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Memorandum

From: Carey A. Johnston, P.E.

USEPA/OECA/OC

ph: (202) 566 1014

johnston.carey@epa.gov

To: EPA Docket Number EPA-HQ-OECA-2009-0274 (www.regulations.gov)

Date: 16 July 2013

Re: Memorandum Documenting Changes to the Proposed NPDES Electronic Reporting Rule 

Made During E.O. 12866 Review [DCN 0075]

Consistent with Section 6(a)(3)(E)(ii) of Executive Order 12866, this memorandum 

identifies the substantive changes made by EPA to the proposed NPDES Electronic Reporting 

Rule after EPA submitted this proposed rule to the Office of Information and Regulatory Affairs 

of the Office of Management and Budget for review on 20 January 2012. This memorandum also 

includes the substantive comments EPA received from other Federal agencies and the changes 

EPA made to the proposed rule at the suggestion or recommendation of OMB. OMB concluded 

their review on 1 July 2013. On 15 July 2013, Acting Administrator Bob Perciasepe signed the 

proposed NPDES Electronic Reporting Rule for publication in the Federal Register.

Figure 1: Screenshot of OMB Website (NPDES Electronic Reporting Rule)
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In addition to OMB comments EPA received comments on the proposed NPDES 

Electronic Reporting Rule from:

 U.S. Department of Transportation (DOT)

 U.S. Department of Agriculture (USDA)

 U.S. Department of Commerce, National Oceanic and Atmospheric Administration, 

National Marine Fisheries Service (NOAA-NMFS)

 U.S. Department of Defense (DoD)

The following sections provide the written comments and EPA responses. 
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EPA Response to OMB Comments on the Proposed Electronic Reporting Rule 

Page Number: 1

Section Number: Summary

OMB Comment Number: 1a

This summary is very long, and much longer than it needs to be. Please edit it to be shorter and 

answer the three following questions: "what," "why," and "effect" of the document

EPA Response: EPA reviewed the Office Register Document Drafting Handbook1(DDH), page 1-

8, and confirmed that the focus of the summary is to answer the following question:

 What action is being taken?

 Why is this action necessary?

 What is the intended effect of this action?

EPA proposes to use the following text for the SUMMARY.

EPA is proposing a regulation that would require electronic reporting for current paper-based 

NPDES reports. This action will save time and resources for permittees, states, tribes, territories, 

and EPA while improving compliance and providing better protection of the Nation’s waters. 

The proposed Clean Water Act regulation would require permittees and regulators to use 

existing, available information technology to electronically report information and data related 

to the NPDES permit program in lieu of filing written reports. With full implementation, the 

anticipated savings for the states is $28.5 million annually, for the permittees, $1.1 million 

annually, and for EPA $0.7 million annually. The proposal will also allow better allocation and 

use of limited program resources and enhance transparency and public accountability by 

providing regulatory agencies and the public with more timely, complete, accurate, and 

nationally-consistent set of data about the NPDES program and potential sources of water 

pollution. The benefits of this proposed rulemaking should allow NPDES-authorized programs in 

states, tribes, and territories to shift precious resources from data management activities to 

those more targeted to solving water quality and noncompliance issues. This in turn will 

contribute to increased compliance, improved water quality, and a level playing field for the 

regulated community.

Given the large scope of this proposal, EPA commits to offer an additional opportunity for 

transparency and engagement should we receive comments on the proposed rule that require 

significant changes by publishing a supplemental notice. States, tribes, territories, permittees, 

and other stakeholders can review and comment on the supplemental notice which will reflect 

how EPA revised the parts of the proposed rule that generated significant amount of comment. 

EPA plans to publish the supplemental notice within 120 days after the public comment period 

for this proposed rule has closed.

Page Number: 1

Section Number: Summary

OMB Comment Number: 1b

 

1

See: http://www.archives.gov/federal-register/write/handbook/ddh.pdf
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OMB suggests deleting the following sentence from the summary “given the executive summary 

and costs/benefits presented there.”

“With full implementation, the anticipated savings for the states is $28.5 million annually, for 

the permittees, $1.1 million annually, and for EPA $0.7 million annually.”

EPA Response: EPA will delete this sentence from the Summary.

Page Number: 2

Section Number: Summary

OMB Comment Number: 1c

We suggest deleting this entire sentence; it’s not clear if this will happen as a result of the rule. 

If this is not deleted, suggest changing “will” to “may.”

“This in turn will contribute to increased compliance, improved water quality, and a level playing 

field for the regulated community.”

EPA Response: EPA will change “will” to “may” in the above sentence.

Page Number: 2

Section Number: Summary

OMB Comment Number: 1d

Suggest deleting this, since the prior sentence explains why you would issuing a supplemental 

and implies what you are saying here.

“States, tribes, territories, permittees, and other stakeholders can review and comment on the 

supplemental notice which will reflect how EPA revised the parts of the proposed rule that 

generated significant amount of comment.”

EPA Response: EPA will make the suggested edit.

Page Number: 2

Section Number: Summary

OMB Comment Number: 1e

Why is this time frame being given? We think that you might be constraining yourself 

unnecessarily.

“EPA plans to publish the supplemental notice within 120 days after the public comment period 

for this proposed rule has closed.”

EPA Response: EPA is committed to moving forward in the regulatory process as expeditiously 

as possible. We believe this timeframe is feasible given the resources we are dedicating to this 

effort.
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Page Number: 1

Section Number: Summary

OMB Comment Number: 2

The electronic submittal of data will result in improved water quality and long term cost savings 

for the states, as well as savings for the permittees, tribes and EPA, when the rule is fully 

implemented. {OMB flagged with comment: Why is this?}

EPA Response: The benefits of electronic reporting should allow NPDES-authorized programs in 

states, tribes, and territories to shift precious resources from data management activities to 

those more targeted to solving water quality and noncompliance issues. This in turn will 

contribute to increased compliance, improved water quality, and a level playing field for the 

regulated community. Solving water quality and noncompliance issues will lead to improved 

water quality.

Page Number: 3

Section Number: Summary

OMB Comment Number: 3

{OMB suggests moving this paragraph to the preamble.}

EPA anticipates that the proposed rule will save money for states, tribes, and territories as well 

as EPA and NPDES permittees, while resulting in a more complete, accurate, and nationallyconsistent set of data about the NPDES program. With full implementation, the anticipated 

savings for the states is $28.5 million annually, for the permittees, $1.1 million annually, and for 

EPA $0.7 million annually. As an example demonstrating the benefits of electronic reporting, the 

State of Ohio’s electronic reporting program for Discharge Monitoring Reports has resulted in a 

99.9 percent adoption rate, has increased data quality and improved environmental protection, 

while also saving significant time and resources (e.g., Ohio was able to shift resources from five 

full-time staff to less than one to support the DMR program). 

EPA Response: EPA agrees with OMB and will move this paragraph to the preamble. 

Page Number: 3

Section Number: Summary

OMB Comment Number: 4

Other anticipated benefits for the proposed rule ...... financial assistance to facilitate the 

transition to a more efficient and effective electronic reporting approach.

EPA Response: EPA agrees with OMB and will move these paragraphs to the preamble. 

Page Number: 5

Section Number: Summary

OMB Comment Number: 5

{OMB suggests deleting five paragraphs from the summary.}
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Given the large scope of this proposal, EPA commits to offer an additional opportunity for 

transparency and engagement should we receive public comments that make us consider 

significant changes in the direction of the proposal. {OMB: we should have a follow up 

conversation about this – what does EPA mean by direction? Is there another word or term that 

would be more precise?}

EPA Response: EPA proposes to simplify the language with the following edit.

“Given the large scope of this proposal, EPA commits to offer an additional opportunity for 

transparency and engagement should we receive public comments that require significant 

changes to rule.”

Page Number: 10

Section Number: 1

OMB Comment Number: 5a

OMB: Consistent with guidance give to agencies on 1/2/2012, this section should include an 

executive summary.

Appendix 

Suggested Template for Executive Summaries (generally 3-4 pages of a double-spaced Word 

document maximum, although unusually complex or lengthy regulatory actions may require 

longer executive summaries) 

I. Purpose of the Regulatory Action 

a. The need for the regulatory action and how the action will meet that need 

b. Succinct statement of legal authority for the regulatory action (explaining, in brief, the legal 

authority laid out later in the preamble) 

II. Summary of the Major Provisions of the Regulatory Action In Question 

(Each major provision should be described clearly and separately, along with a brief 

justification) 

III. Costs and Benefits 

please include a table summarizing the assessment of costs and benefits, both quantitative and 

qualitative I 

Memo can be found here:

http://www.whitehouse.gov/sites/default/files/omb/inforeg/for-agencies/clarifying-regulatoryrequirements_executive-summaries.pdf

EPA Response: EPA will add an Executive Summary at the beginning of Section 1.
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Page Number: 10

Section Number: 1

OMB Comment Number: 5b

OMB suggests deletion of the following text in the Executive Summary.

“To promote transparency and accountability, EPA intends to make this more complete 

set of data available to the public, providing communities and citizens with easily accessible 

information on facility and government performance. Such data provides a powerful incentive 

to improve performance by giving government, permittees, and the public ready access to 

compliance information. This can serve to elevate the importance of compliance information 

and environmental performance within regulated entities, providing opportunity for them to 

quickly address any noncompliance.. It opens the opportunity for two-way communication 

between authorized NPDES programs or EPA and regulated facilities to immediately address 

data quality issues and to provide compliance assistance or take other action when potential 

problems are identified. Complete and accurate data also will allow EPA to compare 

performance across authorized programs.

EPA Response: EPA will make the suggested edits.

Page Number: 10

Section Number: 1

OMB Comment Number: 5c

OMB suggests deletion of the following text in the Executive Summary.

To fully implement this regulation, there will be initial investment costs associated with 

needed changes to information technology and infrastructure. EPA plans to develop NPDES 

electronic reporting tools, or states may choose devote their resources to develop their own 

such tools while meeting the regulatory requirements of 40 CFR 3, 40 CFR 122.22, and 40 CFR 

127. EPA is committed to working with the states, tribes, and territories to develop their 

electronic databases and capabilities in a cost-effective manner.

EPA Response: EPA will make the suggested edit.

Page Number: 10

Section Number: 1

OMB Comment Number: 5d

OMB suggests deletion of the following text in the Executive Summary.

The electronic submittal of data may result in improved water quality and will result in 

significant cost savings for the states, as well as savings for the permittees, tribes and EPA, when 

the rule is fully implemented. The proposal will also reduce the reporting burden currently 

borne by the states, improve overall facility compliance, allow better allocation and use of 

limited program resources, and enhance transparency and public accountability by providing the 

public with timely information on potential sources of water pollution.
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EPA Response: EPA will make the suggested edit.

Page Number: 26

Section Number: II

OMB Comment Number: 6

The most recent state water quality assessment reports submitted under CWA section 305(b) 

and compiled by EPA in the National Water Quality Inventory Reports indicate the growing 

significance and link between nonmajor sources and impairments in water quality of U.S. 

waters, particularly from precipitation-induced or "wet-weather" point sources of pollutants.

{OMB Comment: It would be helpful to have a more precise link to the specific report or reports 

that supports this statement. The url provided goes to a general page with the most repcent 

report being a 2004 report to Congress.}

EPA Response: The link provides access to the 2004 Water Quality Report to Congress, which 

was the last hard-copy version of this report. Since 2004 these data are made directly via the 

ATTAINS database (link provided at above site). The ATTAINS database provides state 

information showing the water quality impairments and the likely causes of impairments. In 

particular, “Urban-Related Runoff/Stormwater” ranks high among the list of impairment causes. 

See: http://ofmpub.epa.gov/waters10/attains_nation_cy.control. EPA will change the reference 

to the previous link.

Page Number: 26

Section Number: II

OMB Comment Number: 7

Therefore, EPA and the public do not currently have complete information or facilitated 

notification on these additional sources of pollution. {OMB flagged with comment: Why was this 

inserted? Suggest deleting.}

EPA Response: The purpose for adding “public” is to note that the public will also benefit from 

the proposed the improvements and efficiencies for NPDES program data collection and 

management. The emphasis on providing the public with better access to NPDES program data

is detailed in the Clean Water Act Action Plan2. The Plan is a collaborative effort by EPA and 

state environmental agencies. The goals of the Plan include improving and enhancing the 

information available on compliance and enforcement activities in each state, connecting this 

information to local water quality, and providing the public with real-time, easy access to this 

information. As noted elsewhere in the preamble, the need for electronic reporting includes 

empowering the public by improving transparency and accountability through the provision of 

more complete and accurate information about sources of water pollution in their communities. 

EPA recommends retention of “and the public” in this sentence.

Page Number: 32

Section Number: III

OMB Comment Number: 8

 

2 Clean Water Act Action Plan, October 15, 2009, 

www.epa.gov/compliance/resources/policies/civil/cwa/actionplan101409.pdf, DCN 0042.
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Moving many of the NPDES program’s reporting requirements to electronic submission may

provide significant benefits, such as:

{OMB Comment: These statements listed below are fairly specific – this edit is provided to 

soften EPA’s claims and give wiggle room if switching to electronic reporting doesn’t result in 

these dramatic changes}

EPA Response: EPA suggests changing “will” to “will likely,” which provides more wiggle room 

than will but provides a stronger statement than “may.”

Page Number: 33

Section Number: III

OMB Comment Number: 9

Furthermore, these benefits will accrue sooner if electronic reporting of NPDES information is 

required, has significant national consistency, and happens in a timely manner rather than by 

stretching the process out over the course of the next decade. {OMB deletion}

EPA Response: EPA will make this deletion but notes that this deletion does not affect the 

overall implementation plan of the rule (i.e., the two-phased approach). 

Page Number: 33

Section Number: III

OMB Comment Number: 10

Requiring electronic reporting is the best way to achieve complete data on the expanded NPDES 

regulated universe in an efficient and cost-effective manner. {OMB comment: What evidence do 

you have for this? we suggest deleting or softening.}

EPA Response: EPA suggests the following change: “Requiring electronic reporting is the most 

efficient way to achieve complete data on the expanded NPDES regulated universe in an 

efficient and cost-effective manner.” 

Additional OMB Comment: OMB made the following suggested edit to leave “open the 

possibility for alternative suggestions during the public comment period.”

Requiring electronic reporting is an efficient way to achieve complete data on the expanded 

NPDES regulated universe in an efficient and cost-effective manner.

EPA Response: EPA will make the suggested edit.

Page Number: 40

Section Number: III

OMB Comment Number: 11

EPA would need to certify or approve the methods used by the software to authenticate, 

encrypt, and send compliance monitoring and other data. {OMB flagged this text with comment: 

We should flag for discussion the amount of time it’s taken for states to have their CROMERR 
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systems approved. Does EPA believe that this process could be faster/more efficient for a third 

party platform, or will the same kinds of delays occur?}

EPA Response: As of February 2013, EPA/OEI has received 73 total applications and approved 

35. Of the remaining applications, 22 have a status of incomplete and likely represent the 

applicants in most need of support. EPA received a majority of the 22 incomplete applications 

between 2008 and 2010. Given the latency, the viability of the application and interest of the 

applicant must be re-established. EPA/OEI has a two-phased effort to clear this backlog and 

includes additional EPA support and resources to states for successful completion of their 

applications. Phase 1 will provide CROMERR shared services to enable integration into system 

architectures and the corresponding CROMERR compliance applications. The objective of Phase 

2 is to help address the backlog of CROMERR applications by working directly with those States 

with pending applications to identify outstanding issues and the resources necessary to address 

these issues; and to create a portfolio of materials available to new applicants to streamline the 

development of their applications.

Page Number: 41

Section Number: III

OMB Comment Number: 12

EPA shares with the public NPDES information that is currently available (except for that 

information which is specifically exempted from disclosure by statute, or confidential 

enforcement and business information), but recognizes that increased transparency of NPDES 

program implementation and compliance is essential. {OMB deletion}

EPA Response: EPA will make the suggested edit.

Page Number: 41

Section Number: III

OMB Comment Number: 13

Increased information may also help the public to press for improved performance from the 

regulated community, federal, state, tribal, and territorial governments, and for a cleaner, more 

resilient, and sustainable environment. {OMB flagged text with the following comment: “Instead 

of this language, could you use language from EPA’s mission statement”}

EPA Response: EPA will change text to “and for better protection of human health and the 

environment.”
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Page Number: 42

Section Number: III

OMB Comment Number: 14

The web interface ultimately provides citizens the public, government officials, investors, and 

staff with environmental reports and compliance information. {OMB flagged text with the 

following comment: “EPA staff”}

EPA Response: This sentence will be clarified and changed to read: “The web interface 

ultimately provides the public, government officials, and investors with environmental reports 

and compliance information.”

Page Number: 42

Section Number: III

OMB Comment Number: 15

The proposed rule would provide a complete inventory of NPDES-permitted facilities, which can 

be included in ECHO;

EPA Response: EPA will make the suggested edit. 

Page Number: 42

Section Number: III

OMB Comment Number: 16

All violations identified through inspections and other compliance monitoring activities by EPA, 

states, tribes, and territories would be made available through public search. {OMB comment: 

“Is this something that EPA can do now? If not, please add a little text about why this proposed 

rule leads to this outcome.}

EPA Response: EPA will add the following text: “All violations identified through inspections and 

other compliance monitoring activities by EPA, states, tribes, and territories would be made 

available through public search. Currently, the EPA PCS Policy Statement (as amended) states 

that state NPDES programs must enter inspection related violation determinations into EPA’s 

data system for facilities with NPDES permits designated as majors and pretreatment related 

violations associated with POTWs that have an approved pretreatment program. States are not 

currently expected to enter any other inspection related violation determinations into EPA’s 

data system.”

Page Number: 42

Section Number: III

OMB Comment Number: 17

Compliance information would become available from smaller facilities, such as DMRs and 

program reports, closing important knowledge gaps;

EPA Response: EPA will make the suggested edits. 
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Page Number: 42

Section Number: III

OMB Comment Number: 18

Information on enforcement actions and associated penalties would be more complete. {OMB 

comment: How is this different from the “violations” information identified two bullets before? 

We suggest deleting.}

EPA Response: EPA notes that a violation determination, which is the focus of the OMB 

referenced bullet, must be made prior to initiating an enforcement action or an action for 

seeking a penalty. EPA recommends keeping this bullet as currently written.

Page Number: 42

Section Number: III

OMB Comment Number: 19

Documents related to noncompliance would be more accessible, resulting in increased 

efficiency in tracking and resolving noncompliance status. {OMB comment: Let’s discuss what 

this means – greater clarity would be helpful here.}

EPA Response: The proposed rule will create a new periodic report – the NPDES Noncompliance 

Report (NNCR), which will replace the current Quarterly Noncompliance Report (QNCR). The 

QNCR currently tracks noncompliance at majors and the proposed NNCR will track 

noncompliance for both majors and nonmajors. Identifying noncompliance for nonmajors 

currently requires states to manually submit data to EPA or the public and is not as accessible as 

noncompliance data for majors. 

EPA recommends the following change: “Documents related to noncompliance (e.g., the 

proposed NPDES Noncompliance Report) would be more accessible, resulting in increased 

efficiency in tracking and resolving noncompliance status.” 

Page Number: 42

Section Number: III

OMB Comment Number: 20

Comparative analysis would be made easier by utilizing a national consistent set of data. {OMB 

comment: Suggest saying instead “with data that uses a nationally consistent model.”}

EPA Response: The proposed rule will create a set of data (i.e., Appendix A) that is consistent 

across all NPDES programs. EPA recommends the following change: “Comparative analysis 

would be made easier by utilizing a national consistent set of data (i.e., Appendix A to Part 

127).”
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Page Number: 42

Section Number: III

OMB Comment Number: 21

Integration of permit and water quality assessment information would also be improved. {OMB 

comment: How so?}

EPA Response: The proposed rule will require facility locational data (e.g., latitude and longitude 

data) and information on the receiving waters (e.g., Receiving Waterbody Name for Permitted 

Feature). This improved linkage will help permit writers and the public better understand the 

connection between permitted discharge and any impairments of the receiving waterbody. EPA 

recommends the following change: “Integration of permit and water quality assessment 

information would also be improved through better linkage of facility locational data (e.g., 

latitude and longitude data) and information on the receiving waters (e.g., receiving waterbody 

name for permitted feature).”

Page Number: 43

Section Number: III

OMB Comment Number: 22

Informing national program decisions and rulemakings;

EPA Response: EPA will make the suggested edit.

Page Number: 43

Section Number: III

OMB Comment Number: 23

Managing and overseeing national and state, tribal, or territorial program management and 

oversight; {OMB Comment: Establishing program performance indicators is a part of this, right?}

EPA Response: EPA recommends the following change: “Managing, overseeing, and reporting 

on national and state, tribal, or territorial program performance, management, and oversight.”

Page Number: 44

Section Number: III

OMB Comment Number: 24

Developing trend data on facility compliance and government performance;

{OMB Comment: This also seems to fall within the scope of “managing and overseeing” bullet 

above.} See OMB Comment Number 23.

EPA Response: EPA will make the OMB suggested edit along with the EPA suggested edit to 

OMB Comment Number 23.

Page Number: 44

Section Number: III
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OMB Comment Number: 25

Each of these EPA uses of NPDES information is described in more detail in DCN 0015. {OMB 

Comment: Please provide this to the interagency group.}

EPA Response: See attached memo to the record, “Example EPA Uses of NPDES Information,”

which will be DCN 0015 in the rulemaking record.

Page Number: 44

Section Number: III

OMB Comment Number: 26

4. Key Characteristics for Data. {OMB Comment: What is the purpose of this section and why is it 

relevant to the rulemaking? Suggest deleting and just referencing a supporting document. If 

this cannot be done, we need to talk about the specifics in this section and why this supports 

the need for the rule (the title of this section)}

EPA Response: This section provides a discussion on the data quality expectations for NPDES 

program data. Specifically, these data should be current, nationally consistent, complete, and 

accessible by EPA, states, and the public. We recommend keeping this section; however, we 

could also summarize this section and put this text in a memo to the record.

Page Number: 46

Section Number: III

OMB Comment Number: 27

The data should be made available so that the basis for EPA program evaluation and subsequent 

planning is transparent and reproducible. {OMB Comment: This isn’t a characteristic of the data 

– this is treatment of the data.}

EPA Response: An important data quality measure is to make NPDES program data available to 

all interested stakeholders (EPA, states, public). Having data easily accessible will enable users to 

more fully understand the performance of NPDES programs and to reproduce related analyses. 

Making NPDES program data available also helps identify data errors for correction.

Page Number: 47

Section Number: III

OMB Comment Number: 28

The National Environmental Information Exchange Network (NEIEN) {OMB comment: It would 

be helpful to add a sentence or two explaining how this supports the need for the regulation. IF 

that’s challenging, should this section be moved someplace else?}

EPA Response: The following sentences will be added near the beginning of this section: “The 

proposal rule utilizes the NEIEN for sharing NPDES program data between regulated entities, 

NPDES permit programs, and EPA. This information sharing network helps facilitate the 

reporting and information sharing requirements in the proposed rule.”

Page Number: 47
Page 15

Section Number: III

OMB Comment Number: 29

Many environmental problems cross jurisdictions and involve a web of natural systems that 

interact with human communities in complex ways. {OMB comment: “I’m not sure what this 

means – suggest deleting.”} The business of managing and solving these problems has become 

very information-intensive. Environmental policymakers and other stakeholders need access to 

timely, accurate, and consistent data that present a holistic picture of the environment. in order

to make better decisions regarding the environment. {OMB comment: Why? Please add a 

rationale at the end of the sentence. We’ve suggested a change}

EPA Response: EPA will make the suggested edits.

Additional OMB Comment: Suggest the following deletion since seems redundant given other 

changes.

Environmental policymakers and other stakeholders in order to make better decisions regarding 

the environment.

EPA Response: EPA will make the suggested edit.

Page Number: 47

Section Number: III

OMB Comment Number: 30

Many of the current approaches to environmental information exchange today are 

ineffective and often burdensome. {OMB comment: Do we know this? Suggest deleting.} 

Currently, most environmental data are stored in electronic data management systems. 

Electronic data sharing between agencies is often not a simple and automatic process because

many of these systems are incompatible with each other. Even similar systems can have 

difficulties exchanging information when the data are not identically structured.

EPA Response: EPA suggests the following change to the first sentence: “Previous approaches to 

environmental information exchange were often inefficient.” EPA will make OMB’s edits to the 

third sentence in this paragraph.

Page Number: 48

Section Number: III

OMB Comment Number: 31

For example, states in the Pacific Northwest are using the NEIEN to share high-quality water 

data to control conditions that threaten regional watersheds and rivers . {OMB comment: What 

kind of conditions? Can you be more specific?} Laboratories are able to quickly share sampling 

results with regulators, allowing real-time monitoring of drinking water for public health and 

homeland security concerns.
Page 16

EPA Response: EPA suggests the following change and reference to the first sentence: “For 

example, states in the Pacific Northwest are using the NEIEN to share high-quality ambient 

water quality data to improve decision-making for the protection of water quality.3

Page Number: 48

Section Number: III

OMB Comment Number: 32

Today, the NEIEN is making environmental protection more efficient and helping to improve the 

quality of the decision-making processes. {OMB Comment: This sentence implies that this is 

currently in place, yet the text in the proceeding bullets points to the proposed requirements. 

Can you be more clear? Why has this lengthy section on NEIEN been included in the proposal?}

EPA Response: EPA proposes to move this sentence to the beginning of this section with the 

proposed text in OMB Comment Number 28.

Page Number: 50

Section Number: III

OMB Comment Number: 33

{OMB Suggest the deletion of the following text and made the following note: “Rathere than 

referencing Congressional testimony, can you refer to EPA’s regulatory retrospective 

document?”}

EPA Administrator Jackson also then announced to the Committee on Transportation and 

Infrastructure of the United States House of Representatives that, as part of the CWA Action 

Plan, she was directing her staff to “quickly develop a proposed rule requiring electronic 

reporting from regulated facilities, to replace the current paper based system.” 

EPA Response: EPA will add a footnote to the following sentence in this section: “The CWA 

Action Plan recognizes that EPA lacks nationally consistent and complete information on the 

facilities, permits, pollutant discharges, and compliance status of most NPDES-regulated 

facilities.4”

Page Number: 50

Section Number: III

OMB Comment Number: 34

{OMB moved the following paragraph from Page 50 to Page 51, preceding the paragraph 

starting with “As currently drafted.”

Through the Clean Water Act Action Plan Discussion Forum, EPA solicited ideas from the public 

that encompassed a broad range of perspectives (DCN 0017). Outreach to states, tribes, 

territories, community groups, industry, and environmental organizations ensured an 

opportunity for participation in the forum.

 

3

See: http://www.exchangenetwork.net/data-exchange/pacific-northwest-water-quality-exchange/

4

See: http://www.epa.gov/enforcement/water/documents/policies/actionplan101409.pdf
Page 17

EPA Response: EPA will make the suggested edit.

Page Number: 51

Section Number: III

OMB Comment Number: 35

In an effort to address state concerns over escalating reporting requirements, EPA and the 

Environmental Council of the States (ECOS) launched the Burden Reduction Initiative in October 

2006. {OMB comment: Can you provide a footnote with a url to where the reader can find it, or 

place it in the docket?} This initiative aimed to identify and reduce high-burden reporting 

requirements for various media (e.g., air, water, waste).

EPA Response: EPA will add the following footnote: “In an effort to address state concerns over 

escalating reporting requirements, EPA and the Environmental Council of the States (ECOS) 

launched the Burden Reduction Initiative in October 2006.5” EPA will also make the suggested 

edit.

Page Number: 52

Section Number: III

OMB Comment Number: 36

Several states identified NPDES compliance reporting as a priority area for burden 

reduction. Specifically, those states recommended that reporting requirements for three NPDES 

reports required under EPA’s NPDES regulations (40 CFR 123.45) be reduced or eliminated. They

recommended that EPA reduce the reporting frequency for the Quarterly Noncompliance 

Report (QNCR) required under 40 CFR 123.45(a) and eliminate both the Semi-Annual Statistical 

Summary, required under 40 CFR 123.45(b), and the Annual Noncompliance Report (ANCR), 

required under 40 CFR 123.45(c). {OMB comment: Perhaps add a sentence about why they 

recommended these changes – e.g. was the data not being used? }

EPA Response: EPA will make the suggested edits and add the following sentence: “States 

suggested the elimination of these reports to reduce their burden of implementing the NPDES 

program.”

Page Number: 52-53

Section Number: III

OMB Comment Number: 37

The QNCR is a quarterly report regarding major NPDES-regulated facilities in 

noncompliance; under 40 CFR 123.45(a), this report is required to be submitted to EPA by 

states, tribes, and territories authorized to implement the NPDES program. These reports are 

used by EPA, states, tribes, and territories to track progress and assess the effectiveness of 

NPDES compliance monitoring and enforcement activities. {OMB comment: In this paragraph 

and the next, suggest deleting text about what EPA uses this information for and limit to a 

description of these reports.}

 

5

See http://www.ecos.org/section/projects/?id=3683.
Page 18

The ANCR is an annual report submitted to EPA by states, tribes, and territories 

authorized to implement the NPDES program; in this report, as required under 40 CFR 123.45(c), 

the states, tribes, and territories provide information regarding the total number of nonmajor 

NPDES-regulated facilities that have been reviewed for the purpose of making compliance 

determinations, the number of non-complying nonmajor permittees, the number of 

enforcement actions taken against these nonmajor NPDES-regulated facilities, and the number 

of permit modifications extending compliance deadlines for these nonmajor NPDES-regulated 

facilities. {OMB comment: Suggest deleting.}

EPA Response: EPA will make the suggested edits.

Page Number: 53

Section Number: III

OMB Comment Number: 38

As part of the proposed rule, EPA is seeking comment on changes to 40 CFR 123.45, entitled 

“Noncompliance and program reporting by the Director.” The purposes of these changes would 

be to: 1) reduce the state reporting burden by phasing out reports that can be produced 

automatically by EPA from a national data system - (such as the QNCR); {OMB comment: 

Suggested insert if the above text is deleted.}

EPA Response: EPA will make the suggested edits.

Page Number: 54

Section Number: III

OMB Comment Number: 39

8. Response to Early Public Comments {OMB comment: This may not be the appropriate 

place for this section (Purpose and Need) – perhaps in Section V or VI.}

EPA Response: EPA will move this section to the beginning of Section V (“Matters for Which 

Comments Are Sought”).

Page Number: 69

Section Number: IV

OMB Comment Number: 40

Existing federal regulations already require each of these reports to be submitted to the 

permitting authority. Currently, most of these compliance reports are submitted on paper. EPA 

is soliciting comment on switching the submission of these reports from paper reporting to 

electronic reporting. Each of the data types associated with these reports is described in more 

detail in Section IV.

EPA Response: EPA will make the suggested edits.

Page Number: 71

Section Number: IV
Page 19

OMB Comment Number: 41

The DMR submission process that is most frequently used requires the permittee to mail a hardcopy form of a pre-printed form (OMB Control No. 2040-0004) to the authorized NPDES 

permitting authority. {OMB comment: We’re not sure why the first sentence is important, but 

does this edit work?}

EPA Response: EPA will make the suggested edits.

Page Number: 72

Section Number: IV

OMB Comment Number: 42

EPA’s PCS Policy Statement (as amended) created the expectation that the permitting authority 

enter facility information for all permitted facilities and DMR information from major facilities 

into ICIS-NPDES. {OMB Comment: Required? Please explain.}

EPA Response: Current regulations require state permit programs to “keep such records and 

submit to the Administrator such information as the Administrator may reasonably require.” See 

40 CFR 123.43(d). To implement this and other regulations, EPA has issued guidance on the 

information to be submitted electronically to a national database. In particular, the PCS Policy 

Statement (as amended) and the PCS Quality Assurance Manual identify the timeliness, 

accuracy, completeness, and consistency expectations for state data entry into ICIS-NPDES. 

Both guidances where originally developed by EPA for use with PCS but were subsequently 

adapted and are still in effect for ICIS-NPDES. However, EPA cannot use guidance as a substitute 

for a legislative rule, which is an agency action which has the force and effect of law. 

Consequently, the two guidance documents do not directly impose data sharing requirements 

on state NPDES programs. EPA mainly uses two mechanisms for requiring data sharing between 

state NPDES programs and EPA: Memorandum of Agreement and CWA Section 106 Work Plans.

This text reflects the fact that for major facilities the permitting authority should enter facility 

information for all permitted facilities and DMR information into ICIS-NPDES in accordance with 

their MOA and/or CWA Section 106 work plan.

Page Number: 73

Section Number: IV

OMB Comment Number: 43

Because there is a significant burden on states, tribes, or territories associated with manually 

entering DMR data into a data system, some states, tribes, or territories found that they were 

not able to meet their regulatory requirement [see 40 CFR 123.26(e)] to evaluate all DMR data 

for violations (see 2008 and 2009 Clean Water Act Annual Noncompliance Reports, DCN 0016 

and 0025) or meet EPA’s ICIS-NPDES data entry policy expectations (see DCN 0026). {OMB 

comment: See previous comments.}

EPA Response: See response to OMB Comment Number 42.
Page 20

Page Number: 74

Section Number: IV

OMB Comment Number: 44

Some of these tools allow for a properly formatted file [e.g., comma-separated value file or 

Extensible Markup Language (XML) file] to be shared between EPA, states, tribes, and 

territories, which is one step towards automation. {OMB comment: Is automation the goal? 

Please explain – this is a new idea.}

EPA Response: EPA proposes to make the following change to the text: “Some of these tools 

allow for a properly formatted file [e.g., comma-separated value file or Extensible Markup 

Language (XML) file] to be shared between EPA, states, tribes, and territories, which is an 

important step towards more efficient data sharing.”

Page Number: 74

Section Number: IV

OMB Comment Number: 45

The adoption rate, or percent of permittees that use electronic reporting, in the states where 

electronic reporting of DMRs is an option as of October 1, 2011, is generally less than half. EPA 

believes this is because electronic reporting is not required, and/or release of electronic 

reporting tools is relatively recent (see DCN 0027).

EPA Response: EPA will make the suggested edit.

Page Number: 79

Section Number: IV

OMB Comment Number: 46

This means that neither EPA nor the authorized state, tribe, or territory programs will have 

information regarding exactly which facilities are regulated under these general permits. 

General permits cover a wide range of facility types that range from the very large (e.g., offshore 

oil and gas facilities, seafood processors) to very small discharges. Discharges from facilities 

covered under general permits include a variety of pollutants, such as total suspended solids, 

biochemical oxygen demand, oil and grease, bacteria, nutrients, hydrocarbons, metals, and 

toxics. {OMB comment: Suggest deleting. EPA should be careful not to undercut the general 

permit program – which has been used to provide an efficient, streamlined way for regulated 

entities to obtain permits.}

EPA Response: EPA will make the suggested edit.

Page Number: 80

Section Number: IV

OMB Comment Number: 47

In general, there is significantly less data in ICIS-NPDES on facilities covered by general permits 

than facilities regulated under individual permits. States, tribes, territories, and EPA regions are 

required to enter data concerning the general permit and some limited data regarding general 

permit covered facilities. However, states, tribes, and territories do not consistently report data 
Page 21

on general permit covered facilities to ICIS-NPDES, nor are they required to. {OMB comment: 

OMB has concerns that OECA would like to alter the general permit program. It is our 

understanding that with this rule, you are only trying to require electronic reporting of items 

that are currently required to be collected. If it is your intention to change the reporting 

requirements, we should have a conversation.}

EPA Response: EPA is not altering the general permit program or adding new reporting 

requirements on NPDES regulated entities. The NPDES Electronic Reporting Rule is converting 

paper-based reporting of general permit documents (e.g., NOIs, NOTs, LEWs, and NECs) but 

does not add additional data elements or reporting requirements. The statement highlighted in 

OMB’s comment reflects the fact that not all states put in WENDB required data elements for 

facilities covered by general permits. This is particularly true for facilities covered by stormwater 

general permits. EPA suggests the following change: 

“In general, there is significantly less data in ICIS-NPDES on facilities covered by general permits 

than facilities regulated under individual permits due to reduced state reporting requirements 

for non-major facilities. Most facilities covered by general permits are classified as non-majors. 

States, tribes, territories, and EPA regions are required to enter data concerning the general 

permit and some limited data regarding general permit covered facilities. Limited data on 

general permit covered facilities impedes an accurate assessment of this part of the NPDES 

program.”

Page Number: 89

Section Number: IV

OMB Comment Number: 48a

EPA recognizes that electronic reporting could be problematic for certain CAFO facilities,

particularly those located in remote rural areas. {OMB comment: What do you mean? Do you 

mean burdensome? Onerous? Infeasible?} Although 65 percent of American adults use highspeed Internet broadband at home, only 50 percent of rural residents have broadband.{OMB 

comment: What about dial up? Is there a better source?} One in ten rural non-users of 

broadband say they cannot get broadband where they live, which is more than twice the 

national average. Id.

EPA Response: EPA suggests the following edit: “EPA recognizes that electronic reporting could 

be impracticable for some CAFO facilities and other facilities located in rural areas, particularly 

those that do not have broadband access to the internet. FCC data shows that internet access 

speeds tend to be lower in rural areas as compared to urban areas. In general, electronic 

reporting tools require faster internet connection speeds to work most effectively.” EPA will 

make the suggested deletion.

Page Number: 93

Section Number: IV

OMB Comment Number: 48b

The reference has been deleted, so the Id now references nothing, but the prior question stands 

– is this the best reference to use for this point? Suggest deleting this sentence. 
Page 22

“One in ten rural non-users of broadband say they cannot get broadband where they live, which 

is more than twice the national average. Id.”

EPA Response: EPA will make the suggested edit.

Page Number: 96

Section Number: IV

OMB Comment Number: 49

CSO, SSO, and bypass events are of special concern with respect to public health because they 

can expose citizensthe public to bacteria, viruses, intestinal parasites, and other microorganisms 

that can cause serious illness such as cholera, dysentery, hepatitis, cryptosporidiosis, and 

giardiasis.

EPA Response: EPA will make the suggested edit.

Page Number: 121

Section Number: IV

OMB Comment Number: 50

EPA also notes that the transaction cost for authentication has dropped from tens of dollars per 

user to less than pennies per user (e.g., DCN 0035). {OMB comment: Please provide this to us.}

EPA Response: EPA will share this document with OMB.

Page Number: 121

Section Number: IV

OMB Comment Number: 51

If the signatory authority plans to have someone else sign and submit the electronic DMRs, for 

example, then this individual must be a duly authorized representative of that signatory 

authority in accordance with 40 CFR 122.22(b). EPA worked with the U.S. Department of Justice 

to ensure that CROMERR requirements satisfy both civil and criminal enforcement needs. {OMB 

comment: Suggest deleting. This is referencing the work for the CROMERR rule, rather than a 

recent discussion, right? If so, it doesn’t seem salient to this proposal.}

EPA Response: EPA will make the suggested edit.

Page Number: 141

Section Number: IV

OMB Comment Number: 52

Violation determinations may also be made based upon other information available to the 

states, , tribes, territories, or EPA, such as inspection information, review of program report 

information, citizen complaints, information collection requests, incident reports, etc. {OMB 

comment: Is this a legal term? If not, suggest changing to “public complaints”}

EPA Response: EPA will make the suggested edit.
Page 23

Page Number: 143

Section Number: IV

OMB Comment Number: 53

In addition, some compliance-related data are tracked at the basic permit level, including 

whether noncompliance tracking is occurring automatically in EPA’s NPDES national data 

system, and the noncompliance status and fiscal quarters of noncompliance. A complete listing 

of these data is provided in Appendix A to 40 CFR part 127. The proposed rule also updates 40 

CFR 123.26 to reflect the new electronic reporting requirements. {OMB comment: Unless I’ve 

missed it, where does EPA flag and seek comment on the change to123.26 that revokes state’s 

control of NPDES information if they don’t submit data to EPA in a timely fashion? Why does 

EPA need ot include this? Similar changes to the regulatory text were also made in 123.41(a) 

and 123.43(d),.}

EPA Response: EPA will add a solicitation for comment on the initial recipient determination 

procedure outlined in the proposed rule. Specifically, EPA will solicit comment on this topic in 

the section title "Procedure for Determining Initial Recipient of Electronic NPDES Information." It 

is important to note that EPA is not proposing to limit the state’s access and ability to use or 

manage NPDES program data. EPA will share all NPDES program data that it receives with all 

state partners. The initial recipient procedure ensures that the authorized state, tribe, or 

territory receiving NPDES program data from an NPDES regulated entity complies with 

CROMERR’s signatory, certification, and security standards (40 CFR 3) and the data sharing 

requirements identified in the proposed rule. EPA suggests the following text:

“The purpose of the initial recipient procedure is to ensure that the authorized state, tribe, or 

territory receiving NPDES program data from an NPDES regulated entity complies with the 

CROMERR signatory, certification, and security standards (40 CFR 3) and the proposed NPDES 

Electronic Reporting Rule (40 CFR 127). Built into the proposed procedure is an understanding 

that EPA will support any authorized state, tribe, or territory that wishes to be the initial 

recipient for electronically reported NPDES program data and will help the authorized state, 

tribe, or territory resolve any issues that temporarily prevent it from being the initial recipient of 

electronically reported NPDES program data.” 

Page Number: 155

Section Number: IV

OMB Comment Number: 54

Methods of detection of non-numeric violations include inspections; information collection 

requests; state, tribal, or territorial referrals; annual reports, noncompliance reports, and other 

program reports required under the permit enforcement order, or regulation; facility self-audits; 

and citizen complaints. {OMB comment: Same comment as before}

EPA Response: EPA will change “citizen” to “public.”

Page Number: 155

Section Number: IV

OMB Comment Number: 55
Page 24

Under this proposed rule, as currently drafted and subject to public comment, EPA retains the 

existing lists of Group I and Group II Pollutants in Appendix A to 40 CFR 123.45 that are 

evaluated as part of the Category I and Category II definition for effluent limit violations, while 

also proposing regulatory changes that provide Group III for other pollutants of special concern 

and a periodic review and updates to the pollutant lists through EPA policy or guidance changes. 

{OMB comment: WE need to flag this for discussion.} Periodic review and update of these lists is 

consistent with the original intent of the regulation (as specified on page 34651 of EPA’s 

preamble for the final rule for 40 CFR Part 123, NPDES Noncompliance and Program Reporting --

FR, Vol. 50, No. 165, Monday, August 26, 1985). 

EPA Response: EPA will remove the reference to Group III pollutants from the proposed rule 

and solicit comment on how it should update and revise the list of pollutants in Appendix A to 

40 CFR part 123.45. EPA proposes to put this discussion in Section V (“Matters for Which 

Comments Are Sought”) and in the section titled: “Categorizing Violations”.

“EPA is seeking comment on how it should evaluate, update, and revise the lists of pollutants in 

Appendix A to 40 CFR 123.45. These lists are used to determine Category I (most serious) and 

Category II noncompliance. EPA’s preamble for the final rule for 40 CFR Part 123, NPDES 

Noncompliance and Program Reporting (FR, Vol. 50, No. 165, Monday, August 26, 1985) 

describes the conventional and nonconventional/toxic pollutants as lists of general types. It was 

expected that new parameters may be added from time to time. EPA has never revised these 

lists in part due to the complexity of re-opening the regulation to make such changes. This has 

resulted in a situation where, the most frequent cause of water impairment, pathogens, (which 

is directly related to pollutants such as fecal coliform and eColi) are not listed as pollutants that 

cause a Category I listing in the regulations. This means is that a violation of a pathogen effluent 

limit alone (no matter how severe) is not required to be reported to EPA under 40 CFR 123.45 

and, therefore, will not automatically trigger evaluation of the violation for "significant 

noncompliance (SNC)" status. EPA also seeks comment on eliminating the need for pollutant 

specific lists such as the current one in Appendix A and instead requiring that all effluent 

limitations in NPDES permits be considered noteworthy when involving exceedances greater

than a certain, specified amount and basing the threshold amounts on whether or not the limit 

is a water-quality based effluent limit or a technology-based limit.

In addition, when the 40 CFR 123.45 noncompliance reporting requirement were originally 

developed, EPA believed that violations of monthly average permit effluents limits were 

indicative of more serious long term noncompliance problems. However, EPA’s thinking has 

evolved on this point and, in consultation with Regions and States, EPA revised its management 

tool (i.e., EPA’s NPDES Significant Noncompliance Policy) in 1995 to also identify egregious 

NPDES violations of non-monthly permit effluent limits that meet EPA’s criteria. EPA is 

specifically seeking comment on whether noncompliance reporting of permit effluent limits in 

40 CFR 123.45 should be limited to monthly average permit limit violations and those violations 

that are of a specific magnitude and frequency.

EPA would like public comment on how a defined policymaking process could be structured as a 

possible replacement to Appendix A – allowing the program to keep pace evolving technology 

and pollutants. Commenters are encouraged to provide information on relative merits of 

keeping Appendix A current through regulatory updates.”
Page 25

Page Number: 206

Section Number: VII

OMB Comment Number: 56

As a result, electronic reporting will allow the states, tribes, territories, and EPA to quickly 

highlight important information, and it will allow government and citizensthe public to identify, 

pursue, and address pollution problems.

EPA Response: EPA will make the suggested edit.

Page Number: 207

Section Number: VII

OMB Comment Number: 57

Electronic reporting – and the timely and more accurate information it provides – can help 

provide the public with access to information on the performance of both regulated facilities 

and governments, and help them make government accountable for results. Electronic reporting 

also levels the playing field by giving the public, including other regulated entities, the 

information they need in order to determine whether comparable violations are being treated 

similarly.

EPA Response: EPA will make the suggested edits.

Page Number: 208

Section Number: VII

OMB Comment Number: 58

In a similar vein, EPA could explore potential new electronic reporting-supported options such 

as cross-checking DMR data with TRI data and data in citizen complaints. {OMB comment: See 

similar comment on “citizen”}

EPA Response: EPA will change “citizen” to “public.”

Page Number: 252

Section Number: VII

OMB Comment Number: 59

The proposed rule will also support meaningful participation by potentially impacted community 

members in regulatory proceedings, including permitting and compliance, designed to improve 

the ability of EPA, states, tribes, and territories to protect and preserve water quality.

EPA Response: EPA will make the suggested edit.

OMB Comment Number: 60

OMB request that EPA delay start of electronic reporting of NOIs for CAFOs from one year to 

two years after the effective date of the final rule.
Page 26

EPA Response: EPA will make this change and seek public comment on whether to start the 

electronic reporting of NOIs for CAFOs one year or two years after the effective date of the final 

rule.

OMB Comment Number: 61

OMB request that EPA include a 90 day OMB review for the supplemental notice. 

EPA Response: EPA will make this change. This pushed the publication of the supplemental 

notice from 120 days after publication of the proposed rule to 180 days after publication of the 

proposed rule.
Page 27

Detailed Responses to U.S. Department of Transportation Comments

Page Number: 175

Section Number: Phase 2 Implementation

DOT Comment Number: 1

 EPA’s proposed rule will place an undue technical and financial burden upon the States, 

tribes, territories, and permittees to implement the transition, as currently drafted. It is 

unclear how EPA will technically and financially assist these entities in implementing the 

needed changes to information technology and infrastructure.

 FHWA strongly urges that EPA reassess the feasibility and practicability of the two-year 

proposed transition period from paper submissions to electronic format. 

EPA Response: EPA will add the following language to the preamble to the proposed rule to reemphasize its commitment to identify alternative options that might reduce implementation 

costs on authorized NPDES programs and permittees while also preserving the proposed 

implementation schedule and benefits of electronic reporting.

“EPA also notes that it will be providing technical assistance, support, and some funding to help 

states, tribes, and territories with this transition to electronic reporting. EPA is also open to 

considering other options for phasing the collection of the information under this proposed rule. 

Specifically, EPA would like to hear from authorized NPDES programs that have experience in 

implementing electronic reporting, especially their experience in phasing the implementation so 

that it is successful. EPA seeks additional data on alternative options that might reduce 

implementation costs on authorized NPDES programs and permittees while also preserving the 

proposed implementation schedule and benefits of electronic reporting.”
Page 28

EPA Responses to USDA Comments

On the Proposed NPDES Electronic Reporting Rule

Background: Concentrated animal feeding operations (CAFOs) that are permitted under the 

NPDES permit program have a number of reporting requirements. These include:

 Notice of Intent (NOI): Many states use general NPDES permits to regulate their CAFOs. A 

CAFO can seek coverage under a state issued NPDES general permit by submitting a NOI 

[see requirement at 40 CFR 122.23(d)(1)]. This form provides the state NPDES program with 

enough information to determine whether the state should grant coverage under the state 

NPDES general permit or whether the CAFO should seek an individual NPDES permit.

 Notice of Termination (NOT): A CAFO that has coverage under a state issued NPDES general 

permit but wishes to terminate this coverage will submit this form. The state will use this 

form to determine if all regulatory requirements have been met by the CAFO and update its 

records as appropriate.

 CAFO Annual Program Report: NPDES-permitted CAFOs are required to submit an annual 

report to the State Director or Regional Administrator pursuant to 40 CFR 122.42(e)(4). This 

reporting requirement applies to CAFOs that are individually permitted or are permitted 

through a general permit. EPA created this reporting requirement in the 2003 and 2008 

rulemakings. The annual report must include the following information: 

o the number and type of animals, whether in open confinement or housed under roof;

o estimated amount of total manure, litter, and process wastewater generated by the 

CAFO in the previous 12 months (tons or gallons);

o estimated amount of total manure, litter, and process wastewater transferred to other 

persons by the CAFO in the previous 12 months (tons or gallons);

o total number of acres for land application covered by the CAFO’s nutrient management 

plan;

o total number of acres under control of the CAFO that were used for land application of 

manure, litter, and process wastewater in the previous 12 months;

o summary of all manure, litter, and process wastewater discharges from the production 

area that have occurred in the previous 12 months, including date, time, and 

approximate volume; 

o a statement indicating whether the current version of the CAFO's nutrient management 

plan was developed or approved by a certified nutrient management planner; and 

o specified supporting agricultural data and calculations including the actual crop(s) 

planted and actual yield(s) for each field, and the actual nitrogen and phosphorus 

content of the manure, litter, and process wastewater.

Importantly, the proposed NPDES Electronic Reporting Rule does not create any new reporting

requirement for CAFOs (or any other NPDES regulated entity). This proposed rule is only 

changing the mode by which currently-required information is submitted (i.e., paper to 

electronic). Additionally, EPA recognizes that some facilities may not yet have adequate 

broadband access at their location; therefore, the proposed rule has included provisions for 

temporary waivers from electronic reporting. Such temporary waivers may be particularly 

beneficial to CAFOs located in remote areas.
Page 29

Page Number: 83

Section Number: IV – Discussion of Key Features of This Rule

USDA Comment Number: 1

Preamble Text: In most cases, a business or facility will only be required to submit such forms 

once during each permit cycle. 

USDA comment on text: This says information will be supplied each permit cycle. But it states 

later CAFOs will submit the information yearly. Why should CAFOs need to supply the 

information on a yearly basis rather than once per permit cycle as do other designated point 

sources?}

EPA Response: EPA understands USDA’s concern of the appearance of increased reporting 

requirements; however, that is not what this rule proposes. CAFOs covered by an individual 

permit have a duty to re-apply for a new permit once their current permit expires. See 40 CFR 

122.41(b). Similarly, CAFOs covered by a general permit are required to submit an NOI for each 

new applicable general permit. This is the same requirement for any facility that seeks coverage 

under a general NPDES permit. The CWA limits the duration of permit to fixed terms not to 

exceed five years. See CWA Section 401(b)(1)(B). Additionally, all permitted CAFOs (i.e., CAFOs 

that have an individual permit and CAFOs that are permitted through a general permit) are 

required to submit an annual report per 40CFR 122.42(e)(4), which summarizes NPDES related 

information about their operations. This annual reporting requirement under 40CFR 

122.42(e)(4) was promulgated in 2003. As there is no conflict between these two reporting 

requirements and no increase in reporting burden to CAFOs, EPA suggests no changes to the 

preamble text in response to this comment. 

Page Number: 87

Section Number: IV - Discussion of Key Features of This Rule

USDA Comment Number: 2

USDA General Comment: There are a large number of data items that will have to be submitted 

by CAFOs on an annual basis. A number of these will have to be supplied on a field specific 

basis, compounding the number of data items by the number of fields receiving CAFO manure. 

The accompanying economic analysis to this proposed rule indicates that time involved with 

assembling and submitting the data on an electronic basis is negligible. In the case of a CAFO, 

spreading manure on a large number of fields, this is not the case. Gathering and supplying the 

information to EPA on an annual basis will be time and resource consuming, and will not provide 

EPA with any information that leads to better management of the CAFO. The CAFO has to have 

a NMP that contains this information before a NPDES permit will be issued. There is little reason 

for the information to be submitted to EPA annually, when it was submitted for the permit 

application. Even submitting annual information on how many discharges and where discharges 

occur (to the specificity of actual latitude and longitude) probably does not mean a great deal 

given that the accompanying economic analysis to this proposed rule indicates that an annual 

average of 0.02 reported discharges from permitted CAFOs, result in action by EPA.

EPA Response: EPA thanks USDA for their comment, and understands their concern of 

increased reporting burden. EPA plans to “carry forward” data from one year to the next as part 

of its new electronic reporting tool. NPDES permitted CAFOs will benefit by only having to 
Page 30

update the data that has changed in the new reporting year. This would reduce the data entry 

burden for the NPDES permitted CAFO. EPA has successfully used this approach in the TRI-ME 

electronic reporting tool software, which is used for EPA’s Toxics Release Inventory (TRI) 

program. 

As previously noted, the proposed rule does not change the amount of data that is currently 

required to be submitted under existing regulations. Currently, CAFOs covered by a general 

permit are required to submit NOIs once per five year NPDES permit cycle and all permitted 

CAFOs are required to submit an annual report per 40CFR 122.42(e)(4), which summarizes 

NPDES related information about their operations. EPA accounted for the reporting burden for 

these reports when it promulgated the implementing regulations. The proposed NPDES 

Electronic Reporting Rule does not add any new reporting requirements for NPDES permitted 

CAFOs or any other NPDES regulated entity. Also, the economic analysis for the proposed rule 

addressed the burden of the changing the existing reporting from paper to electronic. EPA 

suggests no changes to the preamble text in response to this comment. 

Page Number: 88

Section Number: IV - Discussion of Key Features of This Rule

USDA Comment Number: 3

USDA General Comment: This information will have to be supplied to EPA on a yearly basis. 

Once EPA has the information, if there are not changes to the operation, then there is no real 

need to update the information with EPA. Suggest updating the information with EPA at such 

time that the structures, animal capacity, or some other major point changes.

EPA Response: EPA thanks USDA for their comment. As noted above, the draft proposed rule is 

not changing the frequency of the existing regulatory requirements for NOIs, NOTs, or annual 

CAFO program reports; rather, the draft rule is changing the paper reporting requirements to 

electronic. Also as noted above, EPA plans to “carry forward” data from one year to the next as 

part of its new electronic reporting tool. NPDES permitted CAFOs will benefit by only having to 

update the data that has changed in the new reporting year. This would reduce the data entry 

burden for the NPDES permitted CAFO. 

Page Number: 89

Section Number: IV - Discussion of Key Features of This Rule

USDA Comment Number: 4

Preamble Text: The electronic submission of annual reports would help permitting authorities 

collect and process CAFO information more efficiently, and aid in the evaluation of the 

compliance status of NPDES-permitted CAFOs. 

USDA comment on text: Are CAFOs being singled out for scrutiny by EPA more than other point 

sources? What is the reason? The accompanying economic analysis to this rule shows rates of 

discharge from permitted CAFOs that are much lower than from a number of other point source 

categories. If CAFOs were discharging at a higher rate than other point sources, there might be 

call for greater examination, but in this instance it is probably not the case. Recall the 2nd Circuit 

Decision on CAFOs—EPA cannot presume discharge.
Page 31

EPA Response: EPA thanks USDA for their comment. The proposed rule does not single out 

CAFOs or another sector. The proposed rule simply changes existing reporting requirements 

from paper to electronic.

The proposed NPDES Electronic Reporting Rule converts NOI and NOT reporting for all general 

permit (except the Pesticides General Permit, and the Vessels General Permit) covered facilities 

from paper to electronic. Likewise, there are a number of other program reports that EPA is 

converting from paper to electronic submissions (e.g., pretreatment, biosolids, sewer overflows, 

MS4s, and CAFOs). These program reports are described in Section IV of the preamble. EPA 

suggests no changes to the preamble text in response to this comment.

 

Page Number: 225

Section Number: VII – Non-Monetary Benefits and Economic Analysis

USDA Comment Number: 5

USDA General Comment: Earlier in the proposed rule it mentions over 9000 CAFOs with general 

permits and that the whole universe is over 14000 CAFOs. By using this number in the table, 

with the heading “number of permits” it gives the impression that over 14000 CAFOs have or 

will have permits (in the future). Past court actions (second and fifth circuits) have stressed that 

EPA cannot presume a discharge, nor require a permit from CAFOs that do not discharge, or 

propose to discharge. Therefore the number in the table needs to be dropped to the number 

that have permits.

EPA Response: EPA thanks USDA for their comment. EPA will update Table IV.1 and VII.1 the 

preamble to clarify EPA’s estimate of the number of NPDES permitted CAFOs. In particular, EPA 

will use the following text is in Section IV of the preamble: “In general, EPA’s Office of Water 

estimates there are approximately 14,400 large or medium CAFOs nationwide. The Office of 

Water estimates that of this universe, approximately 8,300 CAFOs have NPDES permits. Of the 

remaining large and medium CAFOs, it is unknown how many of them discharge and need 

permit coverage (see DCN 0029).” EPA notes that it’s economic model uses a more conservative 

estimate of 9,000 CAFOs as having NPDES permits in order to provide a likely upper bound on

the implementation costs for the proposed rule.
Page 32

EPA Responses to NOAA-NMFS Comments on 

Proposed NPDES Electronic Reporting Rule

Page Number: 1

Section Number: Summary

NOAA-NMFS Comment Number: 1

General NOAA Comment: The e-reporting rule will improve the quality, completeness, and 

consistency of compliance and enforcement information available for NPDES authorized 

discharges. NOAA Fisheries uses this type of information in our ESA Section 7 consultations to 

characterize baseline conditions throughout the range and critical habitat for our species and in 

our programmatic consultations with EPA when it plans to issue or re-issue General NPDES 

permits evaluate to what extent EPA:

 knows or can reliably estimate the probable number, location, and timing of activities 

that will be authorized

 knows or can reliably estimate the physical, chemical, or biotic stressors that are likely 

to be produced as a result of activities that would be authorized

 has structured permit implementation to encourage, monitor, and enforce compliance

These elements help demonstrate whether and to what extent EPA can identify and address 

potential threats posed by the actions it authorizes to listed resources. Also note that ereporting is not required for PGP and VGP permits. 

This does not pose a problem for NOAA Fisheries. NOAA Fisheries consulted on both permits. 

The absence of e-reporting for the VGP will not impair the next Section 7 consultation on the 

reauthorization of the VGP, provided EPA implement the Additional Actions to Protect Listed 

Resources specified in the sections starting on page 45 of the Biological Opinion. These 

conditions require EPA to develop a monitoring and compliance plan to assess the performance 

of the permit in protecting listed resources, along with a summary of inspection data provided 

to the Services annually. EPA’s implementation of the PGP is currently fulfilling the Reasonable 

and Prudent Actions (RPAs) specified in the Biological Opinion to protect NMFS species. These 

include addressing our information needs by allowing NOAA fisheries review of NOIs for 

discharges within critical habitat along with annual reporting for discharges made within the 

critical habitat of NMFS listed species.

EPA Response: EPA suggests no changes to the text. EPA thanks NOAA for their support of the 

rulemaking.

Page Number: 26

Section Number: II - Background

NOAA-NMFS Comment Number: 2

Preamble Text: Therefore, EPA and the public do not currently have complete information or 

facilitated notification on these additional sources of pollution. 
Page 33

NOAA-NMFS comment on text: Facilitated notification for different HUCs or facilities 

(automatic e-mails) would assist NOAA Fisheries –ESA Section 7 consultations by helping to 

demonstrate whether and how EPA’s administration of the NPDES program addresses threats to 

listed resources. The public, communities, NGOs, etc., might also want to set up notifications 

for waters of interest/concern.}

EPA Response: EPA thanks NOAA for their comment but notes that this comment is outside the 

scope of this rulemaking. The features requested by NOAA in this comment would occur after 

states and EPA electronically collect NPDES program data, which is the focus of this rulemaking.

EPA will use separate efforts to identify features that NOAA and other stakeholders would like 

to utilize with these electronic NPDES program data. EPA suggests no changes to the text. 

Page Number: 44

Section Number: III – Purpose and Needs

NOAA-NMFS Comment Number: 3

Preamble Text: The data should be current. 

NOAA-NMFS comment on text: Historical data on discharges is important for diagnosing the 

causes of aquatic impairments and characterizing events leading to baseline conditions for ESA 

section 7 consultations. There needs to be a source for this information. We suggest this 

provision be revised to reflect that both historical and new/recent data provides value.

EPA Response: EPA notes that historical data collected by states and EPA and transmitted to 

PCS or ICIS-NPDES will continue to remain available for all interested stakeholders. However, 

EPA also notes that the NPDES Electronic Reporting Rule does not require states and EPA 

Regions to input into ICIS-NPDES more NPDES program data than current policy requires prior to 

rule’s implementation schedule. This also means that states and EPA Regions will not be 

required to input into ICIS-NPDES historical NPDES program data (e.g., states will not need to 

add DMRs for non-major facilities prior to the rule’s implementation schedule). EPA suggests no 

changes to the text.

Page Number: 89

Section Number: IV - Discussion of Key Features of This Rule

NOAA-NMFS Comment Number: 4

Preamble Text: Finally, EPA is soliciting comment on eliminating the reporting of “time” of 

discharge from the annual report [see 40 CFR 122.42(e)(4)(vi)]. EPA estimates that the reporting 

of the “date” of a discharge is sufficient for permitting and compliance determinations. EPA 

solicits comment on this proposed change. 

NOAA-NMFS comment on text: We do not believe it is advisable to eliminate the requirement 

to report the time of discharge. There are important ecological considerations related to 

discharge timing. Water bodies have diurnal dissolved oxygen and pH patterns and organisms 

have diurnal activity patterns. As such, the time of discharge can influence the fate, transport, 

toxicity (e.g., pH - ammonia) and probability that organisms would be exposed to discharges. 

Such information is helpful in diagnosing the causes of biotic assemblage impairments or 
Page 34

adverse events (e.g., fish kills). Fixed text for general time of day (e.g., predawn, morning, 

afternoon, evening, night) may be preferred to temporal precision (hh:mm:ss).

EPA Response: EPA thanks NOAA for their comment. As stated, EPA is soliciting comment on 

maintaining or eliminating this data element. EPA will take this comment into consideration for 

the final rule. EPA suggests no changes to the text

Page Number: 90

Section Number: IV - Discussion of Key Features of This Rule

NOAA-NMFS Comment Number: 5

Preamble Text: EPA is considering providing a temporary exception not to exceed 1 year... 

NOAA-NMFS comment on text: We suggest that the waiver be temporary and time limits be 

specified in the rule.

EPA Response: EPA thanks NOAA for their comment. A key decision in this proposed rule is 

determining whether electronic reporting requirements would be relatively easy to meet for 

most of the NPDES-regulated universe of facilities. For example, 50 percent of rural residents 

have broadband. Although not a necessity, broadband access makes it easier to submit NPDES 

reports that would be required under this proposed rule. Therefore, broadband access or other 

measures of the availability of sufficient upload speed may serve as reasonable indicators 

regarding possible computer access difficulties, particularly in the more remote rural areas. At 

this time, EPA solicits comment on the need for such temporary waivers or exemptions as well 

as which criteria should apply for the granting of such temporary exemptions. This proposed 

rule includes provisions for temporary waivers extending up to a maximum of one year, but 

comments are sought on all of these options or any other viable options which might be 

suggested during the official comment process. EPA suggests no changes to the text as this 

temporary waiver is already reflected in the proposed rule CFR requirements. 

Page Number: 97

Section Number: IV - Discussion of Key Features of This Rule

NOAA-NMFS Comment Number: 6

Preamble Text: EPA also solicits comment on whether these sewer overflow reports should be 

limited to sewer overflows at a threshold volume or include de minimis releases (minor volumes 

associated with routine operation and maintenance). Finally, EPA also solicits comment on 

whether the list of minimum federal data for sewer overflows and bypasses (Appendix A to 40 

CFR 127) provide sufficient distinction between the different types of sewer overflows and 

bypasses. 

NOAA-NMFS comment on text: De minimis reporting should be required, given that pathogens 

are the number one cause of aquatic impairments in the nation. Nutrients and organic 

enrichment rank at number three and four, respectively, among impairments in waters of the 

US. Further, small continuous discharges can contribute substantial pollutant loads into a 

waterbody.}
Page 35

EPA Response: EPA notes that proposed rule solicits comments on what SSOs (if any) should be 

exempt from electronic reporting (e.g., de minimis discharges such as minor volumes associated 

with routine operation and maintenance). EPA will take this comment into consideration for the 

final rule. EPA suggests no changes to the text.

Page Number: 125

Section Number: IV - Discussion of Key Features of This Rule

NOAA-NMFS Comment Number: 7

Preamble Text: At this time, EPA solicits comment on the need for such temporary waivers or 

exemptions as well as which criteria, such as duration of waivers, should apply for the granting 

of such temporary exemptions. 

NOAA-NMFS comment on text: The need for temporary waivers in emergency situations is 

understandable. Duration of waivers should be scaled to the duration of the upset. NOAA 

Fisheries asks the following questions: Should many discharges suffer an IT limiting incident at 

the same time, how would EPA prioritize reviewing paper reports? Would EPA implement a 

triage system prioritizing review of reports from high risk dischargers or dischargers in sensitive 

areas?

EPA Response: Understandably, it is difficult for EPA to anticipate all possible scenarios involved 

with large scale temporary exemptions for emergency situations. Nevertheless, EPA will work 

with states and NPDES regulated entities to develop a notification system to alert affected 

NPDES program and regulated entities when electronic reporting requirements are suspended 

and what steps must be take after the temporary emergency situation is stabilized. EPA suggests 

no changes to the text.
Page 36

EPA Responses to DoD Comments on Proposed NPDES Electronic Reporting Rule 

Page Number: 2-3

Section Number: Summary

DoD Comment Number: 1

Preamble Text: This proposed rule would require that reports submitted in writing now (i.e., 

Discharge Monitoring Reports (DMRs), Notices of Intent to discharge in compliance with a 

general permit, and program reports) be submitted electronically by NPDES-permitted facilities 

to EPA through the National Environmental Information Exchange Network or to the authorized 

state, tribe, or territory NPDES program. Importantly, while the proposed rule changes the 

method by which information on NPDES notices of intent for coverage under general permits, 

facility discharges, monitoring of compliance, facility reports, and enforcement responses is 

provided (i.e., electronic rather than paper-based), it does not increase the amount of 

information required from NPDES-permitted facilities under existing regulations. 

DoD comment on text: Require states or third party vendors to develop completely web-based 

reporting tools to ensure compatibility with DoD computer systems. DoD is willing to work with 

EPA and/or test software systems to ensure compatibility.

EPA Response: In implementing the rule, various e-reporting tools will be developed by EPA, 

states, and possibly third party vendors. EPA recognizes DoD’s concern that these electronic 

reporting tools may not be compatible with DoD’s computer systems; however, EPA cannot 

develop electronic reporting tools to be used exclusively by any one facility or agency. There 

may be opportunities for DoD to work with EPA, states, and third party vendors during the 

development and testing phases to facilitate compatibility between the electronic reporting 

tools and DoD’s computer systems. In particular, EPA notes that it’s electronic reporting tools 

will be web based and will be able to work with any DoD computer that is web enabled.

Page Number: 41

Section Number: III

DoD Comment Number: 2

Preamble Text: 2. Transparency Improvements That Would Accrue from the Rule

DoD comment: While confidential business information or enforcement-sensitive information is 

mentioned as being subject to an exclusion from release to the public, there is little to no 

mention of information that may be subject to an exclusion from release under the Freedom of 

Information Act (FOIA), 5 U.S.C. 552. The Department of Defense (DoD) has unique 

infrastructure and operational security concerns. Given these concerns, the Secretary of 

Defense has been given the authority to exempt certain information from release under the 

Freedom of Information Act (FOIA), 5 USC 552(b)(3). One such exemption was defined in the 

National Defense Authorization Act of Fiscal Year 2012, Section 1091. This section provides that 

the Secretary of Defense may exempt from disclosure, under the authority of 5 USC 552(b)(3), 

critical infrastructure security information. 40 CFR 2.105 recognizes the exemptions expressed 

in FOIA, Section 552(b). Among those exemptions recognized is 5 USC 552(b) (3); providing that 

exempted information includes that information specifically exempted from disclosure by 

statute. Further, 40 CFR 2.103 requires that when EPA receives a request for a record that 
Page 37

originated with another Federal agency, EPA will consult with, or refer requests to, that other 

Federal agency. 

Additionally, DOD is concerned about the security of the state and local information technology 

systems. It is not clear whether information that is submitted electronically to such systems will 

be sufficiently protected from inadvertent disclosure or hacking. 

Recommendation: DoD recommends that the National Pollutant Discharge Elimination System 

(NPDES) Electronic Reporting Rule incorporate changes reflecting FOIA limitations on releases. 

Further request that a clause be added stating the following: “To ensure the protection of DoD 

critical infrastructure and operational security, prior to releasing DoD information submitted 

pursuant to the National Pollutant Discharge Elimination System (NPDES) Electronic Reporting 

Rule, federal, state and local authorities will consult with DoD.” The following is a list of some 

additional proposed changes. These changes seek to incorporate the concerns for releasing, to 

the public, that information which may be exempted from disclosure under the FOIA.

EPA response: The rule proposed today does not expand the data universe on information that 

may be gathered by various reports. Rather, only the means by which data are collected will be 

modified from submission by paper to electronic reporting. EPA proposes to include the 

following language in the preamble and regulatory text. 

Draft Preamble Language regarding “critical infrastructure security information”

Suggested Placement: Immediately Preceding Section IV

EPA and the Department of Defense (DOD) wish to clarify how this rule will intersect with recent 

amendments to the Freedom of Information Act (FOIA) as enacted in The National Defense 

Authorization Act of 2012 (NDAA). Under NDAA, the Department of Defense (DOD) may 

designate “critical infrastructure security information” that can be withheld from release under 

FOIA (see 10 USC §130e). If DOD receives a FOIA request for information on NPDES-regulated 

federal facilities, it may designate particular data as critical infrastructure security information 

that is then withheld from public release in response to the FOIA request. NPDES program data 

designated as critical infrastructure security information in response to a FOIA request will also 

be withheld from public release under this rule. DOD will contact EPA and identify the specific 

data elements for specific NPDES-regulated entities that are to be withheld from public 

disclosure under a FOIA request because it has been designated as critical infrastructure security 

information. 

EPA will not release information that has been designated as critical infrastructure security 

information in response to a FOIA request to the public. The critical infrastructure security 

information designation is expected to be used rarely for the type of information required to be 

electronically reported by this rule and any determination by DOD to withhold information from 

public release will be made at the data element level (see Appendix A to Part 127) for each DOD 

facility. Additionally, the DOD process for designating particular data as critical infrastructure 

security information (see DCN 0067) is prospective and does not affect data already publicly 

available (i.e., the DOD process will not be used to withdraw data that is already available to the 

public). In the instance where an NPDES program data element for a particular facility is 

designated as critical infrastructure security information in response to a FOIA request, a 

separate filtered set of data without the redacted information will be shared with the public; 
Page 38

however, all NPDES program data will continue to be provided to EPA and the authorized state, 

tribe, or territorial NPDES program.

Draft CFR Text 

127.1 – Purpose and Scope

(c) Under 10 USC 130e the Secretary of Defense may exempt Department of Defense “critical 

infrastructure security information” from disclosure under FOIA. NPDES program data 

designated as critical infrastructure security information in response to a FOIA request will be 

withheld from the public. In the instance where an NPDES program data element for a particular 

facility is designated as critical infrastructure security information in response to a FOIA request, 

a separate filtered set of data without the redacted information will be shared with the public; 

however, all NPDES program data will continue to be provided to EPA and the authorized state, 

tribe, or territorial NPDES program.

Page Number: 253

Section Number: VIII

Comment Number: 3

DoD comment: Regulatory text at 40 CFR 123.41(a) should be amended to add the underlined 

text as shown to indicate that “If EPA obtains information from an authorized state NPDES 

program, which is not claimed to be confidential, EPA may make that information available to 

the public without further notice unless that information may be subject to an exemption from 

disclosure under the Freedom of Information Act, such as information containing DoD critical 

infrastructure security data. In which case, EPA will consult with the agency submitting the 

information prior to making that information available to the public.” 

- Regulatory text at 40 CFR 123.45(a)(3) should be amended to add the underlined text as 

shown to indicate that “EPA shall exclude from public release any information which is 

specifically exempted from disclosure by statute, confidential business information or 

enforcement-sensitive information associated with the NNCR.”

EPA response: See EPA’s response to DoD Comment Number 2.