■ 2. Revise § 122.33 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. 

(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 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. 

(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 

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 (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; 


wgreen on DSK2VPTVN1PROD with PROPOSALS
432 Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 

(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 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. 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 

(ii) of this section to be co-permittees 

under an individual permit. 

(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 copermittee, 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 paragraph (b)(2)(i) of 

this section. 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) of 

this section. In referencing an MS4’s 

storm water management program, the 

regulated small MS4 should briefly 

describe how the existing program 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 program. 

(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. 

■ 3. Revise § 122.34 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 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. 

(b) Minimum control measures. The 

permit must include requirements that 

ensure the permittee implements, or 

continues to implement, the minimum 

control measures in paragraphs (b)(1) 

through (6) of this section during the 

permit term. The permit must also 

require a written storm water 

management program document or 

documents that, at a minimum, describe 

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) 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 may use storm water 

educational materials provided by the 

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, 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 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. 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 encourage the 

permittee to tailor the 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 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 


wgreen on DSK2VPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 433 

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. 

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 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: 

(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 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. 

(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: Water line flushing, landscape 

irrigation, diverted stream flows, rising 

ground waters, uncontaminated ground 

water infiltration (as defined at 40 CFR 

35.2005(b)(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). 

(ii) 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. 

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. 

(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 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: 

(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. 

(ii) 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 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). 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 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 


wgreen on DSK2VPTVN1PROD with PROPOSALS
434 Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 

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; 

(B) Use an ordinance or other 

regulatory mechanism to address postconstruction 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 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 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. Nonstructural 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 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. 

(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 nonstructural 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 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 (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. 

(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. 

(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. 

(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. Participation in a group 

monitoring program is encouraged. 

(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.) 


wgreen on DSK2VPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 3 / Wednesday, January 6, 2016 / Proposed Rules 435 

(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 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) 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 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 relying 

on another governmental entity to 

satisfy some of the permit obligations (if 

applicable), consistent with § 122.35(a). 

(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. 

■ 4. Amend § 122.35 by revising the 

second and third sentences of paragraph 

(a)(3) 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.* * * 

* * * * * 

[FR Doc. 2015–33174 Filed 1–5–16; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R7–ES–2015–0167; 

FF07C00000 FXES11190700000 

167F1611MD] 

Endangered and Threatened Wildlife 

and Plants; 12-Month Finding on a 

Petition To List the Alexander 

Archipelago Wolf as an Endangered or 

Threatened Species 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 12-month petition 

finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

12-month finding on a petition to list 

the Alexander Archipelago wolf (Canis 

lupus ligoni) as an endangered or 

threatened species and to designate 

critical habitat under the Endangered 

Species Act of 1973, as amended (Act). 

The petitioners provided three listing 

options for consideration by the Service: 

Listing the Alexander Archipelago wolf 

throughout its range; listing Prince of 

Wales Island (POW) as a significant 

portion of its range; or listing the 

population on Prince of Wales Island as 

a distinct population segment (DPS). 

After review of the best available 

scientific and commercial information, 

we find that listing the Alexander 

Archipelago wolf is not warranted at 

this time throughout all or a significant 

portion of its range, including POW. We 

also find that the Alexander 

Archipelago wolf population on POW 

does not not meet the criteria of the 

Service’s DPS policy, and, therefore, it 

does not constitute a listable entity 

under the Act. We ask the public to 

submit to us any new information that 

becomes available concerning the 

threats to the Alexander Archipelago 

wolf or its habitat at any time. 

DATES: The finding announced in this 

document was made on January 6, 2016. 

ADDRESSES: This finding is available on 

the Internet at http://

www.regulations.gov at Docket No. 

FWS–R7–ES–2015–0167. Supporting 

documentation we used in preparing 

this finding will be available for public 

inspection, by appointment, during 

normal business hours at the U.S. Fish 

and Wildlife Service, Anchorage Fish 

and Wildlife Field Office, 4700 BLM 

Rd., Anchorage, AK 99507–2546. Please 

submit any new information, materials, 

comments, or questions concerning this 

finding to the above street address. 

FOR FURTHER INFORMATION CONTACT: 

Soch Lor, Field Supervisor, Anchorage 

Fish and Wildlife Field Office (see 

ADDRESSES); by telephone at 907–271– 

2787; or by facsimile at 907–271–2786. 

If you use a telecommunications device 

for the deaf (TDD), please call the 

Federal Information Relay Service 

(FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 4(b)(3)(B) of the Act (16 

U.S.C. 1531 et seq.), requires that, for 

any petition to revise the Federal Lists 

of Endangered and Threatened Wildlife 

and Plants that contains substantial 

scientific or commercial information 

that listing the species may be 

warranted, we make a finding within 12 

months of the date of receipt of the 

petition. In this finding, we will 

determine that the petitioned action is: 

(1) Not warranted, (2) warranted, or (3) 

warranted, but the immediate proposal 

of a regulation implementing the 

petitioned action is precluded by other 

pending proposals to determine whether 

species are endangered or threatened, 

and expeditious progress is being made 

to add or remove qualified species from 

the Federal Lists of Endangered and 

Threatened Wildlife and Plants. Section 

4(b)(3)(C) of the Act requires that we 

treat a petition for which the requested 

action is found to be warranted but 

precluded as though resubmitted on the 

date of such finding, that is, requiring a 

subsequent finding to be made within 

12 months. We must publish these 12- 

month findings in the Federal Register. 

This finding is based upon the ‘‘Status 

Assessment for the Alexander 

Archipelago Wolf (Canis lupus ligoni)’’ 

(Service 2015, entire) (hereafter, Status 

Assessment) and the scientific analyses 

of available information prepared by 

Service biologists from the Anchorage 

Fish and Wildlife Field Office, the 

Alaska Regional Office, and the 

Headquarters Office. The Status 

Assessment contains the best scientific 

and commercial data available 

concerning the status of the Alexander 

Archipelago wolf, including the past, 

present, and future stressors. As such, 

the Status Assessment provides the 

scientific basis that informs our 

regulatory decision in this document, 

which involves the further application 


wgreen on DSK2VPTVN1PROD with PROPOSALS