[Federal Register Volume 63, Number 6 (Friday, January 9, 1998)]
[Proposed Rules]
[Pages 1536-1643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-180]


      

[[Page 1535]]

_______________________________________________________________________

Part II





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 122 and 123



National Pollutant Discharge Elimination System--Proposed Regulations 
for Revision of the Water Pollution Control Program Addressing Storm 
Water Discharges; Proposed Rule

Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / 
Proposed Rules

[[Page 1536]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122 and 123

[No. W-97-12 (Proposed Rule) and No. W-97-15 (Information Collection 
Request); FRL-5937-8]
RIN 2040-AC82


National Pollutant Discharge Elimination System--Proposed 
Regulations for Revision of the Water Pollution Control Program 
Addressing Storm Water Discharges

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The National Pollutant Discharge Elimination System (NPDES) 
existing storm water program (Phase I) is resulting in significant 
improvement of surface water quality in the United States by reducing 
polluted runoff from a large number of priority sources, including 
major industrial facilities, large and medium city storm sewers 
(``municipal separate storm sewer systems'' or ``MS4s''), as well as 
construction sites that disturb 5 or more acres. Today's proposed NPDES 
storm water regulations (Phase II), which will be finalized by March 1, 
1999, would expand this existing national program to smaller 
municipalities and construction sites that disturb 1 to 5 acres. In 
this expansion, EPA is proposing ``safety valves'' which would allow 
certain sources to be excluded from the national program based on the 
lack of impact on water quality, as well as to pull in other sources 
not regulated on a national basis based on localized adverse impact on 
water quality. Finally, EPA is proposing to conditionally exclude from 
the NPDES storm water program, industrial facilities that have ``no 
exposure'' of industrial activities to storm water, thereby reducing 
application of the program to many industrial activities currently 
covered by the program that have no industrial storm water discharges. 
This rule would establish a cost effective, flexible approach for 
reducing negative environmental impact by storm water discharges from 
these currently unregulated sources.
    The ``National Water Quality Inventory, 1994 Report to Congress'' 
indicates that storm water discharges from a variety of sources 
including separate storm sewers, construction, waste disposal, and 
resource extraction activities are major causes of water quality 
impairment; roughly 46 percent of the identified cases of water quality 
impairment of estuarine square miles surveyed, for example, are 
attributable to storm sewer runoff. EPA believes that the 
implementation of the six minimum measures, which focus on a ``best 
management practices'' (BMP) approach, identified for the small 
municipalities in this proposal should significantly reduce pollutants 
in urban storm water compared to existing levels in a cost effective 
manner. If after implementing the six minimum measures there is still a 
water quality problem, the municipality would expand or use better 
tailored BMPs in their minimum measures to result in water quality 
improvement. Similarly, EPA believes that implementation of BMP 
controls at small construction sites will also result in a significant 
reduction is pollutant discharges and an improvement in surface water 
quality. EPA believes this rule will cost significantly less than the 
existing 1995 rule that is currently in place, and will result in 
significant monetized financial, recreational and health benefits, as 
well as benefits that EPA has been unable to monetize, including 
reduced scouring and erosion of streambeds, improved aesthetic quality 
of waters, reduced eutrophication of aquatic systems, benefit to 
wildlife and endangered and threatened species, tourism benefits, 
biodiversity benefits and reduced siting costs of reservoirs. In 
addition, there will be an economic savings from the proposed ``no 
exposure'' streamlining. The rule would provide for a NPDES program 
approach that: encourages the use of general permits, provides 
flexibility for municipalities to determine the nature of storm water 
controls, provides flexibility in use of watershed approaches, is 
consistent with the existing storm water Phase I program, recognizes 
and includes existing programs, utilizes the existing NPDES program 
which is Federally enforceable and takes advantage of existing 
structures and mechanisms for public participation. EPA is inviting 
comment on alternative approaches that may be available to allow 
efficient and effective targeting of environmental problems for the 
Phase II program, without extension of the NPDES program to Phase II 
dischargers. EPA is committed to continue seeking the input of all 
stakeholders in the development of this proposed rule, including 
continuing to seek input and advice from the Phase II Subcommittee of 
the Urban Wet Weather Flows Federal Advisory Committee which was 
established in 1995.

DATES: Public Comment Period for the Proposed Rule and Information 
Collection Request (ICR). The public comment period for this proposed 
rule and ICR will be from date of publication in the Federal Register 
until April 9, 1998.
    Public Meetings/Hearings. The public meetings/hearings will include 
a presentation on the proposed rule and allow interested parties the 
opportunity to provide written and/or oral comments for the official 
record. Public meetings/hearings will be held at the times and 
locations provided below. If all statements are finished before 4:00 pm 
the hearings may be finished early. The hearing dates are:

1. February 23, 1998, 1:00 p.m. to 4:00 p.m., Washington, DC
2. February 25, 1998, 1:00 p.m. to 4:00 p.m., Boston, Massachusetts
3. February 27, 1998, 1:00 p.m. to 4:00 p.m., Atlanta, Georgia
4. March 2, 1998, 1:00 p.m. to 4:00 p.m., Chicago, Illinois
5. March 4, 1998, 1:00 p.m. to 4:00 p.m., Dallas, Texas
6. March 6, 1998, 1:00 p.m. to 4:00 p.m., San Francisco, California

ADDRESSES: Public Comments. All public comments regarding the proposed 
rule shall be submitted by mail to: ``ATTN: Storm Water Proposed Rule 
Comment Clerk--W-97-12, Water Docket, Mail Code 4101, EPA; 401 M 
Street, SW; Washington, DC 20460.'' All public comments regarding the 
proposed amendment to the ICR shall be submitted by mail to: ``ATTN: 
Storm Water Proposed Rule ICR Comment Clerk--W-97-15, Water Docket, 
Mail Code 4101, EPA; 401 M Street, SW, Washington, DC 20460'' and to 
the Office of Information and Regulatory Affairs, Office of Management 
and Budget, 725 17th Street, NW, Washington, D.C. 20503, marked 
``Attention: Desk Officer for EPA.''
    Please submit an original and three copies of your comments and 
enclosures (including references). Commenters who want EPA to 
acknowledge receipt of their comments should enclose a self-addressed, 
stamped envelope. No facsimiles (faxes) will be accepted. Comments may 
also be submitted electronically to <a href="/cdn-cgi/l/email-protection#650a1248010a060e00112500150408040c094b0015044b020a13"><span class="__cf_email__" data-cfemail="fa958dd79e9599919f8eba9f8a9b979b9396d49f8a9bd49d958c">[email protected]</span></a>. 
Electronic comments must be submitted as an ASCII file avoiding the use 
of special characters or forms of encryption. Electronic comments must 
be identified by the docket number (W-97-12 (storm water proposed rule) 
and W-97-15 (storm water proposed rule ICR)). Comments and data will 
also be accepted on disks in WordPerfect in 5.1 format or ASCII file 
format. Electronic comments on this notice may be filed online at many 
Federal Depository Libraries.

[[Page 1537]]

    To ensure that EPA can read, understand and therefore properly 
respond to public comments, EPA would prefer that commenters cite, 
where possible, the paragraph(s) or sections in the proposed rule 
language, preamble or supporting documents to which the comment refers. 
Commenters should use a separate paragraph for each issue discussed.
    Public Hearings. The hearing locations are:

1. Washington, DC--Auditorium of the USEPA Education Center, 401 M St. 
SW, Washington, DC 20460
2. Boston--John A. Volpe National Transportation Systems Center--
Auditorium (Bldg. #2), 55 Broadway--Kendall Square, Cambridge, MA 02142
3. Atlanta--Atlanta Federal Center, (Room C, AFC Conference Center), 61 
Forsyth St. SW, Atlanta, GA 30303-3104
4. Chicago--USEPA Region 5 (Rm 331) 77 W. Jackson Blvd., Chicago, IL 
60604-3590
5. Dallas--USEPA Region 6 (Regional Conference Room, 12th floor), 1445 
Ross Ave., Dallas, TX 75202-2733
6. San Francisco--USEPA Region 9 (Marianas/ Palau Room, First Floor), 
75 Hawthorne Street, San Francisco, CA 94105-3901

    Docket. The complete administrative record for the proposed rule 
and the ICR have been established under docket numbers W-97-12 
(proposed rule) and W-97-15 (ICR), and includes supporting 
documentation as well as printed, paper versions of electronic 
comments. Copies of information in the record are available upon 
request. A reasonable fee may be charged for copying. The record is 
available for inspection and copying from 9 a.m. to 4 p.m., Monday 
through Friday, excluding legal holidays at the Water Docket, EPA, Room 
2616, 401 M Street, SW, Washington, D.C. For access to docket 
materials, please call 202/260-3027 to schedule an appointment.

FOR FURTHER INFORMATION CONTACT: George Utting, Office of Wastewater 
Management, Environmental Protection Agency, Mail Code 4203, 401 M 
Street, SW, Washington, DC 20460; (202) 260-5816; <a href="/cdn-cgi/l/email-protection#a6d5d194e6c3d6c7cbc7cfca88c3d6c788c1c9d0"><span class="__cf_email__" data-cfemail="4d3e3a7f0d283d2c202c242163283d2c632a223b">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Entities potentially regulated by this 
action include:

------------------------------------------------------------------------
                                                Examples of regulated   
                 Category                             entities          
------------------------------------------------------------------------
Federal Government........................  Owners or operators of      
                                             municipal separate storm   
                                             sewer systems.             
Tribal Government.........................  Owners or operators of a    
                                             separate storm sewer       
                                             system, or dischargers of  
                                             storm water associated with
                                             industrial activity.       
State Government..........................  Owners or operators of small
                                             municipal separate storm   
                                             sewer systems.             
Local Government..........................  Owners or operators of small
                                             municipal separate storm   
                                             sewer systems (serving     
                                             populations less than      
                                             100,000) and municipal     
                                             construction and industrial
                                             activities.                
Industry..................................  Owners or operators of      
                                             industrial facilities who  
                                             may be dischargers of storm
                                             water associated with      
                                             industrial or other        
                                             activity.                  
Construction Activity.....................  Construction site owners or 
                                             operators.                 
Public....................................  Persons who may want to     
                                             participate in the petition
                                             process.                   
------------------------------------------------------------------------

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 by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
you are regulated by this action, you should carefully examine the 
applicability criteria in Secs. 122.26(b)(15), 122.31, 122.32, and 
123.35 of the proposed rule. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Table of Contents

I. Background
    A. Water Quality Concerns/Environmental Impacts
    1. Studies and Assessments of Storm Water Runoff
    a. Urban Development
    b. Illicit Discharges
    c. Construction Site Runoff
    d. Improper Disposal of Materials
    B. Statutory Background
    C. EPA's Reports to Congress
    D. EPA Regulations for the NPDES Program for Storm Water
    E. EPA Outreach Efforts
    F. The FACA Committee Effort
    G. Related Nonpoint Source Programs
    1. Section 319 of the Clean Water Act
    2. Section 6217 of the Coastal Zone Act Reauthorization 
Amendments
    H. Watershed-based Approach for Water Quality Programs
II. Description of Proposed Program
    A. Overview
    1. Objectives EPA Seeks to Achieve in Today's Proposal
    2. General Requirements for Regulated Entities Under Today's 
Proposal
    3. Integration of Today's Proposal With the Existing Storm Water 
Program
    4. General Permits
    5. Tool Box
    6. Deadlines Established in Today's Proposal
    B. Readable Regulations
    C. Program Framework
    1. Today's Approach--The NPDES Program Approach
    2. Alternatives Considered
    a. State Alternative Non-NPDES Program
    i. Alternative Overview
    ii. State-Proposed Program Criteria
    iii. Proposed Procedure for Approval and Periodic Review
    iv. Proposed Procedure for Disapproval
    3. Permits Versus Non-Permits
    D. Federal Role
    1. Develop Overall Framework of the Program
    2. Encourage Use of a Watershed Approach
    3. Provide Financial Assistance
    4. Implement the Program for Non-NPDES Authorized States, 
Tribes, and Territories
    5. Oversee State Programs
    6. Comply with Applicable Requirements as a Discharger
    E. State Role
    1. Develop the Program
    2. Comply With Applicable Requirements as a Discharger
    3. Communicate with EPA
    F. Tribal Role
    1. Background
    a. EPA's Indian Policy
    b. Existing NPDES Regulations for Storm Water
    2. Today's Proposal
    3. Other Relevant Issues
    G. NPDES Permitting Authority's Role for the CWA section 
402(p)(6) Municipal Program
    1. Comply With Other Requirements
    2. Designate Sources
    a. Develop Designation Criteria
    b. Apply Designation Criteria
    c. Designate Physically Interconnected Municipal Separate Storm 
Sewer Systems
    d. Address Public Petition for Designation
    3. Provide Waivers
    4. Issue Permits
    5. Support and Oversee the Local Programs
    H. Municipal Role
    1. Scope of Today's Proposal
    2. Municipal Definition
    a. Nationwide (``Automatic'') Designation
    i. Urbanized Area Description
    ii. Urbanized Area Profiles
    iii. Rationale for Using Urbanized Areas
    b. Municipal Designation by the Permitting Authority
    c. Waiving the Requirements for Regulated Small Municipal 
Separate Storm Sewer Systems
    i. Combined Sewer Systems

[[Page 1538]]

    d. Designation Alternatives Considered--Preliminary Options
    i. Designation Option 1
    ii. Designation Option 2
    iii. Designation Option 3
    3. Municipal Permit Requirements
    a. Program Requirements--Minimum Control Measures
    i. Public Education and Outreach on Storm Water Impacts
    ii. Public Involvement/Participation
    iii. Illicit Discharge Detection and Elimination
    iv. Construction Site Storm Water Runoff Control
    v. Post-Construction Storm Water Management in New Development 
and Redevelopment
    vi. Pollution Prevention/Good Housekeeping for Municipal 
Operations
    vii. Satisfaction of Minimum Measure Obligations
    b. Application Requirements, Including Notice of Intent
    c. Evaluation and Assessment
    i. Record Keeping
    ii. Reporting
    iii. Permit-As-A-Shield
    d. Other Applicable NPDES Requirements
    e. Enforceability
    f. Deadlines
    g. Reevaluation of Rule
    I. Other Designated Storm Water Discharges
    1. Background
    2. Construction
    a. Scope
    b. Waivers
    c. Permit Process and Administration
    d. Cross-Referencing State/Local Erosion and Sediment Control 
Programs
    e. Alternative Approaches
    3. Other Sources
    4. Residual Designation Authority
    J. Conditional Exemption for ``No Exposure'' of Industrial 
Activities and Materials to Storm Water
    1. Background
    2. Definition of ``No Exposure''
    3. Options Considered
    K. Public Involvement/Public Role
    L. Water Quality Issues
    1. Water Quality Standards
    a. Permitting Policy
    2. Total Maximum Daily Loads (TMDLs)
    3. Anti-backsliding
    4. Monitoring
III. Paperwork Reduction Act
IV. Executive Order 12866
V. Unfunded Mandates Reform Act/Executive Order 12875
    A. UMRA Section 202 Written Statement
    B. Description of Intergovernmental Consultation
    C. Selection of the Least Costly, Most Cost-Effective or Least 
Burdensome Alternative That Achieves the Objectives of the Statute
    D. Small Government Agency Plan
VI. Executive Order 12898
VII. Regulatory Flexibility Act
    A. Economic Impact on Small Entities
    B. SBREFA Panel Process
VIII. National Technology Transfer and Advancement Act

    Legal Authority: 33 U.S.C. 1311; 33 U.S.C. 1342; 33 U.S.C. 1361.
    CFR Citation: 40 CFR 122; 40 CFR 123.

I. Background

A. Water Quality Concerns/Environmental Impacts

    In 1972, Congress amended the Federal Water Pollution Control Act 
(referred to as the Clean Water Act (CWA)) to prohibit the discharge of 
any pollutant to waters of the United States from a point source unless 
the discharge is authorized by a National Pollutant Discharge 
Elimination System (NPDES) permit. The NPDES program is a permit 
program designed to regulate point source discharges.
    Initial efforts to improve water quality under the NPDES program 
primarily focused on reducing pollutants in industrial process 
wastewater and municipal sewage. This focus developed because many 
sources of industrial process wastewater and municipal sewage were not 
adequately controlled and represented immediate and pressing 
environmental problems. Furthermore, these discharges were easily 
identified as responsible for poor, often drastically degraded, water 
quality conditions.
    As pollution control measures for industrial process wastewater and 
municipal sewage were further developed, refined, and implemented, it 
became increasingly evident that more diffuse sources of water 
pollution were significant causes of water quality impairments. 
Specifically, storm water runoff draining large surface areas, such as 
agricultural and urban land, was found to be a major cause of adverse 
water quality impairment, including nonattainment of designated uses. 
In 1987, Congress amended the CWA to require implementation of a 
comprehensive approach for addressing storm water discharges under the 
NPDES program. Storm water discharges have a number of environmental 
effects that can occur from land development, illicit discharges, 
construction site runoff, and improper disposal of materials. The 
following section entitled, Studies and Assessments of Storm Water 
Runoff, discusses these four issues. Problems can also occur from 
agricultural storm water discharges and return flows from irrigated 
agriculture. This area of concern, however, is statutorily exempted 
from regulation under the NPDES program (see CWA section 502(14)). 
Other sources may be of concern in certain areas and can be addressed 
on a case-by-case (or category-by-category) basis through the NPDES 
permitting authority's designation authority.
    Storm water runoff from lands modified by human activities can harm 
surface water resources, and, in turn, violate water quality standards, 
in two ways: (1) by changing natural hydrologic patterns and (2) by 
elevating pollutant concentrations and loadings. Storm water runoff may 
contain or mobilize high levels of contaminants, such as sediment, 
suspended solids, nutrients, heavy metals, pathogens, toxins, oxygen-
demanding substances, and floatables. Such contaminants are carried to 
nearby streams, rivers, lakes, and estuaries. Individually and 
combined, these pollutants can reduce water quality and threaten one or 
more designated beneficial uses. Often, an increased volume of runoff 
or contaminants can lead to violations of applicable State water 
quality standards.
1. Studies and Assessments of Storm Water Runoff
a. Urban Development
    In support of today's proposal regarding land development, the 
United States Environmental Protection Agency (EPA) has relied on 
several broad-based assessments of storm water runoff and related water 
quality impacts, including: (1) Nationwide Urban Runoff Program (NURP) 
study (U.S. Environmental Protection Agency, Office of Water 1983. 
Final Report of the Nationwide Urban Runoff Program Washington, D.C.), 
(2) America's Clean Water--The States' Nonpoint Source Assessment 
(Association of State and Interstate Water Pollution Control 
Administrators 1985. America's Clean Water--The States' Nonpoint Source 
Assessment. Prepared in cooperation with the U.S. Environmental 
Protection Agency, Office of Water, Washington, D.C.), (3) U.S. 
Geological Survey Urban-Storm Water Data Base for 22 Metropolitan Areas 
Throughout the United States (Driver, N.E., Mustard, M.H., Rhinesmith, 
R.B. and Middleburg, R.F. 1985. U.S. Geological Survey Urban Storm 
Water Data Base for 22 Metropolitan Areas Throughout the United States. 
U.S. Geological Survey Report No. 85-337, Lakewood, CO.), and (4) The 
National Water Quality Inventory, 1994 Report to Congress (U.S. 
Environmental Protection Agency, Office of Water 1995. National Water 
Quality Inventory: 1994 Report to Congress Washington, D.C. EPA 841-R-
95-005.) These studies, which provide important data regarding storm 
water runoff and associated pollutant loads, are briefly discussed 
below. (For an extensive summary and review of storm water research, 
see Makepeace, D.K., Smith, D.W., and S.J. Stanley 1995.

[[Page 1539]]

``Urban Storm Water Quality: Summary of Contaminant Data.'' Critical 
Reviews in Environmental Science and Technology, 25(2):93-139.).
    The Nationwide Urban Runoff Program (NURP) study, which was 
conducted to facilitate understanding of the nature of urban runoff 
from residential, commercial, and industrial areas, is the largest 
study of storm water undertaken to date. One focus of the NURP study 
was to characterize the water quality of discharges from separate storm 
sewer systems that drain residential, commercial, and light industrial 
(industrial parks) sites. Storm water samples from 81 residential and 
commercial properties in 22 urban/suburban areas nationwide were 
collected and analyzed during a 5-year period, between 1978 and 1983. 
The majority of samples collected in the study were analyzed for eight 
conventional pollutants and three metals.
    Data collected under the NURP study indicated that discharges from 
separate storm sewer systems draining runoff from residential, 
commercial, and light industrial areas carried more than ten times the 
level of total suspended solids (TSS) on an annual loading basis, as 
discharges from municipal sewage treatment plants that provide 
secondary treatment. The study compared TSS in runoff from residential 
and commercial sites (180 mg/l) with TSS in effluent from treatment 
plants providing secondary treatment (25 mg/l). The NURP study also 
indicated that runoff from residential and commercial areas carried 
somewhat higher annual loadings of chemical oxygen demand (COD), total 
lead, and total copper compared to effluent from secondary treatment 
plants.
    When analyzing annual loadings associated with storm water runoff, 
it is important to note that discharges associated with urban runoff 
are highly intermittent and that short-term loadings may have shock 
loading effects on receiving water, such as low dissolved oxygen 
levels. NURP study findings also showed that fecal coliform counts in 
urban runoff are typically in the tens to hundreds of thousands per 
hundred milliliter of runoff during warm weather conditions, although 
the study suggested that fecal coliform may not be the most appropriate 
indicator organism for identifying potential health risks in storm 
water runoff.
    Monitoring data summarized in the NURP study provide important 
information about urban runoff from residential, commercial, and light 
industrial areas. The NURP study did conclude, however, that the 
quality of urban runoff can be adversely affected by several sources of 
pollution that were not directly evaluated in the study, including 
illicit discharges, construction site runoff, and illegal dumping. The 
findings of the NURP study were reinforced by findings reported in a 
study entitled, U.S. Geological Survey-Storm Water Data Base for 22 
Metropolitan Areas Throughout the United States (Driver et al., 1985). 
This report summarized monitoring data compiled during the mid-1980s, 
covering 717 storm events at 99 sites in 22 metropolitan areas. In sum, 
the U.S. Geological Survey (USGS) monitoring most consistently observed 
problems of metals and sediment concentrations in urban storm water 
runoff.
    The report entitled, America's Clean Water--the States' Nonpoint 
Source Assessment (ASIWPCA, 1985), is a comprehensive study of diffuse 
pollution sources. Conducted under the sponsorship of the Association 
of State and Interstate Water Pollution Control Administrators 
(ASIWPCA) and EPA, the study revealed that 38 States reported urban 
runoff as a major cause of designated beneficial use impairment and 21 
States reported storm water runoff from construction sites as a major 
cause of use impairment.
    The National Water Quality Inventory, 1994 Report to Congress (U.S. 
EPA, 1995b) provides a national assessment of water quality, based on 
biennial reports submitted by the States under 305(b) of the CWA. In 
the 305(b) reports, States, Tribes, and Territories assess their 
individual water quality control programs by examining attainment or 
nonattainment of designated uses. A designated use is the legally 
applicable use specified in a water quality standard for a watershed, 
waterbody, or segment of a waterbody. As such, each 305(b) report must 
indicate the fraction of a States' waters that are fully supporting, 
partially supporting, or not supporting designated beneficial uses. 
Designated uses include support of aquatic life or water-contact 
recreation.
    The 1994 Report to Congress--based on a compilation of 60 
individual 305(b) reports submitted by States, Tribes, and 
Territories--assessed the following percentages of total waters 
nationwide: 17 percent of river and stream miles, 42 percent of lake, 
pond, and reservoir acres, and 78 percent of estuary square miles. In 
waterbodies where designated beneficial uses were not being met, 
States, Tribes, and Territories first identified and then assigned 
water quality impairments based on the following categories of sources: 
diffuse sources, industrial process wastewaters and municipal sewage, 
combined sewer overflows, and natural and other sources.
    Leading sources of water quality impairment nationwide identified 
in the report include diffuse sources (i.e., urban storm water runoff--
runoff from agricultural and urban sources, construction sites, land 
disposal of waste, and resource extraction), industrial process 
wastewaters, and municipal point sources. The report identified 
industrial process wastewaters as a leading source of pollution for 11 
percent of impaired acres of lakes, ponds, and reservoirs and for 27 
percent of acres of estuaries. The report cited municipal point sources 
as a leading source of pollution for 17 percent of impaired rivers and 
streams, 19 percent of impaired lakes, ponds, and reservoirs, and 39 
percent of impaired estuaries. The report further assessed pollution 
from diffuse sources, including storm water runoff from agricultural 
and urban sources, construction sites, land disposal of waste, and 
resource extraction and indicated that diffuse sources were a leading 
cause of impaired waters, as follows. Twelve percent of rivers and 
streams were impaired by urban runoff/storm sewers, and 11 percent were 
impaired by resource extraction. Eighteen percent of lakes, ponds, and 
reservoirs impaired by urban runoff/storm sewers, and 11 percent were 
impaired by land disposal of wastes. Forty-six percent of estuaries 
were impaired by urban runoff/storm sewers, and 13 percent were 
impaired by land disposal of wastes. It should be noted that storm 
water runoff from urban areas contributes a much broader range of 
pollutants than the section 305(b) reports are intended to evaluate.
b. Illicit Discharges
    Studies have shown that storm water discharges from separate storm 
sewer systems often include wastes and wastewater from non-storm water 
sources, commonly referred to as illicit discharges. These discharges 
are ``illicit'' because the storm sewer systems are not designed to 
accept and discharge, or to process, such wastes. These discharges 
would be required to be permitted under the CWA. As a result, illicit 
discharges to separate storm sewer systems can create severe widespread 
contamination and water-quality problems. A particular problem involves 
illicit discharges of sanitary wastes that can be directly linked to 
high bacterial counts in receiving waters and can be dangerous to 
public health.
    The NURP study, discussed previously, determined that during

[[Page 1540]]

substantial dry periods, many storm water outfalls continue to 
discharge to receiving waterbodies. Pollutant levels in these flows, 
which are commonly referred to as dry weather flows, were shown to be 
high enough to significantly degrade receiving water quality.
    The Ann Arbor and Ypsilanti water quality projects inspected 660 
businesses, homes, and other buildings and identified 14 percent of the 
buildings as having improper storm sewer drain connections. The program 
assessment revealed that, on average, 60 percent of automobile-related 
businesses, including service stations, automobile dealerships, car 
washes, body shops, and light industrial facilities, had illicit 
connections to storm sewer drains. The program assessment also showed 
that a majority of the illicit discharges to the storm sewer system 
resulted from improper plumbing and connections, which had been 
approved by the municipality when installed. (Huron River Pollution 
Abatement Program, Washtenaw County Statutory Drainage Board, 1987.)
    Inflows from aging sanitary sewer collection systems are another 
illicit discharge-related problem. Sanitary sewer systems frequently 
develop leaks and cracks resulting in discharges of pollutants to 
receiving waters through separate storm sewers. These pollutants 
include sanitary waste and sewer main construction materials (e.g., 
asbestos cement, brick, cast iron, vitrified clay). Municipalities have 
long recognized the problems of storm water infiltration into sanitary 
sewer collection systems, because this type of infiltration often 
disrupts the operation of the municipal sewage treatment plant. 
However, the reverse problem of sewage exfiltration out of the sanitary 
sewer collection system into the storm water collection system can 
occur during dry weather periods.
c. Construction Site Runoff
    Storm water discharges generated during construction activities can 
cause an array of water quality impacts. Specifically, the biological, 
chemical, and physical integrity of the waters may become severely 
compromised. Water quality impairment results, in part, because a 
number of pollutants are preferentially absorbed onto mineral or 
organic particles found in fine sediment. The interconnected process of 
erosion (detachment of the soil particles), sediment transport and 
delivery is the primary pathway for introducing key pollutants, such as 
nutrients (particularly phosphorus), metals, and organic compounds into 
aquatic systems (Novotny, V. and G. Chesters. 1989. ``Delivery of 
Sediment and Pollutants from Nonpoint Sources: A Water Quality 
Perspective.'' Journal of Soil and Water Conservation, 44(6): 568-
576.). Estimates indicate that 80 percent of the phosphorus and 73 
percent of the Kjeldahl nitrogen in streams is associated with eroded 
sediment (USDA. 1989. The Second RCA Appraisal, Soil, Water and Related 
Resources on Nonfederal Land in the United States, Analysis of 
Condition and Trends, cited in Fennessey, L.A.J., and A.R. Jarrett. 
1994. ``The Dirt in a Hole: a Review of Sedimentation Basins for Urban 
Areas and Construction Sites.'' Journal of Soil and Water Conservation, 
49(4): 317-323.).
    In watersheds experiencing intensive construction activity, the 
localized impacts of water quality may be severe because of high 
pollutant loads, primarily sediments. Siltation is the second largest 
cause of impaired water quality in rivers and lakes (U.S. EPA, 1995b, 
p. ES-8.). Introduction of coarse sediment (coarse sand or larger) or a 
large amount of fine sediment is also a concern because of the 
potential of filling lakes and reservoirs (along with the associated 
remediation costs for dredging), as well as clogging stream channels 
(e.g., Paterson, R.G., Luger, M.I., Burby, E.J., Kaiser, E.J., Malcolm, 
H.R., and A.C. Beard. 1993. ``Costs and Benefits of Urban Erosion and 
Sediment Control: North Carolina Experience.'' Environmental 
Management, 17(2):167-178.). Large inputs of coarse sediment into 
stream channels will initially reduce stream depth and minimize habitat 
complexity by filling in pools (U.S. Environmental Protection Agency. 
1991. Monitoring Guidelines to Evaluate Effects of Forestry Activities 
on Streams in the Pacific Northwest and Alaska. Seattle, WA: Region 10, 
Water Division. 166 pp. EPA/910/9-91-001.). In addition, studies have 
shown that stream reaches affected by construction activities often 
extend well downstream of the construction site. For example, between 
4.8 and 5.6 kilometers of stream below construction sites in the 
Patuxent River watershed were observed to be impacted by sediment 
inputs (Fox, H.L. 1974. Effects of Urbanization on the Patuxent River, 
with Special Emphasis on Sediment Transport, Storage, and Migration. 
Ph.D. Dissertation, Johns Hopkins University, Baltimore, Maryland, 276 
pp. as cited in Klein, R.D. 1979. ``Urbanization and Stream Quality 
Impairment.'' Water Resources Bulletin, 15(4): 948-963.).
    A primary concern at most construction sites is the erosion and 
transport process related to fine sediment because rain splash, rills 
(i.e., a channel small enough to be removed by normal agricultural 
practices and typically less than 1 foot deep), and sheetwash 
(California Storm Water Best Management Practice Handbooks--
Construction Activity, Blue Print Service, Oakland, CA.) encourage the 
detachment and transport of this material to waterbodies. Forest road 
construction sites in steep areas or along stream banks, however, may 
initiate landslides, debris flows, or other types of mass wasting 
events (Megahan, W.F. 1984. ``Road Effects and Impacts--Watershed.'' In 
Proceedings, Forest Transportation Symposium, USDA Forest Service 
Region 2, Lakewood, CO. pp, 57-97). In these cases, coarse sediment 
inputs may be of greatest concern. Construction sites can also generate 
other pollutants associated with wastes onsite such as sanitary wastes 
or concrete truck washout.
    Although streams and rivers naturally carry sediment loads, erosion 
from construction sites and runoff from developed areas can elevate 
these loads to levels well above those in undisturbed watersheds. It is 
generally acknowledged that erosion rates from construction sites are 
much greater than from almost any other land use (Novotny, V. and H. 
Olem. 1994. Water Quality: Prevention, Identification, and Management 
of Diffuse Pollution. Van Nostrand Reinhold, NY. p. 36.). Results from 
both field studies and erosion models indicate that erosion rates from 
construction sites are typically an order of magnitude larger than row 
crops and several orders of magnitude greater than rates from well-
vegetated areas, such as forests or pastures (U.S. Department of 
Agriculture, Soil Conservation Service. 1970. Controlling Erosion on 
Construction Sites. Agriculture Information Bulletin, Washington, D.C. 
32 pp.; Meyer, L.D., Wischmeier, W.H., and W.H. Daniel. 1971. 
``Erosion, Runoff and Revegetation of Denuded Construction Sites.'' 
Transactions of the ASAE, 14(1):138-141; Owen, O.S. 1975. Natural 
Resource Conservation. MacMillan, New York as cited in Paterson, R.G., 
Luger, M.I., Burby, R.J., Edward, J.K., Malcom, H.R., and A.C. Beard. 
1993. ``Costs and Benefits of Urban Erosion and Sediment Control: The 
North Carolina Experience.'' Environmental Management, 17(2): 167-
178.). Wolman and Schick (Wolman, M.G. and A.P. Schick. 1967. ``Effects 
of Construction on Fluvial Sediment, Urban and Suburban Areas of 
Maryland.'' Water Resources Research, 3(2): 451-464) studied the 
impacts of development on fluvial systems in

[[Page 1541]]

Maryland and determined that sediment yields in areas undergoing 
construction were 1.5 to 75 times greater than detected in natural or 
agricultural catchments. The authors summarize the potential impacts of 
construction on sediment yields by stating that ``the equivalent of 
many decades of natural or even agricultural erosion may take place 
during a single year from areas cleared for construction.'' (Wolman and 
Schick, 1967)
    Similar impacts from storm water runoff have been reported in a 
number of other studies. For example, Daniel et al. monitored three 
residential construction sites in southeastern Wisconsin and determined 
that annual sediment yields were more than 19 times the yields from 
agricultural areas (Daniel, T.C., McGuire, D., Stoffel, D., and B. 
Miller. 1979. ``Sediment and Nutrient Yield from Residential 
Construction Sites.'' Journal of Environmental Quality, 8(3): 304-
308.). Studies have examined the effects of road construction on 
erosion rates and sediment yields in forested areas. In northern Idaho, 
the erosion rate per unit area of surface cleared for logging road 
construction averaged 220 times the erosion rate of undisturbed areas 
over a 6-year period (Megahan, W.F., and W.J. Kidd. 1972. Effects of 
Logging Roads on Sediment Production Rates in the Idaho Batholith. USDA 
Forest Service Research Paper INT-123, Odgen, UT. 14pp.). Other studies 
have documented increased surface erosion following logging road 
construction, but at increases smaller than the 220-fold increase 
reported in the 1972 study (Megahan, 1984).
    A highway construction project in West Virginia disturbed only 4.2 
percent of a 4.72 square mile basin, but resulted in a three-fold 
increase in suspended sediment yields (Downs, S.C., and D.H. Appel. 
Progress Report on the Effects of Highway Construction on Suspended-
Sediment Discharge in the Coal River and Trace Fork, West Virginia. 
U.S. Geological Survey Water Resources Investigations Report 84-4275, 
Charleston, WV. 20pp.). During the largest storm event, it was 
estimated that 80 percent of the sediment in the stream originated from 
the construction site. As is often the case, the increase in suspended 
sediment load could not be detected further downstream, where the 
drainage area was more than 50 times larger (269 sq. mi.). Another 
study evaluated the effect of 290 acres of highway construction on 
watersheds ranging in size from 5 to 38 square miles. Suspended 
sediment loads in the smallest watershed increased by 250 percent, and 
the estimated sediment yield from the construction area was 37 tons/
acre over a 2-year period (Hainly, R.A. 1980. The Effects of Highway 
Construction on Sediment Discharge into Blockhouse Creek and Stream 
Valley Run, Pennsylvania. U.S. Geological Survey Water Resources 
Investigations Report 80-68, Harrisburg, PA. 50pp.). A more recent 
study in Hawaii showed that highway construction increased suspended 
sediment loads by 56 to 76 percent in three small (1 to 4 sq. mi.) 
basins (Hill, B.R. 1996. Streamflow and Suspended-Sediment Loads Before 
and During Highway Construction, North Halawa, Haiku, and Kamooalii 
Drainage Basins, Oahu, Hawaii, 1983-91. U.S. Geological Survey Water 
Resources Investigations Report 96-4259, Honolulu, HI. 34pp.) A 1970 
study determined that sediment yields from construction areas can be as 
much as 500 times the levels detected in rural areas (National 
Association of Counties Research Foundation. 1970. Urban Soil Erosion 
and Sediment Control. U.S. Department of the Interior, Federal Water 
Quality Administration, Water Pollution Control Research Series, 
Program #15030 DTL, Washington, D.C.)
    Yorke and Herb (Yorke, T.H., and W.J. Herb. 1978. Effects of 
Urbanization on Streamflow and Sediment Transport in the Rock Creek and 
Anacostia River Basins, Montgomery County, Maryland, 1962-74. U.S. 
Geological Survey Professional Paper 1003, Washington, DC.) evaluated 
nine subbasins in the Maryland portion of the Anacostia watershed for 
more than a decade in an effort to define the impacts of changing land 
use/land cover on sediment in runoff. Average annual suspended sediment 
yields for construction sites ranged from 7 to 100 tons/acre. Daniel et 
al. (Daniel et al., 1979) identified total storm runoff, followed by 
peak storm runoff, as the most influential factors controlling the 
sediment loadings from residential construction sites.
    Storm water discharges from construction sites that occur when the 
land area is disturbed (and prior to surface stabilization) can 
severely impact designated uses. Examples of designated uses include 
public water supply, recreation, and propagation of fish and wildlife. 
The siltation process described previously can threaten all three 
designated uses by (1) depositing high concentrations of pollutants in 
public water supplies, (2) decreasing the depth of a waterbody which 
can result in its limited use by boaters, swimmers, and other 
recreational enthusiasts, and (3) directly impacting the habitat of 
fish and other aquatic species which can limit their ability to 
reproduce. Excess sediment can cause a number of other problems for 
waterbodies. It is associated with increased turbidity and reduced 
light penetration in the water column, as well as more long-term 
effects associated with habitat destruction and increased difficulty in 
filtering drinking water.
    Numerous studies have examined the effect that excess sediment has 
on aquatic ecosystems. For example, sediment from road construction 
activity in Northern Virginia reduced aquatic insect and fish 
communities by up to 85 percent and 40 percent, respectively (Reed, 
J.R. 1997. Stream Community Responses to Road Construction Sediments. 
Bulletin No. 97. Virginia Water Resources Research Center, Virginia 
Polytechnic Institute, Blacksburg, Virginia, as cited in Klein, R.D. 
1990. A Survey of Quality of Erosion and Sediment Control and Storm 
Water Management in the Chesapeake Bay Watershed. Chesapeake Bay 
Foundation, Annapolis, MD.) Other studies have shown that fine sediment 
(fine sand or smaller) adversely affects aquatic ecosystems by reducing 
light penetration, impeding sight-feeding, smothering benthic 
organisms, abrading gills and other sensitive structures, reducing 
habitat by clogging interstitial spaces within a streambed, and 
reducing the intergravel dissolved oxygen by reducing the permeability 
of the bed material (Everest, F.H., Beschta, J.C., Scrivener, K.V., 
Koski, J.R., Sedell, J.R., and C.J. Cederholm. 1987. ``Fine Sediment 
and Salmonid Production: A Paradox.'' Streamside Management: Forestry 
and Fishery Interactions, Contract No. 57, Institute of Forest 
Resources, University of Washington, Seattle, WA. pp.98-142. For 
example, 4.8 and 5.6 kilometers of stream below construction sites in 
the Patuxent River watershed in Maryland were found to have fine 
sediment amounts 15 times greater than normal (Fox, 1974 as cited in 
Klein, 1979). Benthic organisms in the streambed can be smothered by 
sediment deposits, causing changes in aquatic flora and fauna such as 
fish species composition (Wolman and Schick, 1967). In addition, the 
primary cause of coral reef degradation in coastal areas is attributed 
to land disturbances and dredging activities due to urban development 
(Rogers, C.S. 1990. ``Responses of Coral Reefs and Reef Organizations 
to Sedimentation.'' Marine Ecology Progress Series, 62:185-202.).
    While most of the published data are from construction sites larger 
than 5 acres, there are no compelling reasons why erosion rates and 
sediment yields from smaller (less than 5 acres)

[[Page 1542]]

construction sites should be substantially different than those from 
larger (more than 5 acres) construction sites. The limited amount of 
data suggests that sediment yields from small sites are as high as or 
higher than the 20 to 150 tons/acre/year measured from larger sites 
(MacDonald, L.H. 1997. Technical Justification for Regulating 
Construction Sites 1-5 Acres in Size. Unpublished report submitted to 
the U.S. Environmental Protection Agency, Washington, DC. 28 pp.) 
Furthermore, logic suggests that the cumulative effects of numerous 
small sites will have impacts similar to those of larger sites in a 
particular area.
    The expected contribution of small sites to total sediment yields 
depends, in part, on the extent to which erosion and sedimentation 
controls are being applied. Current storm water regulations require 
erosion and sedimentation controls on larger sites in urban areas which 
suggests that in the absence of any erosion and sedimentation controls 
smaller construction sites contribute a disproportionate amount of the 
total sediment from construction activities (MacDonald, 1997). Another 
view that supports the need for controls on smaller construction sites 
is that smaller sites are less likely to have an effective plan to 
control erosion and sedimentation, that these plans are less likely to 
be properly implemented and maintained, and that small sites are less 
likely to be inspected (Brown, W. and D. Caraco. 1997. Controlling 
Storm Water Runoff Discharges from Small Construction Sites: A National 
Review. Submitted to the U.S. Environmental Protection Agency, Office 
of Wastewater Management, Washington, DC. by the Center for Watershed 
Protection, Silver Spring, MD). Sediment delivery in urban areas should 
produce little difference between larger and smaller construction sites 
because the runoff from either site is usually delivered directly to 
the storm drain network.
    Any assessment of impacts from smaller construction sites should 
consider the proportion of a particular area that is associated with 
small construction activity. Brown and Caraco (Brown and Caraco, 1997) 
surveyed 219 local jurisdictions to assess erosion and sediment control 
(ESC) programs. Seventy respondents provided data on the number of ESC 
permits for construction sites smaller than 5 acres. In 27 cases (38 
percent of the respondents), more than three-quarters of the permits 
were for sites smaller than 5 acres; in another 18 cases (26 percent), 
more than half of the permits were for sites smaller than 5 acres.
    In addition, data on the total acreage disturbed by smaller 
construction sites have been collected recently in two States 
(MacDonald, 1997). The most recent and complete data set is the listing 
of the disturbed area for each of the 3,831 construction sites 
permitted in North Carolina for 1994-1995 and 1995-1996. Nearly 61 
percent of the sites that were 1 acre or larger were between 1.0 and 
4.9 acres in size. This proportion was consistent between years. Data 
showed that this range of sites accounted for 18 percent of the total 
area disturbed by construction. The values showed very little variation 
between the 2 years of data. The total disturbed area for all sites 
over this 2-year period was nearly 33,000 acres, or about 0.1 percent 
of the total area of North Carolina.
    As in many metropolitan areas, nine counties in the San Francisco 
Bay area only require ESC permits for sites larger than 5 acres. Nearly 
70 percent of the 542 permits issued in the Bay area during the last 3 
years were for sites between 5 and 25 acres in size. Conversations with 
several municipalities indicate that there may be as many as five 
construction sites smaller than 5 acres for every site larger than 5 
acres (MacDonald, 1997). Given the available data, MacDonald (1997) 
estimates that construction sites less than 5 acres probably account 
for slightly less than one-third of the total area under construction. 
Regulating construction sites 1 to 5 acres in size will probably 
increase the amount of area being regulated by approximately 20 to 30 
percent. Given the high erosion rates associated with most construction 
sites, this indicates that small construction sites can be a 
significant source of water quality impairment, particularly in small 
watersheds that are undergoing rapid development.
d. Improper Disposal of Materials
    Improper disposal of materials may result in contaminated 
discharges from separate storm sewer systems in two ways. First, 
materials may be disposed of directly in a catch basin or other storm 
water conveyance. Second, materials disposed of on the ground may 
either drain directly to a storm sewer or be washed into a storm sewer 
during a storm event. Improper disposal of materials to street 
catchbasins and other storm sewer inlets often occurs because many 
people mistakenly believe that disposal to such areas is an 
environmentally sound practice. Part of the confusion may occur because 
some areas are served by combined sewer systems, which are part of the 
sanitary sewer collection system, and people assume that materials 
discharged to a catchbasin will reach an appropriate municipal sewage 
treatment plant. Materials that are commonly disposed of improperly 
include used oil; household toxic materials; radiator fluids; and 
litter, such as disposable cups, cans, and fast-food packages. EPA 
believes that there has been increasing success in addressing these 
problems through alternatives such as recycling and household pickup 
programs.

B. Statutory Background

    In 1972, Congress enacted the CWA to prohibit the discharge of any 
pollutant to waters of the United States from a point source unless the 
discharge is authorized by an NPDES permit. Congress added CWA section 
402(p) in 1987 to require implementation of a comprehensive approach 
for addressing storm water discharges. Section 402(p)(1) prohibits EPA 
or NPDES-authorized States or Tribes from requiring NPDES permits for 
discharges composed entirely of storm water (``storm water 
discharges'') until October 1, 1992, except for the following five 
classes of storm water discharges specifically listed under section 
402(p)(2):

(A) a discharge subject to an NPDES permit before February 4, 1987
(B) a discharge associated with industrial activity
(C) a discharge from a municipal separate storm sewer system serving a 
population of 250,000 or more
(D) a discharge from a municipal separate storm sewer system serving a 
population of 100,000 or more but less than 250,000
(E) a discharge that an NPDES permitting authority determines to be 
contributing to a violation of a water quality standard or a 
significant contributor of pollutants to the waters of the United 
States.

The October 1992 deadline was later extended to October 1, 1994, by the 
Water Resources Development Act of 1992.
    Congress clarified and amended the requirements for NPDES permits 
for storm water discharges in section 402(p)(3)(A). This section 
requires storm water discharges associated with industrial activity to 
meet all applicable provisions of section 402 and section 301 of the 
CWA, including technology-based requirements and any more stringent 
requirements necessary to meet water quality standards. Section 
402(p)(3)(B) establishes NPDES permit standards for discharges from 
municipal separate storm sewer systems. NPDES permits for discharges 
from municipal

[[Page 1543]]

separate storm sewer systems (1) may be issued on a system or 
jurisdiction-wide basis, (2) must include a requirement to effectively 
prohibit non-storm water discharges into the storm sewers, and (3) must 
require controls to reduce pollutant discharges to the maximum extent 
practicable, including best management practices. As with all point 
source discharges under the CWA, storm water discharges are subject to 
more stringent limitations when necessary to meet applicable water-
quality based standards pursuant to CWA section 301(b)(1)(C).
    In CWA section 402(p)(4), Congress established statutory deadlines 
for the initial steps in implementing the NPDES program for storm 
water. This section required development of NPDES permit application 
regulations, submission of NPDES permit applications, issuance of NPDES 
permits sources covered by section 402(p)(2), and compliance with NPDES 
permit conditions. This section instructed EPA to issue regulations 
specifying NPDES permitting application requirements by February 4, 
1989. In addition, this section required industrial facilities and 
large municipal separate storm sewer systems to submit NPDES permit 
applications by February 4, 1990. Medium municipal separate storm sewer 
systems were to submit NPDES permit applications by February 4, 1992. 
EPA was required to issue or deny all NPDES permits 1 year after each 
of the respective deadlines, and facilities must comply with all permit 
conditions within 3 years of final NPDES permit issuance. All other 
storm water discharges fell under the statutory moratorium for the 
requirement for an NPDES permit. EPA and authorized NPDES States were 
prohibited from requiring a permit for such sources until October 1, 
1994.
    Congress granted extensions to the NPDES permit application process 
for selected classes of discharges associated with industrial activity. 
On December 18, 1991, Congress enacted the Intermodal Surface 
Transportation Efficiency Act (ISTEA), which extended NPDES permit 
application deadlines for most storm water discharges associated with 
industrial activity from facilities that are owned or operated by 
certain municipalities. EPA and States authorized to administer the 
NPDES program could not require any municipality with a population of 
less than 100,000 to apply for or obtain an NPDES permit for any storm 
water discharge associated with industrial activity prior to October 1, 
1992, except for storm water discharges from an airport, power plant, 
or uncontrolled sanitary landfill. See 40 CFR 122.26(e)(1); 57 FR 
11524, April 2, 1992 (reservation of NPDES application deadlines for 
ISTEA facilities).

C. EPA's Reports to Congress

    Under CWA section 402(p)(5), EPA, in consultation with the States, 
was required to conduct a study, first, to identify unregulated sources 
of storm water discharges, as well as to determine the nature and 
extent of pollutants in such discharges. Second, the study was to 
establish procedures and methods of control of such discharges to the 
extent necessary to mitigate impacts on water quality. Section 
402(p)(5) also required EPA to report the results of the first two 
components of that study to Congress by October 1, 1988, and the final 
report by October 1, 1989.
    In March 1995, EPA submitted a report wherein EPA reviewed and 
analyzed municipal and industrial facilities not already regulated 
under the initial NPDES regulations for storm water (U.S. Environmental 
Protection Agency, Office of Water. 1995. Storm Water Discharges 
Potentially Addressed by Phase II of the National Pollutant Discharge 
Elimination System Storm Water Program: Report to Congress. Washington, 
D.C. EPA 833-K-94-002). The report also analyzed associated pollutant 
loadings and water quality impacts from these unregulated sources. 
Based on identification of unregulated municipal sources and analysis 
of information on impacts of storm water discharges from municipal 
sources, the report recommended that the storm water program focus on 
the 405 ``urbanized areas'' identified by the Bureau of the Census. The 
report further found that a number of discharges from unregulated 
industrial facilities warranted further investigation to determine the 
need for regulation. The report classified these unregulated industrial 
discharges in two groups, Group A and Group B. Group A included sources 
that may be considered a high priority for inclusion in the NPDES 
program for storm water because discharges from these sources are 
similar or identical to regulated sources. These ``look alike'' sources 
were not regulated in the initial NPDES regulations for storm water due 
to the language used to define ``associated with industrial activity.'' 
In the initial regulations for storm water, ``industrial activity'' is 
identified using Standard Industrial Classification (SIC) codes. The 
use of SIC codes lead to incomplete categorization of industrial 
activities with discharges that needed to be regulated to protect water 
quality. Group B included 18 industrial sectors, specifically sources 
that EPA expected to contribute to storm water contamination due to the 
activities conducted and pollutants anticipated onsite (e.g., vehicle 
maintenance, machinery and electrical repair, and intensive 
agricultural activities).
    EPA reported on the latter component of the section 402(p)(5) study 
via President Clinton's Clean Water Initiative, which was released on 
February 1, 1994 (U.S. Environmental Protection Agency, Office of 
Water. 1994. Clinton's Clean Water Initiative. Washington, D.C. EPA 
800-R-94-001). This report addresses a number of issues associated with 
NPDES requirements for storm water discharges and proposes (1) 
establishing a phased compliance with a water quality standards 
approach for discharges from municipal separate storm sewer systems 
with priority on controlling discharges from municipal growth and 
development areas, (2) clarifying that the maximum extent practicable 
standard should be applied in a site-specific, flexible manner, taking 
into account cost considerations as well as water quality effects, (3) 
providing an exemption from the NPDES program for storm water 
discharges from industrial facilities with no activities or no 
significant materials exposed to storm water, (4) providing extensions 
to the statutory deadlines to complete implementation of the NPDES 
program for the storm water program, (5) targeting urbanized areas for 
the requirements in the NPDES program for storm water, and (6) 
providing control of discharges from inactive and abandoned mines 
located on Federal lands in a more targeted, flexible manner.

D. EPA Regulations for the NPDES Program for Storm Water

    The purpose of the regulations is to protect water quality. EPA's 
findings are explained in Section I.A. For the final step in 
implementation of the point source control program for storm water, CWA 
section 402(p)(6) requires EPA, in consultation with States and local 
officials, to issue regulations for the designation of the remaining 
unregulated discharges to be regulated to protect water quality based 
on studies conducted under section 402(p)(6), which is discussed below. 
Under section 402(p)(6), EPA is to establish an extension of the 
existing storm water program to regulate newly designated sources. At a 
minimum, the extension must establish (1) priorities, (2) requirements 
for State storm water management programs, and (3) expeditious 
deadlines. The section 402(p)(6) program may include

[[Page 1544]]

performance standards, guidelines, guidance, and management practices 
and treatment requirements, as appropriate. For additional background 
information about the initial steps in the NPDES program for storm 
water, see 55 FR 47990, November 16, 1990 (final regulations under CWA 
sections 402(p)(3) and (p)(4)); 60 FR 40230, August 7, 1995 (final 
regulations establishing permit application deadlines under section 
402(p)(6)). EPA is currently subject to a consent order to propose 
supplemental rules under section 402(p)(6) by November 25, 1997 (on 
July 16, 1997, EPA filed papers to seek an extension of the signature 
date for today's proposal from the original date of September 1, 1997 
to the current date) and to finalize these rules by March 1, 1999. See 
Natural Resources Defense Council, Inc. v. Browner, Civ. No. 95-634 PLF 
(D.D.C., April 7, 1995). The Agency and NRDC also entered into a 
settlement agreement to address the portions of the existing storm 
water rules remanded by the 9th Circuit according to the same schedule 
as the consent order.
    The United States District Court for the District of Columbia 
entered a consent decree to resolve this litigation. EPA and NRDC have 
also stipulated to a modification of a companion settlement agreement 
to extend the date for proposal of regulations to address portions of 
the existing storm water regulations (no exposure and construction 
below 5 acres), which were remanded to the Agency by the U.S. Court of 
Appeals for the Ninth Circuit.
    In today's notice, EPA is proposing to control storm water 
discharges of concern through the NPDES program. Please refer to 
today's preamble Section I.A. for a more detailed discussion of the 
impacts of urbanization on water quality. EPA is also strongly 
encouraging partnerships and the watershed approach as the management 
framework for efficiently, effectively, and consistently protecting and 
restoring aquatic ecosystems and protecting public health. These 
regulations are intended to facilitate the implementation of a 
watershed approach by providing the NPDES permitting authority and 
municipalities the flexibility to address local environmental problems 
by using general permits.

E. EPA Outreach Efforts

    On September 9, 1992, EPA published a notice requesting information 
and public comment on how to prepare regulations under section 
402(p)(6) (see 57 FR 41344). The notice identified three sets of issues 
associated with developing new NPDES storm water regulations: (1) how 
should EPA identify unregulated sources of storm water to protect water 
quality, (2) what types of control strategies should EPA develop for 
these sources, and (3) what are appropriate deadlines for implementing 
new requirements.
    The September 9, 1992, notice presented a range of alternatives 
under each issue in an attempt to illustrate, and obtain input on, the 
full range of potential approaches for the regulation of unregulated 
sources to protect water quality. The notice recognized that potential 
sources for coverage under the section 402(p)(6) regulations would fall 
into two main categories: municipal separate storm sewer systems and 
individual (commercial and residential) sources. EPA recognized that a 
major distinction between most options for identifying sources to be 
regulated was either to require targeted municipalities to develop 
source controls and management programs for storm water discharges 
within their jurisdictions or to require permits for discharges from 
facilities on an individual basis.
    EPA received more than 130 comments on the September 9, 1992, 
notice. Approximately 43 percent of the comments came from 
municipalities, 29 percent from trade groups or industries, 24 percent 
from State or Federal agencies, and approximately 4 percent from other 
miscellaneous sources. No comments were received from environmental 
groups. For further discussion of the comments received, see Storm 
Water Discharges Potentially Addressed by Phase II of the National 
Pollutant Discharge Elimination System: Report to Congress (EPA, 
1995a), pp. 1-21 to 1-22, and Appendix J (which provides a detailed 
summary of the comments received as they relate to the specific issues 
raised in the notice).
    In early 1993, the Rensselaerville Institute and EPA held public 
and expert meetings to assist in developing and analyzing options for 
identifying unregulated sources and possible controls. The report on 
the 1993 meetings indicates that the two options most favored by the 
various groups participating were:
    <bullet> A program in which States would select sources to be 
controlled in a manner that was consistent with criteria developed by 
EPA. The comprehensive program under section 402(p)(6) would provide 
States with flexibility to rely on either NPDES requirements or other 
frameworks to control targeted sources.
    <bullet> A tiered approach that would provide for EPA selection of 
high priority sources for control by NPDES permits and State selection 
of other sources for control under a State water quality program other 
than the NPDES program.
    (Appendix I, ``Report on the EPA Storm Water Management Program 
(Rensselaerville Study).'' EPA, 1995a).
    EPA also conducted outreach with representatives of small entities 
in conjunction with the convening of a Small Business Advocacy Review 
Panel under the Small Business Regulatory Enforcement Fairness Act 
(SBREFA). EPA, in consultation with the Small Business Administration, 
invited 29 small entity representatives and streamlining 
representatives to participate in this outreach effort. Many of the 
representatives contacted in this outreach had been working closely 
with EPA in developing this proposed rule through the FACA Committee 
and the Storm Water Phase II FACA Subcommittee. The further discussion 
of this process is found at Section VII, Regulatory Flexibility Act.
    In May 1997, EPA conducted two telephone conference calls and held 
an all-day meeting at EPA headquarters to solicit the advice and 
recommendations of representatives. EPA eventually received 12 sets of 
written comments from representatives (see Small Business Advocacy 
Review Panel (SBREFA). August 7, 1997. Final Report on EPA's Planned 
Proposed Rule for the National Pollutant Discharge Elimination System: 
Storm Water Phase II.) On June 19, 1997, the Small Business Advocacy 
Review Panel was convened to review the proposed rule. The panel 
consisted of officials from EPA, the Small Business Administration, and 
the Office of Management and Budget. The panel considered 
representatives' comments previously submitted to EPA and allowed 
representatives to provide additional comments. Based on comments and 
its own discussions, the Panel has provided findings regarding the 
elements of an IRFA and specific recommendations regarding the proposed 
rule to EPA. The recommendations of the panel are discussed in Section 
VII.B., Regulatory Flexibility Act, SBREFA Panel Process.

F. The FACA Committee Effort

    To assist EPA in coordinating implementation of the urban municipal 
wet weather water pollution control program, EPA established the Urban 
Wet Weather Flows Advisory Committee (hereinafter, ``FACA Committee'') 
under the Federal Advisory Committee Act (FACA). The Office of 
Management and Budget approved the charter for the FACA Committee on 
March 10, 1995. The

[[Page 1545]]

FACA Committee assisted EPA in developing cost-effective solutions for 
controlling the environmental and human health impacts of urban wet 
weather flows with a minimum of regulatory burden. The FACA Committee 
provided and continues to provide a forum for identifying and 
addressing issues associated with water quality impacts from these 
sources.
    The FACA Committee has two subcommittees: the Storm Water Phase II 
FACA Subcommittee (the designation and comprehensive program 
requirements under CWA section 402(p)(6) are often referred to as 
``Storm Water Phase II'') and the Sanitary Sewer Overflows (SSOs) FACA 
Subcommittee. Consistent with the requirements of FACA, the membership 
of both the FACA Committee and the subcommittees is balanced among 
EPA's various outside stakeholder interests, including representatives 
from municipalities, industrial and commercial sectors, agriculture, 
environmental and public interest groups, States, Indian Tribes, and 
EPA. Members have been selected and appointed for the duration of the 
process. A Federal official or EPA employee serves as the Designated 
Federal Officer and is present at all meetings. All FACA Committee and 
subcommittee meetings are open to the public and announced in advance 
in the Federal Register.
    The Storm Water Phase II FACA Subcommittee met twelve times between 
September 1995 and October 1997. The 32 subcommittee members discussed 
the regulatory framework that serves as the basis for today's proposed 
rule at these meetings as well as during numerous conference calls. EPA 
provided subcommittee members with four successive drafts of the 
proposed rule and preamble, outlines of the rule, documents identifying 
changes made to each draft, and summaries of the written comments 
received on each draft, including how the comments had been addressed. 
EPA received extensive written comments from FACA members on a number 
of occasions, together with extensive oral feedback at a number of 
meetings and conference calls. Although the Storm Water Phase II FACA 
Subcommittee has not reached consensus on the details of today's 
proposal, they have provided EPA with significant input and insights, 
which EPA has tried to balance and address.
    Today's proposed regulations respond to President Clinton's 
direction on regulatory reform. EPA sought to develop a common sense 
regulatory approach to allow EPA, States, and Tribes to ``manage for 
results'' and provide for ecosystem protection. EPA believes there is 
considerable latitude in CWA section 402(p)(6) in establishing the 
scope of coverage (i.e., the designation of sources to be regulated 
under the NPDES program for storm water, as well as the comprehensive 
program for regulating those sources). EPA has benefitted greatly from 
the variety of view points and the lively exchange of ideas through the 
FACA Committees and subcommittees. EPA has sought to build upon the 
issues raised in proposing the scope, method, and timing of the 
comprehensive program to regulate storm water and to more effectively 
provide outreach and technical assistance for these new regulations. 
The Storm Water Phase II FACA Subcommittee was also instrumental in 
discussing lessons learned from implementation of the existing NPDES 
program for storm water. Records and iterative draft versions of 
today's proposal have been available and continue to be available to 
the public at the Office of Wastewater Management's Home Page (see 
http://www.epa.gov/owm) or through the Point Source Information 
Provision Exchange System (PIPES) Home Page (see <a href="http://www.epa.gov/
owmitnet/pipes/pipes.htm">http://www.epa.gov/
owmitnet/pipes/pipes.htm</a>).
    The FACA Committee has provided the Storm Water Phase II FACA 
Subcommittee with several recommendations for improving the existing 
NPDES program for storm water. Some of these recommendations are 
reflected as part of today's proposal. The FACA Committee provided 
recommendations, for example, for the proposal regarding a ``no 
exposure'' incentive for facilities with storm water discharges 
``associated with industrial activity.'' EPA's proposal would apply 
this recommendation to the designation of unregulated sources under 
section 402(p)(6) as well. The FACA Committee also recommended that EPA 
clarify and define the standards applicable to NPDES permit controls 
for municipal separate storm sewer systems, specifically the standards 
that permits require for controls to reduce the discharge of pollutants 
``to the maximum extent practicable'' (MEP).

G. Related Nonpoint Source Programs

1. Section 319 of the Clean Water Act
    In 1987, section 319 was added to the Clean Water Act to provide a 
framework for funding State and local efforts to address pollutant 
sources not addressed by the NPDES program (i.e., nonpoint sources). To 
obtain funding, States are required to submit Nonpoint Source 
Assessment Reports identifying State waters that without additional 
control of nonpoint sources of pollution could not reasonably be 
expected to attain or maintain applicable water quality standards or 
the goals and requirements of the CWA. States are also required to 
prepare and submit for EPA approval a statewide Nonpoint Source 
Management Program for controlling nonpoint source water pollution to 
navigable waters within the State and improving the quality of such 
waters. State program submittals must identify specific best management 
practices (BMPs) and measures that the State proposes to implement in 
the first 4 years after program submission to reduce pollutant loadings 
from identified nonpoint sources to levels required to achieve the 
stated water quality objectives.
    State programs funded under section 319 can include both regulatory 
and nonregulatory State and local approaches. Section 319(b)(2)(B) 
specifies that a combination of ``nonregulatory or regulatory programs 
for enforcement, technical assistance, financial assistance, education, 
training, technology transfer, and demonstration projects'' may be 
used, as necessary, to achieve implementation of the BMPs or measures 
identified in the section 319 submittals.
    Although most States have generally emphasized the use of voluntary 
approaches in their section 319 programs, some States and local 
governments have implemented regulations and policies to control 
pollution from urban runoff. States such as Delaware and Florida, as 
well as local jurisdictions such as the Lower Colorado River Authority, 
are pursuing storm water management goals through numerical treatment 
standards for new development. Many States and local governments have 
enforceable erosion and sediment control regulations.
    On a broader scale, nonpoint source pollution is being addressed at 
the watershed level by such programs as those being implemented by the 
State of Wisconsin, the Puget Sound Water Quality Authority, and the 
States that are parties to the Great Lakes Water Quality Agreement. A 
number of individual States and local communities have adopted 
legislation or regulations that limit development or require special 
management practices in areas surrounding water resources of special 
concern, such as Maryland's Critical Areas Act.
2. Section 6217 of the Coastal Zone Act Reauthorization Amendments
    Section 6217 of the Coastal Zone Act Reauthorization Amendments 
(CZARA) of 1990 provides that States with

[[Page 1546]]

approved coastal zone management programs must develop and submit 
coastal nonpoint pollution control programs to EPA and the National 
Oceanic and Atmospheric Administration (NOAA) for approval. Failure to 
submit an approvable program will result in a reduction of Federal 
grants under both the Coastal Zone Management Act and section 319 of 
the CWA.
    State coastal nonpoint pollution control programs under CZARA must 
include enforceable policies and mechanisms that ensure implementation 
of the management measures throughout the coastal management area. 
Section 6217(g)(5) defines management measures as ``economically 
achievable measures for the control of the addition of pollutants from 
existing and new categories and classes of nonpoint sources of 
pollution, which reflect the greatest degree of pollutant reduction 
achievable through the application of the best available nonpoint 
pollution control practices, technologies, processes, siting criteria, 
operating methods, or other alternatives.'' Congress mandated a 
technology-based approach based on technical and economic achievability 
under the rationale that neither States nor EPA have the money, time, 
or other resources to create and expeditiously implement a program that 
depends on establishing cause and effect linkages between particular 
land use activities and specific water quality problems. If this 
technology-based approach fails to achieve and maintain applicable 
water quality standards and to protect designated uses, CZARA 
6217(b)(3) requires additional management measures.
    EPA issued Guidance Specifying Management Measures for Sources of 
Nonpoint Pollution in Coastal Waters under 6217(g) in January 1993. The 
guidance identifies management measures for five major categories of 
nonpoint source pollution: agriculture, forestry, urban, marinas and 
recreational boating, and hydromodification. The management measures 
reflect the greatest degree of pollutant reduction that is economically 
achievable for each of the listed sources. These management measures 
provide reference standards for the States to use in developing or 
refining their coastal nonpoint programs. In general, the management 
measures were written to describe systems designed to reduce the 
generation of pollutants. A few management measures, however, contain 
quantitative standards that specify pollutant loading reductions. For 
example, the New Development Management Measure, which is applicable to 
construction in urban areas, requires (1) that by design or performance 
the average annual total suspended solid loadings be reduced by 80 
percent and (2) to the extent practicable, that the pre-development 
peak runoff rate and average volume be maintained. The management 
measures approach was adopted to provide State officials flexibility in 
selecting strategies and management systems and practices that are 
appropriate for regional or local conditions, provided that equivalent 
or higher levels of pollutant control are achieved.
    Storm water discharges regulated under the existing NPDES program, 
such as discharges from municipal separate storm sewers serving a 
population of 100,000 or more and construction activities that disturb 
5 or more acres, do not need to be addressed in Coastal Nonpoint 
Pollution Control Programs. However, potential new sources, such as 
urban development adjacent to or surrounding municipal systems serving 
a population of 100,000 or more, smaller urbanized areas, and 
construction sites that disturb less than 5 acres, that are identified 
in management measures under section 6217 guidance need to be addressed 
in Coastal Nonpoint Pollution Control Programs until such discharges 
are issued an NPDES permit. EPA and NOAA have worked and continue to 
work together in their activities to ensure that authorities between 
NPDES and CZARA do not overlap.
    EPA and NOAA published Coastal Nonpoint Pollution Control Program: 
Program Development and Approval Guidance (1993), which addresses such 
issues as the basis and process for EPA/NOAA approval of State Coastal 
Nonpoint Pollution Control Programs, how EPA and NOAA expect State 
programs to implement management measures in conformity with EPA 
guidance, and procedures for reviewing and modifying State coastal 
boundaries to meet program requirements. The document clarifies that 
States generally must implement management measures for each source 
category identified in the EPA guidance developed under section 
6217(g). The document also sets quantitative performance standards for 
some measures. Coastal Nonpoint Pollution Control Programs are not 
required to address sources that are clearly regulated under the NPDES 
program as point source discharges. Specifically, such programs would 
not need to address small municipal separate storm sewer systems and 
construction sites covered under NPDES storm water permits (both 
general and individual). The guidance also clarifies that regulatory 
and nonregulatory mechanisms may be used to meet the requirement for 
enforceable policies and mechanisms, provided that nonregulatory 
approaches are backed by enforceable State authority ensuring that the 
management measures will be implemented. Backup authority can include 
sunset provisions for incentive programs. For example, a State may 
provide additional incentives if too few owners or operators 
participate in a tax incentive program or develop mandatory 
requirements to achieve the necessary implementation of management 
measures.

H. Watershed-based Approach for Water Quality Programs

    EPA is promoting an integrated watershed approach for storm water 
and other discharges that focuses on coordinated public and private 
sector efforts to address the highest priority water quality problems 
within hydrologically defined geographic areas. The watershed approach 
is a decisionmaking process that reflects a common strategy for 
information collection and analysis and a common understanding of the 
roles, priorities, and responsibilities of all stakeholders within a 
watershed. Implementation of the watershed approach is critical for the 
improvement of water quality in the United States, and the approach is 
an essential priority for EPA's water programs. EPA, therefore, is 
reevaluating its programs, including the NPDES, ground water, drinking 
water, and nonpoint source programs, to determine how they can be more 
effectively incorporated into the watershed approach.
    EPA intends that a central role be given to watershed planning and 
analysis by permitting authorities implementing storm water programs 
under today's proposed rule. While States are not required to use a 
watershed approach, EPA believes that this approach would significantly 
improve implementation of today's proposed rule. As discussed in 
Section II.A., Overview, EPA designed today's proposed rule to 
facilitate watershed planning and analysis, particularly in the area of 
designating those storm water sources to be covered under the program 
or giving regulatory relief to storm water discharges already 
designated, but also in determining and implementing the requirements 
for the owners and operators of small municipal separate storm sewer 
systems. EPA expects that the NPDES permitting authority would work 
with State agencies who have jurisdiction

[[Page 1547]]

over nonpoint sources and other areas within the watershed not covered 
under the NPDES program in the development of a comprehensive watershed 
plan.
    EPA's overall support of using watershed-based alternatives is 
described in greater detail in EPA's Watershed Approach Framework (June 
1996; http:/www.epa.gov/OWOW/watershed/framework.html#6b) and NPDES 
Watershed Strategy (U.S. Environmental Protection Agency. March 1994. 
Watershed Protection--NPDES Watershed Strategy. Washington, D.C.). The 
NPDES Watershed Strategy discusses integration of NPDES program 
functions into a broader watershed protection approach and highlights 
areas for coordination with stakeholders to promote implementation of 
the approach. The NPDES Watershed Strategy is based on the following 
principles:
    <bullet> Watershed protection approaches may vary in terms of 
specific elements, timing, and resources, but all should share a common 
emphasis and insistence on integrated actions, specific action items, 
and measurable environmental and programmatic milestones.
    <bullet> Related activities within a basin or watershed must be 
coordinated to achieve the greatest environmental benefit and most 
effective level of stakeholder involvement.
    <bullet> Actions relating to restoration and protection of surface 
water, ground water, and habitat within a basin should be based upon an 
integrated decision-making process, a common information base, and a 
common understanding of the roles, priorities, and responsibilities of 
all stakeholders within a basin.
    <bullet> Staff and financial resources are limited and must be 
allocated to address environmental priorities as effectively and 
efficiently as possible.
    <bullet> Program requirements that interfere or conflict with 
environmental priorities should be identified and revised to the extent 
possible.
    <bullet> Accurate information and high quality data are necessary 
for decision-making and should be collected on an incremental basis; 
interim decisions should be made based on available data to prevent 
further degradation and promote restoration of natural resources.
    The watershed approach would be most successful if all stakeholders 
are involved. In addition, within a geographic management unit 
(watershed/basin), a cycle of activities and a schedule for 
implementation must be established.
    EPA recognizes that many States are coordinating their authorities, 
programs, and decisionmaking using a watershed management approach to 
achieve more efficient and better problem solving. The Agency will 
continue to encourage the use of the watershed approach through 
activities that include tailoring the EPA program to support this 
direction; publishing case studies for States to use as examples; 
creating a tools directory; undertaking other outreach efforts, such as 
a quarterly newsletter (Watershed Events); including watershed 
activities on the EPA Internet Home Page; training for permit writers 
and the regulated community; and sponsoring conferences, such as 
``Watershed 96.''
    State representatives of the Storm Water Phase II FACA Subcommittee 
supported watershed-based implementation strategies and controls and 
noted the following:
    (T)he future demands a new model for managing water resources, 
based on well-defined geographic units such as basins or watersheds, 
that recognizes all the interconnections within the watershed that 
define the hydrologic cycle in that area, including surface and 
groundwaters as well as wetlands. The management of any watershed 
should reflect all of the things that make it unique, including 
specific precipitation patterns, topography, soil and geological 
characteristics, and land use.
    A systems management approach would involve the development and 
operation of a comprehensive water resource management program--though 
ultimately it need not be limited to water resources--within the 
specific geographic area encompassing the basin or watershed. 
Components of such a comprehensive program would include water supply, 
water quality, water conservation, flood protection, land use, and 
protection of fish and wildlife resources. This can often be done 
effectively through comprehensive watershed management and planning.
    As our government policies transition to a systems-based, 
comprehensive approach to managing water resources, we must introduce 
increased flexibility and latitude into current programs so that cross-
categorical management of resources can flourish. Water resource 
management policies should also recognize the significant regional 
variance in the water resource. Management policies must be tailored to 
local hydrologic and ecological conditions. Any national policy should 
acknowledge unique regional and state characteristics and provide a 
framework for development strategies consistent with the national 
policy.
    The States recognize that there are significant institutional 
obstacles, and that the new model needs to be developed in an 
evolutionary fashion. Substantial involvement of dischargers, users, 
and the general public will be essential. It will require unprecedented 
cooperation among many state and local entities, among state and 
federal agencies, and between states in the case of watersheds crossing 
state lines. Protection efforts should be coherent and coordinated to 
make the most efficient use of scarce resources and minimize 
inconsistency among federal, state, and local programs or agencies.
    The FACA Committee is developing a recommended framework for 
integrating urban wet weather discharges, including storm water 
discharges, into the watershed approach that reflects the key 
principles outlined in EPA's Watershed Approach Framework and NPDES 
Watershed Strategy. The committee's recommendations are contained in a 
draft policy entitled, A Watershed Alternative. This framework would 
provide that all regulated discharges meet minimum requirements 
regardless of their geographic location. Based on a review and 
assessment of watershed conditions and a determination that water 
quality objectives are not being met in a particular watershed, 
watershed stakeholders would be able to choose to collectively pursue a 
watershed approach to address identified water quality problems. A key 
element of this watershed alternative is the development of a 
comprehensive watershed plan that describes (1) who will coordinate 
watershed planning and implementation, (2) the geographic area being 
covered by the watershed approach, (3) the watershed stakeholders 
participating in the planning and implementation effort, (4) 
assessments of aquatic resources and existing or potential water 
quality problems, (5) the coordinated watershed management activities 
that will be implemented, (6) the financial plan and schedule for 
completing the coordinated management activities, and (7) a mechanism 
for accountability. Once this plan were approved by the applicable 
regulatory authority(ies), relevant provisions of the watershed plan 
would be incorporated into relevant regulatory and nonregulatory 
mechanisms and progress in implementing the watershed plan would be 
evaluated periodically.
    The watershed alternative has numerous inherent incentives, 
including greater opportunities to improve water quality and 
environmental conditions, more equitable allocation of resources, 
enhanced program efficiency and lower costs, improved coordination 
among programs, an improved basis for

[[Page 1548]]

management decisions, an emphasis on local decisionmaking, greater 
consistency and responsiveness, increased opportunities to use market-
based incentives, and improved public relations.
    EPA's key principals are also reflected in today's proposed rule. 
First, the Agency has structured the designation of additional sources 
by the permitting authority to facilitate the consideration of 
watershed impacts. The Agency also highly recommends that municipal 
storm water discharges that would be designated under this proposal be 
covered under general permits issued on a watershed-wide basis. Such 
permits could also be written to address other sources in the watershed 
as well. Where a comprehensive watershed plan has been developed, the 
Agency believes the components of that plan should be reflected in all 
permits issued to the parties addressed by the watershed plan.
    Some stakeholders have raised concerns that the Agency is failing 
to consider watershed priorities in determining which sources will be 
designated and in the requirements to be imposed on such sources under 
today's proposal. The Agency disagrees. The Agency has limited its 
proposed designation to those sources generally believed to be of 
significant concern to water quality. While encouraging designation of 
additional sources based on considerations of water quality, including 
considerations made on a watershed basis, the Agency also proposes to 
allow a waiver of otherwise applicable requirements for some sources 
(construction sites under 5 acres and small municipal separate storm 
sewer systems serving less than 1,000 people) where the NPDES 
permitting authority participates in implementing a watershed plan and 
water quality is not impaired. Further, the Agency proposes flexible 
requirements for permittees in allowing consideration of BMPs tailored 
to the needs of the watershed. The Agency believes that this sort of 
flexibility will generally ensure watershed protection while allowing 
permitting authorities flexibility to tailor program implementation to 
the needs of a particular watershed and its stakeholders.

II. Description of Proposed Program

A. Overview

1. Objectives EPA Seeks to Achieve in Today's Proposal
    EPA seeks to achieve several objectives in today's proposed rule. 
Under CWA section 402(p)(6), EPA is required to provide a comprehensive 
storm water program that designates and controls additional sources of 
storm water discharges to protect water quality. In addition, EPA is 
required to address discharges of storm water from the activities 
exempted under the 1990 storm water regulations that were remanded by 
the Ninth Circuit Court of Appeals in NRDC v. EPA (9th Circuit, 1992)--
construction activities disturbing less than 5 acres and so-called 
``light'' industrial activities not exposed to storm water (see 
discussion of ``no exposure'' below). EPA is also seeking to address 
the problem of so-called ``donut holes'' created by the existing NPDES 
storm water program. Donut holes are municipal separate storm sewer 
systems located within the urbanized areas that include systems covered 
by the existing NPDES storm water program, but are not currently 
addressed by the storm water program because of the particular drafting 
of the existing regulations. In other words, donut holes are gaps in 
the existing NPDES storm water program's regulatory scheme. EPA also is 
trying to facilitate and promote watershed planning as a framework for 
implementing water quality programs where possible.
    Although the proposed program can be structured in various ways to 
regulate the remaining unregulated sources of storm water to protect 
water quality, EPA believes it can best achieve its objectives through 
flexible innovations within the framework of the NPDES program. Unlike 
the storm water regulations EPA promulgated in 1995, EPA no longer 
proposes to designate all storm water discharges for nationwide 
coverage under the NPDES program for storm water. The proposed 
framework for today's proposed rule is one that would balance both 
nationwide automatic designation and locally based designation. 
Nationwide designation would apply to those classes or categories of 
storm water discharges that EPA believes present a high likelihood of 
having adverse water quality impacts, regardless of location. EPA is 
proposing to designate the following sources on a nationwide basis: 
storm water discharges from small municipal separate storm sewer 
systems located in urbanized areas and construction activities that 
result in land disturbance equal to or greater than 1 acre. As noted 
under Section I.A.1, Studies and Assessments of Storm Water Runoff, 
these two sources can cause significant water quality impacts. 
Additional sources would not be covered on a nationwide basis either 
because EPA currently lacks information indicating a consistent 
potential for adverse water quality impact or because of EPA's belief 
that the likelihood of adverse impacts on water quality is low, with 
some exceptions on a more local basis. Additional individual sources or 
categories of storm water discharges could, however, be covered under 
the program through a local, watershed-based designation process. 
Permitting authorities may designate additional small municipal 
separate storm sewer systems when they develop designation criteria and 
apply these criteria to small municipal separate storm sewer systems 
located outside of an urbanized area, in particular those with a 
population of 10,000 or more and a population density of at least 
1,000. Exhibit 1 illustrates the framework for today's proposal.

BILLING CODE 6560-55-P

[[Page 1549]]

[GRAPHIC] [TIFF OMITTED] TP09JA98.001



BILLING CODE 6560-55-C

[[Page 1550]]

    The framework for the proposal provides a significant degree of 
flexibility. The provisions for nationwide designation of construction 
and small municipal separate storm sewer systems in urbanized areas 
allow for a waiver of applicable requirements based on appropriate 
water quality conditions. The proposal would allow a permitting 
authority to waive otherwise applicable requirements for a regulated 
small municipal separate storm sewer system if the jurisdiction served 
by the system includes a population of less than 1,000 persons and 
meets additional water quality-based conditions. Water quality-based 
conditions would be the basis for a waiver of requirements of 
construction activities between 1 and 5 acres, as well. For 
construction sources, the rule would provide significant flexibility 
for waiving otherwise applicable regulatory requirements where a 
permitting authority determines, based on water quality and watershed 
considerations, that storm water controls are not needed. Coverage 
would extend to municipal and construction sources outside the 
nationwide designated classes or categories based on watershed and 
case-by-case assessments. For the municipal program, today's proposal 
would provide broad discretion to NPDES permitting authorities to 
develop and implement criteria for designating small municipal separate 
storm sewer systems outside of urbanized areas. Other storm water 
discharges from unregulated industrial, commercial, and residential 
sources would not be covered unless a permitting authority determines 
on a case-by-case, or categorical, basis that controls would be needed 
to protect water quality. EPA believes that the flexibility provided in 
today's proposed rule would facilitate watershed planning.
2. General Requirements for Regulated Entities Under Today's Proposal
    Today's proposal defines additional classes and categories of storm 
water discharges for coverage under the NPDES program. Those 
dischargers proposed to be regulated by today's proposed rule would be 
required to seek coverage under an NPDES permit. Furthermore, all 
NPDES-authorized States and Tribes would be required to implement these 
provisions and make any necessary amendments to current State NPDES 
regulations to ensure consistency with today's proposal. EPA would 
remain the NPDES permitting authority for States and Tribes without 
NPDES authorization.
    EPA proposes to regulate the remaining unregulated point sources of 
storm water under the NPDES permitting program for a variety of 
reasons, primarily programmatic, but also legal. The primary reason for 
regulating storm water under the NPDES program is for simplicity and 
predictability. EPA envisions a ``seamless'' program, particularly for 
regulating storm water discharges from municipal separate storm sewer 
systems, regardless of the relative size of the source. Forty-three 
jurisdictions (States and territories) administer the NPDES permit 
program, providing an opportunity for expeditious implementation of a 
comprehensive program to regulate storm water to protect water quality. 
The NPDES program is a comparatively mature regulatory program, and 
affected stakeholders are familiar with, if not accustomed to, how it 
operates. Regulations under the NPDES program are not enforceable 
against an affected entity until the effective date of a permit, thus 
providing an opportunity to identify particularized concerns and tailor 
permit conditions that are relevant and meaningful on an individualized 
basis. The NPDES permitting authority periodically reviews the NPDES 
permits to ensure that applicable requirements remain relevant and 
ensure adequate protection of receiving waters; CWA section 
402(b)(1)(B) describes the 5-year permit term. In addition, NPDES 
permits are enforceable. Permittees, inspectors, and enforcement 
authorities understand the individualized permit obligations and, over 
the years, judicial precedents have established clear procedural 
standards for the enforcement of those obligations. The NPDES program 
also provides clear rules for citizen participation, not only in 
permitting and compliance monitoring, but also in enforcement.
    Legal considerations also affect the Agency's proposal to regulate 
the remaining unregulated storm water under the NPDES permitting 
program. When Congress enacted the point source storm water provisions 
of section 402(p) in 1987, it also enacted programs for control of 
nonpoint sources under section 319. The statute appears to suggest, 
therefore, that EPA should control point sources under section 402(p) 
with different, ``regulatory'' programs than the programs for 
controlling nonpoint sources under section 319. While EPA fully 
anticipates that States will provide ``reasonable assurances'' for the 
control of nonpoint sources in a timely and effective manner, such 
assurances are not yet fully developed in practice. Several States have 
enacted laws that prescribe State regulation in a manner that is ``more 
stringent'' than Federal regulation. While the CWA explicitly preserves 
the authority for States to enact ``more stringent'' regulations to 
control discharges, the Agency would be concerned that providing 
maximum flexibility for States to establish ``non-NPDES'' programs 
would leave regulatory authorities in many States in a quandary to 
determine whether or not programs they would design are more or less 
stringent than a Federal program. The NPDES program provides a useful 
and recognized standard in these instances.
    As noted earlier, the NPDES program has a proven record of reducing 
and eliminating pollutant discharges. The NPDES program also provides 
mechanisms to assure attainment and maintenance of water quality 
standards. Given that regulations under section 402(p)(6) are to 
regulate ``to protect water quality,'' the NPDES program provides a 
natural fit. Notwithstanding the preceding, however, the Agency 
recognizes the continuing imperative to assure that environmental 
regulations accomplish statutory objectives in the least burdensome and 
most cost-effective fashion. As explained further in this preamble, the 
form and substance of NPDES permits to address the sources designated 
in today's proposal would provide greater flexibility for the newly 
covered sources than the existing ``standard'' NPDES permit.
    Today's proposal would establish requirements for NPDES permitting 
authorities, regulated small municipal separate storm sewer systems, 
construction activities disturbing equal to or greater than 1 acre and 
less than 5 acres of land, and other discharges designated by the 
permitting authority based on local conditions.
    Today's proposal includes some new requirements for NPDES 
permitting authorities implementing the CWA section 402(p)(6) program. 
As noted above, EPA is making a significant effort to build flexibility 
into the program. At the same time, EPA is maintaining a level of 
national consistency, as appropriate. Permitting authorities would be 
required to generally ensure that the minimum requirements proposed 
today would be addressed by the regulated community (e.g., permitting 
authorities must ensure that permits issued to municipalities include 
the minimum control measures established under the program). Permitting 
authorities would also have the ability to make numerous decisions 
about the program including who is regulated under the program (e.g., 
case-

[[Page 1551]]

 by-case designations and waivers), what the requirements are for 
regulated entities (e.g., waiving otherwise applicable provisions where 
certain conditions are met and developing a list of regionally 
appropriate, field-tested BMPs that it believes to be cost-effective), 
and what the allocation of responsibilities is between regulated 
entities.
    The rule proposes to extend the municipal storm water program to 
include the following: small municipal separate storm sewer systems 
within urbanized areas (with the exception of tribally-owned systems 
that serve less than 1,000 persons and any other system waived from the 
requirements by the NPDES permitting authority), small municipal 
separate storm sewer systems meeting the criteria (to be established by 
the permitting authority) for designation, and any municipal separate 
storm sewer system contributing substantially to the storm water 
pollutant loadings of a regulated, physically interconnected municipal 
separate storm sewer system. Small municipal separate storm sewer 
systems include municipal, Tribal, State, and Federal facilities and 
other systems located in an urbanized area that fall within the 
definition of a municipal separate storm sewer system. These would 
include, for example, State departments of transportation, 
universities, and military bases.
    Today's proposal would require all regulated small municipal 
separate storm sewer systems to develop and implement a storm water 
management program. Program components would include, at a minimum, 
measures to address requirements concerning public education and 
outreach, public involvement, illicit discharge detection and 
elimination, construction site runoff control, post-construction storm 
water management in new development and redevelopment, and pollution 
prevention and good housekeeping of municipal operations. These program 
components would be implemented through NPDES permits. A municipality 
would be required to submit to the NPDES permitting authority, either 
in its NOI or individual permit application, the BMPs to be implemented 
and the measurable goals for each of the minimum control measures 
listed above.
    The rule proposes to address all construction site activities 
involving clearing, grading and excavating land equal to or greater 
than 1 acre and less than 5 acres, unless requirements are otherwise 
waived by the NPDES permitting authority. Such sites, including 
construction site activities disturbing less than 1 acre of land that 
are designated by the permitting authority, would be required to 
implement requirements set forth in the NPDES permit, which may 
reference the requirements of a qualifying local program, issued to 
cover such sites.
    The rule also proposes to address certain other sources regulated 
under the existing program for storm water. For municipally owned 
industrial sources required to be regulated under the existing NPDES 
storm water program but exempted from immediate compliance by the 
Intermodal Surface Transportation Act of 1991 (ISTEA), the rule 
proposes to maintain the existing deadline for seeking coverage under 
an NPDES permit (August 7, 2001) (EPA is requesting comment on the 
possibility of covering such sources in a single storm water permit for 
the municipality as a whole. See section II.I.3. below.) The rule also 
proposes to provide relief from NPDES storm water permitting 
requirements for industrial and other sources that provide a written 
certification of ``no exposure of industrial materials and activities 
to storm water.''
3. Integration of Today's Proposal With the Existing Storm Water 
Program
    In developing today's proposal, members of both the FACA Committee 
and the Storm Water Phase II FACA Subcommittee encouraged EPA to seek 
opportunities to integrate, where possible, the proposed Phase II 
requirements with existing Phase I requirements, thus facilitating a 
``seamless,'' unified storm water program. EPA believes that this 
objective is met by using the NPDES framework. This framework is 
already applied to regulated sources under the existing NPDES storm 
water program and would be extended to those sources that would be 
designated under today's proposed rule. This approach would facilitate 
program consistency, public access to information, and program 
oversight.
    EPA believes that this proposal provides consistency in terms of 
program coverage and requirements for existing and newly proposed 
sources. For example, today's proposal would include most of the so-
called donut holes--municipal separate storm sewer systems within 
urbanized areas that contain systems covered by the existing NPDES 
storm water program, but are not themselves addressed by the storm 
water program. In addition, the minimum controls required in today's 
proposal for regulated small municipal separate storm sewer systems 
would be very similar to a number of the permit requirements for medium 
and large municipal separate storm sewer systems under the existing 
storm water program. As proposed, permit requirements for all regulated 
municipal separate storm sewer systems (i.e., those under the existing 
program and those proposed today) would require implementation of BMPs. 
Furthermore, with regard to the development of permits to protect water 
quality, EPA intends to apply the August 1, 1996, Interim Permitting 
Approach for Water Quality-Based Effluent Limitations in Storm Water 
Permits (hereinafter, ``Interim Permitting Approach'') (see Section 
II.L.1. for further description) to all municipal separate storm sewer 
systems covered by the existing and the proposed extension of the 
existing NPDES storm water program. EPA requests comment on the 
appropriateness of applying this approach to small municipal separate 
storm sewer systems regulated under this rule.
    EPA is planning to apply similar permit requirements to 
construction sites below 5 acres as are applied to those above 5 acres. 
A waiver provision applicable to certain circumstances is proposed. In 
addition, today's rule proposes to allow compliance with qualifying 
local, Tribal, or State erosion and sediment controls to meet the 
erosion and sediment control requirements of the general permits for 
construction both above and below 5 acres.
4. General Permits
    The proposal would recommend using general permits for all 
dischargers that would be covered under today's proposal. The use of 
general permits instead of individual permits reduces the 
administrative burden on permitting authorities, while also limiting 
the paperwork burden on regulated parties seeking permit coverage. 
Permitting authorities may, of course, require individual permits in 
some cases to address specific concerns, including permit 
noncompliance.
    While general permits are probably most appropriately issued on a 
watershed-wide basis for all storm water permittees designated in this 
proposal, the Agency strongly recommends that general permits for 
municipal sources, in particular, be issued on a watershed basis. 
Permit conditions contoured to a specific watershed could reflect an 
approved watershed plan, special provisions concerning program 
implementation (e.g., allocation of responsibilities among permittees), 
applicable water quality standards, including designated uses, and 
timing of

[[Page 1552]]

implementation. Alternatively, the Agency recommends that municipal 
general permits be issued to cover the regulated small municipal 
separate storm sewer systems within urbanized areas. If the permitting 
authority issues a State-wide general permit, the permitting authority 
may include separate conditions tailored to individual watersheds or 
urbanized areas.
    As discussed in Section I, today's proposed rule would provide an 
opportunity for regulated small municipal separate storm sewer systems 
to become co-permittees with municipal separate storm sewer systems 
covered under existing individual permits. EPA intends to consult with 
the Storm Water Phase II FACA Subcommittee in developing its general 
permits for the proposed program. The Agency would recommend that State 
NPDES permitting authorities use the EPA general permit as a guide in 
writing State-issued permits for newly regulated storm water sources. 
Furthermore, within the context of this rule, EPA intends to use the 
August 1, 1996, Interim Permitting Approach (see Section II.L.1. for 
further description) for sources regulated under the NPDES storm water 
program.
5. Tool Box
    During the FACA process, many Storm Water Phase II FACA 
Subcommittee representatives expressed an interest in having EPA 
develop a ``tool box'' to assist States, Tribes, municipalities, and 
other parties involved in the Phase II program. EPA made a commitment 
to work with Storm Water Phase II FACA Subcommittee representatives in 
developing such a tool box, with the expectation that a tool box would 
facilitate implementation of the storm water program in an effective 
and cost-efficient manner. EPA is committed to having a preliminary 
working tool box by the time the proposed rule is finalized in 1999; 
EPA intends to have the tool box fully operational at the time of the 
general permit. EPA also intends to update the tool box as resources 
and data become available. The tool box would most likely include the 
following six main components: fact sheets, guidances, an information 
clearinghouse, training and outreach efforts, technical research, and 
support for demonstration projects.
    In an attempt to avoid duplication, the Agency has undertaken an 
effort to identify and coordinate sources of information that relate to 
the storm water program from both inside and outside the Agency. Such 
information may include research and demonstration projects, grants, 
storm water management-related programs, and compendiums of available 
documents, including guidances, related directly or indirectly to the 
comprehensive NPDES storm water program. Based on this effort, EPA 
would develop a tool box containing fact sheets and guidance documents 
pertaining to the overall program and rule requirements (e.g., guidance 
on municipal and construction programs, and permitting authority 
guidance on designation and waiver criteria); models of current 
programs aimed at assisting States, Tribes, municipalities, and others 
in establishing programs; a comprehensive list of reference documents 
organized according to subject area (e.g., illicit discharges, 
watersheds, water quality standards attainment, funding sources, and 
similar types of references); educational materials; technical research 
data; and demonstration project results. The information collected by 
EPA will not only provide the background for tool box materials, but 
may also be included in, and made available through, an information 
clearinghouse. Due to cost concerns, EPA is still considering whether 
an information clearinghouse will be part of the tool box. EPA also 
intends to provide training workshops at the regional level with the 
expectation that the EPA regional offices then will assist States, 
Tribes, and municipalities with understanding the storm water program 
and will ensure that the regulated entities are aware of the 
availability of the tool box materials.
    EPA has many funding mechanisms currently available to support 
activities related to storm water. These mechanisms will be included in 
the tool box. Many activities funded under grants and loan programs 
include programs in the nonpoint source area, storm water demonstration 
projects, and wastewater construction projects. EPA has already 
provided funding for numerous research efforts in these areas, 
including a database of BMP effectiveness studies, an assessment of 
technologies for storm water management, a study of the effectiveness 
of storm water BMPs for controlling the impacts of watershed 
imperviousness, protocols for wet weather monitoring, development of a 
dynamic model for wet weather flows, and numerous outreach projects.
    EPA has entered into a cooperative agreement with the Urban Water 
Resources Research Council of the American Society of Civil Engineers 
(ASCE) to develop a scientifically-based approach and management tool 
for the information needed to evaluate the effectiveness of urban storm 
water runoff BMPs nationwide. The long-term goal of the project is to 
promote technical design improvements for BMPs and to better match 
their selection and design to the local storm water problems being 
addressed. The project team is collecting and evaluating existing BMP 
performance data, developing a BMP evaluation protocol, and designing 
and creating a database. Eventually the database will include the 
nationwide collection of information on the characteristics of 
structural and non-structural BMPs, data collection efforts (e.g., 
sampling and flow gauging equipment), climatological characteristics, 
watershed characteristics, hydrologic data, and constituent data. The 
database will continue to grow as new BMP data become available. The 
database software will be distributed by CD-ROM and will be accessible 
through the Internet.
    EPA and ASCE invite BMP designers, owners and operators to 
participate in the database development effort. To make this effort 
successful, a large database is essential. Interested persons are 
encouraged to submit their BMP performance evaluation data and 
associated BMP watershed characteristics for potential entry into the 
database. In addition, researchers planning to conduct BMP performance 
evaluations in the future are requested to compile and collect BMP 
reporting information according to a format being developed by ASCE. 
For more information, please contact Eric Strassler, EPA Engineering 
and Analysis Division, at 202-260-7150, e-mail: 
<a href="/cdn-cgi/l/email-protection#7e0d0a0c1f0d0d121b0c501b0c171d3e1b0e1f131f1712501b0e1f50191108"><span class="__cf_email__" data-cfemail="b0c3c4c2d1c3c3dcd5c29ed5c2d9d3f0d5c0d1ddd1d9dc9ed5c0d19ed7dfc6">[email protected]</span></a>.
    EPA intends to promote research consistent with the Risk Management 
Research Plan for Wet Weather Flows prepared by EPA's Office of 
Research and Development. This plan supports the priority research 
questions and needs of the Office of Water. Finalized in November 1996, 
the plan will be updated annually. It includes strategic research 
directions and identifies active and proposed projects for supporting 
each research area.
6. Deadlines Established in Today's Proposal
    Exhibit 2 outlines the various deadlines proposed in today's rule. 
EPA believes that the dates proposed allow sufficient time for 
completion of both the NPDES permitting authority's and the permittee's 
program responsibilities. EPA requests comment on the appropriateness 
of the proposed deadline dates.

[[Page 1553]]



                                   Exhibit 2.--Today's Proposed Rule Deadlines                                  
----------------------------------------------------------------------------------------------------------------
                Activity                                              Deadline date                             
----------------------------------------------------------------------------------------------------------------
Proposed Rule Becomes Final............  3/1/99.                                                                
NPDES-Authorized States Modify NPDES     3/1/00.                                                                
 Program.                                                                                                       
NPDES-Authorized States Modify NPDES     3/1/01.                                                                
 Program if Statutory Change is                                                                                 
 Required.                                                                                                      
Permitting Authority Issues A Menu of    3/1/01.                                                                
 BMPs for Regulated Small Municipal                                                                             
 Separate Storm Sewer Systems (MS4s).                                                                           
ISTEA Sources Submit Permit Application  8/7/01.                                                                
Permitting Authority Issues General      3/1/02.                                                                
 Permit(s) (if this type of permit                                                                              
 coverage is selected).                                                                                         
Regulated Small MS4s Submit Permit       a. 5/31/02.                                                            
 Application:                                                                                                   
    a. If designated under Sec.          b. 5/31/02.                                                            
     122.32(a)(1) with 1990 Census as                                                                           
     ``latest'' Census.                                                                                         
    b. If designated under Sec.          c. Within 60 days of notice.                                           
     122.32(a)(1) with 2000 Census as                                                                           
     ``latest'' Census (2000 Census                                                                             
     calculations to be completed                                                                               
     approximately by August 2001).                                                                             
    c. If designated under Sec.          d. Within 180 days of notice.                                          
     122.32(a)(2).                                                                                              
    d. If designated under Secs.                                                                                
     122.26(a)(9)(i) (C) or (D).                                                                                
Storm Water Discharges Associated With   5/31/02.                                                               
 Other Activity Submit Permit                                                                                   
 Application.                                                                                                   
Permitting Authority Designates Small    5/31/02 or 3/1/04 (if a watershed plan is in place).                   
 MS4s under Sec.  123.35(b)(2).                                                                                 
Regulated Small MS4s' Program Developed  2007.                                                                  
 and Implemented.                                                                                               
Reevaluation of the Proposed Rule by     3/1/12.                                                                
 EPA.                                                                                                           
Permitting Authority Determination on a  Within 180 days.                                                       
 Petition.                                                                                                      
Non-Municipal Sources Designated Under   Within 180 days of notice.                                             
 Sec.  122.26(a)(9)(i) (C) or (D)                                                                               
 Submit Permit Application.                                                                                     
Submission of No Exposure Certification  Every 5 years.                                                         
----------------------------------------------------------------------------------------------------------------

B. Readable Regulations

    Today, EPA is proposing new regulations in a ``readable 
regulation'' format. This reader-friendly, plain English approach is a 
departure from traditional regulatory language and should enhance the 
rule's readability. These plain English regulations use questions and 
answers, ``you'' to identify the person who must comply, and ``must'' 
rather than ``shall.'' The legal implications of plain English are the 
same. The word ``must'' indicates a requirement. Words like ``should,'' 
``could,'' or ``encourage'' indicate a recommendation or guidance. This 
new format, which minimizes the layers of subparagraphs, should also 
allow the reader to easily locate specific provisions of the 
regulation. Language within parentheses in today's proposal is intended 
as guidance. EPA requests comment on this new format and whether it 
provides sufficient distinction between legal obligations and EPA 
recommendations.
    Some sections of today's proposed regulation are presented in the 
traditional language and format because these sections are amending or 
changing existing regulations. The readable regulation format was not 
used in these existing provisions in an attempt to avoid any possible 
confusion or disruption of the flow of the regulations.

C. Program Framework

    EPA interprets CWA section 402(p)(6) to provide broad discretion in 
establishing the structural framework for the designation of additional 
sources, as well as the program to regulate those sources. The Agency 
believes it has the authority to develop the section 402(p)(6) storm 
water program either as part of the existing NPDES permit program or as 
a stand alone non-NPDES program (i.e., through an ``authorization by 
rule'' approach). Under either approach, the Agency would interpret 
section 402(p)(6) as directing the Agency to publish regulations that 
``regulate'' the remaining unregulated sources, specifically to 
establish requirements that are federally enforceable under the CWA. At 
the same time that Congress enacted section 402(p), it enacted CWA 
section 319. Section 319(b)(2)(B) refers to ``nonregulatory or 
regulatory programs for enforcement.'' The Agency interprets this 
distinction as relevant for the purposes of interpreting the term 
``regulate'' in section 402(p)(6). The Agency has considered many 
options for the framework, as discussed in this section. The Agency 
also notes that, although input from the Storm Water Phase II FACA 
Subcommittee was instrumental in the development of today's proposal, 
the subcommittee was unable to reach consensus on the structural 
framework for implementation.
1. Today's Approach--The NPDES Program Approach
    As discussed in Section II.A, Overview, EPA sought to achieve 
certain goals in today's approach. EPA believes the best approach to 
meet these goals is through the use of the NPDES program. One of the 
specific goals that would be addressed through use of NPDES permits is 
equitable treatment of all municipal separate storm sewer systems 
within an urbanized area in order to solve the problem of donut holes. 
The existence of donut holes creates an equity problem because some 
similar discharges remain unregulated even though they cause the same 
water quality impacts. EPA believes that covering the unregulated 
discharges in these areas through the NPDES framework would provide the 
best method, given that this approach would cover urbanized areas under 
one single comprehensive and seamless regulatory program for storm 
water. For example, today's proposal would allow for a municipality to 
join as a co-permittee with a regulated municipality, referencing a 
common storm water management program (see Section II.H.3, Municipal 
Permit Requirements, for further discussion.) Similarly, construction 
activities under the existing storm water program and under today's 
proposed program covering 1 to 5 acres of disturbed land would be 
subject to essentially the same program requirements. The NPDES program 
approach, as proposed, is highly flexible in terms of a number of key 
provisions that would facilitate and promote watershed planning and 
sensitivity to local conditions. EPA made an intensive effort to 
include flexibility in today's proposed rule, and examples abound 
throughout the proposal. The following are some of the more significant 
examples of the flexible NPDES approach being proposed: using NPDES 
general permits for coverage of regulated sources on a watershed basis; 
incorporating qualifying local programs in NPDES permit requirements; 
selecting regionally appropriate BMPs

[[Page 1554]]

for municipalities; allowing minimum control measures to be implemented 
by another governmental entity; and allowing permitting authorities to 
waive otherwise applicable requirements for sources pursuant to 
watershed/TMDL assessments. Furthermore, EPA sought to accommodate 
State and Tribes seeking to coordinate the storm water program with 
other State and Tribal programs, including those that focus on 
watershed-based nonpoint source regulation.
    EPA believes that a flexible approach must be in balance with the 
need for the program to be enforceable and to hold the regulated 
community accountable for fulfilling program requirements. As such, a 
significant benefit of using an NPDES approach is that permits would be 
enforceable under the CWA. Another concern for EPA and several Storm 
Water Phase II FACA Subcommittee members was that the program ensures 
citizen participation. Currently, the NPDES approach ensures citizen 
participation throughout the permit issuance process, as well as in 
enforcement proceedings.
    In addition, the NPDES approach is suitable to cover all the 
sources that would be potentially regulated under CWA section 
402(p)(6), including facilities owned or operated by Federal, State, or 
Tribal governments. Incorporating the section 402(p)(6) program into 
the NPDES approach capitalizes upon the existing governmental 
infrastructure for administration of the NPDES program. Moreover, much 
of the regulated community already understands the NPDES program and 
the way it works.
    Some stakeholders shared concerns that the NPDES approach was 
unnecessarily burdensome and costly. In response, EPA proposes 
modifications to and clarifications about the NPDES program. EPA shares 
some of the stakeholder concerns; other concerns are merely 
misperceptions. EPA envisions that NPDES permitting authorities would 
use general permits for the majority of discharges designated for 
regulation under the comprehensive program. General permits should help 
to minimize any administrative burden on NPDES permitting authorities 
and expedite permit coverage for dischargers. The Agency also proposes 
provisions that would recognize actions by States and their political 
subdivisions in determining compliance with permit requirements. For 
example, small municipalities could rely on efforts by States or 
neighboring municipalities to satisfy permit obligations. This 
flexibility would allow both the permittee/municipality and the State 
to minimize unnecessary duplication. Another example from today's 
proposal would be the incorporation by reference of existing programs 
with locally developed standards for pollutant controls into NPDES 
permits. This would be to the benefit of permittees who might otherwise 
be subject to duplicative requirements by different levels of 
government (local, State, and Federal.)
2. Alternatives Considered
    EPA considered a variety of alternative approaches to structure the 
proposed extension of the existing storm water program. Under the first 
option, EPA would develop a completely new non-NPDES regulatory system. 
Such an approach could include authorization of discharges ``by rule'' 
or some other type of permit program in which permits were not 
developed in the same way as NPDES permits. Under a second option, EPA 
would establish only a ``baseline'' scope of applicability for State 
and Tribal programs; the only nationally applicable EPA action would be 
the designation of sources. EPA would allow States and Tribes to use 
existing water pollution control programs (NPDES or otherwise) to 
regulate such designated sources. To the extent existing programs did 
not cover EPA's baseline program, States and Tribes would establish 
additional regulatory control mechanisms. A Storm Water Phase II FACA 
Subcommittee work group analyzed these approaches and provided valuable 
feedback to the Agency. A caucus of State representatives from the 
Storm Water Phase II FACA Subcommittee submitted a third option. Under 
their proposal, States and Tribes would have an option to develop an 
individual storm water management program. (As an alternative under 
this option, States and Tribes could choose to implement the program 
developed by EPA.) The individual State or Tribal storm water 
management program would use NPDES permits but would also rely on 
enforceable non-permit mechanisms (e.g., if EPA promulgated a 
regulation that ``deemed'' requirements under such non-permit 
mechanisms to be ``an effluent limitation or other limitation under CWA 
section 301''). Because section 402 is referenced in section 301(a), 
non-permit mechanisms developed by States according to the 
comprehensive program requirements of section 402(p)(6) would also 
constitute effluent limitations under section 301. Under the States' 
proposal, EPA would have to review and approve these programs to ensure 
that they provide for the same water quality results as those 
prescribed under the Federal program. Additionally, EPA would 
periodically evaluate the management plans and could require the State 
or Tribe to implement the Federal section 402(p)(6) program if the plan 
became inadequate. The State caucus representatives of the Storm Water 
Phase II FACA Subcommittee amplified this option in a discussion 
intended for inclusion in this preamble and for public comment thereon 
(see the next section entitled, State Alternative Program).
    EPA believes the alternative approaches could provide many of the 
same benefits discussed previously relating to today's proposal. 
Specifically, EPA believes that the options could be designed to 
provide adequate integration of the storm water programs, 
enforceability, accountability, public participation, and coverage of 
sources (e.g., facilities owned or operated by Federal, State, or 
Tribal governments). The alternative approaches might also provide 
opportunities to streamline the control mechanisms that the Agency has 
not yet evaluated. Furthermore, the storm water management program 
proposal allows States and Tribes the maximum amount of flexibility in 
tailoring the section 402(p)(6) program to address their specific 
environmental problems.
    The Agency does have some concerns about the alternative proposals, 
however. The alternatives establish new systems, which could cause a 
great deal of confusion. As explained previously, EPA is not yet aware 
of any such program currently in existence for regulation of storm 
water. None of the alternatives would provide any level of national 
consistency or predictability. This may be a special concern for 
industrial stakeholders operating in multiple States nationwide. The 
Agency has heard numerous concerns about inconsistencies in 
requirements from different jurisdictions. While today's proposed 
approach does not totally address this issue, the Agency at least 
attempts to establish a minimum program for ensuring a certain level of 
consistency nationwide.
    In addition, EPA believes it would be very difficult to determine 
whether a State or Tribe has developed an adequate individual program 
that provides the same level of substantive control. The process of 
approving these alternative programs to determine whether they provide 
an equivalent or better level of control could take a great deal of 
time and further delay controlling unregulated point source discharges 
that are causing an adverse impact on water quality. Furthermore, if a 
non-NPDES option was included in

[[Page 1555]]

the final rule, EPA would need to determine which, if any, programmatic 
requirements of 40 CFR parts 122 et seq. should be applicable to State 
non-NPDES programs. EPA believes it would need to address some of the 
State program requirements from existing regulations including 
conflicts of interest among governing bodies who approve permits 
(consistent with CWA section 304(i)(D)), requirements for enforcement 
authority and penalty provisions, confidentiality of permit application 
information, EPA review of and objection to State permits, public 
notice and public hearings for permit issuance, citizens appeal of 
final-issued permits, and citizen intervention in enforcement 
proceedings. These provisions are particularly important for ensuring 
adequate enforcement and public participation, as well as integrity and 
public confidence in the program. EPA seeks comment on how these issues 
could be addressed in a non-NPDES program.
    The Agency is seeking comment on today's proposal, as well as on 
the alternatives considered. Comment is further sought on whether a 
viable approach would be for EPA to adopt a State alternative approach 
for part of today's proposed storm water program. For example, were it 
to adopt a non-NPDES approach, EPA would need to determine what parts 
of the State's non-NPDES program could be submitted for EPA approval. 
It would seem that it is more prudent to specify particular parts of a 
storm water program, rather than the program in its entirety, as 
eligible for approval for a non-NPDES approach. Thus, a State or Tribe 
could propose a non-NPDES framework for the construction component (1 
or more and less than 5 acres of disturbed land) of its storm water 
program. Likewise, a State or Tribe could propose a non-NPDES framework 
for storm water runoff from regulated small municipalities located 
outside of urbanized areas. Furthermore, another option could allow 
States or Tribes to seek approvability for a non-NPDES approach solely 
for sub-parts of the program, such as covering construction sites 
between 3 and 5 acres under an NPDES program, while covering between 1 
and 3 acres in a non-NPDES program. In the municipal program, a non-
NPDES program could be available for specific minimum control measures. 
EPA would like comment on these options for program approvability.
a. State Alternative Non-NPDES Program
    State representatives on the Storm Water Phase II FACA Subcommittee 
have requested that EPA invite comment on an alternative program 
framework to be available to States in addition to the NPDES State 
storm water management program requirements in today's proposed rule.
    Today's proposal would rely on the NPDES permit program to 
establish a comprehensive program to regulate designated sources. EPA 
believes, however, that section 402(p)(6) is subject to an 
interpretation that would allow for a comprehensive program to regulate 
designated sources through a regulatory program other than the NPDES 
permit program (e.g., through authorization by rule). For a State to 
qualify for a non-NPDES approach, it would probably have to decide to 
take such an approach from the start, however.
    State representatives have suggested that a process be identified 
that would lead to the development of an alternative non-NPDES State 
storm water management program under CWA section 402(p)(6) for States 
wishing to take a more comprehensive approach than that of today's 
proposal. Under the States' proposal, States, Territories, and Tribes 
could elect either (1) to regulate the sources designated in today's 
proposal under the NPDES permit program according to the provisions of 
today's proposal (assuming the State, Territory, or Tribe is authorized 
to administer the NPDES program) or (2) to develop an alternate State 
storm water management program subject to public review and comment and 
Federal approval. The two major features of the alternative program are 
that it would be fully integrated into a State comprehensive water 
quality management program and it would include specific non-NPDES 
mechanisms for controlling storm water discharges. States would also 
have the option of employing some combination of the above.
    i. Alternative Overview. Similar to today's NPDES proposal, States 
under the alternative proposal would need to specifically identify how 
urban storm water management activities would be coordinated with other 
water quality management activities, such as nonpoint source management 
and TMDL development. In addition, as proposed, the State storm water 
management program would be developed with involvement of 
municipalities, industries, environmental groups, and other 
stakeholders, much like the current NPDES process. Also, as with the 
NPDES program, the alternative program would focus principally on 
environmental results, rather than on the administrative or planning 
process itself. States propose more opportunity for citizen involvement 
in the initial development and implementation of the overall 
alternative program than is currently envisioned by today's NPDES 
proposal. In comparison with today's NPDES proposal, the alternative 
might allow for less opportunity for citizen involvement in the details 
of requirements imposed on dischargers (than is afforded under NPDES 
permits).
    ii. State-Proposed Program Criteria. In seeking proposal of an 
alternative approach, State representatives on the Storm Water Phase II 
FACA Subcommittee have suggested criteria for EPA approval of an 
alternative State storm water management program. Such a program would 
be required:

(1) To demonstrate that it would result in equivalent or better 
protection of water quality and designated uses
(2) To provide assurances of implementation, including:
    a. Legal authorities of participating state and local agencies
    b. Resources to carry out implementation
    c. Enforceable mechanisms for implementation measures, including 
backup to voluntary measures
(3) To identify equivalent or better timeframes for implementation
(4) To allow equivalent or better public participation elements
(5) To provide for management of the same types of facilities in an 
equivalent or better manner or provide for management of activities 
that would result in equivalent or better protection
(6) To include objectives, measures, monitoring, and corrective action 
mechanisms adequate to assure that the program is being implemented and 
is effective

Other substantive considerations would include, at a minimum, a 
description of the mechanism by which storm water sources are (or would 
be) regulated; a description of the opportunities for public 
participation, including in the development of regulatory and 
nonregulatory mechanisms and enforcement; and a statement about the 
legal authority of the State to administer such a program by an officer 
of the State who is competent to provide such a statement.
    In utilizing these criteria, the alternative program submission 
would cover, to at least the same extent, sources and related 
pollutants of concern designated in today's proposed rule (e.g., 
discharges from small municipal separate storm sewer systems

[[Page 1556]]

and from construction sites disturbing less than 5 acres, including 
opportunity for waiver provisions). For a State to qualify for approval 
of an alternative approach, the State program would need to cover 
additional wet weather sources not specifically designated in today's 
proposed rule as well. In addition, covered sources to be designated 
under today's proposal and other additional sources identified by the 
State alternative program would be expected to attain water quality 
standards, including designated uses. One area of flexibility that EPA 
foresees as a possibility under the alternative program relates to the 
minimum control measures required in today's NPDES proposal. 
Implementation of today's proposed minimum control measures in the 
alternative approach would not be necessary as long as the alternative 
program provided for control measures that addressed the same impacts 
to the same extent as today's proposed minimum control measures are 
intended to.
    iii. Proposed Procedure for Approval and Periodic Review. If the 
final rule were to allow States an option for an alternative State 
storm water management program, States envision the need for both a 
Federal approval procedure and periodic EPA review. States would need 
to invest time, energy, and resources at the outset to develop such 
alternative programs. More planning would be necessary for such a 
submission than would otherwise be expected under today's proposal. In 
addition, a State electing to develop an alternative storm water 
management program might be required to evaluate, revise, and update 
its water quality management program at fixed intervals. States 
envision that, EPA, in conducting such reviews, would seek comments 
from the community on the performance of the statewide storm water 
management program. State representatives believe that this approach 
would provide the public within a State with much more meaningful 
involvement at the program level than is normally achieved through the 
issuance of individual or general permits.
    iv. Proposed Procedure for Disapproval. State representatives have 
also suggested criteria for EPA use in the event that it becomes 
necessary to withdraw approval of a State storm water management 
program and require implementation of the federally prescribed NPDES 
program in today's proposed rule. They have proposed the following 
criteria:
    (1) The State has not implemented its program or has ceased 
implementation of the program;
    (2) The State is implementing its program, but the program is not 
effective in managing storm water from the same sources intended in the 
NPDES alternative;
    (3) EPA has notified a State of deficiencies in its program and the 
State has not corrected them within 6 months, or 2 years if statutory 
revisions are necessary. (EPA is not required to provide the State time 
to make statutory revisions if the State legislature has already 
removed the original necessary State statutory program authority.)
    EPA invites comment on the appropriateness of this alternative 
proposal. Specifically, comments are sought on the proposed alternative 
approval, review, and disapproval processes as they relate to 
requirements under 40 CFR Part 123. EPA invites comment on the 
appropriateness of these substantive criteria, including the 
appropriate level of specificity to ensure consistent application while 
providing States with flexibility, as well as the need for other 
substantive criteria. This would include enforceability of such an 
alternative to ensure equivalency or better protection of water quality 
as envisioned by the CWA and the need for national consistency in point 
source control requirements. EPA further invites comment on whether 
State processes for public participation would provide an adequate 
opportunity for input from regulated sources, as well as from the 
public in general.
    In addition, the States have proposed that an alternative program 
could utilize State efforts undertaken to comply with Part 130 
regulations (40 CFR Part 130). Although EPA is not proposing to amend 
the Part 130 regulations, EPA invites comment on how the existing Part 
130 regulations could support an enforceable alternative State program. 
For a more complete discussion of the Part 130 regulations, see Section 
II.L.2, Total Maximum Daily Loads, of today's preamble.
3. Permits Versus Non-Permits
    As noted previously, EPA proposes that the extension of the 
existing storm water program under section 402(p)(6) be administered as 
part of the NPDES permitting program (including the exemption for 
discharges associated with industrial activity composed entirely of 
storm water where there is ``no exposure'' to storm water). As such, 
the extension of the existing storm water program would be implemented 
through NPDES permits. NPDES permits are advantageous in many ways. As 
explained more fully in EPA's April 1995 guidance, Policy Statement on 
Scope of Discharge Authorization and Shield Associated with NPDES 
Permits (U.S. Environmental Protection Agency. July 1, 1994 (revised 
April 11, 1995). Memo: From Robert Perciasepe (Assistant Administrator 
for Water), Steven A. Herman (Assistant Administrator for Enforcement), 
and Jean C. Nelson (General Counsel) to Regional Administrators, 
Regarding ``Policy Statement on Scope of Discharge Authorization and 
Shield Associated with NPDES Permits.''), compliance with an NPDES 
permit constitutes compliance with the CWA (see CWA section 402(k)). 
Moreover, certain NPDES discharges qualify as ``federally permitted 
releases'' under section 101(10) of the Comprehensive Environmental 
Response, Compensation and Liability Act, also known as Superfund (see 
42 U.S.C. 9601(10); 40 CFR 117.12). Additionally, permits generally 
require an application or a notice of intent to be covered. This 
information exchange assures communication between the permitting 
authority and the regulated community. This communication is critical 
in ensuring that the regulated community is aware of the requirements 
and the permitting authority is aware of potential impacts to water 
quality. The NPDES permitting process includes the public as a valuable 
stakeholder and ensures that the public is included and information is 
made publicly available. Furthermore, NPDES permits are enforceable 
under the CWA by citizens and Federal, State, and Tribal governments, 
thus ensuring adequate protection against adverse impacts on water 
quality.
    The Agency recognizes that using NPDES permits has some drawbacks. 
Issuing individual NPDES permits can be burdensome on permitting 
authorities and the regulated community. NPDES permits are only 
effective for 5 years. The time spent issuing permits could restrict 
resources to conduct public outreach, inspections, and enforcement. 
Commenters have noted that the application process is costly and 
confusing. To address a number of these problems, EPA encourages using 
general permits for the majority of sources to be designated under this 
proposal. NPDES general permits can cover a category of dischargers 
within a defined geographic area. Areas can be defined very broadly to 
include political boundaries (e.g., county), watershed boundaries, or 
State or Tribal land. Furthermore, EPA is working to streamline the 
permit

[[Page 1557]]

application/NOI process to reduce the burden on the regulated 
community. EPA is seeking comment on today's proposed approach.
    The Storm Water Phase II FACA Subcommittee work group that 
considered the structural framework for the extension of the existing 
storm water program under section 402(p)(6) also considered the 
appropriate legal mechanism for implementation. The subcommittee 
discussed numerous options and considered including self-implementing 
rules or ``permits-by-rule.''
    A self-implementing rule would be a regulation promulgated at the 
Federal, State, or Tribal level. The basic principle would be that the 
rule would spell out the specific requirements for dischargers. The 
rule could impose the exact same restrictions and conditions as an 
NPDES permit, but generally would be effective until modified by EPA, a 
State, or a Tribe. EPA considered addressing the storm water program 
under section 402(p)(6) directly by rule instead of through a 
permitting program. This approach could reduce the burden on the 
regulated community (e.g., by not requiring permit applications). 
Although this approach would provide consistency across the nation, it 
would not address site-specific problems very well or foster 
coordination with authorized NPDES State programs. In discussing this 
option, some stakeholders raised enforcement issues and the ability of 
EPA, States, and Tribes to determine which discharges were subject to 
the program. Although EPA has several programs with self-implementing 
requirements (e.g., the sewage sludge program, Part 129 toxic standards 
under the NPDES program, and categorical standards under the 
pretreatment program), the Agency does not propose to take this 
approach under section 402(p)(6). The Agency does, however, seek 
comment on such an alternative.

D. Federal Role

    Today's proposal describes EPA's approach to develop the extension 
of the existing storm water program under CWA section 402(p)(6). As in 
all other Federal programs, the Federal government plays an integral 
role in developing, implementing, overseeing, and enforcing the 
program. This section describes EPA's role in the revised storm water 
program.
1. Develop Overall Framework of the Program
    As discussed previously in the overview section, the storm water 
program under CWA section 402(p)(6) would consist of the rule, tool 
box, and permits. EPA's primary role would be to ensure timely 
development and implementation of all components. Today's proposal is a 
refinement of the first step in developing the program. EPA is fully 
committed to continuing to work with involved stakeholders on 
developing the tool box and issuing permits. As noted in today's 
proposal, EPA would be required to assess the municipal storm water 
program based on (1) evaluations of data from the NPDES municipal storm 
water program, (2) research of water quality impacts on receiving 
waters from storm water, and (3) research on BMP effectiveness. EPA 
will attempt to seek adequate resources, within annual budgetary 
constraints, to ensure that these evaluations, as well as the necessary 
research, can be completed. (Section II.H, Municipal Role, provides a 
more detailed discussion of this provision.)
2. Encourage Use of a Watershed Approach
    EPA is promoting an integrated approach that focuses on public and 
private sector efforts to address the highest priority problems within 
hydrologically defined geographic areas. Today's proposal offers 
flexibility for States and Tribes to use a watershed approach and 
should facilitate watershed planning on the part of States and Tribes 
implementing the program. Section I.H. discusses the watershed approach 
in more depth.
3. Provide Financial Assistance
    Another important role for the Federal government would be to 
assist financially in developing and implementing the storm water 
program under section 402(p)(6). EPA has no independent authority to 
establish a funding mechanism. Although Congress did not establish a 
fund to fully finance implementation of the proposed extension of the 
existing NPDES storm water program under section 402(p)(6), numerous 
Federal financing programs (administered by EPA and other Federal 
agencies) could provide some financial assistance. These programs 
include the CWA section 106 grant program, CWA section 104(b)(3) grant 
program, State surface and ground water management programs under the 
Safe Drinking Water Act, the environmental quality incentives program, 
the conservation reserve program, the wetlands reserve program, and the 
estuary management and Federal monitoring programs. Also, the Natural 
Resources Conservation Service (NRCS) has some grants available to 
assist in projects related to erosion and sediment controls. The Agency 
anticipates that some of these programs would provide funds to help 
develop and, in limited circumstances, implement the section 402(p)(6) 
storm water program. Because some Federal funds are only available for 
limited purposes, for example, nonpoint source control programs, and 
because section 402(p)(6) describes a program for controlling point 
source discharges of storm water, EPA solicits comment on suggestions 
on structuring the final rule to maximize opportunities for Federal 
financial assistance.
4. Implement the Program for Non-NPDES Authorized States, Tribes, and 
Territories
    Since today's proposed approach utilizes the NPDES framework, EPA 
would be the permitting authority for several States, Tribes, and 
Territories. As such, EPA would have the same responsibilities as any 
other NPDES permitting authority--issuing permits, designating 
additional sources, and taking appropriate enforcement actions--and 
would seek to tailor the storm water program to the specific needs of 
the State, Tribe, or Territory. EPA would also provide support and 
oversight, including outreach, training, and technical assistance to 
the regulated communities. See the discussions below related to the 
NPDES permitting authority's responsibilities for today's proposed rule 
provisions, and note that Section II.G. of today's preamble provides a 
separate discussion.
5. Oversee State Programs
    Under the NPDES program, EPA plays an oversight role for NPDES-
approved States and Tribes. In this role, EPA and the States or Tribes 
work together to implement, enforce, and improve the NPDES program. 
Part of this oversight role includes working with States and Tribes to 
modify their programs where inadequacies exist. This role would be 
vitally important when States and Tribes make adjustments to develop, 
implement, and enforce the new section 402(p)(6) proposed extension of 
the existing NPDES storm water program. In addition, States maintain a 
continuing planning process (CPP) under section 303(e) of the CWA, 
which EPA periodically reviews to assess the program's achievements.
    In its oversight role, EPA takes action to address States and 
Tribes who have voluntarily sought NPDES authorization but are not 
fulfilling their obligations under the NPDES program. If an NPDES-
authorized State or Tribe failed to implement an adequate NPDES storm 
water program, for example, EPA would enter into extensive discussions 
to

[[Page 1558]]

resolve outstanding issues. EPA has the authority to withdraw the 
entire NPDES program (partial program withdrawal is not allowed under 
the CWA) when resolution cannot be reached.
    EPA is also working with the States and Tribes to improve nonpoint 
source management programs and assessments to incorporate key program 
elements. Nonpoint source program elements can include protecting 
surface and ground water; establishing partnerships with public and 
private partners; using a balanced approach incorporating Statewide and 
watershed-abatement of existing impairments; preventing future 
impairments; developing processes to address both impaired and 
threatened waters; reviewing upgrades of all program components, 
including program revisions on a 5-year cycle; addressing Federal land 
management and activities inconsistent with State programs; and 
managing State/Tribal nonpoint source management programs. In addition, 
EPA has committed to help address nonpoint source pollution stemming 
from Federal lands and activities.
    In particular, EPA works with the States and Tribes to strengthen 
their nonpoint source pollution programs to address agricultural 
sources through the CWA section 319 program. EPA is working with other 
government agencies, as well as with community groups, to effect 
voluntary changes regarding watershed protection and reduced nonpoint 
source pollution. Through the FACA process, the Agency would continue 
to work with States to ensure that the requirements of the proposed 
extension of the existing storm water program under section 402(p)(6) 
are consistent with elements of the nonpoint source management program.
    In addition, EPA and NOAA have published programmatic and technical 
guidance to address coastal nonpoint source pollution. Under the 
existing coastal protection program, EPA and NOAA review State programs 
and provide technical and programmatic assistance to help the coastal 
States upgrade their Coastal Zone Management Programs. The Agency is 
committed to assisting States in identifying sources of funding to 
develop and implement State coastal nonpoint programs.
6. Comply With Applicable Requirements as a Discharger
    Today's proposal covers federally owned or operated facilities in a 
variety of ways. These facilities are generally areas where people 
reside, such as a Federal prison, hospital, or military base. These 
facilities could be included under the definition of a regulated small 
municipal separate storm sewer system, which specifically includes 
systems operated by the Federal facilities. For Federally owned 
regulated small municipal separate storm sewer systems, the proposal 
would require compliance with the application deadlines that apply to 
regulated small municipal separate storm sewer systems generally. EPA 
believes that all Federally owned municipal separate storm sewer 
systems would serve populations less than 100,000. We invite comment on 
the appropriateness of this assumption.
    Federal facilities could also be included under the section 
addressing storm water discharges associated with other activities, 
including construction. In any case, discharges from these government-
owned facilities would need to comply with all applicable NPDES 
requirements and any additional water quality-related requirements 
imposed by a State, Tribal, or local government. Failure to comply 
could result in enforcement actions. Federally owned and operated 
facilities could act as models for municipal and private sector 
facilities and implement or test state-of-the-art management practices 
and control measures.

E. State Role

    Today's proposal sets forth an NPDES approach for implementing the 
proposed extension of the existing storm water program under section 
402(p)(6). The NPDES program is a voluntary federal program consistent 
with the principals of federalism. Because most States are approved to 
implement the NPDES program, they will tailor their storm water 
programs to address their water quality needs and objectives. 
Federally-recognized Tribes also have the opportunity to administer the 
NPDES program. Several Tribes are currently seeking NPDES authorization 
and, when approved, will also tailor the proposed extension of the 
existing NPDES storm water program to address their local needs and 
objectives. While EPA is proposing the basic framework for the section 
402(p)(6) program, States and Tribes have an important role in fine-
tuning the program to address the water quality issues within their 
jurisdictions. The basic framework would allow for adjustments based on 
factors that vary geographically, including climate patterns and 
terrain.
    Where States or Tribes do not have NPDES authority, they are not 
required to implement the storm water program, but they may still 
participate in water quality protection through participating in the 
CWA section 401 certification process (for any permits) and through 
development of water quality standards and TMDLs when authorized to do 
so.
1. Develop the Program
    In developing the proposed extension of the NPDES existing storm 
water program under section 402(p)(6), States and Tribes must evaluate 
whether revisions to their NPDES programs are necessary. If so, 
modifications must be made in accordance with Sec. 123.62. Under 
Sec. 123.62, States and Tribes must revise their NPDES programs within 
1 year or 2 years if statutory changes are necessary. EPA believes this 
time period is appropriate for incorporating revisions to existing 
NPDES programs because the basic NPDES program already addresses storm 
water discharges from industrial and larger municipal sources.
    EPA is considering modifying the 1 year timeframe to 2 years or 3 
years if statutory changes are required, where a State or Tribe has a 
fully developed and approved watershed program (including enforceable 
nonpoint source controls) by the end of the first year. EPA supports 
implementing the section 402(p)(6) proposed storm water program as part 
of a watershed approach (see more detailed discussion in previous 
section on watersheds) and believes it is appropriate to offer 
institutional incentives as encouragement. EPA is specifically seeking 
comment on this issue.
    A State or Tribal NPDES program must meet the requirements of 
section 402(b) or conform to the guidelines issued under section 
304(i)(2) of the CWA. Today's proposal under Sec. 123.25 adds specific 
cross references to the section 402(p)(6) program components to ensure 
that States and Tribes adequately address these. Furthermore, EPA is 
proposing Sec. 123.35, which is discussed more fully in Section II.G, 
NPDES Permitting Authority's Role for the CWA section 402(p)(6) 
Municipal Program.
    In tailoring the proposed extension of the existing NPDES storm 
water program to accommodate their needs, States and Tribes should 
coordinate and utilize the data collected under several programs, 
including water quality management programs, TMDL programs, and water 
quality monitoring programs. All States and Tribes have water quality 
standards that consist of designated uses, criteria, an antidegradation 
policy, and other implementation policies and procedures. Water quality 
management programs are geared to achieving these goals and must be 
updated every 3 years. In addition, States are required to submit a 
prioritized ranking of waters

[[Page 1559]]

requiring TMDLs. (See Sections II.L.1 and II.L.2 for more information 
on water quality standards and TMDLs, respectively) States and 
interstate agencies monitor for contaminants in ambient water, fish 
tissue, and specific point sources. In addition, they conduct intensive 
monitoring in watersheds (or at specific sites within a watershed) to 
develop efficient control strategies for point and nonpoint sources. 
CWA section 305(b) Reports summarize this information and must be 
submitted to EPA every 2 years. It is critical that States and Tribes 
evaluate existing monitoring programs, revise them as needed to ensure 
that meaningful data are being collected, and share information with 
the local communities. (See Section II.L.4 for additional information 
on monitoring.)
2. Comply With Applicable Requirements as a Discharger
    Today's proposal would cover State or Tribally owned or operated 
separate storm water systems in a variety of ways. These systems 
generally drain areas where people reside, such as a prison, hospital, 
or other populated facility. These systems could be included under the 
definition of a regulated small municipal separate storm sewer system, 
which specifically includes systems operated by State departments of 
transportation. Alternatively, they could be included under the section 
addressing storm water discharges associated with other activities, 
including construction. In any case, discharges from these government-
owned facilities would need to comply with all applicable NPDES 
requirements. Failure to comply could result in enforcement actions. 
State or Tribal facilities could act as models for municipal and 
private sector facilities and implement or test state-of-the-art 
management practices and control measures.
3. Communicate With EPA
    Under approved NPDES programs, States and Tribes have an ongoing 
obligation to share information with EPA on a periodic basis. This 
dialogue is particularly important in the section 402(p)(6) storm water 
program where these governments continue to develop a great deal of the 
guidance and outreach related to water quality. EPA would continue to 
use the FACA process in developing materials related to the section 
402(p)(6) program and input from States and Tribes throughout this 
process would be critical.

F. Tribal Role

1. Background
a. EPA's Indian Policy
    EPA is committed to the nine principles outlined in its 1984 Indian 
Policy, which include working with Tribes in a government-to-government 
relationship, recognizing Tribal sovereignty, and dealing with the 
Tribal government as the primary party for decisionmaking and 
management of environmental issues on the Indian reservations, 
consistent with EPA standards and regulations (U.S. Environmental 
Protection Agency, American Indian Environmental Office. 1996. Working 
Effectively With Tribal Governments. Participant Manual, Interim Final, 
U.S. EPA Training Seminar). EPA has affirmed and carried forward its 
commitment to the 1984 Indian Policy in many ways. In this regard, on 
March 14, 1994, EPA established the American Indian Environmental 
Office and Tribal Operations Committee. EPA believes that the approach 
in today's proposal is consistent with the principles of the policy. 
Further, today's proposal has been developed with the participation of 
the EPA Indian Office, noted above.
    In addition to storm water, the 1987 CWA amendments specifically 
focus on ``Indian Tribes.'' Under section 518, EPA may treat Indian 
Tribes in the same manner as States for the purposes of certain 
provisions of the CWA, including section 402 (National Pollutant 
Discharge Elimination System) and section 303 (water quality standards 
and implementation plans). Section 518(e) establishes a number of 
criteria for the treatment of an Indian Tribe in the same manner as a 
State. These criteria are discussed in a Federal regulation regarding 
Tribal eligibility for administering NPDES and State sludge management 
programs (see 58 FR 67966, December 22, 1993; see also 59 FR 64339, 
December 14, 1994). Upon meeting the criteria, a Tribe seeking 
authorization to administer one of the CWA water quality programs would 
acquire Treatment in the Same Manner as a State status for that 
program. Under EPA's final regulation, the Tribe's water quality or 
sludge management program authority could extend to lands within a 
``Federal Indian reservation.'' The CWA section 518(h)(1) uses the term 
``Federal Indian reservation'' to define the territorial limits for 
Tribal authority for CWA purposes. The preambles to EPA regulations, 
including NPDES program regulations, more fully explain the term 
Federal Indian reservation. Most notably, EPA has clarified that it 
considers ``trust lands,'' which were validly set apart for the use of 
Indians, to be ``within a reservation'' for purposes of the CWA (e.g., 
58 FR 67970).
    Once authorized as the permitting/program authority, a Tribe 
(instead of EPA) may operate the NPDES and sludge management programs 
on its reservations. Otherwise, EPA is generally the permitting/program 
authority within Indian country. In any case, the Tribe may also seek 
authority to operate a CWA section 303 water quality standards program. 
Tribes with approval to operate a CWA section 303 water quality 
standards program may also issue certifications under CWA section 401.
b. Existing NPDES Regulations for Storm Water
    The existing NPDES regulations for storm water discharges 
associated with industrial activities extend coverage to private, 
State, and federally owned industrial facilities located on Indian 
reservations. Further, the NPDES regulations cover industrial 
facilities owned or operated by a Tribe with a population of more than 
100,000 people within the reservation and cover all Tribally owned or 
operated airports, power plants, and uncontrolled sanitary landfills. 
The NPDES regulations for storm water associated with industrial 
activity established October 1, 1992, as the deadline to apply for 
NPDES permit coverage. EPA issued baseline NPDES storm water general 
permits covering industrial and construction activities in September 
1992 and a multisector NPDES storm water general permit covering a 
number of industrial categories in September 1995, as revised. Many 
industrial facilities covered under the NPDES regulations for 
industrial activities, including construction, and located on Indian 
reservations are included in the applicability sections of these 
general permits and can seek general permit coverage for satisfying 
program requirements.
    Existing storm water permit application regulations address storm 
water discharges from large and medium municipal separate storm sewer 
systems (Sec. 122.26(a)(1)). Regulations at Sec. 122.2 define the term 
``municipality'' to include ``an Indian Tribe or an authorized Indian 
Tribal organization.'' Consequently, the criteria used by the NPDES 
permitting authority for coverage of municipal dischargers extends to 
separate storm sewer systems that are Tribally owned or operated. At 
this time, no Indian reservations are covered under the existing 
municipal

[[Page 1560]]

NPDES storm water program. Thus, the appendices to the definitions of 
large and medium separate storm sewer systems (Part 122, Appendices F-
I) list no reservations for automatic coverage. Likewise, EPA has not 
yet designated an Indian reservation for coverage based on other 
factors to be considered under CWA section 402(p)(2)(E).
2. Today's Proposal
    The current proposed regulation for the extension of the existing 
NPDES program for storm water would cover two types of dischargers 
located on reservations. First, the proposal would designate storm 
water discharges from any regulated small municipal separate storm 
sewer system, including Tribally owned or operated systems. Second, the 
proposal would regulate discharges associated with construction 
activity disturbing between one and five acres of land, including sites 
located on reservations. Owners or operators in each of these 
categories of regulated activity would need to apply for coverage under 
an NPDES permit within 3 years and 90 days from the date of publication 
of the final rule. Under existing regulations, however, EPA or an 
authorized NPDES Tribe may require a specified storm water discharger 
to apply for NPDES permit coverage before this deadline based on a 
determination that the discharge is contributing to a violation of a 
water quality standard (including designated uses) or is a significant 
contributor of pollutants.
    Under this proposal, a Tribal governmental entity may regulate 
storm water discharges on its reservation in two ways--as either an 
NPDES-authorized Tribe or a regulated ``municipality.'' If a Tribe is 
already authorized to operate the NPDES program, EPA would require the 
Tribe to implement today's proposed regulations for the NPDES program 
for storm water, as it does for authorized States, for covered 
dischargers located on the Indian reservation. (As discussed above, a 
Tribe may seek NPDES authorization from EPA to operate the NPDES 
program in the same manner as a State.) For an outline of the role and 
responsibilities of the permitting authority in the storm water 
program, see the proposed Sec. 123.35 (and Section II.G. of today's 
preamble) and existing Sec. 123.25(a).
    Under today's proposed rule, a Tribe would be a regulated 
``municipality'' for NPDES program purposes in two ways, and, 
therefore, be required to implement the six minimum control measures to 
the extent allowable under Federal law. (EPA recognizes that tribal 
regulation of non-members on fee lands within Federal Indian 
Reservations raises complex legal questions. See 58 FR 67966 and 59 FR 
64339. Thus, the Agency invites comment that would assist the Agency in 
developing final rule language to recognize that Tribes with MS4s 
proposed for regulation under today's proposal would only need to 
implement the municipal measures proposed in section 122.34 to the 
extent such Tribes have authority under federal Indian law.) If the 
Indian reservation were located within an ``urbanized area,'' as 
defined in Sec. 122.32(a)(1) of today's proposed rule, the Tribe could 
be an owner or operator of a regulated small municipal separate storm 
sewer system (only the urbanized area portion of the reservation would 
be regulated under an NPDES permit). As discussed below, Tribal owners 
or operators of regulated small municipal separate storm sewer 
systems--serving a population under 1,000 within the urbanized area 
portion of the reservation--would be exempted from the proposed storm 
water regulation. Tribes located outside an urbanized area would not 
automatically be covered, but would be able to request designation as a 
regulated small municipal separate storm sewer system from EPA.
    EPA believes that only a few Tribes located in urbanized areas 
would meet the criteria to be regulated small municipal separate storm 
sewer systems. The Tribal representative on the Storm Water Phase II 
FACA Subcommittee asked EPA to provide a list of the Tribes located in 
urbanized areas that would fall within the NPDES storm water program 
under today's proposal. In December 1996, EPA developed a listing of 
federally recognized American Indian Areas located in Bureau of the 
Census-designated urbanized areas (see Appendix 1). Appendix 1 not only 
provides a listing of reservations and individual Tribes, but also the 
name of the particular urbanized area in which the reservation is 
located and an indication of whether the urbanized area contains a 
medium or large municipal separate storm sewer system that is already 
covered by the existing storm water regulations (``Phase I'').
    There are 27 Tribes on this list; 20 are outside of Oklahoma and 7 
are in Oklahoma. EPA recognizes that the list could have errors and 
invites comment on its accuracy. The applicability of CWA section 518 
to Tribes located in Oklahoma would be determined on a case-by-case 
basis because of unique historical and legal considerations particular 
to that State. In authorization of the Oklahoma NPDES program, EPA 
retained jurisdiction to regulate discharges in ``Indian Country'' (61 
FR 65049, December 10, 1996). In the cases of the 20 Tribes outside of 
Oklahoma, Tribal populations within urbanized areas range from very 
small numbers to more than 32,000. In the case of the seven Oklahoma 
Tribes, the population numbers are much larger. It is unlikely, 
however, that large populations fall within areas that would be 
determined to be an Indian reservation, as defined in section 518. In 
the cases of the 20 Tribes outside of Oklahoma, 9 Tribes have 
populations less than 1,000 and, thus, would be waived from proposed 
requirements for the municipal program. Eight Tribes have a population 
between 1,000 and 10,000, and 3 have a population above 10,000.
    As mentioned previously, EPA proposes to exempt from the proposed 
municipal program those Tribally owned small municipal separate storm 
sewer systems in urbanized areas that serve populations equal to or 
less than 1,000 persons. As a practical matter, EPA believes that it 
may be unlikely that a Tribe with such a small population would have 
the technical, administrative, and governmental capability, including 
the staff, to implement a storm water management program. Unlike 
similarly situated political subdivisions of States, these Tribes in 
urbanized areas lack the opportunity for support from States. Moreover, 
EPA anticipates that a Tribe of this size might consider cooperative 
arrangements with surrounding local governmental entities regarding 
storm water program implementation. The nine exempt Tribes in urbanized 
areas (populations below 1,000) include:
    <bullet> Augustine Band of Cahuilla Mission of Indians of the 
Augustine Reservation, CA.
    <bullet> Cabazon Band of Cahuilla Mission of Indians of the Cabazon 
Reservation, CA.
    <bullet> Redding Rancheria of California.
    <bullet> Seminole Tribe of Florida, Dania, Big Cypress and Brighton 
Reservations.
    <bullet> Penobscot Tribe of Maine.
    <bullet> Shakopee Mdewakanton Sioux Community of Minnesota (Prior 
Lake).
    <bullet> Las Vegas Tribe of Paiute Indians of the Las Vegas Indian 
Colony, NV.
    <bullet> Reno-Sparks Indian Colony, NV.
    <bullet> Ysleta del Sur Pueblo of Texas.
    These nine Tribes in urbanized areas would not be subject to permit 
requirements under today's proposal, unless EPA subsequently and 
specifically designated the discharges from their storm water systems 
as a water quality problem. It is important to note that this is a 
preliminary list of exempted Tribes--it may be the case that additional 
tribally-owned small

[[Page 1561]]

municipal separate storm sewer systems would be eligible for the 
exemption based on the population in the portion of the reservation 
that is located within the urbanized area. EPA seeks comment on any 
additional Tribes listed in Appendix 1 that may qualify for this 
proposed exemption.
    Outside of urbanized areas, non-authorized Tribes would be subject 
to potential designation by EPA based on the criteria established for 
designating all other small municipal separate storm sewer systems. A 
Tribe not otherwise covered by the proposed extension of the existing 
NPDES storm water program would also be able to request designation for 
coverage by EPA. In both cases, a Tribe would need to comply with all 
terms, limitations, and conditions of the applicable municipal NPDES 
permit. EPA designation and NPDES permit coverage would allow a Tribe 
to operate a federally recognized ``municipal'' storm water management 
program and extend Federal recognition to requirements the Tribe would 
place on dischargers of storm water into the Tribe's separate storm 
sewer system. This federal regulation could result in federal 
enforcement of the Tribal program. Moreover, the designation for NPDES 
coverage would provide an opportunity for a Tribe to enhance its role 
in the regulation of storm water discharges within its reservation 
without having to undertake the entire NPDES program and its existing 
requirements.
    During the public comment period following today's proposal, EPA 
plans to notify each of the Tribes in urbanized areas that are or may 
be impacted by this proposed regulation and will engage in a discussion 
of the impact of the regulation on these Tribes. EPA invites comment 
regarding the appropriateness of its approach to Tribes in urbanized 
areas, specifically the proposed exemption for Tribal municipal 
separate storm sewer systems serving populations under 1,000 people.
3. Other Relevant Issues
    During the Storm Water Phase II FACA Subcommittee process, the 
Tribal representative asked how EPA would apply the NPDES program with 
respect to non-federally recognized Indian reservations and Tribes. At 
present, EPA interprets section 518 of the CWA as applying only to 
federally recognized Tribes and Indian reservations and as not 
applicable to non-federally recognized Indian reservations and Tribes. 
EPA regional offices will deal with this issue on a case-by-case basis 
when it is brought to their attention. In addition, a State 
representative requested EPA to clarify the meaning of ``ownership of a 
Tribal municipal separate storm sewer system.'' In response, EPA notes 
that an Indian tribe or an authorized Indian Tribal organization is a 
municipality under section 502(4) of the CWA, unless a Tribe is treated 
as a State under section 518(e) of the CWA. ``Indian Tribe'' means any 
Indian Tribe, band, group, or community recognized by the Secretary of 
the Interior and exercising governmental authority over a Federal 
Indian reservation.

G. NPDES Permitting Authority's Role for the CWA Section 402(p)(6) 
Municipal Program

    As noted previously, the NPDES permitting authority can be EPA or 
an authorized State or an authorized Tribe. For clarity, the following 
discussion describes the role of the NPDES permitting authority under 
today's proposal.
1. Comply With Other Requirements
    NPDES permitting authorities would need to perform certain duties 
to implement the CWA section 402(p)(6) program. EPA is proposing 
Sec. 123.35(a) to emphasize that permitting authorities have existing 
obligations under the NPDES program with which they must comply. 
Section 123.35 focuses on specific issues related to the role of the 
NPDES authority to support administration and implementation of the 
municipal storm water program under CWA section 402(p)(6).
2. Designate Sources
    A new Sec. 123.35(b) addresses the requirements for the NPDES 
permitting authority to designate sources of storm water discharges to 
be regulated under Secs. 122.32 through 122.36 of today's proposed 
rule. NPDES permitting authorities would be required to develop a 
process, as well as criteria, to designate municipal sources and the 
authority to designate a small municipal separate storm sewer system 
where the otherwise applicable requirements have been waived under 
proposed Sec. 122.33(b) if circumstances change. EPA is proposing that 
EPA may make designations if an NPDES-approved State or Tribe fails to 
do so.
    NPDES permitting authorities could also designate areas that should 
be included in the storm water program (as regulated small municipal 
separate storm sewer systems) but are not located in an ``urbanized 
area'' and, therefore, would not be designated automatically. Such 
areas would be brought into the program if found to have actual or 
potential exceedances of water quality standards, including impairment 
of designated uses, or other adverse impacts on water quality, as 
determined by local conditions or watershed and TMDL assessments. EPA's 
aim is to address adversely impacted areas while protecting areas with 
the potential for problems. EPA encourages NPDES permitting 
authorities, local governments, and the interested public to work 
together in the context of a watershed plan to address water quality 
issues, including those associated with municipal storm water runoff 
(see Section I.H. of today's preamble for further discussion).
a. Develop Designation Criteria
    Under a new Sec. 123.35(b), the NPDES permitting authority would 
need to establish designation criteria to evaluate whether a storm 
water discharge results in or has the potential to result in 
exceedances of water quality standards, including impairment of 
designated uses, or other significant water quality impacts, including 
habitat and biological impacts. These criteria would need to be applied 
to all municipal separate storm sewer systems located outside of an 
urbanized area with a population of at least 10,000 and a population 
density of at least 1,000. EPA estimates a total of 583 incorporated 
places and 2 municipios in Puerto Rico (Arroyo and Fajardo) fall within 
this 10,000 population/1,000 density subset and would need to be 
examined for potential designation.
    EPA would recommend that the NPDES permitting authority consider, 
in a balanced manner, certain locally-focused criteria for designating 
any incorporated place, county, or place under the jurisdiction of a 
governmental entity located outside of an urbanized area on the basis 
of other significant water quality impacts. EPA proposes to recommend 
consideration of criteria that would include discharge to sensitive 
waters, high growth or growth potential, high population density, 
contiguity to an urbanized area, significant contributor of pollutants 
to waters of the United States, and ineffective control of water 
quality concerns by other programs. The proposed designation criteria 
are intended to help encourage the permitting authority to use an 
objective method for identifying and designating, on a local basis, 
sources that adversely impact water quality.
    <bullet> Discharge to sensitive waters: The potential impacts of 
storm water runoff depend, in part, on the sensitivity of the receiving 
waters. For example, cold water fisheries, such as trout streams, show 
greater levels of impairment from

[[Page 1562]]

poor erosion and sediment control programs than do other fisheries that 
are less dependent on the stream substrate. EPA recommends that 
permitting authorities identify, in coordination with Federal, State, 
and local agencies, and perhaps prioritize, designations with regard to 
the sensitivity of the resource. Sensitive waters generally include 
public drinking water intakes and their designated protection areas; 
swimming beaches and waters in which swimming occurs; shellfish beds; 
designated Outstanding National Resource Waters; National Marine 
Sanctuaries; waters within Federal, State, and local parks; and waters 
containing threatened or endangered species and their habitat, as well 
as other waters so designated.
    <bullet> High growth or growth potential: To protect watersheds and 
their receiving waters from nearly certain adverse impacts, EPA 
proposes to recommend that areas of high growth or growth potential 
should also be identified and included in the designation criteria. 
Using this factor could minimize future restoration or retrofitting 
costs. Growth potential can be measured in various ways, including 
projected building starts, comprehensive plans, zoning maps, bond 
ratings, and the condition of infrastructure and building vacancies. 
EPA would recommend that, for any given 10-year period, discharges from 
municipal separate storm sewer systems in areas with localized 
population growth rates of more than 10 percent should be evaluated for 
designation. Members of the Storm Water Phase II FACA Subcommittee 
questioned whether a 1 percent threshold (10 percent over a 10-year 
period) for ``high'' growth was reasonable. According to EPA 
calculations based on Census data from 1980 to 1990, the average rate 
of growth in the United States during that 10-year period was more than 
4 percent. For the same period, the average rate of growth within 
urbanized areas was 15.7 percent and the average for outside of 
urbanized areas was just more than 1 percent. EPA believes that these 
calculations help to support the statement that a growth percentage 
that is more than 10 times the national average for areas outside of 
urbanized areas is indeed a high rate of growth for these areas and 
should be a basis for designation of municipal storm water systems.
    <bullet> High population density: Population density is related to 
the level of human activity, which has been shown to be directly linked 
to levels of impervious land surfaces. Therefore, EPA recommends ``high 
population density'' as one criterion for designation of municipal 
sources. Even areas with relatively low population densities (i.e., 
less than two residential units per acre) can have 10 to 20 percent 
impervious area (Schueler, T. 1987. Controlling Urban Runoff: A 
Practical Manual for Planning & Designing Urban BMPs. Metropolitan 
Washington Council of Governments). Macroinvertebrate diversity becomes 
poor when impervious land exceeds 10 to 15 percent (Klein, 1979). Since 
this study, extensive research from around the country has found this 
threshold to be consistent with other studies (Schueler, T. 1995. 
Environmental Land Planning Series: Site Planning for Urban Stream 
Protection. Prepared for Metropolitan Washington Council of 
Governments.). Further, higher density residential areas (i.e., two to 
ten residential units per acre) have been correlated with as much as 35 
percent imperviousness. By recommending this criterion, EPA does not 
aim to encourage lower density development and urban sprawl but rather 
good urban design and development patterns.
    <bullet> Contiguity to an urbanized area: The areas closely outside 
of an urbanized area have a good potential for future growth and may 
also have significant impacts on a neighboring regulated municipality 
that is within the urbanized area. This designation criterion would 
allow for an extension of the seamless coverage provided by the 
regulation of urbanized areas where necessary. The proposed rule also 
captures this concept in Sec. 123.35(b)(4).
    <bullet> Significant contributor of pollutants to waters of the 
United States: This criterion is one of the basic tenets of designation 
and is meant to capture all significantly contributing sources in an 
effort to have both comprehensive and equitable coverage (see CWA 
section 402(p)(2)(E), 40 CFR 122.26(a)(5)). It also aids in developing 
a watershed approach.
    <bullet> Ineffective control of water quality concerns by other 
programs: EPA proposes to recommend that NPDES permitting authorities 
carefully consider whether the storm water runoff from a potentially 
designated area is effectively addressed under other regulations or 
programs, such as CZARA and other nonpoint source programs. For 
example, an area covered under the National Estuary Program (NEP) under 
CWA section 320 is required to develop a Comprehensive Conservation and 
Management Plan (CCMP) for managing the estuarine watershed. The CCMP 
addresses three general resource areas: water and sediment quality, 
living resources, and land use and water resources. The permitting 
authority could determine that the NEP comprehensively addresses 
impacts to water quality from storm water discharges for certain 
systems and, therefore, the systems would not need to be designated 
under the CWA section 402(p)(6) program.
    These criteria are meant to be taken in the aggregate, with a great 
deal of flexibility as to how each would be weighed in order to best 
account for watershed and other local conditions and to allow for a 
more tailored case-by-case analysis. The application of criteria is 
meant to be geographically specific. Furthermore, each criterion does 
not have to be met in order for the owner or operator of a small 
municipal separate sewer system to qualify for designation, nor would a 
system necessarily be designated on the basis of one or two criteria 
alone. EPA plans to provide comprehensive guidance to more fully 
develop its recommendations for appropriate criteria, as well as offer 
detailed information on how the criteria could be applied and what 
standards could be used. EPA seeks comment on additional designation 
criteria, as well as the validity and applicability of the proposed 
criteria.
    EPA believes that the application of the recommended designation 
criteria, when considered as a composite, would provide an objective 
indicator of real and potential water quality impacts from urban runoff 
on both the local and watershed levels. EPA encourages the application 
of the recommended criteria in a watershed context, thereby allowing 
for the evaluation of the water quality impacts of the portions of a 
watershed outside of an urbanized area. For example, situations exist 
where the urbanized area represents a small portion of a degraded 
watershed, and the adjacent nonurbanized areas of the watershed have 
significant cumulative effects on the quality of the receiving waters.
b. Apply Designation Criteria
    After customizing the designation criteria for local geography, the 
permitting authority would have to apply such criteria, at a minimum, 
to any incorporated place, county, or place under the jurisdiction of a 
governmental entity (including but not limited to Tribal or Territorial 
governments) located outside of an urbanized area that has both a 
population of at least 10,000 and a population density of 1,000 people 
per square mile or greater (see proposed Sec. 123.35(b)(2)). If the 
NPDES permitting authority determines that the place or county meets 
the criteria, they would need to designate all small municipal separate 
storm sewer systems

[[Page 1563]]

located in the place or county as regulated small municipal separate 
storm sewer systems under the NPDES storm water program within 3 years 
and 90 days of publication of the final rule. Alternatively, the NPDES 
authority could designate within 5 years from the date of final 
regulation if the designation criteria are applied on a watershed basis 
where a comprehensive watershed plan exists (a comprehensive watershed 
plan is one that includes the equivalents of TMDLs) (see proposed 
Sec. 123.35(b)(3)). The Agency seeks to provide incentives for 
watershed-based designations.
    The timeframe of 3 years and 90 days would allow States and Tribes 
up to 2 years to make any necessary statutory changes and receive 
program approval from EPA, an additional year to develop their general 
permit and designation criteria, and then 90 days for a regulated 
entity to submit its individual application or Notice of Intent (NOI) 
under a general permit. Assuming a March 1, 1999, final rule, the 
resulting deadline would be May 31, 2002. EPA believes this would be an 
adequate timeframe and would provide significant guidance to NPDES 
permitting authorities on the responsibilities to be completed during 
this period. If an NPDES-authorized State or Tribe does not develop and 
apply designation criteria, then EPA might do so.
    EPA believes it has adequate authority to apply a State's 
designation criteria (or to develop and apply designation criteria) to 
designate sources in an authorized NPDES State. Such authority would 
derive from the text of section 402(p)(6), which provides for the 
designation of sources other than those already regulated under section 
402(p)(2). EPA does not believe that section 402(c)(1), which requires 
EPA to suspend issuance of Federal NPDES permits in an authorized 
State, would preclude EPA designation of particular small municipal 
separate storm sewer systems (based on subsequently-developed criteria 
applicable in a particular State) after promulgation of today's 
proposed rule because designation of sources is independent of (and 
precedes) the issuance of permits. In addition, as discussed later in 
Section II.I.4. entitled, Residual Designation Authority, EPA believes 
that section 402(p)(6) provides the Agency with authority to 
subsequently designate individual sources under today's proposed rule. 
Today's approach for designation by EPA, even in authorized NPDES 
States, would also be consistent with the authority currently available 
to the Agency under the existing storm water regulations at 40 CFR 
122.26(a)(1)(v). Similarly, the third party petition process for small 
municipal separate storm sewer systems (including expeditious deadlines 
for acting on such petitions) is consistent with the existing storm 
water regulations at 40 CFR 122.26(f) (4) & (5). EPA solicits comment 
on the proposed designation approach.
    It is important to note that NPDES permitting authorities could 
designate any owner or operator of a municipal separate storm sewer 
system, including one below 10,000 in population and 1,000 in density. 
EPA established the 10,000/1,000 threshold primarily for prioritization 
purposes based on the likelihood of adverse water quality impacts at 
these population and population density levels. In addition, the 1,000 
persons per square mile threshold is consistent with both the Bureau of 
the Census definition of an ``urbanized area'' (see Section II.H.2. 
below) and a Storm Water Phase II FACA Subcommittee work group's 
discussion concerning the definition of a regulated small municipal 
separate storm sewer system.
    EPA has considered the request from some Storm Water Phase II FACA 
Subcommittee members that interim deadlines be established for 
development of designation criteria and believes that the designation 
deadline identified in today's proposed rule at Sec. 123.35(b)(3) 
provides States and Tribes with a flexibility that allows them to 
develop and apply the criteria locally in a timely fashion, while at 
the same time establishing an expeditious deadline.
c. Designate Physically Interconnected Municipal Separate Storm Sewer 
Systems
    In addition to applying criteria on a local basis for potential 
designation, the NPDES permitting authority would be required to 
designate any owner or operator of a municipal separate storm sewer 
system that contributes substantially to the storm water pollutant 
loadings of a physically interconnected municipal separate storm sewer 
system that is regulated by the NPDES storm water program (see proposed 
Sec. 123.35(b)(4)). To be ``physically interconnected,'' the municipal 
separate storm sewer system, including roads with drainage systems and 
municipal streets, of one entity would be physically connected directly 
to the municipal separate storm sewer system of another entity. This 
provision would apply to all municipal separate storm sewer systems 
located outside of an urbanized area. EPA added this section in 
recognition of the concerns of local government representatives on the 
Storm Water Phase II FACA Subcommittee that a local government should 
not have to shoulder total responsibility for a storm water program 
when storm water discharges from another municipality are also 
contributing pollutants or adversely affecting water quality. This 
provision would also help to provide some consistency among 
municipalities and facilitate watershed planning in the implementation 
of the NPDES storm water program. EPA recommended physical 
interconnectedness in the existing NPDES storm water regulations as a 
factor for consideration in the designation of additional sources. The 
municipal caucus raised an additional concern relating to sheet runoff 
from one adjoining jurisdiction to another, thereby contributing to the 
discharges of a neighboring municipal separate storm sewer system. EPA 
would like comment on the extent to which this problem may exist and 
ways in which it could be addressed. EPA also welcomes comment on this 
proposed designation provision.
    Today's proposal does not include interim deadlines for identifying 
physically interconnected municipal separate storm sewer systems. EPA 
believes that this determination would occur on a case-by-case basis 
where deadlines would only work to limit the permitting authority's 
ability to identify such systems. However, in accordance with the 
deadlines identified in Sec. 123.35(b)(3) of today's proposal, EPA 
encourages the permitting authority to make that determination within 3 
years from the date of publication of the final rule or within 5 years 
if the permitting authority is implementing a comprehensive watershed 
plan. Alternatively, the affected jurisdiction could use the petition 
process under 40 CFR 122.26(f) in seeking to have the permitting 
authority designate the contributing jurisdiction.
d. Address Public Petition for Designation
    Today's proposal would recognize the existing opportunity for the 
public to petition the permitting authority for designation of a point 
source to be regulated to protect water quality, as contained in 
existing NPDES regulations (see 40 CFR 122.26(f)). Any person may 
petition the permitting authority to require an NPDES permit for a 
discharge composed entirely of storm water that contributes to a 
violation of a water quality standard or is a significant contributor 
of pollutants to the waters of the United States (see proposed 
Sec. 123.35(c)). NPDES permitting authorities would have to make a 
final

[[Page 1564]]

determination on any petition within 180 days after receiving the 
petition (see proposed Sec. 123.35(c)). EPA believes that setting a 
limit of 180 days balances the public's need for a final determination 
within a finite period of time and the NPDES permitting authority's 
need to control its workload. EPA is also proposing that if an NPDES-
approved State or Tribe fails to act within the 180-day timeframe, EPA 
may make a determination on the petition. EPA believes that public 
involvement is an important component of the NPDES program for storm 
water and feels that this provision encourages public participation. 
Section II.K, Public Involvement/Public Role, further discusses this 
topic.
    The Storm Water Phase II FACA Subcommittee provided EPA with 
extensive feedback on today's proposed approach. Several commenters 
have questioned the justification for the use of urbanized areas or the 
designation criteria selected by EPA as guidance to the NPDES 
permitting authority (see Sec. 123.35(b)(1)). Municipal members of the 
subcommittee noted that the proposed rule could result in inequities 
among local governments and would not cover all contributors of 
pollutants to receiving waters. Some subcommittee representatives 
expressed concern that the proposed rule would impede the watershed 
approach due to its blanket coverage within urbanized areas but only 
specific designation outside of urbanized areas. Today's proposed rule 
addresses the problem of perceived inequities through the provision 
that any municipal separate storm sewer system can be designated by the 
permitting authority if found to be significantly contributing 
pollutants to the waters of the United States or contributing to an 
exceedance of water quality standards. EPA believes that the proposed 
approach, which provides for the designation of sources to be regulated 
based on local conditions, would facilitate watershed planning.
    EPA relies on data summarized in the NURP study and in the CWA 
section 305(b) reports to support an approach for targeted designation 
outside of urbanized areas. EPA has developed designation criteria 
based on findings of the NURP study and other studies that indicate 
pollutants of concern, including total suspended solids, chemical 
oxygen demand, and temperature. These criteria were the subject of 
considerable discussion by the Storm Water Phase II FACA Subcommittee 
and were revised in response to recommendations from the subcommittee. 
EPA invites comment on this issue. EPA would be particularly interested 
in data submitted on storm water discharges and associated pollutants 
of concern.
3. Provide Waivers
    EPA received comments from numerous State representatives that the 
proposal should recognize the efforts of existing State programs to 
address the significant concerns that potentially impact watersheds. In 
response, the Agency is proposing to provide some flexibility under 
Sec. 122.33(b) that allows NPDES permitting authorities to waive 
otherwise applicable requirements for certain regulated small municipal 
sources. Such waivers could be granted in cases where the jurisdiction 
served by the regulated small municipal separate storm sewer system 
includes a population of less than 1,000 persons, its discharges are 
not contributing substantially to the storm water pollutant loadings of 
a physically interconnected regulated municipal separate storm sewer 
system, and the owner or operator of the small municipal separate storm 
sewer system has certified that storm water controls are not needed 
based on (1) wasteload allocations that are part of TMDLs that address 
the pollutants of concern, or (2) a comprehensive watershed plan, 
implemented for the waterbody, that includes the equivalents of TMDLs 
and addresses the pollutants of concern. If such a waiver is granted, 
the TMDLs or watershed plan would need to demonstrate with reasonable 
assurance that load reductions take place pursuant to CWA section 
303(d). It is important to note that EPA will continue to require 
States to comply with their TMDL implementation schedules.
    Where a State is the NPDES permitting authority, the permitting 
authority would be responsible for the development of the TMDLs or 
their equivalent determination as part of a watershed plan as well as 
the assessment of the extent a small municipal separate storm sewer 
system's discharge is contributing pollutants to a neighboring 
regulated system. In states where EPA is the permitting authority, EPA 
would use a State's watershed plan and TMDLs, where available. From 
these assessments, the permitting authority could make its 
determination regarding wasteload allocations and might determine that 
storm water controls are not required for certain small municipal 
separate storm sewer systems. Once these determinations are made, the 
owner or operator of the regulated small municipal separate storm sewer 
system, in seeking a waiver from the otherwise applicable requirements 
under today's proposal, would be responsible for certifying on a form 
provided by the NPDES permitting authority that they are covered by 
TMDLs or a watershed plan that indicates that discharges from their 
particular system are not having an adverse impact on water quality 
(i.e., they were not assigned wasteload allocations under TMDLs) and, 
therefore, implementation of storm water controls is not necessary and 
the waiver provision requirements have been met. Since the municipal 
waiver is indefinite, the owner or operator would not need to re-
certify at the beginning of each permit term. EPA encourages the 
permitting authorities to make their waiver determinations as soon as 
possible in an attempt to avoid having the owners or operators of 
regulated small municipal separate storm sewer systems apply for a 
permit and begin to develop a program, but then later be waived from 
the applicable requirements. EPA seeks comment from permitting 
authorities on how they envision the process of implementing municipal 
waivers under today's proposed rule. Specifically, EPA would like 
comment on how the program could operate on a basis of self-
certification for waivers.
    The NPDES permitting authority could, at any time, mandate 
compliance with program requirements from a previously waived regulated 
small municipal separate storm sewer system if circumstances change. 
For example, a waiver could be withdrawn in circumstances in which the 
permitting authority later determines that a storm water discharge to a 
small stream would cause adverse impacts to water quality resulting in 
a violation of water quality standards. A ``change in circumstances'' 
could involve receipt of new information by the permitting authority.
    EPA invites comments on concerns that the permitting authority 
could improperly grant waivers in an effort to provide relief to 
regulated entities based on concerns unrelated to water quality. EPA is 
also concerned that a permitting authority could redirect resources 
from other environmental programs in order to develop a watershed 
approach that promotes the issuance of the greatest number of waivers 
possible.
    EPA also invites comment on the option of broadening the universe 
of potential waivers by waiving the requirements of all small municipal 
separate storm sewer systems that have a population below 5,000, rather 
than 1,000, and meet the same criteria as in today's proposal.
    An option not proposed by EPA today is a waiver based on low 
population or low population density alone. EPA

[[Page 1565]]

considered a waiver option based on a simple population threshold. This 
option would have automatically waived all places within urbanized 
areas with a population of 1,000 persons or below. EPA found it 
difficult to justify a particular threshold number without allowing for 
more flexibility or additional criteria in order to determine if storm 
water controls were necessary. This option also did not fully account 
for water quality impacts and would create arbitrary donut holes, some 
of which could have significant impacts on water quality and should be 
regulated. Small entity representatives commented, however, that 
municipalities with less than 1,000 persons may lack the technical 
capacity to certify that their discharges are not contributing to 
adverse water quality impacts in areas where a TMDL or comprehensive 
watershed plan has not been developed by the permitting authority. This 
concern was shared by the Federal Small Business Advocacy Review Panel 
(see Section VII. below). EPA is thus requesting comment on the option 
of waiving coverage for all municipalities with less than 1,000 people 
(including those located in urbanized areas) unless the permitting 
authority determines that they should be required based on significant 
adverse water quality impacts.
    In addition to waivers, the Agency is also considering possible 
approaches for providing incentives for local decisionmaking that would 
limit the adverse water quality impact associated with uncontrolled 
growth in a watershed. In situations where there are special controls 
or incentives (e.g. transferable development rights, traditional 
neighborhood development ordinances) in place directing development 
toward compact/mixed use development and away from wetlands, open 
space, or other protected lands, it may be possible to provide some 
relief to municipalities in terms of implementation of the proposed 
minimum control measures in areas of infill, or compact mixed use, the 
relief would pertain to minimum control measures concerning 
construction and new infill development or redevelopment. Where TMDLs 
are done in a watershed, the use of such controls or incentives by 
municipalities might be considered as the basis for the TMDLs. EPA 
solicits comment on this approach and any other recommendations for the 
use of such incentives.
4. Issue Permits
    NPDES permitting authorities have a number of responsibilities 
regarding the permit process. The Agency is proposing Secs. 123.35(d) 
through (g) to ensure a certain level of consistency for permits, yet 
providing numerous opportunities for flexibility. NPDES permitting 
authorities must issue NPDES permits to cover municipal sources that 
would be regulated under Sec. 122.32 of today's proposed rule, unless 
waived under Sec. 122.33(b). EPA encourages permitting authorities to 
use general permits as the vehicle for permitting and regulating small 
municipal separate storm sewer systems. The Agency notes, however, that 
some owners or operators may wish to take advantage of the option to 
join as a co-permittee with a municipality regulated under the existing 
NPDES storm water program.
    Today's proposal includes a provision, Sec. 123.35(f), that 
requires NPDES permitting authorities to include the requirements in 
proposed Sec. 122.34 including as modified in accordance with 
Secs. 122.33(a)(3), 122.34(c), 122.35(b)) for NPDES permits issued for 
regulated small municipal separate storm sewer systems. See Section 
II.H.3.a, Minimum Control Measures, for more details on the actual 
requirements.
    In an attempt to avoid duplication of effort, EPA is specifically 
proposing in Sec. 122.34(c) to allow NPDES permitting authorities to 
include permit provisions that incorporate by reference qualifying 
local, Tribal, or State municipal storm water management program 
requirements that address one or more of the minimum controls of 
proposed Sec. 122.34(b). For a local, Tribal, or State program to 
``qualify,'' it would need to impose, at a minimum, the relevant 
requirements of Sec. 122.34(b). A regulated small municipal separate 
storm sewer system would still need to submit an application, either an 
individual application or an NOI under a general permit, but would 
follow the requirements of the qualifying local, Tribal, or State 
program instead. The Agency invites comment on this approach.
    Under Sec. 122.35(b), NPDES permitting authorities might also 
recognize existing responsibilities among governmental entities for the 
minimum control measures in an NPDES small municipal storm water 
permit. For example, the permit might allow for the State to be 
responsible for addressing construction site runoff and require that 
the municipalities develop substantive controls for the remaining 
minimum control measures. By acknowledging existing programs, this 
provision is meant to reduce the duplication of efforts and to increase 
the flexibility of the NPDES storm water program.
    In Sec. 123.35(e), EPA is proposing that NPDES permitting 
authorities specify a time period of up to 5 years from the issuance 
date of an NPDES permit for regulated small municipal separate storm 
sewer system owners or operators to fully develop and implement their 
storm water programs. EPA believes this time period is adequate. As 
discussed more fully below, permitting authorities should be providing 
extensive support to the local governments to assist them in developing 
and implementing their programs.
    Under proposed Sec. 123.35(g), if an NPDES permitting authority 
issues a general permit to authorize storm water discharges from 
regulated small municipal separate storm sewer systems, the NPDES 
permitting authority would also need to provide or issue a menu of 
regionally appropriate and field-tested BMPs that the permitting 
authority determines to be cost-effective. The regulated small 
municipal separate storm sewer systems could choose to either select 
from this menu or select other BMPs that they feel are appropriate. The 
purpose of this menu is to provide small municipal separate storm sewer 
systems with additional guidance to assist them in implementing their 
storm water program. The menu would be further elaborated upon in 
guidance materials provided as part of the tool box (for further 
discussion regarding the tool box see Section II.A.5.). The menu itself 
is not intended to replace more comprehensive BMP guidance materials. 
Separate guidance documents that discuss the results from EPA-sponsored 
nationwide general studies on the construction, operation and 
maintenance of BMPs would be provided as part of the tool box efforts.
    The permitting authority may include this menu in the general 
permit when it is issued. This menu would need to be issued within two 
years of the publication of the final rule. This deadline tracks the 
amount of time that the State permitting authority would have to make 
any necessary regulatory or statutory changes to their program to 
accommodate the rule requirements. If an NPDES-approved State or Tribe 
failed to provide or issue this menu within two years of the 
publication of the final rule, EPA would be able to do so. Failure of 
the State to issue the menu of BMPs would not affect the legal status 
of the general permit. Measurable goals identified in a small municipal 
storm sewer system's NOI, or individual application, would not be 
considered a condition of the NPDES permit unless, and until, the 
permitting authority or EPA provided or issued the menu of

[[Page 1566]]

BMPs. The issuance of the menu of BMPs would be critical to assure 
protection of water quality since it triggers the permittee's 
requirement to meet narrative performance standards.
5. Support and Oversee the Local Programs
    NPDES permitting authorities would be responsible for supporting 
and overseeing the local municipal programs. EPA is proposing 
Sec. 123.35(h) to highlight issues associated with these 
responsibilities.
    To the extent possible, NPDES permitting authorities should provide 
financial assistance to local municipalities, which often have limited 
resources, for the development and implementation of local programs. 
EPA recognizes that funding for programs at the State and Tribal levels 
may also be limited, but strongly encourages States and Tribes to 
provide whatever assistance possible. In lieu of actual dollars, NPDES 
permitting authorities could provide cost-cutting assistance in a 
number of ways. For example, NPDES permitting authorities could develop 
outreach materials for municipalities to distribute or the NPDES 
permitting authority could actually distribute the materials. Another 
option would be to implement an erosion and sediment control program 
across an entire State (or Tribal land), thus alleviating the need for 
the municipality to implement its own program. Obviously, NPDES 
permitting authorities would need to balance the need for site-specific 
controls, which could be best handled by a local municipality, with the 
need to offer financial relief. EPA, States, Tribes, and municipalities 
should work as a team in making these kinds of decisions.
    NPDES permitting authorities would be responsible for overseeing 
the local programs. They would need to work with the regulated 
community and other stakeholders to assist in local program development 
and implementation. This might include sharing information, analyzing 
reports, and taking enforcement actions, as necessary. NPDES permitting 
authorities play a vital role in supporting local programs by providing 
technical and programmatic assistance, conducting research projects, 
and monitoring watersheds. Another important role for NPDES permitting 
authorities would be to ensure adequate legal authority at the local 
level so that municipalities could implement their part of the CWA 
section 402(p)(6) program.
    NPDES permitting authorities are encouraged to coordinate and 
utilize the data collected under several programs. States and Tribes 
address point and nonpoint source storm water discharges through a 
variety of programs. In developing the CWA section 402(p)(6) program, 
EPA recommends that States and Tribes coordinate all of their water 
programs, including the continuing planning process (CPP), the existing 
storm water program, the CZARA program, and nonpoint source programs.
    In addition, NPDES permitting authorities would be encouraged to 
use a brief (e.g., two-page) reporting format to facilitate compiling 
and analyzing data from submitted reports under proposed Sec. 122.34. 
EPA would develop a model form for this purpose.

H. Municipal Role

1. Scope of Today's Proposal
    The Agency has selected for today's proposal an equitable and 
comprehensive four-pronged approach for the designation and coverage of 
municipal sources. First, the approach would define for automatic 
coverage the sources believed to be of most concern. Second, the 
approach would designate sources that meet a set of objective criteria 
used to measure the potential for water quality impacts. Third, the 
approach would designate on a case-by-case basis sources that 
``contribute substantially to the storm water pollutant loadings of a 
physically-interconnected [regulated] municipal separate storm sewer 
system.'' Finally, the approach would designate on a case-by-case 
basis, upon petition, sources that ``contribute to a violation of a 
water quality standard or are a significant contributor of 
pollutants.''
    As explained earlier, today's proposed rule would automatically 
designate for regulation small municipal separate storm sewer systems 
located in urbanized areas and would require that NPDES permitting 
authorities examine for potential designation, at a minimum, a 
particular subset of small municipal separate storm sewer systems 
located outside of urbanized areas. Any small municipal separate storm 
sewer system automatically designated by the proposed rule or 
designated by the permitting authority under today's proposed rule 
would be defined as a ``regulated'' small municipal separate storm 
sewer system. Today's proposal also includes a provision that would 
allow for a waiver from the otherwise applicable requirements for some 
regulated small municipal separate storm sewer systems, where 
warranted, based on a comprehensive water quality-based assessment.
    In today's proposed rule, all regulated small municipal separate 
storm sewer systems would need to establish a storm water program that 
meets the requirements of six minimum control measures, unless the 
system qualifies for, and the NPDES permitting authority grants, a 
waiver. These minimum control measures would be public education and 
outreach on storm water impacts, public involvement/participation, 
illicit discharge detection and elimination, construction site storm 
water runoff control, post-construction storm water management in new 
development and redevelopment, and pollution prevention/good 
housekeeping for municipal operations. Today's proposal would allow for 
a great deal of flexibility in how an owner or operator of a regulated 
small municipal separate storm sewer system would be authorized to 
discharge under an NPDES permit by providing various options for 
obtaining permit coverage and satisfying the required minimum control 
measures. For example, the NPDES permitting authority could incorporate 
by reference qualifying State, Tribal, or local programs in the NPDES 
general permit and could recognize existing responsibilities among 
different governmental entities for the implementation of minimum 
control measures. In addition, a regulated small municipal separate 
storm sewer system could participate in the storm water management 
program of an adjoining regulated medium or large municipal separate 
storm sewer system and could arrange to have another governmental 
entity implement a minimum control measure for them.
2. Municipal Definition
    This section explains which small municipal separate storm sewer 
systems would be regulated under today's proposed rule. This section 
also proposes several definitions of terms used to describe the 
applicability of the proposed program requirements. For one 
particularly important definition, the definition of an ``urbanized 
area,'' the discussion includes case studies and a map as examples. 
This section concludes with a discussion of the three alternatives EPA 
considered for determining which small municipal separate storm sewer 
systems would be covered by today's proposed rule.

Regulatory Language in Today's Proposal

    The CWA does not define the term ``municipal separate storm 
sewer.'' EPA has exercised its discretion to define the scope of 
municipal systems consistent with its existing regulations. EPA

[[Page 1567]]

defined municipal separate storm sewer in the existing storm water 
permit application regulations to mean, in part, a conveyance or system 
of conveyances (including roads with drainage systems and municipal 
streets) that is ``owned or operated by a State, city, town borough, 
county, parish, district, association, or other public body designed or 
used for collecting or conveying storm water which is not a combined 
sewer and which is not part of a Publicly Owned Treatment Works as 
defined at 40 CFR 122.26'' (see 40 CFR 122.26(b)(8)(i)). Today's 
proposed rule adds to this definition ``the United States'' as a 
potential owner or operator of a municipal separate storm sewer. This 
addition is meant to address an omission from existing regulations and 
to clarify that Federal facilities are, in fact, covered by the NPDES 
program for municipal storm water discharges when the Federal facility 
is like other regulated municipal separate storm sewer systems. Federal 
facilities may be like other municipal separate storm sewer systems due 
to similar residential populations and road systems; therefore, 
anticipated storm water discharges would also be similar.
    The existing municipal permit application regulations define 
``medium'' and ``large'' municipal separate storm sewer systems as 
those located in an incorporated place or county with a population of 
at least 100,000 (medium) or 250,000 (large) as determined by the 
latest Decennial Census (see 40 CFR 122.26(b)(4) and 122.26(b)(7)). In 
today's proposed rule, these regulations have been revised to define 
all medium and large municipal separate storm sewer systems as those 
meeting the above population thresholds according to the 1990 Decennial 
Census. The decision to ``freeze'' the definition of medium and large 
municipal separate storm sewer systems as of the 1990 Census was based 
on (1) a concern with deadlines, (2) an understanding that the 
permitting authority could always require more from owners or operators 
of municipal separate storm sewer systems serving ``newly over 
100,000'' populations, and (3) the Agency's intention to merge the 
Phase I existing and Phase II proposed programs into a single seamless 
storm water program (see Secs. 122.26(b)(4), (b)(7) and (b)(16)).
    In today's proposed rule, owners or operators of small municipal 
separate sewer systems may be regulated under the NPDES program for 
storm water. Small municipal separate sewer systems are ``all municipal 
separate storm sewer systems that are not designated as a ``large'' or 
``medium'' municipal separate storm sewer system, pursuant to 40 CFR 
122.26(b)(4) and (b)(7), or designated under 40 CFR 122.26(a)(1)(v).'' 
Small municipal separate storm sewer systems include, but are not 
limited to, systems operated by local governments (including 
``municipios''), State departments of transportation, and State, 
Tribal, and federal facilities. The term ``State, Tribal and federal 
facilities'' includes, but is not limited to, military installations, 
penitentiaries, universities and similar institutions with separate 
storm sewers draining areas. Municipal systems that were designated 
under 40 CFR 122.26(a)(1)(v) will continue to be regulated under the 
existing storm water program and, therefore, are not addressed under 
today's proposed rule.
    In today's proposed rule (see Secs. 122.32(a)(1) and 122.32(a)(2)), 
EPA defines ``regulated small municipal separate storm sewer systems'' 
to include all municipal separate storm sewers that are located in:
    (1) An incorporated place, county (only the portion located in an 
urbanized area), or other place under the jurisdiction of a 
governmental entity (including but not limited to Tribal or Territorial 
governments) located in an urbanized area, as determined by the latest 
Decennial Census by the Bureau of the Census (see 55 FR 42592, October 
22, 1990), except for Federal Indian reservations where the population 
within the urbanized area is under 1,000 persons.
    (2) An incorporated place, county, or other place under the 
jurisdiction of a governmental entity other than those described in (1) 
above that is designated by the NPDES permitting authority. The NPDES 
permitting authority may designate any municipal separate storm sewer 
system located outside of an urbanized area. See Section II.G, NPDES 
Permitting Authority Role for the CWA section 402(p)(6) Municipal 
Program, for more details on this process.

Definitions of Key Terms and Phrases

    The Bureau of the Census definition of ``incorporated place,'' 
adopted by EPA for purposes of today's proposal, is any place reported 
to the Bureau as legally in existence under the laws of the respective 
State as a city, borough, town, or village, with certain exceptions. 
(U.S. Department of Commerce, Bureau of the Census. 1994. Geographic 
Areas Reference Manual.) Because these Bureau of the Census exceptions 
would be included within the term ``county'' (see definition below), 
they would not impact the application of today's definition of a 
regulated small municipal separate storm sewer system in any way.
    The Bureau of the Census definition of ``county,'' adopted by EPA 
for the purposes of today's proposal, is ``the primary legal 
subdivision of every State except Alaska and Louisiana.'' (USDC, 1994) 
For the purposes of today's proposed rule, the term ``county'' also 
includes Louisiana's county equivalent known as a parish and Alaska's 
county equivalent, which is an organized borough. A county's 
unincorporated territory includes all minor civil divisions and census-
designated places but excludes all incorporated places. Therefore, any 
area that is not an incorporated place would be included within the 
definition of ``county,'' with the exception of Tribal or Territorial 
areas.
    The phrase ``place under the jurisdiction of a governmental 
entity'' includes, but is not limited to, places within the 
jurisdiction of Tribes and Territorial governments. EPA is proposing 
this language in order to include governmental entities that are 
located within an urbanized area but whose government structure may not 
include incorporated places or counties. For example, Federal Indian 
reservations are neither incorporated places nor counties, but are 
sovereign entities, and Puerto Rico has ``municipios'' as their primary 
local government. The term ``Tribes'' includes any Indian Tribe, band, 
group, or community recognized by the Secretary of the Interior and 
exercising governmental authority over a Federal Indian reservation (40 
CFR 122.2). ``Territorial governments'' include the following U.S. 
territories: the District of Columbia, the Commonwealth of Puerto Rico, 
American Samoa, Guam, the Virgin Islands of the United States, and the 
Commonwealth of the Northern Mariana Islands. ``Municipio'' means a 
Puerto Rico division which has legally established boundaries and 
constitutes a governmental unit. ``Pueblo'' or ``ciudad'' means the 
barrio or group of barrios which are considered the municipio center of 
government.
    ``Federal Indian reservation'' means all land within the limits of 
any Indian reservation or rancheria under the jurisdiction of the U.S. 
Government, notwithstanding the issuance of any patent, and including 
rights-of-way running through the reservation (40 CFR 122.2; see also 
Section II.F. of today's preamble and section 518 of the CWA).

Urbanized Areas Definition

    The Bureau of the Census definition of ``urbanized area,'' adopted 
by EPA for

[[Page 1568]]

the purposes of today's proposed rule, is as follows:

    An urbanized area (UA) comprises a place and the adjacent 
densely settled surrounding territory that together have a minimum 
population of 50,000 people.
    The ``densely settled surrounding territory'' adjacent to the 
place consists of the following:
    1. Territory made up of one or more contiguous census blocks 
having a population density of at least 1,000 people per square mile 
provided that it is:
    a. Contiguous with and directly connected by road to other 
qualifying territory, or
    b. Noncontiguous with other qualifying territory, and:
    (1) Within 1 1/2 road miles of the main body of the urbanized 
area and connected to it by one or more nonqualifying census blocks 
that [a] are adjacent to the connecting road and [b] together with 
the outlying qualifying territory have a total population density of 
at least 500 people per square mile, or
    (2) Separated by water or other undevelopable territory from the 
main body of the urbanized area, but within 5 road miles of the main 
body of the urbanized area, as long as the 5 miles include no more 
than 1 1/2 miles of otherwise nonqualifying developable territory.
    2. A place containing territory qualifying on the basis of 
criterion 1 [above] will be included in the urbanized area in its 
entirety (or partially, if the place is an extended city) if that 
qualifying territory includes at least 50 percent of the population 
of the place. If the place does not contain any territory qualifying 
on the basis of the above criterion, or if that qualifying territory 
includes less than 50 percent of the place's population, the place 
is excluded in its entirety.
    3. Other territory with a population density of less than 1,000 
persons per square mile, provided that it:
    a. Eliminates an enclave of no more than 5 square miles in the 
territory otherwise qualifying for the urbanized area when the 
surrounding territory qualifies on the basis of population density, 
or
    b. Closes an indentation in the boundary of the territory 
otherwise qualifying for the urbanized area when the contiguous 
territory qualifies on the basis of population density, provided 
that the indentation is no more than 1 mile across the open end, has 
a depth at least two times greater than the distance across the open 
end, and encompasses no more than 5 square miles.

(55 FR 42592, October 22, 1990)

    The full definition of an ``urbanized area'' has been included 
primarily for informational purposes. Because the Bureau of the Census 
determines urbanized areas based on the latest decennial census, the 
owner or operator of a municipal separate storm sewer system does not 
need to make any calculations to determine eligibility as a regulated 
small municipal separate storm sewer system. The Bureau of the Census 
provides detailed maps and comprehensive listings of all political 
entities within a given urbanized area. For a more detailed description 
of the treatment of urbanized areas for purposes of today's proposal, 
see the following discussion entitled, Nationwide Designation. Also, 
see Appendix 3 for a listing of urbanized areas of the United States 
and Puerto Rico.
a. Nationwide (``Automatic'') Designation
    In today's proposed rule, all small municipal separate storm sewer 
systems located in an incorporated place, county, or other place under 
the jurisdiction of a governmental entity that is included within an 
urbanized area would be automatically designated as ``regulated'' small 
municipal separate sewer systems under today's proposed storm water 
program, provided that they were not previously designated into the 
existing storm water program. Unlike medium and large municipal 
separate storm sewer systems under the existing storm water 
regulations, not all small municipal separate storm sewer systems would 
be designated under today's proposal and, therefore, a distinction is 
made in the rule between ``small'' municipal separate storm sewer 
systems and ``regulated small'' municipal separate storm sewer systems.
    EPA estimates that this automatic designation would include 
approximately 3,500 incorporated places and counties (about 16% of all 
incorporated places and counties nationwide), 41 municipios (more than 
50% of all municipios in Puerto Rico), and 27 Tribes (although 9 of 
these Tribes would be exempted and there are other special 
considerations--see Section II.F, Tribal Role). In addition, as 
previously discussed, this definition would include State, Tribal, and 
Federal highways and facilities located within urbanized areas.
    It is important to note that if a county or Federal Indian 
reservation is only partially included in an urbanized area, only the 
urbanized portion of the county or Federal Indian reservation would be 
regulated. Although rare, even if an incorporated place is only 
partially included in the urbanized area, then the entire place is 
regulated. The regulation of counties is meant to capture all 
unincorporated areas located within the urbanized area in an effort to 
create a seamless program by avoiding the creation of unregulated areas 
surrounded by regulated areas, sometimes referred to as ``donut holes'' 
in the regulatory scheme. For example, if an urbanized area contains a 
regulated medium or large municipal separate sewer system that has 
within its boundaries some incorporated places that were originally 
excluded from the storm water program due to the population threshold 
of 100,000, most of these previously unregulated donut holes would now 
be defined as regulated small municipal separate sewer systems under 
today's proposed rule and would be covered by the NPDES program for 
storm water.
    In Puerto Rico, EPA is proposing to regulate the entire municipio 
where the total population is equal to or greater than 100,000. Those 
municipios include Bayamon, Caguas, Carolina, Mayaguez, Ponce, and San 
Juan. For the other municipios that are located within an urbanized 
area and have populations of less than 100,000, only the pueblo will be 
regulated.
    i. Urbanized Area Description. There are 405 urbanized areas in the 
United States that cover 2 percent of total U.S. land area and contain 
approximately 63 percent of the nation's population (see Appendix 3 for 
a listing of urbanized areas of the United States and Puerto Rico). 
These numbers include U.S. Territories, although Puerto Rico is the 
only territory to have census-designated urbanized areas. Urbanized 
areas constitute the largest and most dense areas of settlement. The 
purpose of determining an ``urbanized area'' is to delineate the 
boundaries of development and map the actual built-up urban area. The 
Bureau of the Census geographers liken it to flying over an urban area 
and drawing a line around the boundary of the built-up area as seen 
from the air.
    An ``urbanized area'' comprises one or more places--central 
place(s)--and the adjacent densely settled surrounding area--urban 
fringe--consisting of (1) incorporated places, (2) census designated 
places, and (3) county nonplace territory that together have a minimum 
population of 50,000. ``Central places'' include both incorporated and 
census-designated places. ``County nonplace territory'' is the area of 
the county that does not include incorporated or census-designated 
places. (It is important to note that ``county'' as defined for the 
purposes of today's proposed rule includes census-designated places). 
The urban fringe is a contiguous area with an average population 
density of at least 1,000 persons per square mile at its perimeter (see 
full ``urbanized area'' definition above).
    The basic unit for delineating the urbanized area boundary is the 
census block. Census blocks are based on visible physical boundaries, 
such as the city block, when possible or on invisible political 
boundaries when not. In a

[[Page 1569]]

larger sense, the urbanized area determination is not based on 
political boundaries for counties or Federal Indian reservations but is 
for ``places.''
    <bullet> Place--A place is included in its entirety whether or not 
all of its census blocks meet the urbanized area definition. Therefore, 
this part of the urbanized area determination is based on political 
boundaries. However, it should be noted that in rare cases (128 
places), a place is not included in its entirety, but rather is only 
partly included within the urbanized area, due to the existence of 
large expanses of vacant or very sparsely populated territory within 
its incorporated area. (Such ``extended cities,'' as they are called, 
are most common in North Carolina due to their unique annexation laws.)
    <bullet> County/Federal Indian reservation--A county is included in 
its entirety only if all of its census blocks, based on the county's 
unincorporated area, meet the urbanized area definition. Unlike a 
place, a county is often ``split'' into urbanized and non-urbanized 
portions, with no regard for political boundaries. Under today's 
proposed rule, only the urbanized portion of a ``split county'' would 
be covered. The same case applies to Federal Indian reservations.
    Most owners or operators of municipal separate storm sewer systems 
would not need to independently determine the status of coverage under 
today's proposal. Most likely, a list of the places, counties, and 
other places under the jurisdiction of a governmental entity within an 
urbanized area would be published with the general permit. If not, they 
can contact their permitting authority or the Bureau of the Census to 
find out if their storm sewer systems are within an urbanized area. In 
addition, the necessary information should be available on the Bureau 
of the Census Internet Home Page (see http://www.census.gov/). Using 
data from the latest decennial census, the Census Bureau applies the 
urbanized area definition nationwide (including U.S. Tribes and 
Territories) and determines which places and counties are included 
within each urbanized area. For each urbanized area, the Bureau 
provides full listings of who is included, as well as detailed maps and 
special CD-ROM files for use with computerized mapping systems (such as 
GIS). Each State's data center receives a copy of the list, and some 
maps, automatically. The States also have the CD-ROM files and a 
variety of publications available to them for reference from the Bureau 
of the Census. In addition, local or regional planning agencies may 
have urbanized area files already. New listings for urbanized areas 
based on the 2000 Census will be available by July/August 2001, but the 
more comprehensive computer files will not be available until late 
2001/early 2002. Appendix 6 to this preamble provides a list of 
incorporated places and counties proposed to be automatically 
designated as part of today's proposed rule.
    Additional designations based on subsequent census years would be 
governed by the Bureau of the Census' definition of an urbanized area 
in effect for that year. Based on historical trends, EPA expects that 
any area (incorporated place, county, or other place) determined by the 
Bureau of the Census to be included within an urbanized area as of the 
1990 Census would not later be excluded from the urbanized area as of 
the 2000 Census due to a possible change in the Bureau of the Census' 
urbanized area definition. However, it is important to note that even 
if this situation were to occur, a small municipal separate storm sewer 
system once automatically designated into the NPDES program for storm 
water under an urbanized area calculation for any given Census year 
would remain regulated regardless of the results of subsequent 
urbanized area calculations.
    Appendix 2 is a simplified urbanized area illustration to help 
demonstrate the concept of urbanized areas in relation to today's 
proposed rule. The ``urbanized area'' is the shaded area that includes 
within its boundaries incorporated places, a portion of a Federal 
Indian reservation, an entire county, and portions of three other 
counties. Any and all owners and operators of small municipal separate 
storm sewer systems located in the shaded area would be covered by the 
proposed rule. Any small municipal separate storm sewers located 
outside of the shaded area would be subject to potential designation by 
the permitting authority.
    ii. Urbanized Area Profiles. To further illustrate the concept of 
urbanized areas, this section highlights two urbanized areas and their 
relationship to the NPDES storm water program. The first case study is 
the Milwaukee, Wisconsin, urbanized area, which already includes medium 
and large municipal separate storm sewer systems and would also include 
regulated small municipal separate storm sewer systems under today's 
proposed rule. The second case study is the Myrtle Beach, South 
Carolina, urbanized area, which would include only regulated small 
municipal separate storm sewer systems. Neither urbanized area has 
within its boundaries a Federal Indian reservation.
    <bullet> Case Study 1: Milwaukee, WI (total urbanized area 
population = 1,226,293)
    The Milwaukee, Wisconsin, urbanized area has at its core the large 
municipal separate storm sewer system of Milwaukee, which is contained 
within the county of Milwaukee. The urbanized area extends beyond the 
boundaries of the city of Milwaukee into the county of Milwaukee and 
the four surrounding counties of Racine, Wauklesha, Washington, and 
Ozaukee. The county of Milwaukee is entirely within the urbanized area, 
while the other four counties are only partially within it. A total of 
five counties would be included in the storm water program, but only 
the municipal separate storm sewer systems in the urbanized portions of 
the counties would be automatically designated. In addition to the five 
counties, 38 incorporated places are within the urbanized area and 
would also be automatically designated as regulated small municipal 
separate storm sewer systems under today's proposal: River Hills 
Village, Mequon, Germantown, Lannon, Sturtevant, Wind Point, Big Bend, 
Pewaukee, Bayside, North Bay, Butler, West Milwaukee, Thiensville, 
Elmwood Park, Elm Grove, Sussex, Fox Point, Hales Corners, Cedarburg, 
St. Francis, Grafton, Oak Creek, Brown Deer, Glendale, Greendale, 
Cudahy, Shorewood, Whitefish Bay, Franklin, Menomonee Falls, New 
Berlin, Brookfield, Greenfield, South Milwaukee, Wauwataso, Waukesha, 
West Allis, City of Racine. The result is a pattern where a regulated 
medium or large municipal separate storm sewer system core is 
surrounded by regulated small municipal separate storm sewer systems 
located within unincorporated areas (counties) and incorporated places. 
Each owner or operator of a municipal separate storm sewer system in 
these areas would be responsible for obtaining an NPDES permit for the 
discharges from their system.
    <bullet> Case Study 2: Myrtle Beach, SC (total urbanized area 
population = 58,384)
    The Myrtle Beach, South Carolina, urbanized area does not include a 
medium or large municipal separate storm sewer system. The entire 
urbanized area, with Myrtle Beach at its core, would meet the 
definition of a regulated small municipal separate storm sewer system. 
The Myrtle Beach urbanized area spreads into two counties, Harry and 
Georgetown counties, and covers only two incorporated places, Myrtle 
Beach and Surfside Beach. As was the case in the Milwaukee example, the 
counties of Harry and Georgetown are only partially

[[Page 1570]]

within the urbanized area. All owners or operators of municipal 
separate sewer systems located in the urbanized portions of Harry and 
Georgetown counties and in the two incorporated places would be 
included under the NPDES storm water program as regulated small 
municipal separate storm sewer systems, resulting in blanket coverage 
by the storm water program with no unregulated ``donut holes.''
    iii. Rationale for Using Urbanized Areas. EPA proposes using 
urbanized areas to automatically designate regulated small municipal 
separate storm sewer systems on a nationwide basis for several reasons: 
(1) studies and data show a high correlation between degree of 
development/urbanization and adverse impacts on receiving waters due to 
storm water (U.S. EPA, 1983; Driver et al., 1985; Pitt, R.E. 1991. 
``Biological Effects of Urban Runoff Discharges.'' Presented at the 
Engineering Foundation Conference: Urban Runoff and Receiving Systems; 
An Interdisciplinary Analysis of Impact, Monitoring and Management, 
August 1991. Mt. Crested Butte, CO. American Society of Civil 
Engineers, New York. 1992.; Pitt, R.E. 1995. ``Biological Effects of 
Urban Runoff Discharges,'' in Storm water Runoff and Receiving Systems: 
Impact, Monitoring, and Assessment. Lewis Publishers, New York.; Galli, 
J. 1990. Thermal Impacts Associated with Urbanization and Storm water 
Management Best Management Practices. Prepared for the Sediment and 
Storm water Administration of the Maryland Department of the 
Environment.; Klein, 1979), (2) this approach would target present and 
future growth areas as a preventative measure to help ensure water 
quality protection, (3) the determination of urbanized areas by the 
Bureau of the Census allows owners or operators of small municipal 
separate storm sewer systems to quickly determine whether they are 
included in the NPDES storm water program as a regulated small 
municipal separate storm sewer system, and (4) the blanket coverage 
within the urbanized area encourages the watershed approach and 
addresses the problem of ``donut-holes,'' where unregulated areas are 
surrounded by regulated areas. (Donut hole areas present a problem due 
to their contributing uncontrolled impacts on neighboring regulated 
communities and local waters.)
    One drawback to the proposed approach is that it would divide some 
counties into regulated areas and nonregulated areas. Such ``split'' 
counties could have difficulty focusing efforts, such as public 
education and the maintenance and management of infrastructure on just 
the regulated areas. One commenter suggested that in the case of a 
``split'' county, only the incorporated areas within the urbanized 
portion of the county should be regulated, not the entire urbanized 
portion of the county. EPA would prefer, however, to create a seamless 
program that does not create donut holes as this suggestion would do, 
but rather includes all of the municipal separate storm sewer systems 
within the urbanized area. EPA is attempting to eliminate the existence 
of donut hole areas because municipal separate storm sewer system 
discharge sources within them could contribute to water quality 
impairment and could adversely affect the storm water management 
efforts of the neighboring regulated communities. Furthermore, as noted 
previously, including the entire urbanized portion of a county would 
promote partnerships in watershed efforts to improve local water 
quality.
b. Municipal Designation by the Permitting Authority
    Today's proposed rule would also allow NPDES permitting authorities 
to designate areas that should be included in the storm water program 
as regulated small municipal separate storm sewer systems but do not 
qualify under the regulatory ``urbanized areas'' definition. The 
proposed rule requires, at a minimum, that a set of designation 
criteria be applied to all small municipal separate storm sewer systems 
within a jurisdiction that includes a population of at least 10,000 and 
a population density of at least 1,000. Appendix 7 to this preamble 
provides a list of incorporated places and counties proposed to be 
potentially designated as part of today's proposed rule. In addition, 
the owner or operator of any small municipal separate storm sewer 
system may be the subject of a petition to the NPDES permitting 
authority for designation. See Section II.G, NPDES Permitting 
Authority's Role for the CWA section 402(p)(6) Municipal Program, for 
more details on the designation and petition processes. EPA believes 
that the approach of combining nationwide and local designation to 
determine municipal coverage in today's proposed rule balances the 
potential for significant impacts on water quality with local watershed 
protection and planning efforts. The Agency solicits comments on this 
approach and possible alternatives.
c. Waiving the Requirements for Regulated Small Municipal Separate 
Storm Sewer Systems
    Today's proposed rule would include some flexibility in the 
nationwide coverage of all small municipal separate storm sewer systems 
located in urbanized areas by providing the NPDES permitting authority 
with the discretion to waive the otherwise applicable requirements of a 
regulated small municipal separate storm sewer system serving less than 
1,000 people where assessments of local conditions and watersheds 
warrant such a waiver. Note that even if a regulated small municipal 
separate storm sewer system had requirements waived, it could 
subsequently be brought back into the program if circumstances change. 
See Section II.G, NPDES Permitting Authority's Role for the CWA section 
402(p)(6) Municipal Program, for more details on this process.
    i. Combined Sewer Systems. The definition of ``municipal separate 
storm sewer systems'' does not include combined sewer systems. A 
combined sewer system is a wastewater collection system that conveys 
sanitary wastewater and storm water through a single set of pipes to a 
publicly-owned treatment works (POTW) for treatment before discharging 
to a receiving waterbody. During wet weather events when the capacity 
of the combined sewer system is exceeded, the system is designed to 
discharge, prior to the POTW, directly into a receiving waterbody. Such 
an overflow is a combined sewer overflow, or CSO. Combined sewer 
systems are not subject to existing regulations for storm water, nor 
will they be subject to today's proposed regulations. EPA addresses 
combined sewer systems and CSOs in its National Combined Sewer Overflow 
(CSO) Control Policy that was issued on April 19, 1994 (59 FR 18688). 
The CSO Control Policy contains provisions for developing appropriate, 
site-specific NPDES permit requirements for combined sewer systems. CSO 
discharges are subject to BAT/BCT limits; municipal separate storm 
sewer systems are subject to MEP.
    Some municipalities are served by both separate storm sewer systems 
and combined sewer systems. If such a municipality is located within an 
urbanized area, only the separate storm sewer system within that 
municipality would be included in the NPDES storm water program and 
subject to today's proposed rule. If the municipality is not located in 
an urbanized area, then the NPDES permitting authority would have 
discretion as to whether the separate storm sewer system is subject to 
today's

[[Page 1571]]

proposed rule. Under today's proposed rule, the NPDES permitting 
authority would use the same process to designate for coverage a 
municipal separate storm sewer system where the municipality is also 
served by a combined sewer system, as it would for municipalities that 
are served only by a separate storm sewer system. The Agency recognizes 
that municipalities that have both combined and separate storm sewer 
systems may wish to find ways to develop a unified program to meet all 
wet weather requirements more efficiently. EPA seeks comment on ways to 
achieve such a unified program.
d. Designation Alternatives Considered--Preliminary Options
    In developing the proposed approach, EPA considered several 
alternative approaches for designation. Three of the primary options 
considered are discussed below, in no particular order. EPA seeks 
comment on all three of these options and welcomes ideas for other 
alternative options for determining the definition of a regulated small 
municipal separate storm sewer system.
    i. Designation Option 1. One option EPA considered was the proposal 
suggested by the Storm Water Phase II FACA Subcommittee's Municipal De 
Minimis Work Group. Under this option, all municipal separate storm 
sewer systems would be included in the NPDES permit program, unless the 
system is aboveground, or underground and serving an area with a 
population density of less than 1,000. Local governments with no 
underground storm drain systems would be excluded, unless the NPDES 
permitting authority determined that storm drainage from aboveground 
(e.g., open drainage ditches) is within the control of the local 
government and that pollution from runoff from such drains is causing 
impairment to beneficial uses or exceedances of water quality standards 
in a permanent water body. This option would also exclude local 
governments with underground storm drains if they had a density of less 
than 1,000 persons/square mile (or some other criteria, such as 
building starts, rainfall, or percentage of imperviousness, if such 
parameters are proven better indicators of storm water pollution), 
unless:
    <bullet> The NPDES authority finds that runoff from the local 
government drainage system is contributing to the impairment of 
beneficial uses or exceedances of water quality standards in a 
permanent waterbody. (The Municipal De Minimis Work Group purposely 
used the term ``permanent water body,'' and not the term ``waters of 
the United States,'' because they did not want intermittent streams, 
seasonal wetlands, etc. to be included. However, they did not define 
exactly what they envisioned to be a ``permanent water body.'') Any 
person could petition the NPDES authority to make or verify such a 
finding.
    <bullet> Pollution from runoff from the local government drainage 
system either directly discharges to an adjacent municipality covered 
by these requirements or significantly contributes to the pollution 
from runoff that would otherwise be attributable to an adjacent 
municipality covered by these requirements.
    While EPA believes that this option concerning aboveground/
underground systems for densities of less than 1,000 persons has merit, 
the Storm Water Phase II FACA Subcommittee could not resolve issues 
associated with defining and quantifying the different types of ditches 
and drainage systems on a nationwide basis. The work group assumed that 
aboveground systems would consist primarily of vegetated ditches. 
However, enough data are not available to either prove or disprove this 
assumption. The work group found vegetated ditches highly desirable and 
worthy of exemption because of the benefits of natural management of 
storm water that they can provide. The pervious and contoured surface 
of vegetated ditches allows the water to percolate, resulting in an 
overall decrease in velocity and volume of flow and pollutant levels. 
However, these systems have variable removal efficiencies for 
pollutants and can potentially contribute additional pollutants to 
storm water runoff. Due to the variability of the types of aboveground 
system surfaces and the lack of data, EPA chose not to propose this 
option as its own. In addition, EPA had significant concerns about the 
number of smaller municipalities that would be permitted under such an 
approach, even though they might not contribute to significant water 
quality impacts. Under the approach selected for today's proposed rule, 
EPA believes that only those municipalities likely to contribute to 
significant water quality impacts would be designated into the storm 
water program.
    ii. Designation Option 2. Another option, which was suggested by 
several members of the Storm Water Phase II FACA Subcommittee, would 
require all small municipal separate storm sewer systems to be 
regulated under the NPDES program for storm water and to implement the 
six minimum measures as described in today's approach, unless the owner 
or operator of the system could prove that the system is not causing 
adverse water quality impacts and not contributing to pollutant loads 
in the watershed. One commenter suggested the use of this approach with 
an automatic exemption based on objective criteria, such as low 
population and proximity to waters of the United States.
    EPA acknowledges that this approach has advantages. It would 
guarantee that the areas of most concern are regulated, create a 
seamless storm water program without donut holes, avoid disputes over 
designation, and promote a watershed-based program because all sources 
in a watershed would already be in the program. In addition, its simple 
blanket coverage would create less confusion over whether an owner or 
operator of a municipal separate storm sewer system is in or out of the 
storm water program, and the burden for exclusion would be on the owner 
or operator of the municipal separate sewer system, not the permitting 
authority. Overall, this option best addresses the cumulative impact of 
all activities within a watershed that create environmental problems. 
By including only particular sources within a watershed, as is the case 
with the other options, the potential environmental benefits of the 
storm water program could be limited.
    Although this option might appropriately address issues of fairness 
and simplicity, it fails to target the areas of greatest concern (i.e., 
areas causing significant water quality impacts) and instead would 
regulate all areas regardless of impacts, unless an exemption was 
approved. This approach, by including a universe of approximately 
19,289 incorporated places and 17,796 minor civil divisions located in 
3,141 counties, in addition to Tribal lands and Territories, could 
regulate many more entities than the current proposal, resulting in 
higher costs than today's proposal for all involved. The exemption 
process, which could apply to thousands of municipalities, would 
require them to spend valuable time and resources trying to prove that 
they have little or no impact on water quality, while the permitting 
authority would be saddled with the additional burden of processing and 
evaluating such requests. It may be the case that the administrative 
burden for a storm water program of this size, and the potential 
overregulation, would not justify the full coverage it would provide.
    Furthermore, it would also be difficult to justify an automatic 
exemption based solely on the criteria of population size and proximity 
to waters of the United States. Total population (as opposed to

[[Page 1572]]

population density) is not a good measure of storm water impacts 
because it lacks an indication of where and how the population is 
distributed, both of which are significant factors addressed in today's 
proposal. For example, an area with high population could be less 
urbanized with fewer impacts on water quality than a place with lower 
population due to the size of the area involved in each. EPA 
anticipates extreme difficulty in determining and justifying a 
particular population threshold without also considering other factors 
that would help to both account for the variability of local conditions 
and indicate whether or not there are significant water quality 
impacts. Furthermore, a population threshold would still result in 
donut holes. Similar problems could be associated with the second 
criterion of ``proximity to waters of the United States.'' It is an 
important consideration but not much more telling than total population 
due to the variety of local conditions that could or could not make 
this criterion a significant factor in the determination of real or 
potential water quality impacts. Therefore, even the tandem use of 
these two criteria could lack enough information to make an informed 
and justifiable decision on an exemption. For the reasons discussed 
above, EPA chose not to propose this option.
    iii. Designation Option 3. To satisfy CWA section 402(p)(5)(C), EPA 
recommended the approach outlined in President Clinton's Clean Water 
Initiative. This approach was similar to today's proposed approach in 
that the NPDES permitting authority would issue system-wide NPDES 
permits for all municipal separate storm sewer systems in census-
designated urbanized areas. This option would require storm water 
management programs for municipal separate storm sewer systems in the 
138 urbanized areas in which a medium or large municipal separate sewer 
system is located. At a minimum, the programs would address non-storm 
water discharges into storm sewers and storm water runoff from growth 
and development and significant redevelopment. NPDES permitting 
authorities would be encouraged to implement watershed approaches and 
more comprehensive program requirements where necessary and 
appropriate. In the remaining 267 census-designated urbanized areas 
(containing only small municipal separate storm sewer systems), 
municipal storm water management programs would be less stringent and 
required to focus only on controlling non-storm water discharges into 
storm sewers and storm water runoff from growth, development, and 
significant redevelopment activities.
    By focusing on census-designated urbanized areas, many of the 
sources of greatest concern would be addressed, while also providing a 
clear definition of who is included in the storm water program. 
However, the tiered permitting requirements of this approach could 
create unnecessary confusion. EPA would not want to require regulated 
small municipal separate storm sewer systems in urbanized areas with a 
medium or large municipal separate storm sewer system to do more than 
those in urbanized areas without a medium or large municipal separate 
storm sewer system. Rather, EPA envisions progress toward a seamless, 
unified, and comprehensive NPDES storm water program with equivalent 
program requirements as the best approach. If this alternative option 
was adopted, three varying levels of requirements (the existing 
requirements plus two tiers for small municipal separate sewer systems) 
would eventually need to be unified instead of just two, as found under 
today's proposal. Although primarily concerned with growth associated 
with urbanized areas, this approach is also limited by its reliance on 
non-NPDES programs for addressing sources beyond urbanized areas. 
Environmental and municipal representatives on the Storm Water Phase II 
FACA Subcommittee agreed that any sources that are significant 
contributors of pollutants should be considered for regulation directly 
under an NPDES permit, including those outside of urbanized areas. For 
these reasons, EPA did not present this option as the lead option.
3. Municipal Permit Requirements
    EPA is proposing that all owners or operators of regulated small 
municipal separate storm sewer systems, as defined at Sec. 122.32, must 
seek coverage under an NPDES permit. EPA intends that the vast majority 
of discharges from these sources would be authorized under general 
permits issued by the NPDES permitting authority. These NPDES general 
permits would provide specific instructions for how to seek coverage, 
including application requirements. Typically, such application 
requirements would be satisfied by the submission of an NOI to be 
covered by the general permit.
    For cases in which an NPDES general permit is not available or the 
NPDES permitting authority requests that an owner or operator be 
covered under an individual NPDES permit, EPA is proposing simplified 
individual permit application requirements at Sec. 122.33. Under the 
simplified individual permit application requirements, the owner or 
operator would submit an application to the NPDES permitting authority 
that includes the information required under Sec. 122.21(f), an 
estimate of square mileage served by the separate storm sewer system, 
and any additional information that the NPDES permitting authority 
requests. Consistent with CWA section 308 and analogous State law, the 
permitting authority could request any additional information to gain a 
better understanding of the system and the areas draining into the 
system.
    Today's proposal also would allow an owner or operator of a 
regulated small municipal separate storm sewer system to join as a co-
permittee in an existing NPDES permit issued to an adjoining medium or 
large municipal separate storm sewer system or designated source under 
the existing storm water program through a modification of that 
municipal separate storm sewer system's permit. This co-permittee 
provision would only apply if agreed to by all co-permittees. Under a 
co-permittee arrangement, the owner or operator of the regulated small 
system would need to comply with the applicable requirements of 
Sec. 122.26 and the terms and conditions of the applicable permit, but 
would not be required to fulfill all the permit application 
requirements applicable to medium and large systems and permit 
condition requirements applicable to regulated small systems. 
Specifically, the regulated small system owner or operator would not be 
required to comply with the permit condition requirements of 
Sec. 122.34 of today's proposal or with the application requirements of 
Sec. 122.26(d)(1)(iii) (Part 1 source identification), Sec. 122.26 
(d)(1)(iv) (Part 1 discharge characterization), and 
Sec. 122.26(d)(2)(iii) (Part 2 discharge characterization data). 
Furthermore, the owner or operator of the regulated small system could 
satisfy the requirements in Sec. 122.26(d)(1)(v) (Part 1 management 
programs) and Sec. 122.26(d)(2)(iv) (Part 2 proposed management 
program) by referring to the adjoining municipality's existing plan. An 
owner or operator pursuing this option would need to describe in the 
permit modification request how the adjoining municipality's storm 
water program addresses or would need to be supplemented in order to 
adequately address discharges from the municipal separate storm sewer 
system. The request would also need to explain the

[[Page 1573]]

role of the owner or operator in coordinating local storm water 
activities and describe the resources available to accomplish the plan.
    EPA believes that this approach would support the goal of an 
integrated and coordinated national storm water program. Regulated 
small system owners or operators could take advantage of existing 
programs to ease the burden of creating their own from scratch. The 
proposal would allow them to conduct activities that are coordinated on 
a regional basis. For medium and large system owners or operators, this 
approach would promote the use of regional and watershed-based planning 
as an implementation framework for the storm water program and would 
create opportunities for sharing the resource and cost burden of the 
program with participating entities. EPA is particularly interested in 
comments regarding the actual implementation of this application 
provision. For instance, whether the provision contains the appropriate 
subsections of Sec. 122.26(d) and whether the process as set forth 
creates an incentive to use this alternative for permit coverage.
    In today's notice, EPA is proposing certain minimum control 
measures for all NPDES permits issued to regulated small municipal 
separate storm sewer systems, with the exception of joint co-
permittees, as noted previously, to ensure equity and consistency among 
owners or operators. Any NPDES permit issued under this program would, 
at a minimum, require the owner or operator to develop, implement, and 
enforce a storm water management program designed to reduce the 
discharge of pollutants from a regulated system to the maximum extent 
practicable (MEP) and protect water quality (see MEP discussion in the 
following section). Narrative effluent limitations requiring 
implementation of BMPs would generally be considered the most 
appropriate form of effluent limitations when designed to satisfy 
technology requirements, including reductions of pollutants to the 
maximum extent practicable, and water quality-based requirements of the 
CWA. Examples of narrative effluent limitations include no floatables 
in storm water discharges and no visible sheen on waterbodies.
    In the first two to three rounds of permit issuance, EPA envisions 
that implementation of the minimum measures and BMP-based program would 
be the extent of the storm water permit requirements for the large 
majority of regulated small municipal separate storm sewer systems. EPA 
assumes that a regulated small municipal separate storm sewer system 
implementing BMPs to satisfy the six minimum control measures would 
meet applicable water quality standards, because, though uncontrolled 
urban storm water continues to present a significant water quality 
problem, the six measures represent a significant level of control if 
properly implemented. EPA believes that the implementation of any 
controls, but particularly the six minimum measures identified in 
today's proposal, should significantly reduce pollutants in urban storm 
water compared to existing levels. If after implementing the six 
minimum control measures there is still a water quality problem 
associated with discharges from the municipal separate storm sewer 
system, the municipality would need to expand or better tailor its BMPs 
within the scope of the six minimum control measures for each 
subsequent permit. EPA envisions that this process would take two to 
three permit terms. During this time, EPA would revisit the regulations 
for the municipal storm water program. If additional specific measures 
to protect water quality were imposed, they would likely be the result 
of an assessment based on TMDLs, or the equivalent of TMDLs, where the 
proper allocations would be made to all contributing sources. EPA 
believes that the municipality's additional requirements, if any, 
should be guided by its equitable share based on a variety of 
considerations, such as cost effectiveness, proportionate contribution 
of pollutants, and ability to reasonably assume wasteload reductions. 
Narrative effluent limitations requiring implementation of BMPs are 
generally the most appropriate form of effluent limitations when 
designed to satisfy technology requirements, including reductions of 
pollutants to the maximum extent practicable, and water quality-based 
requirements of the Clean Water Act. See Section II.L, Water Quality 
Issues, for further discussion of this approach to permitting, 
consistent with EPA's interim permitting guidance.
    The municipal caucus was concerned that a requirement to meet water 
quality standards would be interpreted by a permitting authority as a 
requirement to include water quality-based numeric limitations in 
municipal storm water permits. Municipal representatives believe that 
in many cases it would not be possible to develop a storm water program 
that would result in the attainment of numeric limitations, except at 
considerable cost. Today's proposal addresses this concern, as 
discussed above.
    As part of this program, the owner or operator would be required to 
identify and submit to the NPDES permitting authority, either in an NOI 
to be covered under a general permit or in an individual permit 
application, the BMPs to be implemented and the measurable goals for 
each of the minimum control measures discussed in Section II.H.3.a., 
Program Requirements--Minimum Control Measures.
    The term ``measurable goals'' is derived from negotiations among 
FACA representatives. Section 402(p)(6) of the CWA states that the 
program to regulate additional storm water discharges may include 
performance standards, guidelines, guidance, and management practices 
as appropriate. Discussions among FACA representatives resulted in the 
use of the term ``measurable goals.'' On the one hand, environmental 
representatives wanted to include performance standards as conditions 
of NPDES permits as a means of providing for specific, tangible 
activities to be undertaken within the municipal storm water management 
program. On the other hand, municipal representatives opposed the 
inclusion of performance standards, asserting that they were counter 
productive because they could encourage an owner or operator of a 
municipal separate storm sewer system to avoid risks associated with 
setting any standard that it felt it could not achieve with certainty. 
Out of this discussion, a compromise was reached in the use of the term 
``measurable goals'' and the process embodied in the proposed rule. 
This process sets the issuance of a menu of regionally-appropriate BMPs 
as the conditions precedent to ``measurable goals'' becoming permit 
conditions. Some storm water management plans developed to meet 
requirements of the existing storm water program include provisions 
similar to the concept of ``measurable goals'' proposed today. 
Specifically, some municipal storm water management plans include, for 
example, inspection of or cleaning of a fixed number of storm drain 
inlets per year and a survey of all municipal right-of-ways to identify 
illicit connections to the municipal separate storm sewer system. 
Currently, existing permit application regulations for municipal 
separate storm sewer systems require identification and implementation 
of BMPS and not necessarily measurable goals, much less performance 
standards.
    Qualifying State, Tribal, or local programs that meet the 
requirements of one or more of the minimum control measures could be 
incorporated by

[[Page 1574]]

reference into the NPDES municipal separate storm sewer system general 
permit. For more information regarding the general permit NOI or 
individual permit application, see Section II.H.3.b., Application 
Requirements.

Maximum Extent Practicable

    Maximum extent practicable (MEP) is a technology-based control 
standard currently used in the existing municipal storm water program 
against which permit writers and permittees assess whether or not an 
adequate level of control has been proposed in the storm water 
management program. The Urban Wet Weather Flows Federal Advisory 
Committee recommended to EPA that MEP be applied to all permits issued 
to municipal separate storm sewer systems, including those proposed to 
be regulated today, to achieve greater cooperation and consistency, 
reduce conflicts and confusion, and improve economies of scale in the 
efforts of municipalities to manage storm water pollution.
    In today's proposal, NPDES permits issued for regulated small 
municipal separate storm sewer systems, whether in the form of general 
or individual permits, would require the owner or operator to develop, 
implement, and enforce a storm water management program designed to 
reduce the discharge of pollutants to the maximum extent practicable. 
The permittee would be expected to reduce the pollutants to the MEP 
through implementation of the following minimum control measures: 
Public education and outreach on storm water impacts, public 
involvement/participation, illicit discharge detection and elimination, 
construction site storm water runoff control, post-construction storm 
water management in new development and redevelopment, and pollution 
prevention/good housekeeping for municipal operations.
    Under today's proposed approach, MEP would be determined through a 
series of steps associated with identification and implementation of 
the minimum control measures. In issuing the general permit, for 
example, the NPDES permitting authority would establish requirements 
for each of the minimum control measures and require municipalities to 
identify the BMPs to be performed and measurable goals to be achieved. 
Permittees would then be required to identify the BMPs and associated 
measurable goals for addressing each of the minimum control measures in 
their NOIs.
    Upon receipt of the NOI from a municipality, the NPDES permitting 
authority would then have the opportunity to review the NOI to verify 
that the identified BMPs and measurable goals would meet the MEP 
requirement and, if necessary, could ask the permittee to revise the 
mix of BMPs to better reflect the requirement. A similar procedure 
could be established for a small municipal separate storm sewer system 
that is a co-permittee with a municipal separate storm sewer system 
that is already regulated in an individual NPDES permit. This process 
would be followed by actual program implementation by the municipality. 
Under the proposed approach, implementation of BMPs consistent with 
storm water management program requirements at Sec. 122.34 and permit 
provisions at Sec. 122.33 would constitute compliance with the standard 
of ``reducing pollutants to the maximum extent practicable.''
    The pollutant reductions that represent MEP may be different for 
each municipality, given the unique storm water concerns that may exist 
and the differing possible remedies. Therefore, each permittee would 
determine the specific details in each of the six minimum control 
measures that represent MEP through an evaluative process. In this 
process, permittees and permit writers would evaluate the proposed 
storm water management controls to determine whether reduction of 
pollutants to the MEP could be achieved with the identified BMPs. EPA 
envisions that this evaluative process would consider such factors as 
conditions of receiving waters, specific local concerns, and other 
aspects included in a comprehensive watershed plan. The FACA Committee 
is currently working to identify evaluative MEP criteria. Suggestions 
have included: (1) The effectiveness to address the pollutant(s) of 
concern, (2) public acceptance, (3) cost, (4) technical feasibility, 
and (5) compliance with Federal, State and local laws and regulations.
    Prior to permit issuance, EPA plans to develop additional policy 
and technical guidance on the process of evaluating MEP for municipal 
separate storm sewer system permits based upon the recommendations 
received from the FACA Committee. This guidance would be applicable to 
both medium and large systems (addressed by existing requirements), as 
well as those addressed by today's proposal. It is important to note 
that States implementing their own NPDES programs may develop more 
stringent requirements than those proposed in today's rule. In any 
event, additional elaboration of the MEP determination process is not 
necessary prior to issuance of the final rule, because MEP is 
determined on a permit-by-permit basis.
a. Program Requirements--Minimum Control Measures
    i. Public Education and Outreach on Storm Water Impacts. EPA is 
proposing that any NPDES permit issued to regulated small municipal 
separate storm sewer systems would require the owner or operator to 
implement a public education program to distribute educational 
materials to the community (or conduct equivalent outreach activities) 
about the impacts of storm water discharges on waterbodies and the 
steps to reduce storm water pollution. The State, EPA, environmental 
organizations or other public interest or trade organizations could 
provide materials, subject to the approval of the owner or operator of 
the municipal system. The materials or outreach programs should inform 
individuals and households about steps that can be taken to reduce 
storm water pollution, such as ensuring proper septic system 
maintenance, limiting the use and runoff of garden chemicals to 
appropriate amounts, properly disposing of used motor oil or household 
hazardous wastes, and becoming involved in local stream restoration 
activities. EPA would encourage individuals to participate in 
activities coordinated by youth service organizations, conservation 
corps, or other citizen groups. Other possible outreach materials could 
encourage citizens to participate in the municipal program by 
performing such services as roadside litter pickup and storm drain 
stenciling or highlight the potential public health risks to children 
if exposed to pollution when playing near storm drains. In addition, 
some of the materials or outreach programs should be directed toward 
targeted groups of commercial, industrial, and institutional entities 
likely to have significant storm water impacts to explain their impacts 
on storm water pollution (e.g., information to restaurants on the 
impact of grease clogging storm drains and to garages on the impacts of 
used oil discharges). The owner or operator is encouraged to tailor the 
outreach program to address the viewpoints and concerns of all 
communities, particularly minority and disadvantaged communities, as 
well as children.
    EPA believes that as the public gains a greater understanding of 
the municipally developed program, the municipality is likely to gain 
more support for the program (including funding initiatives). In 
addition, compliance with the program would probably be greater if the 
public

[[Page 1575]]

understands the personal responsibilities expected of them and others. 
Well-informed citizens could even act as formal or informal educators 
to further disseminate information and gather support for the program, 
thus easing the burden on the municipalities to perform all educational 
activities. The public outreach provision has been tailored to respond 
to specific concerns raised in the course of the FACA process. For 
example, municipal representatives advocated the inclusion of language 
that would clarify that use of educational materials from outside 
groups, such as trade associations and environmental groups, would be 
subject to the approval of the municipality. Also, the above-referenced 
language addressing environmental justice concerns was in response to 
input from Storm Water Phase II FACA Subcommittee members.
    Municipalities would be encouraged to enter into partnerships with 
their States in fulfilling the public education requirement. It may be 
much more cost-effective to utilize a State education program instead 
of numerous municipalities developing their own. Municipalities would 
also be encouraged to work with other organizations (e.g., 
environmental and nonprofit groups and industry) that might be able to 
assist in fulfilling this requirement. Many of these kinds of 
organizations already have educational materials, and the groups could 
work together to educate the public.
    EPA requests comment on the appropriateness of the specified 
requirements for public education and outreach.
    ii. Public Involvement/Participation. Public involvement is an 
integral part of the municipal storm water program. The Agency believes 
that the public can provide valuable input and assistance to the 
municipality's storm water program. The Agency, therefore, is proposing 
that the public play an active role in the development and 
implementation of the municipality's storm water management program.
    The municipal storm water management program would need to include 
a public participation program that complies with applicable State and 
local public notice requirements. The public should participate as a 
partner in developing, implementing, and reviewing the storm water 
management program. Opportunities for members of the public to 
participate in program development and implementation could 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. The public participation process should 
engage all economic and ethnic groups.
    Early and frequent public involvement can shorten implementation 
schedules and broaden public support for a program. One challenge 
associated with public involvement is addressing conflicting 
viewpoints. Another challenge is in engaging the public in the public 
meeting and program design process. Nevertheless, EPA strongly believes 
that the overall benefits of an aggressive and inclusive program, 
including involvement of low-income and minority communities, is an 
essential component of a State, Tribal, Federal, and municipal storm 
water management program.
    Public participation ensures a more successful storm water program 
by providing valuable expertise and a conduit to other programs and 
governments, which would be of primary importance if the municipal 
storm water program is to be implemented on a watershed basis. The 
public could act as volunteers in all aspects of the program, thus 
saving municipal resources. Another recognized benefit is that members 
of the public are less likely to raise legal challenges to a 
municipality's storm water program if they have been involved in the 
decisionmaking process and program development and, therefore, are 
partially responsible for the program themselves. Section II.K. 
provides further discussion on public involvement.
    EPA requests comment on the appropriateness of the specified 
requirements for public involvement/participation.
    iii. Illicit Discharge Detection and Elimination. Discharges from 
storm water drainage systems often include wastes and wastewater from 
non-storm water sources. EPA's Nationwide Urban Runoff Program (NURP) 
indicated that many storm water outfalls still discharge during 
substantial dry periods. Pollutant levels in these dry weather flows 
were shown to be high enough to significantly degrade receiving water 
quality. Results from a 1987 study conducted in Sacramento, California, 
revealed that slightly less than one-half of the water discharged from 
a municipal separate storm sewer system was not directly attributable 
to precipitation runoff (U.S. Environmental Protection Agency, Office 
of Research and Development. 1993. Investigation of Inappropriate 
Pollutant Entries Into Storm Drainage Systems--A User's Guide. 
Washington, D.C. EPA 600/R-92/238.) A significant portion of these dry 
weather flows results from illicit and/or inappropriate discharges and 
connections to the municipal separate storm sewer system. Illicit 
discharges enter the system through either direct connections (e.g., 
wastewater piping either mistakenly or deliberately connected to the 
storm drains) or indirect connections (e.g., infiltration into the 
storm drain system or spills collected by drain inlets). Under the 
existing NPDES program for storm water, permits for large and medium 
municipal separate storm sewer systems are to include an effective 
prohibition against non-storm water discharges into their storm sewers 
(see CWA section 402(p)(3)(B)(ii)). Further, EPA believes that in 
implementing municipal storm water management plans under these 
permits, large and medium municipalities generally found their illicit 
discharge detection and elimination programs to be cost-effective.
    In today's proposal, any NPDES permit issued to an owner or 
operator of a regulated small municipal separate storm sewer system 
would, at a minimum, require that owner or operator to develop and 
implement an illicit discharge detection and elimination program. 
Inclusion of this measure for municipal storm water programs for 
regulated small municipalities would be consistent with the ``effective 
prohibition'' requirement for large and medium municipal separate storm 
sewer systems. Under such a program, the owner or operator would be 
required to demonstrate awareness of the system using maps or other 
existing documents. The owner or operator would also be required to 
develop (if not already completed) a storm sewer system map (or 
equivalent) showing the location of major pipes, outfalls, and 
topography. The map should identify areas of concentrated activities 
likely to be a source of storm water pollution, if the data already 
exist. To ensure the effectiveness of this measure, the owner or 
operator would be required to effectively prohibit through ordinance, 
order, or similar means (for nongovernmental owners or operators of 
municipal separate storm sewer systems), to the extent allowable under 
State or Tribal law, illicit discharges into the separate storm sewer 
system and implement appropriate enforcement procedures and actions as 
needed. This measure would also require the owner or operator to 
develop

[[Page 1576]]

and implement a plan to detect and address illicit discharges 
(including illegal dumping) to the system. Finally, the measure would 
require the owner or operator to inform public employees, businesses, 
and the general public of hazards associated with illegal discharges 
and improper disposal of waste. These informational actions could 
include storm drain stenciling; a program to promote, publicize, and 
facilitate public reporting of illicit connections or discharges; and 
distribution of outreach materials. Recycling and other public outreach 
programs could be developed to address potential sources of illicit 
discharges, including used motor oil, antifreeze, pesticides, 
herbicides, and fertilizers.
    EPA seeks comment regarding the prohibition and enforcement 
provision for this minimum measure and specifically requests comment 
regarding the implications of specifying that the owner or operator 
would have to implement the appropriate prohibition and enforcement 
procedures ``to the extent allowable under State or Tribal law.'' 
Concerns have been raised that by qualifying prohibition and 
enforcement procedures in this manner, the owner or operator could 
altogether ignore this minimum measure where appropriate authority did 
not exist. Municipalities have pointed out, however, that they cannot 
legally exceed the authority granted them under State law, which varies 
considerably from one state to another.
    The illicit discharge detection and elimination program would not 
necessarily need to address all types of non-storm water discharges. As 
with the existing municipal application requirements, the following 
categories of non-storm water discharges or flows would only need to be 
addressed in the municipal storm water program where such discharges 
are identified as significant contributors of pollutants: water line 
flushing, landscape irrigation, diverted stream flows, rising ground 
waters, uncontaminated ground water infiltration (as defined at 40 CFR 
35.2005(20)) to separate storm sewers, 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. The program should 
address discharges or flows from fire fighting where such discharges or 
flows are identified as significant sources of pollutants.
    The existing storm water permit application requirements at 
Sec. 122.26(d), contain two sets of application requirements regarding 
illicit discharges that EPA does not propose to require of regulated 
small municipal separate storm sewer systems. Specifically, EPA does 
not propose to require regulated small system owners or operators to 
describe procedures to prevent, contain, and respond to spills that 
could discharge into the municipal separate storm sewer and controls to 
limit infiltration of seepage from municipal sanitary sewers to 
municipal separate storm sewer systems where necessary. This is 
pursuant to comments received from municipal representatives on the 
Storm Water Phase II FACA Subcommittee. EPA anticipates that these 
procedures are already effectuated through the implementation of 
existing municipal programs, such as emergency response teams and 
operation of the wastewater treatment system.
    EPA requests comment on the appropriateness of the specified 
requirements for illicit discharge detection and elimination.
    iv. Construction Site Storm Water Runoff Control. Over a short 
period of time, storm water discharges from construction site activity 
can contribute more pollutants, including sediment, to a receiving 
stream than had been deposited over several decades. Storm water runoff 
from construction sites can include pollutants other than sediment, 
such as phosphorus and nitrogen from fertilizer, pesticides, petroleum 
derivatives, construction chemicals, and solid wastes that may become 
mobilized when land surfaces are disturbed. Generally, properly 
implemented construction site ordinances are effective in reducing 
these pollutants. In many areas, however, the effectiveness of 
ordinances in reducing pollutants is limited due to inadequate 
enforcement or incomplete compliance with such local ordinances by 
construction site discharges of storm water. Not all construction site 
owners or operators properly maintain BMPs. For example, sediment traps 
and sediment basins may fill up and silt fencing may break or be 
overtopped.
    Today's proposed rule would require owners or operators of 
regulated small municipal separate storm sewer systems to develop, 
implement, and enforce a pollutant control program to reduce pollutants 
in storm water runoff from construction activities that result in land 
disturbance of 1 or more acres to their municipal separate storm sewer 
systems as a part of their storm water management program. The owner or 
operator would need to use an ordinance or other regulatory mechanism 
that controls erosion and sediment to the maximum extent practicable 
and allowable under State, Tribal, or local law. The program also would 
need to ensure control of other waste at construction sites that could 
adversely impact water quality. This waste could include discarded 
building materials, concrete truck washout, and sanitary waste. The 
program would need to include, at a minimum, requirements for 
construction site owners or operators to implement appropriate BMPs, 
such as silt fences, temporary detention ponds and hay bales; 
provisions for pre-construction review of site management plans; 
procedures for receipt and consideration of information provided by the 
public; regular inspections during construction; and penalties to 
ensure compliance.
    Today's proposal includes the program requirement to establish 
procedures for the receipt and consideration of information provided by 
the public in response to stakeholder concerns regarding public 
involvement and public access to information. This requirement further 
reinforces the public participation component of the municipal program 
by establishing a formal process for considering and responding to 
public inquiries regarding construction activities. Some stakeholders 
have expressed concern regarding the proposed site management plan 
provision, which would establish requirements for review but not for 
approval of such plans. EPA requests comment on expanding this 
provision to require both review and approval of construction site 
storm water plans. EPA also invites comment on the basic program 
components.
    In conjunction with these requirements, EPA is also proposing to 
add Sec. 122.44(s) which would allow the NPDES permit issued to 
regulated construction sites (described under Sec. 122.26(b)(15)(i)) to 
incorporate by reference qualifying State, Tribal, or local erosion and 
sediment control program requirements. A qualifying State, Tribal, or 
local erosion and sediment control program would be one that meets the 
requirements of a municipal NPDES separate storm sewer permit or a 
program otherwise approved by the NPDES permitting authority for 
programs operating outside geographic boundaries of a permitted 
municipal separate storm sewer system. The NPDES permitting authority's 
approval of such programs would need to assure compliance with the 
minimum construction site control program requirements described above. 
The permitting authority could also include,

[[Page 1577]]

by reference in a general permit, those State, Tribal, or local 
requirements that meet the standard of best available technology (BAT) 
for those construction site storm water discharges identified at 
Sec. 122.26(b)(14)(x) (i.e., sites disturbing more than 5 acres of 
land), including clearing, grading, and excavation activities. As a 
result of this provision, such local requirements would, in effect, 
provide the construction site erosion and sediment control requirements 
of the NPDES permit. Construction site owners and operators would be 
subject to only one set of erosion and sediment control requirements, 
thereby eliminating duplication. At the same time, noncompliance with 
the referenced local requirements would be considered noncompliance 
with the NPDES permit and would be federally enforceable.
    EPA developed the ``incorporation by reference'' approach, which is 
similar to implementation efforts designed by the State of Michigan, to 
avoid duplication of effort in the development of regulatory 
requirements by different levels of government. Michigan relies on 
localities to develop substantive controls for storm water discharges 
associated with construction activities on a localized basis. The State 
agency, as the NPDES permitting authority, receives an NOI (termed 
``notice of coverage'' by Michigan) under the general permit and tracks 
and exercises oversight, as appropriate, over the activity causing the 
storm water discharge. Michigan's goal under these procedures is to 
utilize the existing erosion and sediment control program 
infrastructure authorized under State law for storm water discharge 
regulation. (See U.S. Environmental Protection Agency, Office of Water. 
January 7, 1994. Memo: From Michael B. Cook, Director OWEC, to Water 
Management Division Directors, Regarding the ``Approach Taken by 
Michigan to Regulate Storm Water Discharges from Construction 
Activities.'')
    EPA acknowledges that many owners or operators of small municipal 
separate storm sewer systems already administer local erosion and 
sediment control programs. EPA believes that today's proposed approach 
would recognize a municipality's flexibility in developing practical 
procedures to control construction site discharges from within its 
jurisdiction, while still requiring an NPDES permit to ensure an 
appropriate base level of water quality protection. Moreover, the 
Agency also believes that there is an appropriate role for the 
permitting authority as well as citizens groups in ensuring that 
construction site owners/operators comply with the requirements of an 
NPDES permit. Finally, EPA contemplates that there would be some permit 
provisions, such as requirements for site management plans, that are 
not typically required by local erosion and sediment control programs 
which would be required as one of the requirements of a construction 
general permit. Therefore, the Agency believes that the proposed dual 
approach of local controls and NPDES permitting most effectively 
ensures implementation of appropriate storm water control measures at 
construction sites while minimizing redundant controls. EPA solicits 
comment on this ``incorporation by reference'' approach.
    Today's proposal for permit requirements for regulated construction 
sites (described under Sec. 122.26(b)(15)(i)) would include developing 
a storm water pollution prevention plan (SWPPP). However, the current 
proposal for the municipal program minimum measure for construction 
site storm water control runoff does not contain an equivalent 
requirement--leaving a gap between the two areas of the proposal that 
address regulation of construction. EPA asks for comment as to the 
effect of this potential regulatory gap and whether the municipal 
program for construction should be made to include a requirement for 
developing a SWPPP. Specifically, EPA asks for comment on the effect 
this may have on the applicability of the provision allowing for an 
NPDES permit to incorporate by reference a qualifying local erosion and 
sediment control program. Currently, the proposal defines a local 
program as ``qualifying'' if it meets the minimum program requirements 
established in Sec. 122.34(b)(4). EPA is concerned as to whether this 
raises a potential inequitable regulatory scheme where certain 
construction sites would need to be covered under a SWPPP because they 
are outside a covered municipality while nearby construction sites 
would not need SWPPP coverage because they are within a municipality 
that has a construction program that meets Sec. 122.34(b)(4) 
requirements. EPA intends to facilitate the broadest application of the 
Sec. 122.44(s) provision to avoid duplication of programmatic 
requirements and paperwork redundancy and seeks comment on a means to 
best achieve this goal.
    In discussions with the Storm Water Phase II FACA Subcommittee, EPA 
considered structuring the permit requirements for the municipal 
construction program around five control principles that were to 
underlie the development of eight program elements to be implemented by 
the owner or operators of the municipal separate storm sewer system. 
The five principles were use of good site planning, minimization of 
soil movement, capture of sediment to the greatest degree possible, 
good housekeeping practices, and mitigation of the impacts of post-
construction storm water discharges. The eight elements include a 
program description; coordination mechanisms with existing programs; 
requirements for nonstructural and structural BMPs; priorities for site 
inspections; educational and training measures; exemption of some 
construction activities due to limited impact; incentives, awards, or 
streamlining mechanisms available to developers; and description of 
staff and resources. Under this approach, any local program that 
incorporated these principles and elements into its storm water program 
would have been considered a ``qualifying'' local program that met 
Federal requirements. The elements suggested were modified from current 
requirements found at 40 CFR 122.26(d)(2)(iv)(D).
    After in-depth discussion with all stakeholders, many of these 
elements were considered to be more appropriate as guidance than as 
regulatory requirements for small municipal systems. Some stakeholders 
expressed concerns about the applicability and interpretation of the 
five control principles and eight program elements on a national level, 
specifically that a single, national specification would be unworkable. 
Therefore, EPA is proposing regulatory text intended to build on the 
fundamental aspects of the existing NPDES program for municipal storm 
water, while streamlining and improving certain aspects of the program 
applicable to owners or operators of regulated small municipal separate 
storm sewer systems.
    EPA requests comment on the appropriateness of the specified 
requirements for construction site control.
    v. Post-Construction Storm Water Management in New Development and 
Redevelopment. The Nationwide Urban Runoff Program study and more 
recent investigations indicate that prior planning and designing for 
the minimization of pollutants in storm water discharges is the most 
cost-effective approach to storm water quality management. Reducing the 
discharge of pollutants after the discharge enters a storm sewer system 
is often more expensive and less efficient than preventing or reducing 
the discharge of pollutants at the source.

[[Page 1578]]

Increased human activity associated with development often results in 
increased discharges of pollutants. In addition, sediment and debris 
transport and deposition can directly impair aquatic life. If the 
involved parties consider water quality impacts from the beginning 
stages of projects, new development and possibly redevelopment allow 
opportunities for more water quality sensitive projects. For example, 
minimization of impervious areas, maintenance or restoration of natural 
infiltration, wetland protection, use of vegetated drainage ways, and 
use of riparian buffers have been shown to reduce pollutant loadings in 
storm water runoff from developed areas. EPA encourages local 
governments to identify specific problem areas within their 
jurisdictions and initiate innovative solutions and designs to focus 
attention on those areas through local planning.
    In today's rule, EPA is proposing that owners or operators of 
regulated small municipal separate storm sewer systems develop, 
implement, and enforce a program that includes a plan to address storm 
water runoff from new development and redevelopment projects to their 
municipal separate storm sewer systems using site-appropriate and cost-
effective structural and non-structural BMPs, as appropriate. The 
program would need to ensure that controls are in place that would 
prevent or minimize water quality impacts. The program should ensure 
adequate long-term operation and maintenance of BMPs. EPA would address 
questions regarding responsibility for long-term BMP operation and 
maintenance in guidance materials. EPA intends the term 
``redevelopment'' to refer to alterations of a property that change the 
``footprint'' of a site or building in such a way that results in the 
disturbance of equal to or greater than 1 acre of land. The term is not 
intended to include such activities as exterior remodeling, which would 
not be expected to cause adverse storm water quality impacts and offer 
no new opportunity for storm water controls.
    EPA intends to provide guidance to owners or operators of municipal 
systems and permitting authorities on appropriate planning 
considerations, structural and non-structural controls, and post-
construction operation and maintenance of BMPs. Guidance materials 
would also address questions regarding responsibility for long-term 
operation and maintenance of storm water controls. EPA also intends to 
present a broad menu of options as guidance allowing for flexibility to 
accommodate local conditions. EPA proposes to recommend that 
municipalities establish requirements for the use of cost-effective 
BMPs that minimize water quality impacts and attempt to maintain pre-
development runoff conditions. In other words, post-development 
conditions should not be different from pre-development conditions in a 
way that adversely affects water quality. The municipal program should 
include structural and/or non-structural BMPs. EPA encourages locally-
based watershed planning and the use of preventative measures, 
including non-structural BMPs, which are generally lower in cost than 
structural BMPs, to minimize water quality impacts. Non-structural BMPs 
are preventative actions that involve management and source controls. 
Examples of non-structural BMPs include policies and ordinances that 
result in protection of natural resources and prevention of runoff. 
These include requirements to limit growth to identified areas, protect 
sensitive areas such as wetlands and riparian areas, minimize 
imperviousness, maintain open space, and minimize disturbance of soils 
and vegetation.
    Examples of structural BMPs include storage practices (wet ponds 
and extended-detention outlet structures), filtration practices 
(grassed swales, sand filters and filter strips), and infiltration 
practices (infiltration basins, infiltration trenches, and porous 
pavement). System owners or operators have significant flexibility both 
to develop this measure as appropriate to address local concerns and to 
apply new control technologies as they become available. Since storm 
water technologies are constantly being improved, EPA recommends that 
municipal requirements be responsive to these changes.
    EPA requests comment on the appropriateness of the specified 
requirements for post-construction storm water management in new 
development and redevelopment.
    vi. Pollution Prevention/Good Housekeeping for Municipal 
Operations. In today's proposal, any NPDES permit issued to an owner or 
operator of a regulated small municipal separate storm sewer system 
must, at a minimum, require the owner or operator to develop and 
implement a cost-effective operation and maintenance/training program 
with the ultimate goal of preventing or reducing pollutant runoff from 
municipal operations. EPA would encourage the owner or operator to 
consider the following in developing such a program: (1) Maintenance 
activities, maintenance schedules, and long-term inspection procedures 
for structural and other storm water controls to reduce floatables and 
other pollutants discharged from the separate storm sewers; (2) 
controls for reducing or eliminating the discharge of pollutants from 
streets, roads, highways, municipal parking lots, maintenance and 
storage yards, and waste transfer stations--including programs that 
promote recycling and pesticide use minimization; (3) procedures for 
the proper disposal of waste removed from the separate storm sewer 
systems and areas listed above in (2), including dredge spoil, 
accumulated sediments, floatables, and other debris; and (4) ways to 
ensure that new flood management projects assess the impacts on water 
quality and examine existing projects for incorporation of additional 
water quality protection devices or practices. In general, the 
requirement to develop and implement an operation and maintenance 
program, including local government employee training, is meant to 
ensure that municipal activities are performed in the most appropriate 
way to minimize contamination of storm water discharges, rather than 
requiring the municipality to undertake new activities.
    Proper operation and maintenance of the municipal separate storm 
sewer system and the storm water pollution control structures is 
essential to the success of the management program overall. The 
effective performance of this program measure would hinge on the proper 
maintenance of the BMPs utilized. Without proper maintenance, BMP 
performance declines significantly over time, with rates of decline 
varying by BMP type and site conditions. Additionally, BMP neglect may 
produce health and safety threats, such as structural failure leading 
to flooding, undesirable animal and insect breeding, and odors. 
Maintenance of structural BMPs could include activities to restore the 
integrity of infiltration control BMPs such as replacing upper levels 
of gravel; dredging of detention ponds; and repair of outlet structure 
integrity. Non-structural BMPs could also require maintenance over 
time. For example, educational materials might need to be updated 
periodically.
    EPA intends that controls for discharges from maintenance and 
storage yards listed above include controls for discharges from salt/
sand storage locations and snow disposal areas operated by the 
municipality. EPA encourages coordination with flood control managers 
for the purpose of identifying and addressing the environmental impacts 
of existing and proposed flood management activities.

[[Page 1579]]

    Using existing storm water pollution prevention training materials 
that could be available from the NPDES authorities or from other 
organizations whose materials are approved by the local government, the 
program would need to include local government employee training 
addressing these prevention measures in government operations (such as 
park, golf course and open space maintenance; fleet maintenance; 
planning, building oversight and storm water system maintenance). In 
developing this minimum program element, the Agency sought to identify 
existing practices and training as a means to avoid duplication of 
efforts and reduce overall costs. EPA also sought to emphasize those 
practices or programs designed and undertaken by municipalities to 
address non-storm water problems but also that have storm water 
pollution prevention benefits. In addition, EPA designed this municipal 
program measure intending to create a streamlined version of the permit 
application requirements for medium and large municipal separate storm 
sewer systems described at 40 CFR 122.26(d)(2)(iv). The streamlined 
approach is intended to provide more flexibility for these smaller 
municipalities. Today's proposed requirements provide for a consistent 
approach to control pollutants from operation and maintenance among 
medium, large, and regulated small municipal separate storm sewer 
systems.
    By implementing a cost-effective operation and maintenance program, 
the municipal storm system owner or operator would serve as a model for 
the regulated community. Furthermore, the establishment of a long-term 
training and maintenance program could result in cost savings for the 
owner or operator by minimizing possible damage to the system from 
floatables and other debris and, consequently, reducing the need for 
repairs.
    The proposed minimum measure, which originated with members of the 
Storm Water Phase II FACA Subcommittee, is similar to the requirements 
of the existing storm water program. EPA requests comment on the 
appropriateness of the specified requirements for pollution prevention/
good housekeeping for municipal operations.
    vii. Satisfaction of Minimum Measure Obligations. Today's proposal 
would allow regulated small system owners or operators to satisfy their 
NPDES permit obligations for a minimum control measure by having 
another governmental or other entity perform the measure under the 
following circumstances: The other entity is implementing the control 
measure; the particular control measure (or component thereof) is at 
least as stringent as the corresponding NPDES permit requirements; and 
the owner or operator has requested, and the other entity has agreed to 
accept responsibility for, implementation of a particular control 
measure (or measures) on behalf of, and to satisfy, the owner or 
operator's municipal permit obligations. The owner or operator would 
need to specify in the Sec. 122.34(f)(3) reports submitted to the NPDES 
permitting authority when the owner or operator relies on another 
person to satisfy the permit obligations. The owner or operator would 
remain responsible for compliance with the permit obligations if the 
entity fails to implement the control measure (or component thereof). 
Therefore, EPA would encourage the owner or operator to enter into a 
legally binding agreement with that entity to minimize any uncertainty 
regarding compliance with the NPDES permit.
    In addition to the permittee-coordinated arrangement, today's 
proposal also includes a provision that would allow the NPDES 
permitting authority to recognize existing responsibilities among 
governmental entities for the control measures in an NPDES permit. For 
example, a State may have an existing erosion and sediment control 
program that adequately addresses construction site discharges to 
regulated small municipal separate storm sewer systems. The NPDES 
permitting authority in that State could draft the NPDES permit 
conditions such that the State is responsible for the construction site 
storm water discharge control minimum measure. Assuming that no other 
existing programs meet the requirements of the other minimum control 
measures, the municipality would be responsible for implementing those 
remaining minimum measures. Where the NPDES permitting authority 
recognizes existing responsibilities for one or more of the minimum 
control measures in an NPDES permit, these responsibilities would be 
waived from a regulated small system's storm water management plan and 
would remain waived as long as the other governmental entity implements 
the measure consistent with the proposed municipal program permit 
requirements at Sec. 122.34(b). When the NPDES permitting authority 
recognizes an existing responsibility in an NPDES permit, the permittee 
would not be obligated to notify the other governmental entity about 
the arrangement. Instead, EPA anticipates it would be the 
responsibility of the NPDES permitting authority to do so.
b. Application Requirements, Including Notice of Intent
    As part of the municipal program, the owner or operator of a 
regulated small municipal separate storm sewer system would be required 
to identify and submit to the NPDES permitting authority, either in a 
notice of intent (NOI) to be covered under a general permit or in an 
individual permit application, the BMPs that the owner or operator 
would implement and the measurable goals for the minimum control 
measures discussed previously. In reviewing NOIs submitted by the 
owners or operators of municipal systems, the NPDES permitting 
authority would need to pay particular attention to the BMPs and 
measurable goals identified for municipal separate storm sewer systems 
that are located in impaired watersheds. Where specific measurable 
goals to satisfy minimum control measures in paragraphs (b)(3) through 
(b)(6) of Sec. 122.34 (illicit discharges detection and elimination, 
construction site storm water runoff control, post-construction storm 
water management in new development and redevelopment, pollution 
prevention/good housekeeping for municipal operations) are identified 
in an NOI, these goals would not constitute a condition of the NPDES 
permit, unless EPA or the State has provided or issued a menu of 
regionally appropriate, field-tested BMPs that it believes to be cost-
effective. EPA has limited this provision to only four of the minimum 
control measures because the Agency does not believe that 
municipalities need the kind of technical assistance in developing 
measurable goals for public education and outreach or public 
involvement that might be essential in determining measurable goals for 
the other four minimum control measures. Measurable goals for the two 
minimum control measures of public education and outreach and public 
involvement would be required and would be enforceable permit 
conditions even without the issuance of the menu of BMPs. In the 
general permit NOI or individual permit application, the owner or 
operator would also be required to identify the month and year in which 
the owner or operator would start and would aim to complete each of the 
minimum control measures or indicate the frequency of the action.
    The NPDES permitting authority would specify a time period (of up 
to five years) for the owner or operator to

[[Page 1580]]

fully develop and implement the program. The owner or operator would 
also be required to identify in the general permit NOI or individual 
permit application the person or persons responsible for implementing 
or coordinating the municipal storm water program. EPA intends to 
provide guidance on the development of BMPs and measurable goals. EPA 
would later modify, update, and supplement this guidance based on the 
assessments of the municipal storm water program and research conducted 
over the next 13 years.
    EPA seeks comment on certain permit application provisions 
identified in today's proposed rule. First, EPA seeks comment on the 
potential implications of linking the enforceability of measurable 
goals identified in an NOI to EPA/State issuance of a menu of 
regionally appropriate BMPs. EPA also requests comment on the procedure 
for issuing a regionally appropriate menu of BMPs. For example, the 
menu could be developed and published concurrently with the general 
permit or prior to or after issuance of the general permit. 
Furthermore, commenters have raised concerns that if measurable goals 
become enforceable permit conditions without a menu of BMPs first being 
issued, the owner or operator of the municipal system would only 
propose easily attainable goals that might not achieve higher levels of 
water quality protection. Conversely, municipalities are concerned that 
measurable goals not become enforceable permit requirements until the 
permitting authority determines that they are, in fact, achievable 
through the use of cost-effective BMPs. EPA seeks comment on these 
concerns. Finally, EPA seeks comment on how an NOI form might best be 
formatted to allow for measurable goal information (e.g., through the 
use of check boxes or narrative descriptions) while taking into account 
the need to facilitate computer tracking.
c. Evaluation and Assessment
    Under today's approach, owners or operators would be required to 
evaluate the appropriateness of their identified BMPs and progress 
toward achieving their identified measurable goals. The purpose of this 
evaluation is to determine whether or not the owner or operator is 
meeting the requirements of the minimum control measures identified in 
today's proposal. The NPDES permitting authority would be responsible 
for determining whether any monitoring needs to be conducted and could 
require monitoring in accordance with State/Tribe monitoring plans 
appropriate to the watershed. EPA does not encourage requirements for 
``end-of-pipe'' monitoring for regulated small municipal storm sewer 
systems. Rather, EPA encourages permitting authorities to carefully 
examine existing ambient water quality and assess data needs. 
Permitting authorities should consider a combination of physical, 
chemical, and biological monitoring or the use of other environmental 
indicators such as exceedance frequencies of water quality standards, 
impacted dry weather flows, increased flooding frequency, and fish 
assemblage. (Claytor, R. and W. Brown. 1996. Environmental Indicators 
to Assess Storm Water Control Programs and Practices. Center for 
Watershed Protection, Silver Spring, MD.) Section II.L., Water Quality 
Issues, discusses monitoring in greater detail.
    As recommended by the Intergovernmental Task Force on Monitoring 
Water Quality (ITFM), the NPDES permitting authority would be 
encouraged to consider the following watershed objectives in 
determining monitoring requirements: (1) to characterize water quality 
and ecosystem health in a watershed over time, (2) to determine causes 
of existing and future water quality and ecosystem health problems in a 
watershed and develop a watershed management program, (3) to assess 
progress of watershed management program or effectiveness of pollution 
prevention and control practices, and (4) to support documentation of 
compliance with permit conditions and/or water quality standards. With 
these objectives in mind, the Agency encourages participation in group 
monitoring programs that would take advantage of existing monitoring 
programs undertaken by a variety of governmental and nongovernmental 
entities. Many States may already have a monitoring program in effect 
on a watershed basis. The ITFM report is included in the docket for 
this proposal (Intergovernmental Task Force on Monitoring Water 
Quality. 1995. The Strategy for Improving Water-Quality Monitoring in 
the United States: Final Report of the Intergovernmental Task Force on 
Monitoring Water Quality. Copies can be obtained from: U.S. Geological 
Survey, Reston, VA.).
    EPA expects that many types of entities would have a role in 
supporting group monitoring activities--including federal agencies, 
State agencies, the public, and various classes or categories of point 
source dischargers. It is possible that some regulated small municipal 
separate storm sewer systems would need to contribute to such 
monitoring efforts. EPA expects, however, that their participation in 
monitoring activities would be relatively limited. For purposes of 
today's proposal, EPA recommends that, in general, small municipalities 
not be required to conduct in the first permit term any additional 
monitoring beyond any they may be already performing. In the second and 
subsequent permit terms, EPA expects that some limited ambient 
monitoring might be appropriately required for perhaps half of the 
regulated small municipal separate storm sewer systems. EPA expects 
that such monitoring would only be done in several discrete locations 
for relatively few pollutants of concern. EPA does not anticipate 
``end-of-pipe'' monitoring requirements for regulated small municipal 
separate storm sewer systems. EPA seeks comment on this approach, 
particularly from the perspective of dischargers other than small 
municipalities, on the sharing of responsibility for the support of 
monitoring activities.
    i. Recordkeeping. The NPDES permitting authority would be required 
to include at least the minimum appropriate recordkeeping conditions in 
each permit. Additionally, the NPDES permitting authority could specify 
that permittees develop, maintain, and/or submit other records to 
determine compliance with permit conditions. The owner or operator 
would need to keep these records for at least 3 years but would not be 
required to submit records to the NPDES permitting authority unless 
specifically directed to do so. The owner or operator would be required 
to make the records, including the storm water management program, 
available to the public at reasonable times during regular business 
hours (see 40 CFR 122.7 for confidentiality provision). The owner or 
operator would also be able to assess a reasonable charge for copying 
and to establish advance notice requirements, not to exceed 2 business 
days, for members of the public.
    ii. Reporting. Under today's proposal, the owner or operator of a 
regulated small municipal separate storm sewer system would be required 
to submit annual reports to the NPDES permitting authority for the 
first permit term. For subsequent permit terms, the owner or operator 
would need to submit reports in years 2 and 4 unless the NPDES 
permitting authority required more frequent reports. EPA determined 
that annual reports would be needed during the first 5-year permit term 
to help permitting authorities in track and assess the development of 
municipal programs, which should be well

[[Page 1581]]

established by the end of the initial term. Information contained in 
these reports could be used to respond to public inquiries.
    The report would need to include (1) the status of compliance with 
permit conditions, an assessment of the appropriateness of identified 
BMPs and progress toward achieving measurable goals for each of the 
minimum control measures, (2) results of information collected and 
analyzed, including monitoring data, if any, during the reporting 
period, (3) a summary of what storm water activities the permittee 
plans to undertake during the next reporting cycle, and (4) a change in 
any identified measurable goal or goals that apply to the program 
elements.
    The NPDES permitting authority would be encouraged to use a brief 
(e.g., two-page) reporting format to facilitate compiling and analyzing 
the data from submitted reports. The permitting authority would use the 
reports in evaluating compliance with permit conditions and, where 
necessary, would modify the permit conditions to address changed 
conditions. EPA requests comment on the appropriate content of the 
reports and the timing of the submittal.
    iii. Permit-As-A-Shield. Section 122.36 describes the NPDES 
``permit-as-a-shield'' coverage offered by section 402(k) of the CWA. 
Section 402(k) provides that compliance with an NPDES permit would be 
deemed compliance, for purposes of enforcement under CWA sections 309 
and 505, with CWA sections 301, 302, 306, 307, and 403, except for any 
standard imposed under section 307 for toxic pollutants injurious to 
human health.
    EPA's Policy Statement on Scope of Discharge Authorization and 
Shield Associated with NPDES Permits, issued on July 1, 1994, and 
revised by EPA's policy memorandum on the same subject issued on April 
11,1995, provides additional information on this matter.
d. Other Applicable NPDES Requirements
    Any NPDES permit issued to an owner or operator of a regulated 
small municipal separate storm sewer system would also need to include 
other applicable NPDES permit requirements and standard conditions, 
specifically those requirements and conditions at 40 CFR 122.41 through 
122.49 (EPA recognizes that reporting requirements for regulated small 
municipal separate storm sewer systems would be governed by proposed 
Sec. 122.34 and not the existing requirements for medium and large 
municipal separate storm sewer systems at Sec. 122.42(c)). In addition, 
the NPDES permitting authority is encouraged to consult the Interim 
Permitting Approach, issued on August 1, 1996. The discussion on the 
Interim Permitting Approach in Section II.L.1, Water Quality Standards, 
provides more information. Members of the municipal caucus expressed 
considerable concern that imposing these conditions would, in effect, 
undermine the intent of the program developed in consultation with the 
Storm Water Phase II FACA Subcommittee--to develop a program with a 
simplified set of permit requirements based on the implementation of 
BMPs. EPA does not believe that this is a concern. The provisions of 
Secs. 122.41 through 122.49 establish permit conditions and limitations 
that are broadly applicable to the entire range of NPDES permits. These 
provisions should be interpreted in a manner that is consistent with 
provisions that address specific classes or categories of discharges. 
For example, Sec. 122.44(d) is a general requirement that each NPDES 
permit shall include conditions to meet water quality standards. This 
requirement would be met by the specific approach outlined in today's 
proposal for the implementation of BMPs as the most appropriate form of 
effluent limitations to satisfy technology requirements and water 
quality-based requirements (see the introduction to Section II.H.3, 
Municipal Permit Requirements, Section II.H.3.g, Reevaluation of Rule, 
and the discussion of the Interim Permitting Policy in Section 
II.L.1.a. below).
e. Enforceability
    NPDES permits are federally enforceable. Violators may be subject 
to the enforcement actions and penalties described in CWA sections 309, 
504, and 505 or under appropriate State or local law. Compliance with a 
permit issued pursuant to section 402 of the Clean Water Act would be 
deemed compliance, for purposes of sections 309 and 505, with sections 
301, 302, 306, 307, and 403 (except any standard imposed under section 
307 for toxic pollutants injurious to human health).
f. Deadlines
    Under Sec. 122.32(a)(1) of today's proposed rule, which 
automatically designates all small municipal separate storm sewers 
located in an ``urbanized area,'' owners or operators of regulated 
small municipal separate storm sewer systems would need to seek 
coverage under an NPDES permit within 3 years and 90 days from the date 
of publication of the final rule. Assuming a March 1, 1999, final rule, 
the resulting deadline would be May 31, 2002--this allows 90 days after 
the issuance of a general permit to submit the NOI. Owners or operators 
of regulated small municipal separate storm sewer systems that choose 
to be a co-permittee with an adjoining municipality or other 
governmental entity with an existing NPDES storm water permit would 
need to apply for a modification of that permit by May 31, 2002--
allowing for 90 days as well. EPA recognizes that the use of the 
``latest'' Decennial Census by the Bureau of the Census as a basis for 
nationwide designation raises an issue regarding applicable deadlines 
for municipalities brought into the program due to 2000 Census 
calculations. EPA proposes that small municipal separate storm sewer 
systems that are automatically designated as of the 2000 Census would 
need to seek coverage under an NPDES permit within 3 years and 90 days 
from the date of publication of the final rule. Since the official 
Bureau of the Census urbanized area calculation for the 2000 Census is 
expected to be published by August 2001, this proposed deadline would 
allow the affected municipalities to have approximately 9 months notice 
to prepare for compliance under the applicable permit. EPA invites 
comment on this proposed deadline for municipalities affected by the 
2000 Census. EPA also seeks comment on the appropriateness of the range 
of time allowed for regulated small municipal separate storm sewer 
systems to prepare an NOI or permit application, which varies from 3 
years and 90 days (if automatically designated by the 1990 Census) to 
60 days (if designated by the NPDES permitting authority under proposed 
Sec. 122.32(a)(2)), with 9 months in between (if automatically 
designated by the 2000 Census).
    As stated above, owners or operators of regulated small municipal 
separate storm sewer systems designated by the NPDES permitting 
authority on a local basis under Sec. 122.32(a)(2) would need to seek 
coverage under an NPDES permit within 60 days of notice, unless the 
NPDES permitting authority specifies a later date. EPA seeks comment 
specifically on whether 60 days provides adequate time for the 
preparation of an NOI or permit application or if a 90 day time period 
would be more appropriate.
g. Reevaluation of Rule
    The municipal caucus of the Storm Water Phase II FACA Subcommittee 
asked EPA to demonstrate its commitment to revisit today's proposed 
rule as it applies to municipal separate

[[Page 1582]]

storm sewer systems and make changes where necessary after evaluating 
the storm water program and researching the effectiveness of municipal 
BMPs. Today, EPA is proposing Sec. 122.37 to commit the Agency to 
revisit the regulations for the municipal storm water program, at 
Secs. 122.32 through 122.26 and 123.35, after completion of the first 
two permit terms. The Agency intends to use this time to work closely 
with stakeholders on research efforts. Gathering and analyzing data 
related to the storm water program, including data regarding the 
effectiveness of BMPs, during this time would be critical to EPA's 
storm water program evaluation. The Agency does not intend to change 
today's proposed NPDES municipal storm water program until the end of 
this period, except under the following circumstances: a court decision 
requires changes; a technical change is necessary for implementation; 
or the CWA is modified, thereby requiring changes. After careful 
analysis, the Agency might also consider changes from consensus-based 
stakeholder requests for newly regulated municipal systems. EPA would 
apply the August 1, 1996, Interim Permitting Approach to today's 
proposed program during this interim period and would encourage all 
permitting authorities to use this approach in storm water permits for 
newly regulated municipal systems and in determining municipal 
requirements under a TMDL approach. After careful consideration of the 
data, EPA would make modifications as necessary. EPA is seeking comment 
on the proposal to re-evaluate the rule after 13 years from the date of 
publication of the final rule (i.e., following the completion of the 
first two permit terms).
    In addition, proposed Sec. 122.37 states that EPA strongly 
recommends that no additional requirements beyond the minimum control 
measures be imposed on regulated municipal separate storm water systems 
without the agreement of the affected municipal separate storm water 
system, except where adequate information exists in approved TMDLs or 
equivalents of TMDLs to develop more specific measures to protect water 
quality or until EPA's comprehensive evaluation is completed. The 
wasteload allocations that form part of approved TMDLs or equivalents 
of TMDLs would constitute ``adequate information to develop more 
specific conditions or limitations to meet water quality standards.'' 
EPA regulations at 40 CFR 122.44(d)(1)(vii) currently require that 
effluent limits in NPDES permits be consistent with assumptions and 
requirements of any available wasteload allocations for the discharge 
contained in EPA-approved TMDLs. Consequently, where wasteload 
allocations have been established for a municipal storm water source in 
approved TMDLs, the permit would need to include terms and conditions 
consistent with the assumptions and requirements of the wasteload 
allocations. These terms and conditions might include non-numeric 
requirements, such as implementation of BMPs coupled with some means to 
monitor effectiveness, if they are consistent with the assumptions and 
requirements of the conditions of the wasteload allocations.

I. Other Designated Storm Water Discharges

1. Background
    Under section 402(p)(6), EPA is proposing to regulate categories of 
storm water discharges in addition to the municipal separate storm 
sewer systems described earlier. The proposal would designate certain 
construction activities for regulation as ``storm water discharges 
associated with other activity.'' Specifically, such discharges would 
include storm water discharges from construction sites disturbing equal 
to or greater than 1 acre and less than 5 acres, unless the NPDES 
permitting authority waives the application requirements.
    Today's action also would maintain the existing application 
deadline from the August 7, 1995, rule for municipally owned or 
operated sources of industrial storm water exempted from the October 1, 
1994, compliance deadline by the Intermodal Surface Transportation and 
Efficiency Act of 1991 (and the Water Resources Development Act of 
1992). The proposed regulation, including application deadlines, for 
each of these classes is further explained below.
2. Construction
    Today's proposal to regulate certain storm water discharges from 
construction sites disturbing less than 5 acres is consistent with the 
9th Circuit remand in NRDC v. EPA, 966 F.2d 1292 (9th Cir. 1992). In 
that case, the court remanded portions of the existing storm water 
regulations related to discharges from construction sites. The existing 
regulations define ``storm water discharges associated with industrial 
activity'' to include only those storm water discharges from 
construction sites disturbing 5 acres or more of total land area (see 
40 CFR 122.26(b)(14)(x)). In its decision, the court concluded that the 
5-acre threshold was improper because the Agency had failed to identify 
information ``to support its perception that construction activities on 
less than 5 acres are non-industrial in nature'' (966 F.2d at 1306). 
The court remanded the exemption to EPA for further proceedings (966 
F.2d at 1310). EPA's objectives in today's proposal include an effort 
to (1) address the 9th Circuit remand, (2) address water quality 
concerns associated with construction activities that disturb less than 
5 acres of land, and (3) balance conflicting recommendations and 
concerns of stakeholders.
    EPA responded to the 9th Circuit's request for further proceedings 
by consulting with the Storm Water Phase II FACA Subcommittee regarding 
possible approaches for addressing the remanded provision. Although the 
Subcommittee was not able to reach consensus on any of the issues 
relating to the construction remand, Subcommittee members provided 
considerable feedback concerning a variety of possible approaches. 
Today's proposal represents the Agency's effort to balance the concerns 
raised by various subcommittee representatives. This proposal would 
designate discharges from construction activities that disturb between 
1 and 5 acres as ``discharges associated with other activity'' under 
section 402(p)(6), rather than as ``discharges associated with 
industrial activity'' under section 402(p)(2)(B). Although a size 
criterion alone may be an indicator of whether runoff from construction 
sites between 1 and 5 acres is ``associated with industrial activity,'' 
the Agency is instead proposing to rely on a size threshold in tandem 
with provisions that allow for designations and waivers based on 
potential for ``predicted water quality impairments'' to regulate such 
construction sites under section 402(p)(6) for the sake of simplicity 
and certainty and, most importantly, to protect water quality 
consistent with the mandate of section 402(p)(6). The proposal would 
include extended application deadlines for this new category of 
dischargers under the authority of section 402(p)(6) (see * 
122.26(e)(1)(iii)). The proposed designation would also be consistent 
with EPA's earlier proposal to regulate this category of discharges as 
``discharges associated with industrial activity'' (55 FR 48035-36).
    Today's proposal would designate storm water discharges from 
certain construction sites under 5 acres for regulation based on the 
authorities of section 402(p)(6) because such sources should be 
regulated to protect water quality. Section I.A.1., under Construction 
Site Runoff, provides a detailed discussion of water quality

[[Page 1583]]

impacts resulting from construction site storm water runoff. Under 
section 402(p)(6), such designation also carries with it ``expeditious 
deadlines,'' which are important to ensure a nationally consistent 
timeperiod for the development and implementation of a program to 
regulate these sources. EPA invites comment on how the Agency should 
codify this proposed designation, as well as the statutory basis upon 
which EPA should rely for regulation of storm water discharges from 
construction sites less than 5 acres.
    The proposed regulatory changes for storm water construction 
activities are not proposed in the same ``question and answer'' format 
as the other regulations proposed because ``storm water discharges 
associated with other activity'' would be included as a new category of 
dischargers in the NPDES regulations for storm water.
a. Scope
    The definition of ``storm water discharges associated with other 
activity'' would include construction activities, including clearing, 
grading, and excavating activities, that result in the disturbance of 
equal to or greater than 1 acre and less than 5 acres (see new language 
at Sec. 122.26(b)(15)). Such activities might include road building; 
construction of residential houses, office buildings, or industrial 
buildings; or demolition activity. Sites disturbing less than 1 acre 
would be included if they were part of a ``larger common plan of 
development or sale'' with a planned disturbance of equal to or greater 
than 1 and 5 acres. A ``larger common plan of development or sale'' 
would mean a contiguous area where multiple separate and distinct 
construction activities might be occurring at different times on 
different schedules under one plan (e.g., a housing development of five 
\1/4\ acre lots) (Sec. 122.26(b)(15)(i)(A)). Such sites would be 
required to seek coverage under an NPDES permit regardless of the 
number of lots in the larger plan because designation for permit 
coverage would be based on the total amount of disturbed land area. 
This proposed designation attempts to address the potential cumulative 
effects of numerous construction activities concentrated in a given 
area. These requirements would not apply to agricultural or 
silvicultural activities, which are exempt from NPDES permit 
requirements under 40 CFR 122.3.
    Although all construction sites less than 5 acres could have a 
significant water quality impact cumulatively, EPA today is proposing 
to require that only construction sites that disturb land equal to or 
greater than 1 acre seek coverage under an NPDES permit. Categorical 
regulation of construction below this 1-acre threshold would overwhelm 
the resources of permitting authorities. The NPDES permitting authority 
could, however, designate for regulation those construction activities 
that disturb below 1 acre of land if a watershed or other local 
assessment indicated the need to do so. Furthermore, the permitting 
authority could designate any other construction activity ``based on 
the potential for adverse impact on water quality or for significant 
contribution of pollutants'' (see new Sec. 122.26(a)(9)(i)(D) and 
Sec. 122.26(b)(15)(i)(B)).
    The proposed 1-acre threshold is based on a balanced consideration 
of recommendations from numerous stakeholders participating in the 
Storm Water Phase II FACA Subcommittee process. In today's proposed 
rule, EPA is attempting to regulate additional construction sites to 
better protect the nation's waters, while remaining sensitive to a 
concern that the Agency not regulate construction sites that might not 
have adverse water quality impacts. EPA believes that today's proposal 
would successfully accomplish this objective by coupling a 1-acre 
threshold that includes waiver options for sites that have been 
determined not to impact water quality with the provision that allows 
the designation authority to include sites below 1 acre that do impact 
water quality. Specifically, construction activity equal to or greater 
than 1 acre and less than 5 acres would be automatically designated 
except in those circumstances where owner or operator certifies that 
any of three specific waiver circumstances (described below) would 
apply. As mentioned previously, construction activity that disturbs 
less than 1 acre would not be automatically designated, but the NPDES 
permitting authority could designate such areas for permitting where 
there is reason to believe that impacts to water quality are likely to 
occur from activity on these sites. For example, if a trout hatchery 
area is located downstream from the proposed less than 1-acre site, the 
permitting authority would likely want to control the construction 
activity's impact on trout egg survival. EPA believes that coupling 
categorical designations with waivers would be necessary to address the 
challenge of providing a technical justification for a nationwide size 
threshold considering the hydrologic, climatologic, geographic, and 
geologic variations nationwide. EPA invites comment regarding this 
approach.
    EPA also examined alternative size thresholds, including 0.5 acre, 
1 acre, and 2 acres. EPA had difficulty evaluating the alternative size 
thresholds because, while directly proportional to the size of the 
disturbed site, the water quality threat posed by construction sites of 
differing sizes varies nationwide, depending on the local 
climatological, geological, geographical, and hydrological influences. 
In the interest of nationwide consistency, EPA does not propose to 
allow permitting authorities to set their own size thresholds. By 
selecting the 1 acre size threshold coupled with waivers and 
designation, EPA sought to make the regulation consistent on a national 
basis and to also provide permitting authorities with the opportunity 
to further designate those activities causing water quality impairments 
regardless of site size. Thus, oversight of discharges from 
construction site activities less than 5 acres would be consistent on a 
national basis and would ultimately allow local authorities to address 
those activities causing water quality impairment regardless of any 
cutoff or threshold acreage.
b. Waivers
    Under the proposal, NPDES permitting authorities would have the 
option of providing a waiver to construction site owners or operators 
from permit requirements in three circumstances. The first waiver would 
be based on ``low predicted rainfall potential.'' The permitting 
authority would determine which times of year, if any, the waiver 
opportunity would be available for construction sites based on a table 
of R values published in the U.S. Department of Agriculture (USDA) 
Agricultural Handbook 703 (Renard, K.G., Foster, G.R., Weesies, G.A., 
McCool, D.K., and D.C. Yoder. 1997. Predicting Soil Erosion by Water: A 
Guide to Conservation Planning with the Revised Universal Soil Loss 
Equation (RUSLE). U.S. Department of Agriculture Handbook 703. Copies 
may be obtained from USDA-ARS, Southwest Watershed Research Center, 
2000 East Allen Road, Tucson, AZ 85719.). These tables summarize 
average periodic rainfall data on a geographic basis throughout the 
United States. The second waiver would be based on ``low predicted soil 
loss.'' Under this waiver, the permittee would apply the Revised 
Universal Soil Loss Equation (RUSLE) to determine whether or not the 
second waiver would be available. The third waiver would be based on a 
consideration of ambient water quality. This waiver would be available 
after

[[Page 1584]]

development and implementation of TMDLs for the pollutants of concern 
from storm water discharges associated with construction site storm 
water runoff. This waiver would also be available after development and 
implementation of a TMDL-like allocation process in water bodies that 
are not impaired. Note that TMDLs are only required for water bodies 
listed under CWA section 303(d).
    The first waiver would be time-sensitive and would be dependent on 
when during the year a construction activity takes place, how long it 
lasts, and the expected rainfall during that time. The waiver is 
intended to exempt the requirements for a permit when and where the 
permitting authority expects negligible rainfall. EPA anticipates that 
this waiver opportunity would respond to concerns about the requirement 
for a permit when it does not rain, especially in the arid western 
States. Under this waiver provision, the permitting authority could 
identify timeperiods when construction activity could be waived from 
permitting requirements where the rainfall erosivity factor (``R'' in 
the Revised Universal Soil Loss Equation (RUSLE)) is less than two 
during the period of construction activity for specific areas of the 
State. EPA believes that those areas receiving negligible rainfall 
during certain times of the year are unlikely to have storm water 
events that would adversely impact receiving streams and, consequently, 
BMPs would not be necessary on those smaller sites. This waiver would 
be most applicable to the arid regions of the country where the 
occurrence of rainfall follows a cyclic pattern--between no rain and 
extremely heavy rain. Review of rainfall records for these areas 
indicates that there are periods (up to 6 months) during which the 
number of events and quantity of rain are low enough that storm water 
runoff from small sites is predicted to be minimal. Default conditions 
that were included in this examination consisted of slope length (300 
feet), slope steepness (3%), soil type (silt), no natural cover 
material, and no erosion control practices in place.
    The second option for a waiver would be based on ``low predicted 
soil loss'' and would be available where application of the RUSLE by 
the permittee indicated negligible predicted soil loss. Developed 
initially by the USDA as a predictive tool to evaluate the potential 
for soil loss from agricultural lands at various times of the year and 
on a regional basis, the Universal Soil Loss Equation (USLE) was 
identified as a technique which could be useful in predicting 
construction site soil losses in the early 1970s (Wischmeir and Meyer, 
1973). USLE is a widely used and easily accessible equation which 
predicts soil loss from four variables; rainfall erosivity, soil 
erodibility, length of slope, and steepness of slope. A refinement of 
USLE is reflected in the Revised Universal Soil Loss Equation (RUSLE), 
which provides a broader range of data within the individual variable. 
Several permitting authorities have recommended the utilization of the 
USLE or RUSLE for predicting construction site soil losses in their 
guidance documents that support implementation of the existing storm 
water program.
    Today, EPA is proposing a modified use of the equation for purposes 
of predicting soil erosion rates from small construction sites using 
the RUSLE. The equation comprises the variables rainfall erosivity (R), 
soil erodibility (K), slope length (L), slope steepness (S), cover-
management factor (C), and the support practice factor (P). The 
equation is:

A-RKLSCP

where A is the average soil erosion rate in tons per acre per year. 
This waiver provision would be applicable on a case-by-case basis where 
the annual soil loss rate for the period of construction for a site 
would be less than 2 tons/acre/year. The annual soil loss rate of less 
than 2 tons/acre/year would be calculated through the use of the 
equation, assuming the constants of no ground cover and no runoff 
controls in place. For the purposes of today's proposal, RUSLE would be 
used to predict where storm water discharges associated with 
construction activity (i.e., soil disturbance through clearing, 
grading, and excavating would not be expected to adversely affect water 
quality.)
    The third waiver would be available where the State (or EPA) has 
completed either wasteload allocations that are part of TMDLs that 
address the pollutants of concern or a comprehensive watershed plan, 
implemented for the water body, in which the equivalents of TMDLs have 
been done as part of the watershed plan addressing the pollutants of 
concern from construction activities. The permitting authority would 
need to reflect relevant components of the comprehensive watershed plan 
or TMDLs in NPDES permits. The watershed plan, or TMDLs, would need to 
demonstrate with reasonable assurance that load reductions take place 
pursuant to CWA section 303(d) and that such discharge does not cause 
or have a potential to cause water quality impacts. In determining this 
waiver, EPA (if the NPDES permitting authority) might rely on a State's 
wasteload allocations that are part of TMDLs or a State's comprehensive 
watershed plan in which the equivalents of TMDLs has been done as part 
of the watershed plan. To qualify for this waiver option, the owner or 
operator would need to certify that the construction activity will take 
place, and storm water discharges will occur, within an area covered 
either by the TMDLs or comprehensive watershed plan. By using the term 
``comprehensive watershed plan,'' EPA recognizes that TMDLs address 
``impaired waters'' and that there may be TMDL-like activities on 
waters that are not found to be ``impaired.'' It is expected that when 
TMDLs are done there may be a determination, in some cases, that 
certain classes of sources such as small construction sites would not 
have to control their contribution of pollutants of concern to the 
waterbody in order for it to be in attainment (i.e., these sources are 
not assigned wasteload allocations) and, therefore, implementation of 
storm water controls would not be necessary under today's proposed 
storm water program.
    EPA is continuing to review technical information to determine 
whether the waiver thresholds for rainfall erosivity and annual soil 
loss are the appropriate thresholds. The agency is also interested in 
comment regarding the feasibility of these waiver provisions. For 
example, concerns have been raised that application of the second 
waiver (case-by-case basis where the annual soil loss rate for the 
period of construction for a site would be less than 2 tons/acre/year) 
might not sufficiently protect sensitive ecosystems or species. Impacts 
from fine sediment could be heightened for coral reef systems or for 
extremely oligotrophic systems, such as Lake Tahoe in Nevada or Crater 
Lake in Oregon (see the general discussion of construction impacts in 
Section I.A.1., Construction Site Runoff). In addition, concerns have 
been raised that the second waiver provision would be too complicated 
and, thus, misapplied because the variables and assumptions in the 
RUSLE would be misinterpreted or misrepresented. EPA encourages the 
submission of data and other information that could ensure a waiver 
process that is fair and easily applied while providing sufficient 
protection for sensitive ecosystems.
    Preliminary comments on the proposed waiver provisions also raised 
a process issue regarding how a permittee would qualify for a waiver. 
Today's proposal includes a certification process whereby the

[[Page 1585]]

permittee would certify to the NPDES permitting authority that it meets 
the particular waiver criteria or waiver requirements applicable in a 
particular State or watershed (see proposed 
Sec. 122.26(b)(15)(i)(A)(1)-(3)). EPA invites comment on such a 
certification process and requests comment on any other similar process 
that could reduce the waiver processing burden for the NPDES permitting 
authority and the permittee while ensuring that waivers are granted 
only for those circumstances applicable under one of the three waiver 
options.
    EPA also seeks comment from permitting authorities on how they 
envision the process of implementing waivers for construction activity 
based on TMDLs or TMDL-type assessments under watershed plans.
    EPA invites comment on concerns that waivers might be improperly 
utilized in an effort to provide relief to regulated entities for 
reasons unrelated to water quality. In particular, concerns have been 
raised that an NPDES permitting authority might redirect resources from 
other environmental programs in order to develop a watershed approach 
that promotes the issuance of the greatest possible number of waivers.
    In addition to waivers, the Agency is also considering possible 
approaches for providing incentives for local decisionmaking that would 
limit the adverse water quality impact associated with uncontrolled 
growth in a watershed. In situations where there are special controls 
or incentives (e.g. transferable development rights, traditional 
neighborhood development ordinances) in place directing development 
toward compact/mixed use development and away from wetlands, open 
space, or other protected lands, it may be possible to provide some 
relief to small construction sites in areas of less dense development, 
provided that the average development densities are very low (e.g., 
less than one unit per 25 acres). In addition, relief from requirements 
may also be appropriate where redevelopment construction replaces 
existing development and the new development results in a net water 
quality benefit. This type of incentive could be a consideration in 
development of TMDLs by State or local authorities. Based on a TMDL 
that recognizes that the discharges from areas of less development do 
not cause or have potential to cause water quality impacts, relief from 
small construction site permitting requirements could be granted. EPA 
solicits comment on this approach and any other recommendations for the 
use of such incentives.
c. Permit Process and Administration
    As with any owner or operator of a point source discharge, the 
operator of the construction site would be responsible for applying for 
the NPDES permit as required by Sec. 122.21(b). The operator of a 
construction activity would be the party or parties that either 
individually or collectively meet the following two criteria: (1) 
operational control over the site specifications, including the ability 
to make modifications in the specifications; and (2) day-to-day 
operational control of those activities at the site necessary to ensure 
compliance with permit conditions. If more than one party meets these 
criteria, then each party involved would need to be a co-permittee with 
any other operators. The operators could be the owner, the developer, 
the general contractor, or individual contractors.
    As mentioned previously, the Agency has proposed extended 
application deadlines for small construction sites at 
Sec. 122.26(e)(1)(iii). EPA also considered whether NOIs should be 
required of construction sites less than 5 acres. Requiring an NOI 
allows for greater accountability by, and tracking of, dischargers. It 
allows for better outreach to the regulated community, uses an existing 
and familiar mechanism, and is consistent with the existing 
requirements for construction activities. EPA recognizes, however, the 
paperwork burden for both the regulated community and regulators. The 
Agency is proposing not to specify the NOI requirements for NPDES 
general permits for storm water at Sec. 122.28 to address the storm 
water discharges from construction activities proposed to be regulated 
at Sec. 122.26(b)(15). EPA believes that this approach would provide 
the NPDES permitting authority with the discretion to decide whether or 
not to require NOIs for construction activity less than 5 acres. Thus, 
the proposal would increase flexibility for the permitting authority 
regarding program implementation. The Agency invites comment on whether 
NOI submission should be a requirement for general permits for 
construction activity less than 5 acres.
    EPA expects that the vast majority of discharges of storm water 
associated with other activity identified in Sec. 122.26(b)(15) would 
be regulated through general permits. In the event that an NPDES 
permitting authority decides to issue an individual construction 
permit, however, individual application requirements for these 
construction sites would be found at Sec. 122.26(c)(1)(ii). Except for 
application deadlines and NOIs under general permits, the permit 
application requirements would be identical to those applicable to 
storm water discharges associated with industrial activity under the 
existing NPDES storm water program. EPA proposes to revise Sec. 122.26 
accordingly. For any discharges of storm water associated with other 
activity identified in Sec. 122.26(b)(15) that are not authorized by a 
general permit, a permit application made pursuant to Sec. 122.26(c) 
would need to be submitted to the Director by 3 years and 90 days after 
issuance of the final rule. All regulated sources would be required to 
seek coverage under an NPDES permit regardless of whether they 
discharge directly to waters of the United States or through a 
municipal separate storm sewer system to waters of the United States.
    The Storm Water Phase II FACA Subcommittee also identified issues 
regarding linear construction projects (e.g., roads, highways, 
pipelines) that cross several jurisdictions. Some Subcommittee members 
were concerned about having to comply with multiple sets of 
requirements from various jurisdictions, including multiple local 
governments and States. Because EPA cannot issue NPDES permits in 
States authorized to implement the NPDES program and because EPA cannot 
preempt other more stringent local and State requirements, EPA is 
limited in its options to address these concerns. EPA believes that the 
option for incorporating by reference the local or State requirements 
(see discussion in Section II.I.2.d., Cross-Referencing State/Local 
Erosion and Sediment Control Programs) would limit the administrative 
burden on the operator responsible for discharges from linear 
construction projects. The operator could implement the most 
comprehensive of the various requirements for the whole project to 
avoid differing requirements for different sections of the project. In 
addition, EPA notes that discharges of dredged or fill material into 
waters of the United States that are regulated under section 404 of the 
CWA do not require NPDES permits (40 CFR 122.3(b)).
    On a similar note, one comment or requested exemptions for 
``routine maintenance'' activities such as repairing potholes, clearing 
out drainage ditches, and maintaining fire breaks, because these 
activities often involve rights-of-way extending across multiple 
regulatory jurisdictions. The commenter suggested that, at most, these 
activities by required to adhere to generic best

[[Page 1586]]

management practices. The Agency is interested in comments on how such 
an exemption would work, what the criteria for such an exemption would 
be, and the appropriate BMPs for such sites.
    EPA also invites comment on recordkeeping requirements for today's 
proposed rule regarding construction. The NPDES program requires that 
the entity submitting the NOI keep its records on file for three years. 
Given that some smaller construction activities may last less than a 
year, some recommendations suggest that this file retention requirement 
be modified or deleted for such sites. EPA invites comment on 
appropriate and reasonable recordkeeping requirements.
d. Cross-Referencing State/Local Erosion and Sediment Control Programs
    In developing the permit requirements for designated construction 
sites less than 5 acres, members of the Storm Water Phase II FACA 
Subcommittee asked EPA to try to minimize redundancy in the 
construction permit requirements. As previously discussed in the 
Construction Site Storm Water Runoff Control discussion (see Section 
II.H.3.a., Minimum Control Measures), the Agency is proposing to allow 
permitting authorities to incorporate by reference the requirements of 
qualifying State, Tribal, or local erosion and sediment control 
programs. The NPDES permitting authority would, of course, retain the 
authority to deny coverage under the general NPDES permit, disapprove 
inclusion of alternative requirements in the general permit, and could 
require that designated general permit applicants apply for an 
individual NPDES permit.
    EPA envisions that this incorporation by reference approach would 
apply not only to the proposed newly regulated storm water discharges 
from construction sites between 1 and 5 acres, but also to discharges 
from larger construction sites already covered by the existing storm 
water regulations provided the program meets best available technology 
(BAT) requirements. Under existing regulations, storm water discharges 
``associated with industrial activity'' are subject to the same 
technology-based standards as any other discharge under the CWA (except 
publicly owned treatment works and municipal separate storm sewer 
systems) (see CWA section 402(p)(3)(A)). The Agency invites comment on 
whether the imposition of controls designed to satisfy the proposed 
Sec. 122.34(b) would assure compliance with CWA section 402(p)(3)(A) 
for discharges from construction sites over 5 acres. Note that the 
Agency does not intend that incorporation by reference of qualifying 
programs would relieve construction site discharges ``associated with 
industrial activity'' from the applicable requirements of CWA section 
301.
    EPA believes that this approach would best balance the need for 
consideration of specific local requirements and local implementation 
with the need for Federal and citizen oversight, and would extend 
supplemental NPDES requirements to construction sites. EPA solicits 
comment on this approach.
    In a somewhat different context, municipal representatives 
recommended that construction activities undertaken by municipalities 
be covered by the municipal storm water permit rather than under a 
separate, distinct storm water permit for construction activity. The 
Agency agrees that this would be a reasonable approach. The Agency 
explored several possible ways to make such an approach possible during 
the development of today's proposal, and feels that there are some 
options that could achieve program objectives. One option would be to 
simply relieve municipalities that would be covered under today's 
proposal of requirements to submit an NOI for the general permit 
covering construction activity. Under this option, municipalities would 
still be subject to both types of permit, but would be relieved of the 
paperwork associated with filing NOIs. This option might require a 
revision to existing 122.28(b)(2)(v). Another option to address this 
concern would be to issue individual permits to municipalities seeking 
such a ``one-stop shopping'' approach that would include provisions 
covering the municipal storm water program and construction activity 
conducted by the municipality. Under such an option, municipalities 
might need to submit individual permit applications and the NPDES 
permitting authority might have to issue many more municipal permits. 
Under a third option, the general permit issued to small municipalities 
would include municipal storm water program requirements as well as 
construction site discharge components. This option would result in the 
issuance of a more complex general permit than EPA currently envisions 
for small municipalities. This complexity could be minimized, however, 
by organizing the general permit into distinct modules, one dealing 
with the six minimum measures, one with municipal construction, and 
possibly one with municipal industrial facilities (see Section II.I.3, 
``Other Sources'' below). Alternatively, municipal general permits 
could potentially reference provisions included in construction general 
permits. As a practical matter, the controls for municipally-owned or 
operated construction would presumably dovetail with the requirements 
of the municipal minimum control measure for construction, at least for 
sites between 1 and 5 acres (construction less than 5 acres would have 
to meet BAT). The Agency seeks further input on these possible 
approaches and others that could be considered. Specifically, how would 
such an approach work, what would the permit look like, who would be 
covered, and what would be the responsibilities of covered 
municipalities.
    In a similar vein, industrial representatives recommended that 
construction activities undertaken by permitted industrial storm water 
facilities be covered by the industrial storm water permit. Again, the 
Agency agrees with the concept. One option contemplated by the Agency 
would be to include in industrial storm water permits requirements for 
construction undertaken by permitted industrial facilities. Another 
option would be to cross-reference construction general permit 
provisions in industrial general permits. The Agency seeks comment on 
these possible approaches and others that could be considered.
e. Alternative Approaches
    As previously discussed, EPA also examined size thresholds other 
than one acre for regulation. Although a range of size thresholds was 
mentioned in stakeholder comments, no data were offered to support such 
alternatives. The Agency solicits comments that would assist the Agency 
in making an informed decision as to an appropriate threshold related 
to environmental effect. Alternatively, the Agency also solicits 
comment on an approach by which only those construction sites located 
within urbanized areas would be automatically subject to permitting 
requirements. Under such an alternative, small construction sites 
outside urbanized areas would not be required to be covered by an NPDES 
permit unless specifically designated by the permitting authority on a 
case-by-case basis.
    Some stakeholders asked EPA to consider allowing storm water 
discharges associated with construction activities between 1 and 5 
acres to be regulated solely under municipal storm water programs where 
discharges to a municipal separate storm sewer system

[[Page 1587]]

are subject to a permit, rather than requiring construction site 
discharges to be subject to both NPDES permit requirements and 
municipal program requirements. Under such an approach, construction 
sites would only be subject to the requirements and oversight of a 
qualifying local program. The Agency has described the ``incorporation 
by reference'' approach of today's proposal and the rationale for the 
proposed approach elsewhere in this preamble. If EPA adopted this 
``qualifying local program'' alternative, construction site operators 
in qualifying municipalities would not be subject to the requirements 
of an NPDES permit. The Agency solicits comment on this particular 
alternative and seeks input specifically on the effectiveness of local 
erosion and sediment control programs in the absence of NPDES permits 
incorporating such local programs. The Agency also solicits comment on 
the appropriate qualifications to establish for municipalities to 
qualify under such an alternative.
    EPA considered several other alternatives for controlling 
construction storm water discharges on sites less than 5 acres, 
including state/local implementation only, Federal requirements/
guidelines for local erosion and sediment control programs, and State-
developed requirements. Small entity representatives recommended that 
EPA only establish a voluntary program based on EPA guidance, and 
perhaps including incentives for small site operators. This would 
effectively translate into a program which would not require such sites 
to be covered by an NPDES permit unless they were specifically 
designated by the permitting authority on a case-by-case basis. One 
commenter raised concerns that small site operators may lack the 
resources to put together a good site plan, which would likely be 
required under the proposed approach. EPA seeks comment on these 
alternatives, as well, including comment on how such programs have 
worked where they have been in effect.
    In evaluating options to administer the storm water control program 
for discharges from construction sites, EPA considered an owner or 
operator certification program that would have allowed the owner or 
operator, or authorized representative, of a construction firm to apply 
for coverage once for all the firm's activities in one jurisdiction for 
the term of the NPDES permit. Focusing on operators in the 
``construction industry'' (regardless of the size of the construction 
site) would have more closely paralleled the existing storm water 
program for discharges ``associated with industrial activity.'' This 
option would have allowed for the coverage of each site by submittal of 
one NOI, thereby reducing the paperwork burden substantially without 
sacrificing accountability. This option would have applied to all 
regulated construction site discharges, regardless of size. Homeowners 
who performed construction activities on their own property would have 
been exempt from the requirements for a permit under this option. This 
option would have focused instead on the construction ``industry.'' 
This option also would have resulted in a different proposal for 
municipal programs to control construction site discharges. Concerns 
with this option included issues regarding: identification of the 
responsible parties onsite (e.g., whether all parties could reasonably 
be held responsible for all permit conditions) and site-by-site 
identification of construction discharges for tracking compliance with 
permit conditions. Such a change also would have affected operators 
discharging storm water from existing, larger regulated construction 
sites by restructuring the entire regulatory scheme to focus on the 
``industry'' of construction site operators, thus creating significant 
confusion among regulated entities and disruption in regulatory 
processes. Nonetheless, EPA invites comment on the option to establish 
what would amount to an NPDES-based ``licensing'' program for 
construction site operators within an NPDES jurisdiction (usually 
within State or Tribal boundaries).
    Industrial stakeholders recommended that the regulation of 
construction site discharges under section 402(p)(6) should distinguish 
between ``low intensity'' small construction and ``high intensity'' 
small construction. While EPA proposes case-by-case waiver 
opportunities for small construction discharges (i.e., the second 
waiver opportunity for predicted soil loss of less than 2 tons/acre/
year), the industrial commenters recommended that the designation of 
small construction site discharges categorically distinguish and exempt 
``low intensity'' construction activity from the provisions of the 
proposed rule. The commenters recommended that construction activities 
include intense levels of clearing, grading and excavating associated 
with projects which meet the following criteria: clearing, grading and 
excavation activities with a duration in excess of six months; and 
construction of single or multiple story office or industrial buildings 
with a grade slab in excess of 15,000 square feet; or road building 
(does not include construction of wooden roads for access to remote 
locations); or construction of a residential home that is part of a 
larger common plan of development or sale. Under the industrial 
proposal, such ``high intensity'' small construction would be subject 
to Federal storm water regulations. The default, ``low intensity'' 
construction activity would not.
    Today's proposal does not incorporate these suggestions because the 
Agency believes that regulation of storm water to protect water quality 
relates more to the disturbance of land surfaces (i.e., on a two 
dimensional, roughly horizontal plane) rather than to the activity or 
reason for the land disturbance. EPA proposes to regulate storm water 
discharges associated with construction activity from smaller sites, 
not the construction activity itself. EPA would consider this option in 
the final rule, however, if public comments demonstrate that a ``low 
intensity'' exclusion would relate to the intensity of the surface 
disturbance. The second waiver opportunity EPA proposes today does 
relate to the intensity of surface disturbance, and necessarily 
accounts for regional variation. The Agency, therefore, invites comment 
on how to define applicability provision to exclude ``low intensity'' 
surface disturbances associated with construction activity and still 
provide a simple, workable regulation that accounts for regional 
variability.
    EPA believes the approach proposed in this proposal would provide 
EPA and the States with a more manageable program than the other 
alternatives discussed. The proposed approach should offer flexibility 
to State and local governments in managing their storm water programs 
with little or no interruption in the consistency of current 
environmental management and would assure appropriate tracking and 
enforcement mechanisms. EPA requests comment on the appropriateness of 
the scope and requirements of this part of today's proposed storm water 
program.
3. Other Sources
    In the National Water Quality Inventory, 1994 Report to Congress 
submitted by EPA pursuant to section 402(p)(5), EPA examined the 
remaining unregulated point sources of storm water for the potential to 
adversely affect water quality. Due to very limited national data on 
which to estimate pollutant loadings on the basis of discharge 
categories, the discussion of the extent of unregulated storm water 
discharges is limited to an analysis of the number and geographic 
distribution

[[Page 1588]]

of the unregulated storm water discharges. Therefore, EPA is not 
proposing to designate any additional unregulated point sources of 
storm water on a nationwide, categorical basis. Instead, EPA is 
designating a category of sources to be regulated based on case-by-case 
post-promulgation designations by the NPDES permitting authority.
    EPA did, however, evaluate a variety of categories of discharges 
for potential designation in the report to Congress. EPA's efforts to 
identify sources and categories of unregulated storm water discharges 
for potential designation for regulation under today's proposal started 
with an examination of approximately 7.7 million commercial, retail, 
industrial, and institutional facilities identified as ``unregulated.'' 
In general, the distribution of these facilities follows the 
distribution of population, with a large percentage of facilities 
concentrated within urbanized areas (see page 4-35 of Storm Water 
Discharges Potentially Addressed by Phase II of the NPDES Storm Water 
Program, EPA 833-K-94-002). This examination resulted in identification 
of two general classes of facilities with the potential for discharging 
pollutants to waters of the United States through storm water point 
sources. The first group (Group A) included sources that are very 
similar, or identical, to regulated ``storm water discharges associated 
with industrial activity'' but that were not included in the existing 
storm water regulations because EPA used SIC codes in defining the 
universe of regulated industrial activities. By relying on SIC codes, 
which were not classified according to environmental impacts, some 
types of storm water discharges that might otherwise be considered 
``industrial'' were not included in the existing NPDES storm water 
program. The second general class of facilities (Group B) was 
identified on the basis of potential activities and pollutants that 
could contribute to storm water contamination.
    EPA estimates that Group A has approximately 100,000 facilities. 
Discharges from facilities in this group, which may be of high priority 
due to their similarity to regulated storm water discharges from 
industrial facilities, include, for example, auxiliary facilities or 
secondary activities (e.g., maintenance of construction equipment and 
vehicles, local trucking for an unregulated facility, such as a grocery 
store) and facilities intentionally omitted from existing storm water 
regulations (e.g., treatment works with a design flow of less than 1 
million gallons per day, and landfills that have not received 
industrial waste).
    Group B consists of nearly one million facilities. EPA organized 
Group B sources into 18 sectors for the purposes of the report to 
Congress. The automobile service sector (e.g., gas/service stations, 
general automobile repair, new and used car dealerships, car and truck 
rental) makes up more than one-third of the total number of facilities 
identified in all 18 sectors.
    EPA conducted a geographical analysis of the industrial and 
commercial facilities in Groups A and B. The geographical analysis 
shows that the majority are located in urbanized areas (see Section 
4.2.2, Geographic Extent of Facilities, in the Report to Congress). In 
general, about 61 percent of Group A facilities and 56 percent of Group 
B facilities are located in urbanized areas. The analysis also showed 
that nearly twice as many industrial facilities are found in all 
urbanized areas as are found in large and medium municipalities alone. 
Notable exceptions to this generalization included lawn/garden 
establishments, small unregulated animal feedlots, wholesale livestock, 
farm and garden machinery repair, bulk petroleum wholesale, farm 
supplies, lumber and building materials, agricultural chemical dealers, 
and petroleum pipelines, which can frequently be located in smaller 
municipalities or rural areas.
    In identifying potential categories of sources for designation in 
today's notice, EPA considered designation of discharges from Group A 
and Group B facilities. Based on input from the Storm Water Phase II 
FACA Subcommittee, EPA applied three criteria to each potential 
category in both groups to determine the need for designation: (1) The 
likelihood for exposure of pollutant sources included in that category, 
(2) whether such sources were adequately addressed by other 
environmental programs, and (3) whether sufficient data were available 
at this time on which to make a determination of adverse water quality 
impacts for the category of sources. As discussed previously, EPA 
searched for applicable nationwide data on the water quality impacts of 
such categories of facilities.
    By application of the first criterion, the likelihood for exposure, 
EPA considered the nature of potential pollutant sources in exposed 
portions of such sites. As precipitation contacts industrial materials 
or activities, the resultant runoff is likely to be contaminated with 
pollutants. As the size of these exposed areas increases, EPA expects a 
proportional increase in the pollutant loadings leaving the site. If 
EPA concluded that a category of sources has a high potential for 
exposure of raw materials, intermediate products, final products, waste 
materials, byproducts, industrial machinery, or industrial activity to 
rainfall, the Agency rated that category of sources as having ``high'' 
potential for adverse water quality impact. EPA's application of the 
first criterion showed that a number of Group A and B sources have a 
high likelihood of exposure of pollutants.
    Through application of the second criterion, EPA assessed the 
likelihood that pollutant sources are regulated in a comprehensive 
fashion under other environmental protection programs, such as programs 
under the Resource Conservation and Recovery Act (RCRA) or the 
Occupational Health and Safety Act (OSHA). If EPA concluded that the 
category of sources was sufficiently addressed under another program, 
the Agency rated that source category as having ``low'' potential for 
adverse water quality impact. Application of the second criterion 
showed that some categories were likely to be adequately addressed by 
other programs.
    After application of the third criterion, availability of 
nationwide data on the various storm water discharge categories, EPA 
concluded that available data would not support any such nationwide 
designations. While such data could exist on a regional or local basis, 
EPA believes that permitting authorities should have flexibility to 
regulate only those categories of sources contributing to localized 
water quality impairments.
    Therefore, today's proposal does not propose to designate any 
additional industrial or commercial category of sources. Rather, 
today's proposal would encourage control of storm water discharges from 
Groups A and B through self-initiated, voluntary BMPs, unless the 
discharge (or category of discharges) is individually or locally 
designated as described in the following section. The necessary data to 
support designation could be available on a local, regional, or 
watershed basis and would allow the NPDES permitting authority to 
designate a category of sources or individual sources on a case-by-case 
basis. If sufficient nationwide data become available in the future, 
EPA could at that time designate additional categories of industrial or 
commercial sources on a national basis.
    EPA requests comment on the three-pronged analysis used to assess 
the need to designate additional industrial or commercial sources and 
invites suggestions regarding watershed-based designation. EPA also 
requests information regarding any available

[[Page 1589]]

national or local data on the potential water quality impacts of other 
currently unregulated point sources of storm water.
    Finally, storm water discharges from facilities exempted by the 
Intermodal Surface Transportation and Efficiency Act of 1991 
(discharges from industrial activities other than power plants, 
airports, and uncontrolled sanitary landfills that are owned or 
operated by municipalities of less than 100,000 people) were also 
identified as potential sources for designation under today's proposal. 
These facilities discharge storm water in the same manner (and are 
expected to use identical processes and materials) as the industrial 
facilities regulated under the existing regulations. As such, these 
facilities would pose similar water quality threats. The extended 
moratorium for these facilities was necessary to allow municipalities 
additional time to comply with NPDES requirements. EPA proposes to 
maintain August 7, 2001, as the NPDES permit application deadline for 
such municipally owned or operated facilities discharging industrial 
storm water. General permits are available in States where EPA issues 
permits and should already be available for such sources in most NPDES-
authorized States. Based on advice and recommendations of small entity 
representatives, EPA also invites comment on whether permit 
authorization for these discharges could be combined with permit 
authorization for other discharges from the municipal separate storm 
sewer system.
    Municipal representatives recommended to EPA that permit 
requirements for municipally-owned or operated industrial facilities be 
included in municipal storm water permits (this recommendation could be 
extended to cover municipally-owned construction activities, as well). 
As such, municipalities would be covered by a single permit, rather 
than by two or more separate permits. The Agency agrees with the 
recommendation and is considering options to implement it. One option 
would be to include relevant industrial storm water controls in the 
municipal storm water permits for the types of industrial facilities 
typically owned or operated by municipalities. Another option would be 
to cross-reference industrial storm water permit requirements in 
municipal storm water permits. A third option would be to design an 
additional minimum control measure for municipal storm water programs 
that would address municipally-owned or operated industrial facilities. 
The Agency seeks input on these options and suggestions as to any 
additional options. The Agency also seeks comment on any implementation 
issues associated with this recommended approach.
4. Residual Designation Authority
    The NPDES permitting authority's existing designation authority, as 
well as the petition provisions would be retained. The proposed rule 
contains two provisions related to designation authority at 
Secs. 122.26(a)(9)(i)(C) and (D). Subsection (C) would add designation 
authority where storm water controls are needed for the discharge based 
upon wasteload allocations that are part of TMDLs that address the 
pollutants of concern or upon a comprehensive watershed plan 
implemented for the waterbody that includes the equivalents of TMDLs 
and addresses the pollutants of concern. EPA intends that the NPDES 
permitting authority would have discretion in the matter of 
designations based on existing TMDLs under subsection (C) and would 
invite comment on the implementation of existing TMDLs as the basis for 
designation under today's proposed storm water program. Subsection (D) 
would carry forward residual designation authority under Sec. 122.26(g) 
of the existing regulations. Under today's proposal, EPA and authorized 
States would continue to exercise the authority to designate remaining 
unregulated discharges composed entirely of storm water for regulation 
on a case-by-case basis (see proposed Secs. 122.26(b)(15) and 123.35). 
The standard for designation would be the same as under the existing 
NPDES regulations for storm water. Individual sources would be subject 
to regulation if EPA or the State, as the case may be, determines that 
the storm water discharge contributes to a violation of a water quality 
standard or is a significant contributor of pollutants to waters of the 
United States. This standard is based on the text of section 402(p). In 
today's proposed rule, EPA believes, as Congress did in drafting 
section 402(p)(2)(E), that individual instances of storm water 
discharge might warrant special regulatory attention, but do not fall 
neatly into a discrete, predetermined category. EPA does envision, 
however, that preservation of such regulatory authority would be 
necessary to subsequently address a source (or sources) of storm water 
discharges of concern on a localized or regional basis. As States and 
EPA implement TMDLs, for example, permitting authorities might need to 
designate some of the point sources of storm water not subject to 
regulation on categorical basis nationwide in order to assure progress 
toward compliance with water quality standards in the watershed. EPA 
intends that the TMDL-based waiver would be available prospectively, 
applying to future construction sites. This raises an issue of how this 
waiver provision could be applied to such sites.
    One of the industrial stakeholders on the Storm Water Phase II FACA 
Subcommittee questioned the Agency's legal authority to provide for 
such residual designation authority. The stakeholder argued that the 
lapse of the October 1, 1994, permitting moratorium under section 
402(p)(1) eliminated the significance of the section 402(p)(2) 
exceptions to the moratorium, including the exception for discharges of 
storm water determined to be contributing to a violation of a water 
quality standard or a significant contributor of pollutants under 
section 402(p)(2)(E). The stakeholder further argued that EPA's 
authority to designate sources for regulation under section 402(p)(6) 
is limited to storm water discharges other than those described under 
section 402(p)(2). Because section 402(p)(2)(E) describes individually 
designated discharges, the stakeholder concluded that regulations under 
section 402(p)(6) cannot provide for post-promulgation designation of 
individual sources. EPA disagrees.
    First, as explained previously, EPA anticipates that NPDES 
permitting authorities may yet determine that individual unregulated 
point sources of storm water discharges may require regulation on a 
case-by-case basis. This conclusion is consistent with the Congress' 
recognition of the potential need for such designation under the first 
phase of storm water regulation as described in section 402(p)(2)(E). 
Under section 402(p)(2)(E), Congress recognized the need for both EPA 
and the State to retain authority to regulate unregulated point sources 
of storm water under the NPDES permit program. Second, to the extent 
that section 402(p)(6) requires designation of a ``category'' of 
sources, EPA would designate such (as yet unidentified) sources as a 
category that should be regulated to protect water quality. Though such 
sources may exist and discharge today, if neither EPA nor the NPDES 
permitting authority has designated the source for regulation under 
section 402(p)(2)(E) to date, then section 402(p)(6) provides EPA with 
authority to designate such sources.
    The Agency would make this designation of a category of ``not yet 
identified'' sources in order to ensure that sources that should be 
regulated based on local concerns could be

[[Page 1590]]

regulated even if data does not exist to support nationwide regulation 
of such sources. EPA does not believe that the language in section 
402(p) should be interpreted to preclude States from exercising 
designation authority under this category after promulgation of a final 
rule because any such designation (and subsequent regulation of 
designated sources) would be within the ``scope'' of the NPDES program.
    EPA also believes that sources regulated pursuant to a State 
designation would be part of (and regulated under) a Federally approved 
State NPDES program, and thus subject to enforcement under CWA sections 
309 and 505. Under existing NPDES State program regulations, State 
programs that are ``greater in scope of coverage'' are not part of the 
Federally-approved program. By contrast, any such State regulation of 
sources in this ``reserved category'' would be within the scope of the 
Federal program because today's proposal would recognize the need for 
such post promulgation designations of unregulated point sources of 
storm water. Such regulation would be ``more stringent'' than the 
Federal program rather than ``greater in scope of coverage'' (40 CFR 
123.1(h)).
    In addition, EPA does not interpret the congressional direction in 
section 402(p)(6) to preclude regulation of point sources of storm 
water that should be regulated to protect water quality. Under CWA 
section 510, Congress expressly recognized and preserved the authority 
of States to adopt and enforce more stringent regulation of point 
sources, as well as any requirement respecting the control or abatement 
of pollution. Section 510 applies, ``except as expressly provided'' in 
the CWA. The CWA does expressly provide affirmative limitations on the 
regulation of certain pollutant sources through the point source 
control program in section 502(14), which excludes agricultural storm 
water and return flows from irrigated agriculture from the definition 
of point source, and section 402(l), which again limits applicability 
of the section 402 permit program for return flows from irrigated 
agriculture, as well as for storm water runoff from certain oil, gas, 
and mining operations. EPA does not interpret section 402(p)(6) as an 
express provision limiting the authority to designate point sources of 
storm water for regulation on a case-by-case basis after the 
promulgation of final regulations. Any source of storm water is 
encouraged to assess its potential for storm water contamination and 
take preventive measures against contamination. Such proactive actions 
could result in the avoidance of future requirements.
    Finally, EPA evaluated the proposal under which owners or operators 
of regulated small, medium, and large municipal separate storm sewer 
systems would be responsible for controlling discharges from industrial 
and other facilities into their systems in lieu of requiring NPDES 
permit coverage for the individual facilities. EPA does not propose 
this framework due to concerns with administrative and technical burden 
on the municipalities, as well as concerns about such an 
intergovernmental mandate. EPA does, however, request comments on this 
approach.

J. Conditional Exemption for ``No Exposure'' of Industrial Activities 
and Materials to Storm Water

1. Background
    As noted previously, the 9th Circuit remanded to EPA for further 
rulemaking a portion of the definition of ``storm water discharge 
associated with industrial activity'' that exempted the category of 
industrial activity identified as ``light industry'' (NRDC v. EPA, 966 
F.2d 1292, 1305 [9th Cir. 1992]). In addition to the rulemaking 
conducted under section 402(p)(6) on August 7, 1995, today's proposal 
also responds to that remand. In the 1990 storm water regulations, EPA 
exempted facilities in the category from the requirement for an NPDES 
permit if the industrial materials or activities were not ``exposed'' 
to storm water (see 40 CFR 122.26(b)(14) [introductory text]). The 
Agency has reasoned that most of the activity at these types of 
facilities takes place indoors and that emissions from stacks, use of 
unhoused manufacturing equipment, outside material storage or disposal, 
and generation of large amounts of dust or particles would be atypical 
(55 FR 48008, November 16, 1990).
    The Ninth Circuit determined that the exemption was arbitrary and 
capricious for two reasons (966 F.2d at 1305). First, the court found 
that EPA had not established a record to support its assumption that 
light industry that was not exposed to storm water was not ``associated 
with industrial activity,'' particularly when other types of industrial 
activity not exposed to storm water remained ``associated with 
industrial activity.'' The court specifically found that ``[t]o exempt 
these industries from the normal permitting process based on an 
unsubstantiated assumption about this group of facilities is arbitrary 
and capricious'' (966 F.2d at 1305). Second, the court concluded that 
the exemption impermissibly ``altered the statutory scheme'' for 
permitting because the exemption relied on the unverified judgement of 
the light industrial facility operator to determine non-applicability 
of the permit application requirements. In other words, the court was 
critical that the operator would determine for itself that there was no 
exposure and then simply not apply for a permit without any further 
action. Without a basis for ensuring the effective operation of the 
permitting scheme--either that facilities would self-report actual 
exposure or that EPA would be required to inspect and monitor such 
facilities--the court vacated and remanded the rule to EPA for further 
rulemaking (966 F.2d at 1305).
    Under today's proposal, the Agency responds to both of the bases 
for the court's remand. First, the exemption from permitting based on 
``no exposure'' applies to all industrial categories listed in the 
existing storm water regulations, regardless of the type of industry. 
The court's opinion rejected EPA's distinction between light industry 
and other industry, but it did not preclude an interpretation that 
treats ``non-exposed'' industrial facilities in the same fashion. 
Presuming that an industrial facility adequately precludes exposure of 
industrial materials and activities to storm water, EPA proposes to 
treat discharges from ``non-exposed'' industrial facilities in a manner 
similar to the way Congress intended for discharges from administrative 
buildings and parking lots; specifically, permits would not be required 
on a categorical basis. To assure that discharges from industrial 
facilities really are similar to discharges from administrative 
buildings and parking lots, and to respond to the second basis for the 
court's remand, EPA proposes that the permitting exemption be 
conditional. The person responsible for a point source discharge from a 
``no exposure'' industrial source must meet the conditions of the 
exemption and provide a certification pursuant to 40 CFR 122.22 for 
tracking and accountability purposes. EPA believes today's proposal, 
therefore, is fully consistent with the direction provided by the 
court.
    A major objective of the FACA Committee at the outset (August 
1995), was to streamline and reinvent certain troublesome or 
problematic aspects of the existing storm water permitting program. One 
area identified was the mandatory applicability of the permitting 
program to all industrial facilities, even those ``light'' industrial 
activities that are of very low risk or of

[[Page 1591]]

no risk to storm water contamination. Such dischargers could have no 
industrial sources of storm water contamination on the industrial plant 
site, yet they are still required to acquire an NPDES storm water 
permit and meet all permitting requirements. Examples of such 
facilities would be a soap manufacturing plant (SIC Code 28) or 
hazardous waste treatment and disposal facility, where all industrial 
activities, even loading docks, are inside a building or under a roof.
    Committee members advised EPA that the existing storm water program 
needed to be revised to allow such facilities to seek an exemption from 
the NPDES storm water permitting requirements. Committee members agreed 
that such an exemption should also provide a strong incentive for other 
industrial facilities that might conduct some industrial activities 
outdoors exposed to rainfall and runoff to move the activities under 
cover or into buildings to prevent contamination of rainfall and storm 
water runoff. The committee believed that such a no-exposure permit 
exemption provision could be a valuable incentive for storm water 
pollution prevention.
    Over approximately 2 years, the Phase I Improvement Work Group of 
the FACA Committee developed and recommended to EPA the concept of a 
no-exposure incentive provision, which EPA is proposing by making a 
change to the existing storm water rules and adding a new storm water 
rule provision, including a no-exposure certification process as 
discussed below.
    EPA relied upon the no-exposure concept developed by the FACA 
Committee in developing today's proposal regarding ``no exposure.'' EPA 
proposes to incorporate the recommendations of the committee by 
deleting the sentence regarding ``no exposure'' for the facilities in 
Sec. 122.26(b)(14)(xi) and adding a new section--Sec. 122.26(g) 
Conditional Exemption for No Exposure of Industrial Activities to Storm 
Water. In accordance with the committee's recommendations, the proposed 
no-exposure provision refers to all classes of industrial and other 
facilities discharging storm water that would be defined under existing 
Sec. 122.26(b)(14), except construction defined under existing 
Sec. 122.26(b)(14)(x) and proposed Sec. 122.26(b)(15)(i) and sources 
individually designated under Secs. 122.26(a)(1)(v), 
122.26(a)(9)(i)(B),(C), & (D) and 122.26(g)(3). Thus, proposed 
Sec. 122.26(g) would make all classes of industrial facilities eligible 
for exemption from the identification as ``associated with industrial 
activity'' under the existing regulations.
    Today's proposal represents a significant expansion in the scope of 
the no-exposure provision originally promulgated in the 1990 rule for 
only light industry. The intent of this proposal is to provide 
industrial facilities that are entirely indoors a simplified method of 
complying with the CWA. This could include facilities that are located 
within a larger office building, or at which the only items permanently 
exposed to precipitation are roofs, parking lots, vegetated areas, and 
other non-industrial areas or activities.
    Although the FACA Committee agreed in principle to the basic 
concept of this exemption, committee members could not resolve two 
significant issues related to the actual implementation of the concept. 
The first issue relates to how to account for storm water runoff from 
parking lots, roof tops, lawns, and other non-industrial areas of an 
industrial facility. These types of storm water discharges, which may 
contain pollutants or which may result in excess storm water flows, are 
not directly regulated under the existing storm water permitting 
program because they are not ``storm water discharges associated with 
industrial activity.''
    The second issue involves an industrial facility that achieves no 
exposure by constructing large amounts of impervious surfaces, such as 
roofs (where previously there were pervious or porous surfaces into 
which storm water could infiltrate), which results in a significant 
increase in storm water volume flowing off the industrial facility and 
thus causes adverse receiving water impacts simply due to the increased 
quantity of storm water flow. Although discussed extensively, the FACA 
Committee was not able to reach a consensus recommendation on how to 
fully address these two remaining issues.
    From the perspective of the environmental groups on the committee, 
excessive storm water flows from an industrial site and pollutants from 
non-industrial areas of the site are potentially a significant cause of 
receiving water impairment and, as such, should not be allowed to occur 
as a result of achieving no exposure and gaining an exemption from an 
NPDES storm water permit. Environmental groups believe that storm water 
discharges from impervious areas at an industrial facility are 
generally more frequent, and many of them larger, than discharges from 
the preexisting natural surfaces. These discharges will contain 
pollutants typical of commercial areas, streets, and roads and are an 
equal threat to direct human uses of the water and can cause equal 
damage to aquatic life and its habitat. The environmental groups 
believe that these storm water discharges should be permitted in the 
same way that residential and commercial storm water discharges are 
permitted and that, otherwise, these discharges--their volume alone 
often destructive of aquatic life and habitat, and containing 
conventional pollutants as well--would escape the control required 
under the CWA.
    The industry representatives support streamlining the existing 
storm water permitting program by exempting no-exposure facilities. 
They believe that creating this exemption, however, does not create in 
EPA the authority to regulate other activities not subject to the 
existing storm water program. Industry representatives point out that 
since 1990, the NPDES storm water permitting program has excluded 
administrative buildings, parking lots, and other non-industrial areas 
from permitting or other regulatory requirements. The industry 
representatives also reserved the right to address the legal authority 
provided by Congress to EPA to regulate the amount of storm water 
discharged from these areas. Industry representatives believe that if 
Congress or EPA addresses the issue of flow, it should be addressed on 
a broader scale than merely through the no-exposure exemption.
    Municipal representatives believe that EPA has no authority under 
any existing legal framework to regulate flow. Developing federal 
parameters for the control of flow would result in federal intrusion 
into land use planning, an authority that they claim is solely within 
the purview of State government and their political subdivisions. Local 
governments are aware of the impact that flows have on receiving waters 
and, as has been well documented, take the appropriate steps to 
ameliorate negative results within the context of locally developed and 
agreed upon long-term land use plans. Under no circumstances will local 
governments agree to share or cede this authority with or to federal 
agencies or departments.
    Given the lack of consensus by the FACA Committee on these two 
remaining key issues, EPA is soliciting public comment on potential 
ways to address these issues, if possible, in the context of the 
proposed no-exposure exemption.
    In an effort to address the second issue the FACA Committee 
recommended that the no-exposure 5-year certification form (discussed 
below) should be modified to add an additional question that asks the 
facility operator to provide information

[[Page 1592]]

indicating if large amounts of impervious surfaces were created to 
qualify for the no-exposure exemption. To respond to the question, a 
series of four boxes would be checked by the facility operator 
indicating approximately how much impervious area was created, if any, 
to achieve no exposure. These boxes would be (1) none, (2) less than 1 
acre, (3) 1 to 5 acres, and (4) more than 5 acres. This question would 
provide additional information that would help the NPDES permitting 
authority determine whether or not an NPDES storm water permit should 
be required for the facility.
    In order to be covered under the no-exposure provision, EPA 
proposes that an owner or operator of an otherwise regulated facility 
would need to submit to the NPDES permitting authority the no exposure 
form certifying that the facility meets the no-exposure requirements 
(see Appendix 4 for the Draft No Exposure Certification Form). This 
requirement would apply across all categories of industrial activity 
covered by the existing program, except discharges associated with 
construction activity, and would include those facilities currently in 
Sec. 122.26(b)(14)(xi) (''light industry'') that are not permitted 
based upon a claim of ``no exposure.'' The category (xi) ``light'' 
industrial facilities that claim to have no exposure of materials to 
storm water are not required under the existing regulations to submit 
any type of form to the permitting authority, but would need to submit 
a certification under today's proposal. The facility would need to 
allow the NPDES permitting authority or operator of a municipal 
separate storm sewer system (where there is a storm water discharge to 
the municipal system) to inspect the facility and to make such 
inspection reports publicly available, upon request. In addition, based 
on committee recommendations, EPA proposes that the certification would 
require only minimal amounts of information from the facility claiming 
the no-exposure exemption. The NPDES permitting authority would 
maintain a simple registration list that should impose minimal 
administrative burden, but that would allow for tracking of industrial 
facilities claiming the exemption.
    EPA envisions the NPDES storm water program to be implemented 
primarily through general permits and the no exposure certification to 
be submitted at the ``beginning'' of each permit term. However, EPA 
invites comment on situations that may affect the timing of submission 
of the no exposure certification, for example, in cases where a 
facility's process water and storm water are covered under an 
individual permit.
2. Definition of ``No Exposure''
    For purposes of this section, ``no exposure'' would mean that all 
industrial materials or activities are protected by storm resistant 
sheltering so that they are not exposed to rain, snow, snowmelt, or 
runoff. Industrial materials or activities would refer to those 
activities or materials described under Sec. 122.26(b)(14) (e.g., 
material handling equipment, industrial machinery, raw materials, 
intermediate products, byproducts, or industrial waste products, 
however packaged). Barrels, drums, dumpsters, and other packaging 
containing industrial wastes are inherently prone to leak and therefore 
could be a source of exposure, thereby precluding the facility from 
qualifying for the exemption.
    The FACA Committee held lengthy discussions on the definition of no 
exposure pertaining to barrels, drums, dumpsters, and other packaging 
containers. The committee could not agree on whether barrels, drums, 
dumpsters, and other packaging containers that are outdoors should 
trigger the disqualification of an industrial facility from the no-
exposure exemption. One perspective expressed was that any such 
containers that are stored outdoors should constitute exposure and the 
need for a permit, whether or not they are leaking. The opposing 
perspective was that containers should be allowed to be stored outdoors 
and not be considered exposure as long as they were not actually 
leaking. The committee also discussed the concept of ``potential to 
leak'' as a trigger for exposure, but could not agree on this approach. 
Therefore, EPA is soliciting public comment on this issue and the 
approach proposed in today's rule.
    The term ``storm resistant shelter'' is intended to include 
completely roofed and walled buildings or structures, as well as 
structures with only a top cover but no side coverings, provided 
material under the structure is not otherwise subject to any run-on and 
subsequent runoff of storm water. For purposes of this provision, 
emissions from roof stacks/vents that are regulated and in compliance 
under other environmental protection programs and that do not cause 
storm water contamination would be considered not exposed. EPA requests 
comment on the scope of roof stacks/vents that would be covered by this 
provision. EPA welcomes, in particular, any suggestions as to ways in 
which this provision might be narrowed so as to focus on significant 
stack emissions that could result in identifiable levels of storm water 
contamination. Visible ``track out'' (i.e., pollutants carried on the 
tires of vehicles) or windblown raw materials would be deemed 
``exposed.'' Leaking pipes containing contaminants exposed to storm 
water would be deemed ``exposed,'' as would past sources of storm water 
contamination that remain onsite. General refuse and trash, not of an 
industrial nature, would not be considered exposed industrial 
materials.
    While the intent of this provision is to promote permanent no 
exposure, EPA understands that certain machinery, such as trucks, could 
pass between buildings and, during passage, would be exposed to rain 
and snow. Adequately maintained mobile equipment (e.g., trucks, 
automobiles, trailers, or other such general purpose vehicles found at 
the industrial site that are not industrial machinery or material 
handling equipment and that are not leaking contaminants or are not 
otherwise a source of industrial pollutants) could be exposed to 
precipitation or runoff. Such activities alone would not prevent a 
facility from being able to certify no exposure under this provision. 
Similarly, trucks or other vehicles located at vehicle maintenance 
facilities awaiting maintenance, as defined at 40 CFR 
122.26(b)(14)(viii), that are not leaking contaminants or are not 
otherwise a source of industrial pollutants, would not be considered 
exposed.
    In addition, EPA recognizes that other instances could occur where 
permanent no exposure of industrial activities or materials is not 
possible and, therefore, is proposing that under such conditions, 
materials and activities be covered with temporary covers, such as 
tarps, between periods of permanent enclosure. This proposal would not 
specify every such situation, instead EPA intends that permitting 
authorities would address this issue on a case-by-case basis. 
Permitting authorities could determine the circumstances under which 
temporary structures would or would not meet the requirements of this 
section. Until permitting authorities determined otherwise, temporary 
coverage of industrial materials or activities would be allowable under 
this section during facility renovation or construction, provided the 
temporary cover achieved the intent of this section. Moreover, exposure 
that results from a leak in protective covering would only be 
considered exposure if not corrected prior to the next storm water 
discharge event.
    While the intent of this proposal would be to reduce the regulatory

[[Page 1593]]

burdens on industrial facilities and government agencies, the FACA 
Committee suggested that the NPDES permitting authority should consider 
a compliance assessment program to ensure that facilities that have 
availed themselves of this no-exposure option meet the applicable 
requirements. Inspections would be conducted at the discretion of the 
NPDES permitting authority and would likely be coordinated with other 
facility inspections. EPA expects, however, that the permitting 
authority would conduct inspections when it became aware of potential 
water quality impacts possibly caused by the facility's storm water 
discharges or when requested to do so by affected members of the 
public. The intent of this provision would be that the 5-year no-
exposure certification be fully available to, and enforceable by, 
appropriate federal and State authorities under the CWA. Private 
citizens could enforce against facilities for discharges of storm water 
that are inconsistent with a no-exposure certification if storm water 
discharges from such facilities are not otherwise permitted.
    The FACA Committee recommended that the certifying party not allow 
any actions taken to qualify for this provision to result in a net 
environmental detriment. The phrase ``no net environmental detriment,'' 
however, seemed too imprecise a phrase to use within this context. 
Therefore, EPA is proposing to implement this recommendation by 
requiring that actions taken to qualify for this provision shall not 
interfere with the attainment or maintenance of water quality 
standards, including designated uses. Permitting authorities would be 
able, where necessary, to make a determination by evaluating the 
activities changed at the industrial site to achieve no exposure and 
assess whether these changes adversely impact, or have the potential to 
impact, water quality standards, including designated uses. EPA 
anticipates that most efforts to achieve no exposure would employ 
simple good housekeeping and contaminant cleanup activities. Other 
efforts could involve moving materials and industrial activities 
indoors into existing buildings or structures.
    In very limited cases, industrial operators could make major 
changes at a site to achieve no exposure. These efforts could include 
constructing a new building or cover to eliminate exposure or 
constructing structures to prevent run-on and storm water contact with 
industrial materials or activities. Where major changes were undertaken 
to achieve no exposure that increase the impervious area of the site, 
the facility operator would need to provide information on this in the 
certification form discussed above. Using this information, and other 
available data and information, permitting authorities should be able 
to assess whether any major change has resulted in increased pollutant 
concentrations or loadings, toxicity of the storm water runoff, or a 
change in natural hydrological patterns that would interfere with the 
attainment and maintenance of water quality standards, including 
designated uses or appropriate narrative, chemical, biological, or 
habitat criteria where such State water quality standards exist. In 
these instances, the facility operator and their NPDES permitting 
authority should take appropriate actions to ensure that attainment or 
maintenance of water quality standards can be achieved. The NPDES 
permitting authority could determine the need for the facility to 
obtain coverage under an individual permit or a general permit to 
ensure that appropriate actions are taken to address water quality 
impacts.
    Another issue that the FACA Committee discussed but was unable to 
reach consensus on was whether or not the facility operator should bear 
the burden of determining whether the activities undertaken to achieve 
no exposure impact, or have the potential to impact, water quality 
standards, or whether the NPDES permitting authority should be 
responsible for making that determination. Some members of the FACA 
Committee indicated that facility operators are not sufficiently 
trained to conduct water quality impact assessments, nor privy to the 
necessary information, and, therefore, would not be able to make these 
determinations. Similarly, these members highlighted that under the 
existing NPDES permitting program, the NPDES permitting authority 
appears to have this responsibility (see 40 CFR 122.44(d)). Other 
committee members explained that only the facility operator would know 
exactly what changes were made at the industrial site to achieve no 
exposure and, therefore, should make the determination. Other committee 
members were concerned that these determinations would place an 
extensive burden on permitting authorities. In today's proposed rule, 
the NPDES permitting authority would have the primary responsibility 
for determining potential or actual water quality impacts; however, 
this determination would be based upon specific information that the 
operator would be required to provide. Given the differing opinions 
expressed by committee members regarding this provision, EPA is also 
inviting public comment on this aspect of the no exposure incentive.
    EPA envisions that general permits would be used to implement the 
program and that the owner or operator would submit a written 
certification to the permitting authority once every 5 years at the 
``beginning'' of the permit term or prior to commencing discharges 
during a permit term. Upon request, the owner or operator would also 
need to submit a copy of the certification to the municipality in which 
the facility is located. EPA invites comment on situations that may 
affect the timing of submission of the certification. For example, some 
States are transitioning toward ``specific'' general permits (industry 
or watershed-based), and to the extent possible, to individual 
permits--making it likely that more than one general permit may be 
applicable to a given facility and raising an issue as to when to 
submit a ``no exposure'' certification.
    Once a facility operator has established that the facility meets 
the definition of no exposure, it would be imperative that the operator 
of the facility maintains the no-exposure condition. Failure to do so 
would result in the unauthorized discharge of pollutants to waters of 
the United States, which could result in penalties under the CWA. Where 
a facility operator determines that exposure would occur in the future 
due to some anticipated change at the facility, the operator would need 
to submit an application and acquire storm water permit coverage prior 
to such discharge to avoid such penalties.
3. Options Considered
    In the course of the ``no-exposure dialogue,'' the FACA Committee 
considered a number of options for implementing the no-exposure 
provision, including regulating qualifying industrial facilities by (1) 
an NPDES general permit for no-exposure facilities, (2) a no-exposure 
permit by rule, (3) a modification of the definition of ``storm water 
associated with industrial activity'' such that industrial facilities 
without exposure could instead be covered under the requirements of a 
new or different storm water program, and (4) a watershed approach to 
no exposure. The FACA Committee did not fully support any of these 
options.
    Some committee members thought that options 1 and 2 provided little 
incentive to achieve no exposure. However, Option 1 was considered the 
most enforceable, and Option 2 was

[[Page 1594]]

considered to have the advantage of enforceability and potential for 
reduced administrative burden.
    Under Option 3, the definition of ``discharge associated with 
industrial activity'' at Sec. 122.26(b)(14) would be modified such that 
facilities with no exposure could lose their status as ``storm water 
discharges associated with industrial activity'' under the existing 
regulations. Rather, these facilities would become storm water 
dischargers under today's proposed rule and would be required to do 
whatever the final section 402(p)(6) regulation required. This option 
would not track, however, the proposed requirements of today's rule 
because the rule would not impose any requirements on undesignated 
sources. EPA anticipates that permitted sources would be expected to 
comply with requirements similar to those for industrial facilities 
permitted under the existing storm water program. Option 4 had 
virtually no support.

K. Public Involvement/Public Role

    The Phase II Subcommittee discussed the appropriate role of the 
public in successful implementation of a municipal storm water program. 
The Subcommittee generally agreed that a successful municipal storm 
water program requires an educated and actively involved public. 
Although efforts to educate and involve the public consume limited 
staff and financial resources, the benefits are numerous. An educated 
public increases program compliance from residents and businesses as 
they realize their individual and collective responsibility for 
protecting water resources. For instance, an educated and motivated 
public could reduce pollutant loadings by limiting the use of garden 
chemicals. Moreover, an educated public is more likely to understand 
the environmental benefits of a municipal storm water program and, 
therefore, may be more willing to fund such a program. The program is 
also more likely to receive public support and participation when the 
public is actively involved from the program's inception and allowed to 
participate in the decisionmaking process. In a time of limited staff 
and financial resources, public volunteers offer diverse backgrounds 
and expertise that may be used to plan, develop, and implement a 
program that is tailored to local needs. The public's participation is 
also useful in the areas of information dissemination/education and 
reporting of violators, where large numbers of community members can be 
more effective than a few regulators. The public may undertake several 
roles in the municipal storm water program to help ensure a beneficial 
and workable program for all involved. The public is encouraged to 
contact the NPDES permitting authority or local municipal separate 
storm sewer operator for information on the municipal storm water 
program and ways to participate. Such information may also be available 
from local environmental or other public advocacy groups.
    EPA is inviting comment regarding the appropriate role of the 
public in a municipal storm water program, and the best approach that 
EPA can take in the final regulation to provide appropriate recognition 
of this role and involvement. The advantages of active public 
involvement include reduced pollutant loadings, increased program 
support, and vigilant protection of waterbodies. Some examples of such 
involvement follow. First of all, the public may be subject to local 
storm water program requirements, guidelines, and financial costs. For 
example, the public could be subject to a local ordinance that 
prohibits dumping used oil down storm sewers. In addition, members of 
the public might choose to participate as actively involved partners in 
program planning, development, and implementation (e.g., participate in 
public meetings and other opportunities for input, perform lawful 
volunteer monitoring, assist in program coordination with other 
preexisting and related programs, report suspected violators to the 
municipal, State, or Tribal authorities), aid in the development and 
distribution of educational materials, and provide public training 
activities. In addition, the public could protect waterbodies by taking 
civil action under section 505 of the CWA against any person who is 
alleged to be in violation of an effluent standard or permit condition. 
In such situations, members of the public would be strongly encouraged, 
however, to resolve any disagreements or concerns directly with the 
parties involved, either informally or through any available 
alternative dispute resolution process.
    The public could also petition the NPDES permitting authority to 
require an NPDES permit for a discharge composed entirely of storm 
water that contributes to a violation of a water quality standard or is 
a significant contributor of pollutants to waters of the United States. 
In evaluating such a petition, the NPDES permitting authority would be 
encouraged to consider the set of designation criteria developed for 
the evaluation of the small municipal separate storm sewer systems 
located outside of an urbanized area in places with a population of at 
least 10,000 and a population density of 1,000 or more. The NPDES 
permitting authority must make a final determination within 180 days of 
receiving a petition.
    Public involvement and participation pose challenges, however. It 
requires a substantial initial investment of staff and financial 
resources, which could be very limited. Even with this investment, the 
public might not be interested in participating. In addition, public 
participation could slow down the decisionmaking process. Nevertheless, 
EPA believes the public is vital to the long-term success of the 
municipal storm water program and strongly encourages public 
involvement and participation.
    In response to comments from the Storm Water Phase II FACA 
Subcommittee, EPA believes it is important for the public to seek 
administrative remedies before filing civil suit under section 505 of 
the CWA. EPA also received comments stressing the need to suggest to 
the public that they have a responsibility to fund the municipal storm 
water program. While EPA believes it is important that the program be 
adequately funded, as a federal agency it cannot take a position on the 
appropriate mechanism or level for such funding.

L. Water Quality Issues

    The CWA combines a technology-based approach with a water quality-
based approach to ``restore and maintain the chemical, physical, and 
biological integrity of the Nation's waters . . . .'' EPA and most 
States issue NPDES permits to point source discharges of pollutants to 
meet the technology-based and water quality-based requirements of the 
act. Technology-based requirements are the minimum level of control and 
are generally applicable nationwide. When the technology-based controls 
are not sufficient for the waterbody to support the water quality 
standards that States or Tribes adopted for their waters, the CWA 
requires development of more stringent permit limits and control 
programs to ensure compliance with water quality standards.
1. Water Quality Standards
    Water quality standards are the cornerstone of a State's or Tribe's 
water quality management program. States and Tribes adopt water quality 
standards for waters within their jurisdictions. Water quality 
standards define a use for a waterbody and describe the specific water 
quality criteria to achieve that use. Examples of designated uses are 
recreation and protection of aquatic life. Water quality criteria can 
include chemical, physical,

[[Page 1595]]

or biological parameters, expressed as either numeric limits or 
narrative statements. The water quality standards also contain 
antidegradation policies to protect existing uses and high quality 
water. The antidegradation policy ensures that water quality 
improvements are conserved, maintained, and protected. States and 
Tribes review their water quality standards every 3 years and, if 
appropriate, revise them. Water quality standards provide the goals for 
the waterbody, serve as the regulatory basis of water quality 
management programs, and are benchmarks by which success is ultimately 
gauged for a given waterbody or watershed.
    EPA recognizes that urban runoff is not the only contributor of 
pollutants and other stressors to urban waterways. Controls on urban 
runoff, however, represent an opportunity to prevent or capture a 
significant portion of the pollutants that are causing or contributing 
to violations of water quality standards, including impairment of 
designated uses. Storm Water Phase II FACA Subcommittee municipal 
representatives expressed concern that municipalities not be liable for 
loadings attributable to other sources. Today's proposal contains 
provisions that establish a BMP-based program with measurable goals 
that must meet the standard of MEP and protect water quality. In the 
first two to three rounds of storm water permits, EPA envisions that 
this would be the extent of the municipal requirements for a large 
majority of regulated entities. If additional specific measures to 
protect water quality were imposed, they would likely be the result of 
an assessment based on TMDLs, or the equivalent of TMDLs, where the 
proper allocations would be made to all contributing sources. EPA 
believes that the municipality's additional requirements, if any, 
should be guided by its equitable share based on a variety of 
considerations, such as cost effectiveness, proportionate contribution 
of pollutants, and ability to reasonably assume wasteload reductions.
a. Permitting Policy
    As a result of today's proposed regulation, NPDES general permits 
that would be issued to owners or operators of regulated small 
municipal separate storm sewer systems, as well as storm water 
discharges associated with other activity, will be the primary 
mechanism used to implement these requirements. As is the case in the 
issuance of any NPDES permit, the permitting authority would use its 
NPDES program requirements, including 40 CFR 122.44 in establishing 
appropriate permit terms. EPA intends to issue NPDES permits consistent 
with the August 1, 1996, Interim Permitting Approach guidance (61 FR 
43761, November 6, 1996.) This guidance describes the interim 
permitting approach as follows:

    In response to recent questions regarding the type of water 
quality-based effluent limitations that are most appropriate for 
National Pollutant Discharge Elimination System (NPDES) storm water 
permits, the Environmental Protection Agency (EPA) is adopting an 
interim permitting approach for regulating wet weather storm water 
discharges. Due to the nature of storm water discharges, and the 
typical lack of information on which to base numeric water quality-
based effluent limitations (expressed as concentration and mass), 
EPA will use an interim permitting approach for NPDES storm water 
permits.
    The interim permitting approach uses best management practices 
(BMPs) in first-round storm water permits, and expanded or better-
tailored BMPs in subsequent permits, where necessary, to provide for 
the attainment of water quality standards. In cases where adequate 
information exists to develop more specific conditions or 
limitations to meet water quality standards, these conditions or 
limitations are to be incorporated into storm water permits, as 
necessary and appropriate. This interim permitting approach is not 
intended to affect those storm water permits that already include 
appropriately derived numeric water quality-based effluent 
limitations. Since the interim permitting approach only addresses 
water quality-based effluent limitations, it also does not affect 
technology-based effluent limitations, such as those based on 
effluent limitations guidelines or developed using best professional 
judgment, that are incorporated into storm water permits.
    Each storm water permit should include a coordinated and cost-
effective monitoring program to gather necessary information to 
determine the extent to which the permit provides for attainment of 
applicable water quality standards and to determine the appropriate 
conditions or limitations of subsequent permits. Such a monitoring 
program may include ambient monitoring, receiving water assessment, 
discharge monitoring (as needed), or a combination of monitoring 
procedures designed to gather necessary information.
    This interim permitting approach applies only to EPA; however, 
EPA also encourages authorized States and Tribes to adopt similar 
policies for storm water permits. This interim permitting approach 
provides time, where necessary, to more fully assess the range of 
issues and possible options for the control of storm water 
discharges for the protection of water quality. This interim 
permitting approach may be modified as a result of the ongoing Urban 
Wet Weather Flows Federal Advisory Committee policy dialogue on this 
subject.

EPA would encourage authorized States and Tribes to adopt policies 
similar to the Interim Permitting Approach when developing its storm 
water program. For a discussion of appropriate monitoring activities, 
see Section II.L.4. below.
2. Total Maximum Daily Loads
    A TMDL analysis includes the determination of the relative 
contributions of pollutants from point, nonpoint, and natural 
background sources, including a margin of safety of pollutants that can 
be discharged to a water quality-limited waterbody to meet water 
quality standards. More specifically, an allowable TMDL is defined as 
the sum of the individual wasteload allocations for existing and future 
point sources (including storm water) and load allocations for existing 
and future nonpoint sources (including diffuse runoff and agricultural 
storm water) and natural background materials with a margin of safety 
incorporated to account for uncertainty in the analysis. TMDLs are 
required in the CWA section 303(d)(1) for waters that will not achieve 
water quality standards after implementation of technology-based 
controls. These provisions have been codified in 40 CFR 130.7.
    The Part 130 regulations were designed to implement CWA sections 
106, 205(g), 205(j), 208, 303, and 305, which address ambient water 
quality monitoring and planning for implementation, including funding 
and periodic reporting of ambient water quality for the development of 
a national inventory. Section 130.5 describes a continuing water 
quality planning process designed to implement CWA section 303(e). Of 
particular significance for an alternative State storm water management 
program described above are the provisions of Sec. 130.6, which 
describes water quality management planning under sections 208 and 303. 
The water quality management regulations specify some of the elements 
of water quality management, including provisions for point and 
nonpoint source management and control. The nonpoint source management 
elements include, for example, regulatory and nonregulatory programs, 
activities, and BMPs for a variety of sources, including urban storm 
water (see 40 CFR 130.6(c)(4)(iii)(G)). State representatives have 
suggested that requirements for State storm water management under 
section 402(p)(6) could derive from, and be developed through, these 
water quality management provisions of Part 130. EPA is not proposing 
any amendments to the Part 130 regulations at this time, but is 
inviting comment on how the existing Part 130 regulations could be used 
to support the proposed

[[Page 1596]]

State alternative program described in this proposal.
    TMDL analyses include estimates of loadings from storm water 
discharges. Load reductions obtained through the implementation of BMPs 
required in the NPDES program for storm water should be reflected in 
the TMDL analysis. Through the TMDL analysis, the relative contribution 
of storm water discharges within a watershed will be determined.
    EPA has formed a Federal Advisory Committee to provide advice to 
EPA on identifying water quality-limited waterbodies, establishing 
TMDLs for them as appropriate, and developing appropriate watershed 
protection programs for these impaired waters in accordance with 
section 303(d). The committee operates under the auspices of the 
National Advisory Council for Environmental Policy and Technology 
(NACEPT).
3. Anti-Backsliding
    In general, the term ``anti-backsliding'' refers to statutory and 
regulatory provisions at CWA sections 303(d)(4) and 402(o) and 40 CFR 
122.44(l) that prohibit the renewal, reissuance, or modification of an 
existing NPDES permit to contain effluent limits, permit terms, 
limitations and conditions, or standards that are less stringent than 
those established in the previous permit. There are, however, 
exceptions to this prohibition (known as ``antibacksliding 
exceptions''), which are also presented in sections 303(d)(4), 402(o) 
and 40 CFR 122.44(l).
    The issue of backsliding from prior permit limits, standards, or 
conditions is not expected to initially apply to most storm water 
dischargers designated under today's proposal because they generally 
have not been previously authorized by an NPDES permit. However, the 
backsliding prohibition would apply if a storm water discharge was 
previously covered under another NPDES permit. Also, the 
antibacksliding prohibition could apply when an NPDES storm water 
permit is reissued, renewed, or modified. In most cases, however, EPA 
does not believe that these provisions would restrict revisions to 
storm water NPDES permits.
4. Monitoring
    EPA encourages States to provide a multiyear monitoring strategy in 
their CWA section 106 grant application to provide the framework for 
State/EPA agreement on the States' annual work plans. The strategy 
should include both ambient and program-specific monitoring activities 
for nonpoint sources, lakes, estuaries, wetlands, and wet weather 
surveys. States should also include monitoring for NPDES, TMDL, and 
section 305(b) activities. Finally, the State should describe how these 
activities were integrated to provide all information necessary to 
support the State water quality management programs. Specific elements 
recommended for State monitoring program work plans include 
identification of indicators to be used to measure progress toward 
goals and reference conditions for baselines; identification of methods 
used; identification of water quality problems; sampling and laboratory 
analytical support with a field manual and quality assurance/quality 
control (QA/QC) plans; provisions for data storage, management, and 
sharing; training and support for all involved persons, including 
volunteer reporting through the section 305(b) process; and annual 
program evaluation.
    As part of EPA's efforts to further implementation of urban wet 
weather programs using a watershed approach, the Agency is working to 
develop a practical approach to monitoring that would provide 
meaningful results. Under today's approach, assessment, evaluation, and 
recordkeeping requirements beyond those required by the NPDES 
regulations would be left to the discretion of the NPDES permitting 
authority. The NPDES permitting authority (EPA or the authorized State 
or Tribe) would determine monitoring requirements in accordance with 
State or Tribe monitoring plans appropriate to the watershed. For 
purposes of today's proposal, EPA recommends that, in general, small 
municipalities not be required to conduct in the first permit term any 
additional monitoring beyond any they may be already performing. In the 
second and subsequent permit terms, EPA expects that some limited 
ambient monitoring might be appropriately required for perhaps half of 
the regulated small municipal separate storm sewer systems. However, 
EPA encourages participation in monitoring programs appropriate to 
watershed protection. The permitting authority may wish to consult the 
recommendations made in the report prepared by the Intergovernmental 
Task Force on Monitoring Water Quality (ITFM). For further discussion 
regarding monitoring activities and the ITFM report, see Section 
II.H.3.c, Evaluation and Assessment.
    EPA and the FACA Committee have developed a paper entitled 
``Watershed Assessment: A Critical Tool for Stakeholders'' (November 7, 
1997) which is intended to supplement a draft watershed-based policy 
statement entitled ``A Watershed Alternative.'' The policy approach 
described in the Watershed Alternative would promote a watershed-based 
assessment as an essential element of watershed-based programs for 
protecting water quality. The Watershed Assessment paper amplifies this 
element, describing varying levels of resources and stakeholder needs 
for developing watershed assessment plans. It also acknowledges the 
importance of designing each assessment plan to address specific 
stakeholder interests. The paper states that each plan should include 
unique assessment goals and objectives, selected baseline, sampling 
methods, procedures for analysis, record keeping and reporting, and 
schedules for periodic evaluation. Additionally, the paper sets out the 
various roles and responsibilities of stakeholders. Also, it contains 
an expansive bibliography that gives resource managers suggested 
references to aid them in carrying out each stage of the watershed 
assessment plan.

III. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. EPA 
prepared an Information Collection Request (ICR) document (ICR 
No.1820.01), a copy of which may be obtained from Sandy Farmer, OPPE 
Regulatory Information Division; U.S. Environmental Protection Agency 
(2137); 401 M Street, S.W.; Washington, D.C. 20460, or by calling (202) 
260-2740.
    Information collection requirements under this proposed rule would 
include requirements to submit an NPDES permit application or notice 
for coverage under an NPDES general permit, as well as to comply with 
applicable recordkeeping and reporting requirements. Under the proposed 
rule, certain construction sites under 5 acres and small regulated 
municipal separate storm sewer systems would be required to retain 
records of data used to complete their NPDES permit applications or 
NOIs. In addition, small regulated municipal separate storm sewer 
systems would be required to submit annual reports in the first permit 
term and reports in years 2 and 4 in subsequent permit terms.
    Under the proposed rule, the owners or operators of regulated small 
municipal separate storm sewer systems would be required to submit 
reports containing information which the permitting authority could use 
to assess

[[Page 1597]]

the effectiveness of individual storm water programs. This information 
could be further used at the time of permit renewal to ensure that 
appropriate measures would be taken by the owner or operator to revise 
its storm water program as needed. Information that might be contained 
in the reports includes monitoring data, and a self-assessment of 
progress toward pollutant reduction or programmatic goals which were 
established as permit conditions. Compliance with the applicable 
information collection requirements imposed under this proposed rule 
would be mandatory, pursuant to section 402.
    Exhibit 3 presents annual and average total burden and cost 
estimates for Phase II respondents (for 3 years under the Paperwork 
Reduction Act). Burden means the total time, effort, or financial 
resources expended by persons to generate, maintain, retain, or 
disclose or provide information to or for a Federal agency. This 
includes the time needed to review instructions; develop, acquire, 
install, and utilize technology and systems for the purposes of 
collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust existing ways for complying with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information.

              Exhibit 3.--Annual and Average Annual Total Burden Estimates for Phase II Respondents             
                                 [For 3 years under the Paperwork Reduction Act]                                
----------------------------------------------------------------------------------------------------------------
                                                                      Estimated                                 
                                                        Projected   burden hours     Projected       Projected  
                       Activity                        respondents       per       annual burden    annual cost 
                                                         per year    respondent      (Hrs)\1\         ($)\1\    
----------------------------------------------------------------------------------------------------------------
I. Construction Sources:                                                                                        
    Notice of Intent.................................       95,889           1.0          95,889      $2,876,670
    Development of SWPPPs............................       95,889          14.6       1,399,979      47,361,303
    Individual Application...........................            0           9.1               0               0
    Recordkeeping....................................       95,889           0.1           9,589         211,243
    Notice of Termination............................       95,889           0.5          47,945         765,674
                                                      ----------------------------------------------------------
        Annual Subtotal..............................  ...........  ............       1,554,361      51,214,890
II. Small Regulated Municipalities:                                                                             
    Notice of Intent.................................        4,154          40           166,160       4,341,761
    Individual Application...........................            0          88.2               0               0
    Co-Applicant Application.........................            0         146                 0               0
    Retention of Records.............................        4,154           1             4,154         108,544
    Annual Report Preparation and Submittal..........        4,154          21            87,234       2,279,424
                                                      ----------------------------------------------------------
        Year 1 Subtotal..............................  ...........  ............         257,548       6,729,729
                                                      ----------------------------------------------------------
        Years 2 and 3 Annual Subtotal (i.e., not                                                                
         including applications)\2\..................  ...........  ............          91,388       2,387,968
                                                      ----------------------------------------------------------
        Average Annual Burden and Cost\3\............  ...........  ............         146,775       3,835,222
                                                      ==========================================================
        Average Annual Program Total\4\..............  ...........  ............       1,701,135      55,050,112
----------------------------------------------------------------------------------------------------------------
\1\ Totals may not add because of rounding.                                                                     
\2\ Retention of Records (4,154) + Annual Report Preparation and Submittal (87,234) = Years 2 and 3 Annual      
  Subtotal (91,388).                                                                                            
\3\ Average annual cost for the municipal component of the program is calculated by taking the year 1 subtotal  
  (i.e., applications plus retention of records and annual report preparation and submittal; $6,729,729) plus   
  the average total for each of the years 2 and 3 (recordkeeping plus annual report preparation and submittal,  
  i.e., 2 x $2,387,968), which equals $11,505,665. This is divided by 3 (the number of years the ICR is valid)  
  to equal $3,835,222.                                                                                          
\4\ Burden total calculated as the sum of the construction source annual subtotal plus the municipal average    
  annual burden. Cost total calculated as the sum of the construction source annual subtotal and the municipal  
  average annual cost.                                                                                          

    Given the requirements of today's proposed regulation, there would 
be no capital and no operations and maintenance costs associated with 
information collection requirements of the rule. Similarly, there would 
be no capital/startup or operating and maintenance costs associated 
with the information collection requirements of the rule.
    The government burden associated with the proposed extension of the 
existing storm water program would impact State, Tribal, and 
Territorial governments (NPDES-authorized governmental entities) that 
have storm water program authority, as well as the Federal government 
(i.e., EPA), where it is acting as the NPDES permitting authority in 
States, Tribes, and Territories that are not authorized to administer 
the NPDES program. As of May 1997, 42 States and the Virgin Islands had 
NPDES authority. EPA estimates that 96,962 construction starts and 
3,749 small municipal separate storm sewer systems would be regulated 
within authorized governmental entities. EPA estimates that 18,815 
construction starts and 405 small municipal separate storm sewer 
systems would be regulated in non-authorized States, Tribes, and 
Territories.
    The estimated burden that would be imposed upon authorized 
governmental entities and the Federal government is estimated to be 
241,282 hours for authorized States and 38,933 for the Federal 
government, for a total of 280,215. This estimate is based on the 
average time that governments would expend to carry out the following 
activities: review, respond to, and enter a construction NOI into a 
data base (1 hour); review and enter a Notice of Termination (NOT) into 
a data base (0.5 hours); process permit applications from owners or 
operators of regulated small municipal separate storm sewer systems 
using the NOI (4 hours); issue permits to regulated small municipal 
separate storm sewer systems (160 hours); and review annual reports 
submitted by

[[Page 1598]]

regulated small municipal separate storm sewer systems (30 hours).
    Today's proposed rule also would include a conditional exemption 
from the existing storm water permit application requirements for 
industrial facilities that can certify that their industrial materials 
or activities have no exposure to storm water. This exemption would be 
conditioned upon the owner or operator certifying that their facility 
meets the no exposure requirements. Because the information collection 
burden associated with this certification, as well as the reduced 
information collection requirements associated with becoming exempt 
from the existing storm water permit regulations, are being developed 
at this time but are most appropriately considered as part of the 
existing storm water regulations, the incremental change in information 
collection burden associated with the no exposure requirements has been 
estimated in a separate section of the economic analysis accompanying 
today's proposed storm water rule.
    The proposed no exposure provision would expand the applicability 
of the ``no exposure'' exemption to more industrial entities than 
currently contemplated. Under the existing rule, permit application 
requirements are reserved for storm water discharges associated with 
light industrial materials and activities identified under 
Sec. 122.26(b)(14)(xi) if those materials and activities have no 
exposure to storm water. Today's proposed rule would expand the 
applicability of the ``no exposure'' exemption to include all 
industrial activity regulated under Sec. 122.26(b)(14) (except category 
(x), construction). The proposed no exposure provision would be applied 
through the use of a written certification process, thus representing a 
slight burden increase for ``light'' industries with no exposure. There 
would be both new costs and cost savings. The new costs would relate to 
the certification requirement and State and Federal implementation 
costs. The new cost savings would be based on relief from all existing 
compliance requirements for those industrial facilities that qualify. 
The net impact of the proposed no exposure provision for regulated 
industrial facilities would be an annual net savings ranging from $89 
million to $2,499 million. The total cost to Federal and State 
governments would range from $0.6 to $1.1 million annually.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
    Comments are requested on the Agency's need for this information, 
the accuracy of the provided burden estimates, and any suggested 
methods for minimizing respondent burden, including the use of 
automated collection techniques. Comments are specifically requested on 
the potential to shorten the recordkeeping period for construction 
activity less than 5 acres to less than the proposed 3 years. Send 
comments on the ICR to ``ATTN: Storm Water Proposed Rule ICR Comment 
Clerk--W-97-15, Water Docket, Mail Code 4101, EPA; 401 M Street, SW, 
Washington, D.C. 20460'' and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th Street, 
NW, Washington, D.C. 20503, marked ``Attention: Desk Officer for EPA.'' 
Include the ICR number in any correspondence. Because OMB is required 
to make a decision concerning the ICR between 30 and 60 days after 
January 9, 1998, a comment to OMB is best assured of having its full 
effect if OMB receives it by February 9, 1998. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.

IV. Executive Order 12866

    Under Executive Order 12866 of September 30, 1993: Regulatory 
Planning and Review, (58 FR 51735, October 4, 1993) the Agency must 
determine whether the regulatory action is ``significant'' and 
therefore subject to OMB review and the requirements of the executive 
order. The order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action'' 
because it could have an annual effect on the economy of $100 million 
or more. As such, this action was submitted to OMB for review. Changes 
made in response to OMB suggestions or recommendations will be 
documented in the public record.
    EPA developed detailed cost estimates for the incremental 
requirements imposed under today's proposed regulation and the 
regulatory options considered and applied these estimates to the 
potentially regulated universe of storm water sources designated under 
today's proposal. These estimates, including descriptions of the 
methodology and assumptions used, are described in detail in the 
Economic Analysis of the Storm Water Phase II Proposed Rule, which is 
included in the record of this rulemaking. Exhibit 4 summarizes the 
low-high cost range associated with the basic elements of the proposed 
rule.

                                               Exhibit 4.--Comparison of Annual Compliance Cost Estimates                                               
                                                               [Millions of 1997 Dollars]                                                               
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  No                                                                                    
                                                              regulation     August 7,                     September 30,    February 13,  Proposed phase
                                                             of phase II    1995, final       Plan B        1996 draft      1997 draft        II rule   
                                                               sources         rule                        proposed rule   proposed rule                
--------------------------------------------------------------------------------------------------------------------------------------------------------
Construction...............................................           $0  $278-$976       $261-$914       $177-$683       $115-$476       $115-$476     
Municipal..................................................            0  701-3,085       388-2,236        23-393          23-393          23-393       
Industrial.................................................            0  1,218-74,824          0         46-2,632        46-2,632              0       
                                                            --------------------------------------------------------------------------------------------
    Total Cost.............................................            0  2,197-78,885    649-3,150       246-3,708       184-3,501       138-869       
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 1599]]

    In interpreting these costs, a number of caveats should be born in 
mind. The primary component of the municipal costs is the 
implementation of the six minimum measures. These were estimated from a 
sample of 21 permit applications for Phase I municipalities. Cost 
categories from these applications corresponding to the six required 
Phase II minimum measures were identified and used to calculate, for 
each measure, the percent of municipalities that would incur costs for 
that measure, and for those that would, a range of per capita costs. 
Municipalities that did not show costs for a particular measure on 
their permit application were assumed to already have programs in place 
to comply with that measure, and thus incur no additional costs. Also, 
per capita costs that were more than two standard deviations above or 
one standard deviation below the mean were dropped because they were 
not representative of most cities. This evaluation was done separately 
for the first permit cycle and the second and third permit cycles. In 
estimating the costs for the second and third permit cycles, cost 
elements were dropped that would be expected to occur only once, such 
as development of municipal ordinances, or assessment of appropriate 
O&M requirements for municipal operations. The first, second, and third 
permit cycle costs were then combined to get an average annual cost 
over the first 15 years of the program.
    The estimated percentages of affected municipalities and the range 
of per capita costs for each of the six minimum measures are presented 
in Exhibit 5.

   Exhibit 5.--Percentage of Municipalities Affected and Range of Per   
                  Capita Costs for Six Minimum Measures                 
------------------------------------------------------------------------
                                  Percent of                            
                                municipalities   Low end of  High end of
            Measure               expected to     range of     range of 
                                  incur costs    per capita   per capita
                                   (percent)       costs        costs   
------------------------------------------------------------------------
First Permit Cycle:                                                     
     Public Education.........             39         $0.02        $0.34
     Public Involvement.......            100          0.19         0.20
     Illicit Discharge D&E....             90          0.04         2.61
     Const Site SW Runoff                                               
     Control..................             83          0.04         1.59
     Post Construction SW Mgt.              4          1.09         1.09
     PP/GH of Municipal Ops...             71          0.01         2.00
2nd and 3rd Permit Cycles:                                              
     Public Education.........             39          0.01         0.34
     Public Involvement.......            100          0.12         0.12
     Illicit Discharge D&E....             73          0.04         2.17
     Const Site SW Runoff                                               
     Control..................             80          0.01         0.83
     Post Construction SW Mgt.              4          1.09         1.09
     PP/GH of Municipal Ops...             67          0.01         1.08
------------------------------------------------------------------------

    Concerns have been raised that using data from Phase I permit 
applications to calculate Phase II costs may lead to either an 
understatement or overstatement of these costs. Since Phase II 
communities are smaller and less densely populated, they will probably 
have fewer structures to maintain, systems to map, and connections to 
inspect for illicit discharges than Phase I municipalities, although 
whether this is also true on a per capita basis is not clear. They may 
also be able to coordinate with nearby Phase I programs for some 
measures, such as public education. However, to the extent that there 
are significant fixed costs and economies of scale associated with 
implementation of the measures, the per capita costs for Phase II 
municipalities may be higher than those for Phase I municipalities. 
Also, it is not clear whether the costs listed on permit applications 
represent the entire compliance costs for the Phase I municipalities 
sampled. EPA requests comment on its methodology of using estimated 
costs from Phase I permit applications to project per capita costs for 
Phase II municipalities. EPA especially requests any data that might 
provide a better indication of actual compliance costs for these types 
of measures for smaller municipalities.
    EPA also requests comment on its projection that compliance costs 
will be lower in the 2nd and 3rd permit cycles. This projection is 
based on the fact that some program elements, such as development of 
municipal ordinances and identification of illicit connections, will 
only have to be done once, in the first permit cycle. However, concern 
has been raised that there may be counteracting tendencies for 
subsequent permit cycle costs to be higher, such as population growth 
and more areas being classified as urbanized areas.
    Concern has also been expressed that it may not be appropriate to 
apply the percentages of Phase I municipalities that apparently 
incurred costs for implementation of each measure to the estimation of 
Phase II costs. Because Phase II municipalities are smaller, they may 
be less likely than Phase I municipalities to already have adequate 
storm water programs in place and thus be more likely to incur 
additional costs as a result of this rule. As a sensitivity analysis, 
EPA has estimated the municipal costs under the assumption that 100 
percent of covered Phase II municipalities would incur costs for each 
measure. Under this assumption the municipal costs for the first permit 
cycle would range from $110 million to $690 million with a mean of $238 
million; second and third permit cycles would range from $98 million to 
$494 million with a mean of $209 million. EPA requests comment on its 
projections of the percentage of Phase II municipalities expected to 
incur costs for each measure, and any data that might help refine these 
estimates for the final rule.
    To estimate costs to owner/operators of small construction sites, 
EPA first gathered national data on building permits issued over 15 
years. Over the period from 1980 to 1994, there was a 1.3 percent 
average annual increase in the number of building permits issued. This 
growth rate was used to project total building starts through the year 
2015. To estimate what percentage of these starts would be between 1 
and 5 acres, EPA used more detailed data from

[[Page 1600]]

Prince George's County, Maryland to determine for each category of 
building permit (residential, commercial, etc.) what percentage was 
between 1 and 5 acres and applied these percentages to the national 
totals. Of the projected 645,709 building sites for the year 2000, EPA 
estimated that 22 percent, or 140,485 would be between 1 and 5 acres, 
based on the Prince George's County (PGC) data. EPA recognizes that PGC 
may not be representative of the entire country and requests any data 
that commenters may have that might be used to develop a better 
estimate of the number of construction sites between 1 and 5 acres.
    EPA next estimated the number of sites located in States that 
already require permits for sites between 1 and 5 acres, and removed 
these from its cost calculations because sites in these States would 
not be expected to incur additional costs, beyond those already 
involved in State permitting. This removed 19 percent of the estimated 
sites between 1 and 5 acres, leaving a projected 111,357 sites in the 
year 2000 that would be expected to incur incremental costs as a result 
of this rule. Finally, EPA estimated the percentage of these sites that 
are already subject to local sediment and erosion control (SEC) 
requirements. Based on a survey of 113 localities, EPA estimated that 
37 percent of sites between 1 and 5 acres, or 41,202 in the year 2000, 
would already be subject to local controls and would thus not incur 
incremental costs to implement SEC measures. EPA estimates that these 
sites would incur costs for the preparation of Notices of Intent, 
Notices of Termination, and Storm Water Pollution Prevention Plans 
only, while the remaining 70,155 sites would incur costs for 
implementation of SEC controls as well. EPA notes that sites in coastal 
areas subject to the Coastal Zone Act Reauthorization Amendments of 
1990 (CZARA) would be required to implement sediment and erosion 
controls even without the proposed rule. SEC costs for sites in those 
areas should thus not be considered incremental costs of this rule. 
However, because EPA is not sure how much overlap exists between 
coastal zone areas, States that already have permitting programs for 
small construction sites, and localities that already have SEC 
requirements, EPA did not remove additional sites from the rule costs 
specifically because they were located in areas subject to CZARA (note, 
for example, that most State permitting programs are in such areas). 
EPA requests comment on its procedure for adjusting the number of sites 
subject to incremental costs to account for programs and requirements 
already in place.
    The proposed rule would allow the NPDES permitting authority to 
waive applicability of requirements to storm water discharges from 
small construction sites based on three different criteria. In the 
economic analysis the Agency has projected that 15 percent of the 
construction sites that would be covered by today's proposal would be 
eligible to receive such waivers. Based on an informal survey of 
individuals familiar with the construction industry, EPA believes the 
percentage of sites eligible for waivers would probably fall between 5 
and 25 percent. If the number of sites eligible for waivers were 25 
percent, rather than the 15 percent used in the EA, projected 
compliance costs for small construction sites would be correspondingly 
lower. Similarly, if only 5 percent of sites turned out to be eligible 
for waivers, compliance costs would be correspondingly higher. The 
construction cost analysis does not include any costs for the 
preparation and submission of waiver applications, but the agency 
believes these costs will be negligible. EPA solicits comments and data 
on its assumptions regarding construction waivers.
    Because today's proposed rule provides a significant degree of 
flexibility to the NPDES permitting authority and designated sources 
proposed for regulation, the actual costs of implementing today's 
proposed storm water rule depend greatly on how the NPDES permitting 
authority and regulated sources implement the program. To some extent, 
this flexibility is reflected in the broad ranges of costs. EPA 
believes that because of the significant flexibility provided by the 
proposed rule, the low to middle ranges of costs are most 
representative of the actual costs likely to be incurred.
    Estimates of monetized benefits associated with today's proposed 
regulation were derived using an aggregate, ``top-down'' approach. 
Under this approach, the underlying data and assumptions were geared to 
a national scale (e.g., national value of the commercial fishery and 
nationwide beach visit data). EPA chose this approach because research 
indicated that, given the variability of local situations and the 
scarcity of data on both local conditions and on extrapolation methods, 
a bottom-up approach was not deemed to be feasible at this time. 
Nevertheless, information from more geographically confined studies 
provided important data that support such a monetized benefit analysis. 
In addition, local and regional experiences also verified some of the 
impacts and benefits that EPA had estimated at a national level.
    The basic methodology for the top-down approach was as follows. For 
each of the various categories of financial, recreational, and health 
benefits, EPA first estimated the total value if all surface waters of 
the United States were cleaned up to a level that supported their 
designated uses. Next, using information on the degree and causes of 
water quality impairment from EPA's 1994 and 1996 Section 305(b) 
National Water Quality Inventory Report to Congress, EPA estimated the 
portion of total impairment (and thus total benefits) attributable to 
storm water runoff. Although it varied by benefit category, generally 
between 5 and 10 percent of total water quality impairment was found to 
be attributable to either urban or construction storm water runoff. 
Finally, EPA determined the share of storm water benefits that should 
be attributed to the Phase II rule specifically.
    One consequence of the approach used to estimate monetized benefits 
is that, unlike the cost analysis, the benefits analysis only provides 
monetized estimates of the benefits associated with today's proposed 
regulatory alternative. To account for the fact that any storm water 
control may not be 100-percent effective, EPA estimated the 
effectiveness of the storm water BMPs proposed in today's rule and 
applied these estimates to the total monetized benefits of the 
proposal. Due to the uncertainty regarding effectiveness of different 
BMPs, as well as that regarding the appropriate share of storm water 
benefits to allocate to each of EPA's wet weather programs, EPA 
developed three scenarios to estimate proposal benefits. In Scenario 1 
(high benefits scenario), it was assumed that Phase II BMPs would be 90 
percent effective in controlling pollution from storm water runoff, 
that \5/7\ of health benefits should be allocated to storm water 
programs (Phases I and II) and \2/7\ should be allocated to EPA's 
sanitary sewer overflow (SSO) program, and that most municipal storm 
water benefits should be allocated 50 percent to Phase I and 50 percent 
to Phase II. The exceptions were benefits for avoided costs of building 
or replacing water storage capacity, 75 percent of which were to be 
allocated to Phase II, and benefits for avoided costs of freshwater 
navigational dredging, 25 percent of which were allocated to Phase II. 
In Scenario 2 (medium benefits scenario), it was assumed that Phase II 
BMPs would be 80 percent effective, that all

[[Page 1601]]

health benefits should be allocated to storm water programs, and again, 
that most municipal storm water benefits should be allocated evenly 
between Phases I and II, with the same two exceptions. In Scenario 3 
(low benefits scenario), it was assumed that Phase II BMPs would be 
only 60 percent effective, that all health benefits should be allocated 
to storm water programs, and that all municipal storm water benefits, 
including those for avoided costs of building or replacing water 
storage capacity and freshwater navigational dredging, should be 
allocated evenly between Phases I and II. In Scenario 1, all water 
storage replacement and navigational dredging costs were allocated to 
storm water programs (Phases I and II), while in Scenarios 2 and 3, 96 
percent of these benefits were allocated to storm water programs and 4 
percent to other wet weather programs. In all three scenarios, 40 
percent of storm water construction benefits were allocated to Phase 
II. The Economic Analysis document accompanying today's action provides 
a detailed description of the basis rationale for each of these 
scenarios.
    Exhibit 6 summarizes annual benefits attributed to the proposed 
Phase II rule.

       Exhibit 6.--Summary of Total Annual Monetized Benefits from      
             Implementation of the Proposed Storm Water Rule            
                       [Millions of 1997 Dollars]                       
------------------------------------------------------------------------
                                    Scenario 1   Scenario 2   Scenario 3
        Benefits category             annual       annual       annual  
                                      value        value        value   
------------------------------------------------------------------------
Municipal Benefits...............    $114-$379    $100-$333     $66-$222
Construction Benefits............       61-195       53-169       40-127
                                  --------------------------------------
    Total........................      175-574      153-502      106-349
------------------------------------------------------------------------

    EPA was able to develop a partial monetary estimate of expected 
benefits for today's storm water proposed rule for municipal and 
construction benefits. Summing the monetized benefits for each of the 
scenarios across these categories results in total benefits ranging 
from approximately $106 million to $574 million (1997 $) annually for 
the proposed rule.
    EPA is requesting comment on several aspects of its benefits 
estimation methodology. The largest single category of estimated 
benefits is avoided costs of building or replacing water storage 
capacity (reservoirs) lost to sediment deposition. EPA estimates that 
an average of 820,000 acre feet of storage capacity is lost to 
pollution sources each year. EPA further estimates that \1/3\ of this 
capacity will be replaced by building new reservoirs, at a cost of $420 
to $1500 per acre foot, and \2/3\ of this capacity will be restored by 
dredging, at a cost of roughly $3,500 to $11,000 per acre foot. This 
yields annual water storage replacement costs of $2 to $6 billion 
annually. EPA estimates that roughly 8 percent of these costs (or $170 
to $510 million) are attributable to storm water runoff. EPA allocated 
75 percent of the benefits from avoiding these costs in Scenarios 1 and 
2 to Phase II, because it believes that most reservoirs are likely to 
be outside of densely populated Phase I areas. In Scenario 3, these 
benefits are allocated evenly between Phases I and II. Concern has been 
expressed that these benefits estimates may be too high, especially 
given that the total amount actually spent on navigational dredging 
attributable to pollution sources annually is only $180 million (to 
remove 83 million cubic yards), compared to the $2 to $6 billion that 
EPA estimates would be required to replace the estimated 1.3 billion 
cubic yards of water storage capacity lost to pollution sources 
annually. On the other hand, the temporary nature and intermittent 
frequency of reservoir dredging and the frequent need to deploy and 
remove heavy equipment and dispose of spoil often in confined areas, 
may elevate costs on a per cubic yard basis for reservoirs versus 
navigational dredging. EPA has no data on the actual amount spent on 
water storage capacity replacement. EPA thus requests comment on its 
methodology for estimating these avoided costs, on its allocation of 
these avoided costs between Phases I and II, and any data that would 
allow it to refine these estimates for the final rule. EPA also 
requests comment on whether it would be appropriate to discount these 
benefits, and by how much, given that much of the actual replacement of 
lost storage capacity may not occur for several decades. EPA further 
notes that many other categories of benefits may also entail 
significant lags and requests comment on the appropriateness of 
discounting benefits to account for these lags generally.
    EPA is also requesting comment on its methodology for estimating 
marine recreational and commercial benefits for fishing and swimming. 
Specifically, the current estimates are based on the degree of 
estuarine impairment attributable to storm water, although EPA 
recognizes that a significant share of marine fishing and swimming 
occurs in open coastal waters rather than estuaries. EPA has assumed 
that full restoration of these resources would result in a 20 percent 
increase in their value, based roughly on the degree of estuarine 
impairment. A concern has been raised that the degree of impairment in 
open coastal waters may be significantly different than that of 
estuaries, and the value of full restoration of open coastal resources 
correspondingly changed. Concern has also been raised that the current 
estimates do not account for the substitutability of resources, but 
rather assume that the total amount of current marine fishing and 
swimming is limited by the availability of unimpaired estuarine and 
coastal areas. EPA requests comment on its methodology for estimating 
these benefits, and any data, especially on the degree of impairment of 
open coastal waters or the fraction of marine fishing and swimming that 
occurs in such waters, that would allow it to refine these estimates 
for the final rule.
    As a sensitivity analysis, EPA also performed an alternative 
benefits estimate using a different ``bottoms-up'' approach based on 
its Clean Water Act Effects Model. The modeling approach examined 
impacts of all wet weather events together: SSOs, CSOs (Combined Sewer 
Overflows) and storm water Phase I and II. This would provide an upper 
bound estimates for storm water control. (For this analysis, it was 
possible to break out CSOs as separate data exists for these events.)
    Changes in water quality relate to changes in how humans use the 
resource. This analysis estimated

[[Page 1602]]

changes to water quality based on assumptions about the level of 
control EPA would expect from the CWA's wet weather programs. Next, the 
Agency estimated the changes in human use and enjoyment of the 
resource. The Agency applied ``willingness-to-pay (WTP)'' values from 
Mitchell/Carson (1993) contingent valuation survey results, which 
estimates the amount of money people are willing to pay for water 
quality improvement. (Mitchell/Carson estimates include values for 
recreation use as well as nonuse values.)
    The model examined three different wet-weather programs under three 
loadings reduction scenarios based on differences in such factors as 
average annual rainfall in different hydrologic regions and changes in 
removals. For each of these scenarios EPA further estimated low, medium 
and high values to account for wide ranges in variability. The 
following discussion of results is based on medium values in these 
three scenarios.
    The results of this analysis show a range of monetized benefit of 
$1 to $7 billion for all urban wet weather programs. The results of the 
modeling did not split out storm water impacts from SSO impacts. 
Applying the percentages used in the top down approach (\5/7\ storm 
water, \2/7\ SSO), EPA derived an estimate for storm water Phase II. 
Using the medium results, averaged between the low and the high 
estimates, benefit estimates for the proposed rule fall within a range 
of $526 million to $3.56 billion. The wide range of these estimates is 
due to the very flexible nature of the proposal, which would provide 
communities with a wide range of options to consider for control of 
storm water.
    There are additional benefits to storm water control that cannot be 
quantified or monetized. The estimate of monetized benefits presented 
here may thus understate the true value of storm water controls because 
it may omit additional numerous mechanisms by which society is likely 
to benefit from reduced storm water pollution, such as improved 
aesthetic quality of waters, benefits to wildlife and to threatened and 
endangered species, option existence values, cultural values, and 
biodiversity benefits. The estimates of freshwater recreational 
benefits included in the monetized benefits analysis are based on the 
Mitchell/Carson ``willingness-to-pay'' study. Mitchell/Carson estimates 
the value people are willing to pay to restore all of the nation's 
waters to fishable/swimmable quality, and thus presumably already 
includes associated ``non-use'' values. However, EPA believes there are 
non-use values that are not captured in the Mitchell/Carson estimates 
and thus not included in the monetized benefits estimates.
    These environmental and health benefits are also important. Another 
benefit that EPA did not specifically monetize is the benefits of flood 
control to the extent that Phase II storm water controls reduce 
downstream flooding. In addition, the Agency relied on a 
geographically-limited data set (Santa Monica Bay, California) to 
measure the benefits of illness avoided due to storm water controls.
    A significant category of benefits that the Agency could not 
specifically monetize is ecological benefits. Urbanization can 
adversely affect water quality by increasing the amount of sediment, 
nutrients, metals and other pollutants associated with land disturbance 
and development. Not only is there a dramatic increase in the volume of 
water runoff but there may also be a substantial decrease in that 
water's quality due to stream scour, runoff and dispersion of toxic 
pollutants, and oversiltation. The higher flow volumes in the tributary 
streams and channels create a ``domino'' effect of ecological impacts. 
Erosion of stream banks and incision of the stream floor result in 
sediment movement and eventually buildup in downstream environments. 
Sediment covers the stream bed, smothers fish eggs and spawning 
grounds, interferes with hatching, and can clog the gills and filter 
systems of fish and aquatic invertebrates. This latter effect can 
result in retarded growth, systemic disfunction, or asphyxiation. 
Subsequent loss of aquatic life has a ripple effect up the food chain.
    High nutrient levels often lead to eutrophication of the aquatic 
system. This entails the blue/green surface algae bloom, water 
discoloration, and depressed levels of dissolved oxygen. Heavy metals 
can have toxic effects on aquatic life. Heavy metals in the water 
column and sediments have been connected with respiratory problems in 
fish and often destroy or infect the insect populations which serve as 
the primary food source for many fish species. High bacteria levels 
from animal excrement and carcasses, septic runoff or illegal dumping 
by motor homes and others affect critical estuarine habitats which are 
the nation's most productive finfish, oyster, clam and shrimp 
fisheries. EPA requests comment on the extent to which additional 
consideration of these ecological benefits is needed and appropriate 
methodologies for quantifying and monetizing them.
    Exhibit 7 compares the estimated national annual monetized total 
benefits associated with the proposed storm water regulations with the 
monetized costs associated with the proposed regulation. Because EPA is 
uncertain of the exact monetized benefit, the benefits for each 
scenario have been compared to costs. The net total benefits (social 
benefits less social costs) for the three benefits scenarios range from 
positive $34 million in Scenario 1 to negative $531 million in Scenario 
3.

 Exhibit 7.--Comparison of Total Annual Monetized Benefits to Total Annual Costs for the Proposed Phase II Storm
                                                   Water Rule                                                   
                                           [Millions of 1997 Dollars]                                           
----------------------------------------------------------------------------------------------------------------
                 Benefit categories                    Scenario 1 value    Scenario 2 value    Scenario 3 value 
----------------------------------------------------------------------------------------------------------------
Financial Benefits..................................            $93-$267            $80-$228            $51-$144
Recreational Benefits...............................            $81-$304            $72-$271            $54-$203
Health Benefits.....................................               $1-$3               $1-$3               $1-$2
                                                               $175-$574           $153-$502           $106-$349
                   Cost categories                           Value            (Low-High)                        
Compliance Costs....................................  ..................           $138-$869  ..................
Administration Costs................................  ..................              $3-$11  ..................
                                                     -----------------------------------------------------------
    Total Monetized Costs...........................  ..................           $141-$880  ..................
                                                     ===========================================================
    Net Monetized Benefits..........................          $34-$(306)          $12-$(378)          $35-$(531)
----------------------------------------------------------------------------------------------------------------


[[Page 1603]]

    The proposed storm water rule includes a provision that would allow 
owners or operators of facilities with existing discharges associated 
with industrial activity to certify that if significant materials or 
industrial activities are not exposed to storm water the owners or 
operators could apply for an exemption from the requirements of the 
NPDES permitting program. This provision is included in today's 
proposed storm water rule but would only apply to sources regulated 
under existing rules. Therefore, EPA has decided not to factor the 
costs savings associated with this exemption into the costs analysis 
for today's proposed rule. Rather, the cost savings associated with 
this exemption is addressed separately in the Economic Analysis.

V. Unfunded Mandates Reform Act/Executive Order 12875

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, Tribal, and local 
governments and the private sector. Under UMRA section 202, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, Tribal, and local governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, UMRA section 205 generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
UMRA section 203 a small government agency plan. The plan must provide 
for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this proposed rule contains a Federal 
mandate that may result in expenditures of $100 million or more for 
State, Tribal, and local governments, in the aggregate, or the private 
sector in any 1 year. Accordingly, under UMRA section 202, EPA has 
prepared a written statement, which is summarized below.

A. UMRA Section 202 Written Statement

    EPA proposes today's storm water regulation pursuant to the 
specific mandate of Clean Water Act Sec. 402(p)(6), as well as sections 
301, 308, 402, and 501. (33 U.S.C. Secs. 1342(p)(6), 1311, 1318, 1342, 
1361.) Section 402(p)(6) of the CWA requires that EPA designate sources 
to be regulated to protect water quality and establish a comprehensive 
program to regulate those sources. In a separate document in the 
administrative record, EPA describes the qualitative and monetized 
benefits associated with the proposed storm water rule and then 
compares the monetized benefits with the estimated costs for the 
proposed rule. The Agency also developed a partial monetary estimate of 
expected benefits for the proposed rule for financial benefits, 
recreational benefits, and health benefits. Summing the monetized 
benefits, for each of the scenarios, across these categories results in 
total benefits ranging from approximately $106 million to $574 million 
(1997 $) annually for the proposed rule. Because EPA is uncertain of 
the exact monetized benefit, three benefit scenarios were created and 
compared to costs for the proposed regulation.
    In that document, EPA reviewed the potential for this proposed rule 
to have a significant effect on the economy or upon unemployment and 
determined that the unemployment impacts will be minimal, if any at 
all.
    First, the proposed rule does not address industries involved in 
production, but rather small municipal separate storm sewer systems and 
construction sites under 5 acres. Second, flexibility within the 
proposed rule would allow municipalities to tailor proposed individual 
municipal storm water program requirements to their needs and financial 
position. Finally, discussions with representatives within the 
construction industry indicate that construction costs would likely be 
passed on to consumers. EPA believes that these same reasons would 
result in the proposed rule having minimal or no unemployment impacts. 
EPA also assessed the social costs of the proposed regulation and 
estimates the total social costs of the proposed rule to range from 
approximately $141 million to $878 million annually (1997 $). The 
proposed rule would not have the potential to increase costs for 
industrial manufacturers and producers because the proposed rule does 
address storm water discharges from other types of industrial 
facilities.

B. Description of Intergovernmental Consultation

    Consistent with the intergovernmental consultation provisions of 
section 204 of the UMRA and Executive Order 12875, Enhancing the 
Intergovernmental Partnership, EPA consulted with elected 
representatives of various levels of government in a variety of ways. 
First, EPA provided States, local, and tribal governments and the 
private sector with the opportunity to comment on alternative 
approaches to the proposed regulations through publishing a notice 
requesting information and public comment on the approach for the CWA 
section 402(p)(6) regulations in the Federal Register on September 9, 
1992 (57 FR 41344). This notice presented a full range of regulatory 
alternatives under each issue in an attempt to illustrate, and obtain 
input on, the regulation of unregulated sources to protect water 
quality. Approximately 43 percent of the more than 130 comments 
received came from municipalities and 24 percent from State or Federal 
agencies. These comments provided the genesis for many of the 
provisions in the proposed storm water rule, including reliance on the 
NPDES program framework (including general permits), providing State 
and local governments flexibility in selecting additional sources 
requiring regulation on a localized basis, focusing on high priority 
polluters and providing certain exemptions for facilities that do not 
pollute, focusing on pollution prevention and best management 
practices, and incorporating watershed-based concerns in targeting.
    Second, in early 1993, EPA, in conjunction with the Rensselaerville 
Institute held public and expert meetings to assist in developing and 
analyzing options for identifying unregulated storm water sources and 
possible controls. These meetings again allowed participants an 
opportunity to provide input into the CWA section 402(p)(6) program 
development process. The proposed rule reflects several of the key 
concerns identified in these groups, including provisions that provide 
flexibility to the States and to other

[[Page 1604]]

permitting authorities to select sources to be controlled in a manner 
consistent with criteria developed by EPA.
    Finally, EPA established the Urban Wet Weather Flows Advisory 
Committee (FACA), including a Storm Water Phase II Subcommittee. 
Consistent with the Federal Advisory Committee Act, the membership of 
the Storm Water Phase II Subcommittee was balanced among EPA's various 
outside stakeholder interests, including representatives from State 
governments, municipal governments (both elected officials and 
appointed officials) and tribal governments, as well as industrial and 
commercial sectors, agriculture, environmental and public interest 
groups. The Storm Water Phase II Subcommittee met approximately every 
other month between September 1995 and June 1997. In addition to 
meetings, conference calls, and correspondence, Subcommittee members 
were provided three opportunities to comment in writing on preliminary 
draft approaches and actual drafts of the proposed rule and preamble. 
Ultimately, the 32 Subcommittee members recommended many of the 
portions making up the regulatory framework in the proposed rule.

C. Selection of the Least Costly, Most Cost-Effective or Least 
Burdensome Alternative That Achieves the Objectives of the Statute

    The proposed regulation is based on a ``flexible'' NPDES program 
alternative. This alternative evolved over time and incorporates 
aspects of each of the other alternatives in order to respond to 
concerns presented by the various interests represented in the Storm 
Water Phase II Subcommittee. A primary characteristic of the proposed 
rule is the flexibility it offers both the permitting authority and the 
sources proposed for regulation (small MS4s and small construction 
sites), such as general permits, best management practices suited to 
specific locations, and allowing MS4s to develop their own program 
goals. EPA developed detailed cost estimates for the incremental 
requirements imposed under the proposed regulation, and for each of the 
alternatives, and applied these estimates to the potentially regulated 
universe of remaining unregulated point sources of storm water. The 
Agency compared the estimated annual range of costs imposed under the 
proposed regulation and other major options considered. The range of 
values for each option included the costs for compliance including 
paperwork requirements for the owners and operators of small 
construction sites, industrial facilities, and MS4s and administrative 
costs for State and Federal NPDES permitting authorities.
    Because the proposed rule provides a significant degree of 
flexibility to the permitting authority and sources proposed for 
regulation, the actual costs of implementing the proposed storm water 
rule are highly dependent on how the program is implemented by the 
permitting authority and the sources proposed for regulations. To some 
extent, this flexibility is reflected in the broad ranges of costs. EPA 
believes that because of the significant flexibility provided by the 
proposed rule, the low to middle ranges of costs are most 
representative of the actual costs likely to be incurred. In the 
administrative record supporting today's proposal, EPA estimated ranges 
of costs associated with six different options for today's proposal. 
For each option, EPA estimate a cost range. From the highest of the 
high estimates to the lowest of the low, the cost range varied between 
no cost and $79 billion dollars. The least costly, most cost-effective 
or least burdensome option is the ``no regulation'' option. This 
option, however, would not achieve the objectives of CWA section 
402(p)(6) because remaining unregulated point sources of storm water 
need to be regulated to protect water quality. The remaining option 
that is both the least costly, most cost-effective or least burdensome 
and accomplishes the objectives of the rule is the proposed rule in its 
current form. Today's proposal represents the lowest cost range option 
(between $106 million to $574 million dollars).
    Although Congress did not establish a fund to fully finance 
implementation of the proposed extension of the existing NPDES storm 
water program under section 402(p)(6), numerous Federal financing 
programs (administered by EPA and other Federal agencies) could provide 
some financial assistance. These programs include CWA section 106 grant 
program CWA section 104(b)(3) grant program, State surface and ground 
water management programs under the Safe Drinking Water Act, the 
environmental quality incentives program, the conservation reserve 
program, the wetlands reserve program, and the estuary management and 
Federal monitoring programs. Also, the Natural Resources Conservation 
Service (NRCS) has some grants available to assist in projects related 
to erosion and sediment controls.

D. Small Government Agency Plan

    In developing the proposed rule, EPA consulted with small 
governments pursuant to its interim plan established under UMRA section 
203 to address impacts of regulatory requirements in the rule that 
might significantly or uniquely affect small governments. Though 
today's proposal would expand the NPDES program (with modifications) to 
certain municipal separate storm sewer systems serving populations 
below 100,000 people and though many systems are owned by small 
governments, EPA does not think the proposed rule might significantly 
or uniquely affect small governments. As explained in the Regulatory 
Flexibility Act section of the preamble, EPA today certifies that the 
proposed rule will not have a significant impact on small governmental 
jurisdictions. In addition, the proposed requirements would not have a 
unique impact on small governments because larger governments would 
also be affected. Notwithstanding this finding, the Agency sought to 
provide elected officials of small governments (and their 
representatives) with an opportunity for early and meaningful 
participation through FACA process. In addition, EPA is committed to 
providing guidance for the operators of the municipal separate storm 
sewer systems (which would likely include small governments) developed 
in conjunction with the Storm Water Phase II FACA Subcommittee.
    As mentioned previously, 43 percent of the comments received on the 
September 9, 1992, notice were from municipal governments. In addition, 
the following groups participated as members of the Storm Water Phase 
II FACA Subcommittee: the Conference of Mayors, the National League of 
Cities, the National Association of Towns and Townships, the National 
Association of Counties, the CSO Partnership, the Water Environment 
Federation, and the Association of Metropolitan Sewerage Agencies. 
Through such participation and exchange, EPA notified potentially 
affected small governments of requirements under consideration, allowed 
officials of affected small governments to have meaningful and timely 
input into the development of regulatory proposals, and will inform, 
educate, and advise small governments on compliance with the regulatory 
requirements. The Agency is also undertaking efforts to develop a 
``tool box'' of aids (e.g., fact sheets, guidance, information 
clearinghouse, training, education, research, and pilot programs) to be 
made available to regulated entities and permitting authorities to 
facilitate implementation of today's proposed regulation.

[[Page 1605]]

VI. Executive Order 12898

    Executive Order 12898 established a Federal policy for 
incorporating environmental justice into Federal agency missions by 
directing agencies to identify and address in their programs, policies, 
and activities, as appropriate, the disproportionately high and adverse 
human health or environmental effects on minority and low-income 
populations. EPA ensured proper consideration of environmental justice 
concerns during the section 402(p)(6) rulemaking by selecting a 
balanced FACA membership and specifically inviting a representative of 
the Environmental Justice Information Center to participate on the 
Storm Water Phase II FACA Subcommittee. EPA examined the potential 
impact of today's proposed storm water rule on minority and low-income 
populations and worked to develop a proposed rule that would address 
environmental justice concerns. Discussions with the Storm Water Phase 
II FACA Subcommittee contributed to these efforts.
    Three aspects of today's proposed storm water regulation would 
support environmental justice objectives. First, the proposed rule 
would result in improvements in water quality in the areas around small 
municipalities and certain industries that impact water quality. These 
improvements would benefit all persons living in or using these areas, 
including minority populations and low-income populations. Second, the 
proposed rule would provide a high degree of flexibility to the NPDES 
permitting authority to address high priority contaminated storm water 
discharges based on community input and public participation. This 
ability to focus program requirements on priority needs or areas should 
serve as an additional tool to address environmental justice concerns. 
Third, the proposed rule specifies that public education and outreach 
programs required of small municipal separate storm sewer systems 
should be tailored to address the concerns of all communities, 
particularly minority and disadvantaged communities, as well as 
children. The proposed rule also specifies that compliance with 
required public involvement and participation requirements should 
include efforts to engage all economic and ethnic groups.
    In addition, partly in consideration of the executive order, EPA 
proposes to exempt Tribes in urbanized areas with populations of less 
than 1,000 from the requirements of today's proposed rule.

VII. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA), whenever EPA is required to publish notice of general 
rulemaking, EPA must prepare an initial regulatory flexibility analysis 
(IRFA) describing the economic impact of the proposal on small 
entities, unless the Administrator certifies that a proposed rule will 
not have a ``significant economic impact on a substantial number of 
small entities.'' After consideration of the economic impacts of 
today's proposed rule on small entities, the Administrator certifies 
that the proposed rule will not have a significant economic impact on a 
substantial number of small entities. Notwithstanding today's 
certification, EPA has prepared an IRFA. In addition, prior to 
determining that today's proposal should be certified, EPA convened a 
Small Business Advocacy Review Panel under the RFA, as amended by the 
Small Business Regulatory Fairness Act (SBREFA), to evaluate and 
minimize the potential impacts of the proposed rule on small entities.

A. Economic Impact on Small Entities

    EPA assessed the potential economic impact of today's proposed 
storm water regulation on small entities. As the first step in its 
evaluation, EPA identified those small entities potentially affected by 
the proposal. In identifying these small entities, EPA used the 
definitions of small businesses, small governmental jurisdictions 
(e.g., municipalities), and small organizations (e.g., nonprofit 
organizations) established by the RFA. Based on data from the 1990 U.S. 
Census, EPA estimated that a total of 3,614 small governmental 
jurisdictions (specifically, municipalities) would be affected by the 
proposed rule. In addition, 11 Indian Tribes, as small governmental 
jurisdictions who own/operate municipal separate storm sewer systems, 
would also be affected. Next, EPA estimated that 187,610 construction 
firms in Standard Industrial Classification (SIC) Code 15 would be 
subject to the proposal, if adopted. EPA recognizes, however, that this 
number may over-estimate the number of small businesses subject to the 
proposal. The data do not permit the Agency to distinguish between 
small construction firms whose activities include land clearing and 
site preparation--the proposal's requirements would apply to such 
operations--and those small construction firms that do not prepare 
sites. Finally, the proposed rule would not apply to any small not-for-
profit organizations.
    In the next step of the Agency's evaluation, EPA analyzed the 
potential economic impact of the proposed rule on the small entities it 
had identified as likely to be subject to the proposed rule. In the 
case of those small municipalities that would be affected if the 
proposal is adopted, EPA evaluated the potential impact using a 
``revenue test.'' Under this test, EPA looked at the total annual cost 
of complying with the proposed requirements in relation to total annual 
municipal revenues. EPA calculated total annual compliance cost based 
on mean costs ($2.67 per capita and $555 per municipality) and the 
population reported in the 1990 Census. EPA estimated annual revenues 
based on data from the 1992 Census of Governments, using state-specific 
estimates of annual revenue per capita for municipalities in three 
population size categories (fewer than 10,000, 10,000-25,000, and 
25,000-50,000).
    Based on this evaluation, the Administrator certifies that today's 
proposed storm water rule will not have a significant economic impact 
on a substantial number of small municipalities. Estimated compliance 
costs represent more than 1 percent of estimated revenues for only 62 
municipalities of the affected small municipalities--approximately 1.7 
percent of small municipalities--and less than 3 percent of estimated 
revenues for all but 4 municipalities--approximately 0.1 percent of 
affected small municipalities. In both absolute and relative terms, the 
impact is not significant.
    EPA also assessed the potential impact of the rule on Indian Tribes 
using the same revenue test applied to municipalities. However, revenue 
per capita for tribal governments was not available. Therefore, EPA 
used the State-specific municipal per capita revenue estimates by size 
category and adjusted these estimates downward based on the ratio of 
per capita income on the reservation to per capita income for the 
State. EPA then multiplied the adjusted estimates of per capita revenue 
by the reservation population and conducted the screening analysis in 
the same manner as for municipalities (assuming annual compliance costs 
of $2.67 per capita and $555 per reservation). EPA assumed that all 
Tribes with populations between 1,000 and 100,000 would have to comply 
with the rule and Tribes in Oklahoma would

[[Page 1606]]

not be regulated.\5\ Estimated compliance costs represent more than 1 
percent of total estimated revenues for only 2 Indian Tribes. The 
remaining 9 Indian Tribes have compliance costs less than 1 percent of 
estimated revenues. The Administrator therefore certifies that this 
rule will not have a significant economic impact on a substantial 
number of small governmental jurisdictions regardless of whether the 
municipal and tribal impacts are analyzed separately or combined.
---------------------------------------------------------------------------

    \5\ The determination of applicability to Oklahoma Tribes would 
be done on a case-by-case basis. In authorization of the Oklahoma 
NPDES program, EPA retained jurisdiction to regulate discharges in 
Indian Country (61 FR 65049, 12/10/96). However, EPA believes it is 
unlikely that large populations of Oklahoma Tribes would fall within 
areas that would be determined to be a Federal Indian Reservation, 
and thus, subject to regulation (see preamble).
---------------------------------------------------------------------------

    For small businesses, in most instances, EPA evaluates the 
potential impact by using a ``sales test.'' Under a sales test, EPA 
compares the cost of complying with proposed requirements to a small 
business' total annual sales. In developing the inputs to this test, 
EPA calculated the compliance costs based on ``unit costs'' (i.e., 
compliance costs per single-family home) rather than costs per 
developer/contractor because of the uncertainties associated with 
estimating how many units an ``average'' developer/contractor might 
develop or build in a typical year. Therefore, EPA's analysis was not 
exactly a ``sales test,'' but was developed to derive the kind of 
results that are comparable to results from a sales test. EPA 
approximated the sales test by estimating compliance costs for single-
family homes under various scenarios and comparing those costs with the 
median sales price of a single-family home. The results of this 
approximation show that the cost of complying with the proposed rule 
will not exceed 1 percent of the average sales price of a single family 
home for an array of the most likely economic and regulatory scenarios. 
EPA reached this conclusion after controlling for sites of different 
size and the changes in compliance costs per site (i.e., single family 
home) that depend upon the need to implement erosion and sediment 
controls as a result of the proposed rule.
    Because of the absence of data to specifically assess compliance 
costs per developer/contractor as a percentage of total annual sales 
(i.e., a very direct estimate of the impact on potentially affected 
small businesses), EPA performed additional market analysis to examine 
the ability of potentially affected firms to pass along regulatory 
costs to buyers for single-family homes constructed using the storm 
water control program proposed today. Obviously, if the small 
construction companies that would be subject to the proposal are able 
to pass the costs of compliance, either completely or partially, on to 
their purchasers, then the proposed rule's impact is significantly 
reduced. EPA conducted this supplemental analysis using available data 
and published economic literature. The analysis evaluated the potential 
effects of complying with this proposed rule on the market for single-
family houses for both the short and long term including potential 
changes in the price and sales of single-family homes. The Agency 
assessed the effect on average monthly mortgage rates for a range of 
potential interest rates. EPA has concluded that the costs to site 
developers and building contractors, and the potential changes in 
housing prices and monthly mortgage payments for single-family home 
buyers, are not expected to have a significant impact on the market for 
single-family houses including most potentially affected small firms 
that are actively participating in this market. EPA's analysis projects 
the impact of the rule on small site developers and building 
contractors will be minimal because these companies are expected to 
pass regulatory costs on to home buyers without a significant impact on 
sales. Based on this assessment, the Administrator also certifies that 
the proposal will not have a significant economic impact on a 
substantial number of small businesses.

B. SBREFA Panel Process

    As previously explained earlier in the preamble, EPA has conducted 
an extensive outreach effort in developing today's storm water 
proposal. EPA held a number of public and expert meetings to assist in 
preparing the proposal, and the Agency established a FACA Committee 
specifically to provide a forum for addressing storm water issues.
    EPA also convened a Small Business Advocacy Review Panel 
(``Panel''), as described in RFA section 609, in June 1997. Because 
EPA's economic assessment was incomplete, the Agency was not initially 
certain whether the proposed rule would have a significant economic 
impact on a substantial number of small entities. A number of small 
entity representatives were actively involved with EPA through the FACA 
process, and were, therefore, broadly knowledgeable about the proposal 
under development. Prior to convening the Panel, EPA consulted with the 
Small Business Administration to identify a group of small entity 
representatives to advise the Panel. The Agency distributed a briefing 
package describing its preliminary analysis under the RFA to this group 
(as well as to representatives from the Office of Management and Budget 
and the Small Business Administration) and also conducted two telephone 
conference calls and an all-day meeting at EPA Headquarters in May of 
1997. With this preliminary work complete, in June 1997, EPA formally 
convened the interagency Panel, comprising representatives from the 
Office of Management and Budget, the Small Business Administration, 
EPA's Office of Water and EPA's Small Business Advocacy Chair. The 
Panel received written comments from representatives based on their 
involvement in the earlier meetings, and invited additional comments to 
be submitted during the term of the Panel itself.
    Consistent with RFA requirements, the Panel evaluated the assembled 
materials and small-entity comments on issues related to: (1) a 
description and number of small entities to which the proposed rule 
would apply; (2) a description of the projected record keeping, 
reporting and other compliance requirements applicable to small 
entities; (3) identification of other Federal rules that may duplicate, 
overlap, or conflict with the proposed rule; and (4) regulatory 
alternatives that would minimize any significant economic impact of the 
proposed rule on small entities that would also accomplish the stated 
objectives of the CWA section 402(p)(6).
    On August 7, 1997, the Panel provided a Final Report (hereinafter, 
``Report'') to the EPA Administrator. The Report noted that, because of 
the extensive outreach conducted by the Agency, and due to the Agency's 
responsiveness in addressing stakeholder concerns, small entity 
representatives raised fewer concerns than might otherwise have been 
expected. A copy of the Report is included in the docket for this 
proposed rule. Notwithstanding today's certification that the proposed 
rule will not have a significant economic impact on a substantial 
number of small entities, the Agency has incorporated many of the 
Panel's recommendations into today's proposal.
    The Panel acknowledged and commended EPA's efforts prior to its 
Report to work with stakeholders, including small entities, through the 
Storm Water Phase II FACA Subcommittee. As discussed in the Background 
section of this preamble (Section I.F. The FACA Committee

[[Page 1607]]

Effort) the subcommittee provided extensive input in the development of 
today's proposal. The Agency also provided FACA members with copies of 
the Economic Analysis of the proposal, which includes the initial 
regulatory flexibility analysis. EPA has sought to build upon the 
recommendations made by members of the federal advisory committee and 
has responded to numerous issues raised by them concerning the scope, 
method, and timing of the program outlined in today's proposal. The 
SBREFA Panel stated that, because of the extensive outreach conducted 
by the Agency and the Agency's responsiveness in addressing stakeholder 
concerns, commenters during the SBREFA process raised fewer concerns 
than might otherwise have been expected. Based on the advice and 
recommendations of the Storm Water Phase II FACA Subcommittee, as well 
as the Panel Report, the proposal includes a number of provisions 
designed to minimize any significant impact of the proposed rule on 
small entities as explained below and in Appendix 5 of today's notice.
    Municipal representatives commented to the Panel that small 
municipal separate storm sewers systems in urbanized areas serving less 
than 1,000 people might lack the capacity to certify that their 
discharges do not have significant adverse water quality impacts. EPA 
responded that the technical basis for such certification would 
generally be produced by the permitting authority, in the form of a 
TMDL or watershed plan. The Panel was concerned, however, that in the 
absence of a TMDL or watershed plan developed by other parties (i.e., 
States or EPA), municipalities under 1,000 would have difficulty taking 
advantage of this waiver provision. The Panel recommended that EPA 
invite comment on this issue, and EPA has done so (Section II.G.3, 
NPDES Permitting Authority's Role--Provide Waivers).
    Municipal representatives also suggested to the Panel that small 
municipal separate storm sewer systems serving less than 1,000 people 
in urbanized areas should be automatically exempt, just as EPA is 
proposing to exempt systems operated by Tribes of less than 1,000. As 
further explained in Section F., Tribal Role, EPA believes that the 
situations of very small Tribes are not comparable to those of small 
municipalities because Tribes cannot generally rely on administrative 
support from a State permitting authority in the way municipalities 
can. Based on the positions taken by OMB and SBA in the Report, 
however, EPA has agreed to request comment on this issue as well.
    Other small business representatives also questioned the Panel 
about the proposed comprehensive program to regulate construction 
activities that result in the land disturbance of 1 acre up to 5 acres. 
The Panel recommended that EPA revise the preamble to the proposed rule 
to invite comment on alternatives to the proposed requirements, 
including a discussion of the concerns expressed by small entity 
representatives and their specific suggestions for addressing them. The 
Agency has included the suggested alternatives in its discussion of 
construction requirements in this preamble, in Section II. I. Other 
Designated Storm Water Discharges.
    Both municipal and industrial representatives commented to the 
Panel that, to avoid redundance, requirements for construction 
activities undertaken by municipalities or industrial facilities should 
be incorporated within their respective permits (provided that the 
permits detail sediment and erosion controls). Similarly, municipal 
representatives commented that requirements for industrial facilities 
operated by municipalities should be covered under municipal storm 
water permits. The Panel recommended that EPA explore and request 
comment on these ideas in the preamble of the proposed rule. The Panel 
reported that these options may be appropriate for municipalities or 
industrial facilities with individually-issued NPDES permits, but may 
be difficult to administer under NPDES general permits. The Agency has 
discussed and solicited comment on the first two of these options--
condensing construction requirements into a single municipal or 
industrial storm water permit--as part of the preamble discussion of 
construction requirements, in Section II.I. Other Designated Storm 
Water Discharges. The Agency has discussed and solicited comment on the 
third of these options--condensing industrial storm water requirements 
for municipally owned or operated industrial facilities into a single 
municipal storm water permit--in the preamble as part of the discussion 
of industrial requirements, in Section II.I.3. Other Sources.
    The Panel also received comments on a preliminary draft of the 
revisions to the existing storm water rules providing relief to parties 
certifying ``no exposure'' to rainfall events that could produce storm 
water runoff. Commenters indicated that, as drafted, the provision 
would preclude such certification (and thus deny appropriate exemption 
from permitting requirements) to certain deserving facilities. Such 
facilities include those that undergo a ``temporary operational 
change'' or that maintain vehicles outdoors without generating 
pollution. The Panel recommended that the Agency discuss these comments 
with the Urban Wet Weather Flows FACA Committee and revise the proposal 
as far as possible to allow all facilities preventing the actual 
discharge of pollutants to make use of the ``no exposure'' EPA complied 
with that recommendation as well.
    In addition to looking for ways to redesign today's proposal to 
limit its impacts on small entities, the Agency has been working with 
the Storm Water Phase II Subcommittee to develop considerable support 
for implementation through the ``tool box'' approach discussed in the 
Section II.A.5. of this preamble. The tool box would include fact 
sheets, guidances, an information clearinghouse, training and outreach 
efforts, technical research, and support for demonstration projects.
    EPA's outreach to small entities covered by this proposal and its 
accommodation of their legitimate needs have been aggressive and highly 
responsive. The Agency actively invites comments on all aspects of the 
proposal and its impacts on small entities so that the final rule will 
reflect the most auspicious balance between necessary environmental 
protection and appropriate respect for the genuine limitations of small 
entities in understanding and complying with applicable requirements.

VIII. National Technology Transfer and Advancement Act

    Under Sec. 12(d) of the National Technology Transfer and 
Advancement Act, the Agency is required to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. ``Voluntary 
consensus standards'' are ``technical standards'' (e.g., materials 
specifications, test methods, sampling procedures, business practices, 
management systems practices, etc.) that are developed or adopted by 
voluntary consensus standard bodies. Where available and potentially 
applicable voluntary consensus standards are not used by EPA, the Act 
requires the Agency to provide Congress, through the Office of 
Management and Budget, an explanation of the reasons for not using such 
standards.
    Today's proposed rule would not even prescribe nationally 
applicable substantive control standards, either for construction site 
storm water or municipal storm sewers. Such control standards would be 
developed on a

[[Page 1608]]

State or local basis. Thus, as a threshold matter, the concept of 
``technical standards'' would not apply to the regulatory activities 
proposed today.
    EPA requests comment on these findings. If a commenter believes 
that today's rule relies on technical standards, the Agency also 
solicits information about the identification and possible use of any 
potentially applicable voluntary consensus standards for the final 
rule.

List of Subjects in 40 CFR Parts 122 and 123

    Environmental protection, Administrative procedure, Water pollution 
control.

    Dated: December 15, 1997.
Carol M. Browner,
Administrator.

Appendices to the Preamble

  Appendix 1 to Preamble--Federally-Recognized American Indian Areas Located in Bureau of the Census Urbanized  
                                                      Areas                                                     
                                           [Based on 1990 Census data]                                          
----------------------------------------------------------------------------------------------------------------
       State                     American Indian area                              Urbanized area               
----------------------------------------------------------------------------------------------------------------
AZ................  Pascua Yacqui Reservation (pt.), Pascua        Tuscon, AZ (Phase I).                        
                     Yacqui Tribe of Arizona.                                                                   
AZ................  Salt River Reservation (pt.), Salt River Pima- Phoenix, AZ (Phase I).                       
                     Maricopa Indian Community of the Salt River                                                
                     Reservation, California.                                                                   
AZ................  San Xavier Reservation (pt.), Tohono O'odham   Tucson, AZ (Phase I).                        
                     Nation of Arizona (formerly known as the                                                   
                     Papago Tribe of the Sells, Gila Bend & San                                                 
                     Xavier Reservation).                                                                       
CA................  Augustine Reservation, Augustine Band of       Indio-Coachella, CA (Phase I).               
                     Cahuilla Mission of Indians of the Augustine                                               
                     Reservation, CA.                                                                           
CA................  Cabazon Reservation, Cabazon Band of Cahuilla  Indio-Coachella, CA (Phase I).               
                     Mission Indians of the Cabazon Reservation,                                                
                     CA.                                                                                        
CA................  Fort Yuma (Quechan) (pt.), Quechan Tribe of    Yuma, AZ-CA.                                 
                     the Fort Yuma Indian Reservation, California                                               
                     and Arizona.                                                                               
CA................  Redding Rancheria, Redding Rancheria of        Redding, CA.                                 
                     California.                                                                                
FL................  Hollywood Reservation, Seminole Tribe........  Fort Lauderdale, FL (Phase I).               
FL................  Seminole Trust Lands, Seminole Tribe of        Fort Lauderdale, FL (Phase I).               
                     Florida, Dania, Big Cypress and Brighton                                                   
                     Reservations.                                                                              
ID................  Fort Hall Reservation and Trust Lands,         Pocatello, ID.                               
                     Shosone-Bannock Tribes of the Fort Hall                                                    
                     Reservation of Idaho.                                                                      
ME................  Penobscot Reservation and Trust Lands (pt.),   Bangor, ME.                                  
                     Penobscot Tribe of Maine.                                                                  
MN................  Shakopee Community, Shakopee Mdewakanton       Minneapolis-St. Paul, MN (Phase I).          
                     Sioux Community of Minnesota (Prior Lake).                                                 
NM................  Sandia Pueblo (pt.), Pueblo of Sandia, New     Albuquerque, NM (Phase I).                   
                     Mexico.                                                                                    
NV................  Las Vegas Colony, Las Vegas Tribe of Paiute    Las Vegas, NV (Phase I).                     
                     Indians of the Las Vegas Indian Colony,                                                    
                     Nevada.                                                                                    
NV................  Reno-Sparks Colony, Reno-Sparks Indian         Reno, NV (Phase I).                          
                     Colony, Nevada.                                                                            
OK................  Osage Reservation (pt.), Osage Nation of       Tulsa, OK (Phase I).                         
                     Oklahoma.                                                                                  
OK................  Absentee Shawnee-CitizensBand of Potawatomi    Oklahoma City, OK (Phase I).                 
                     TJSA (pt.), Absentee-Shawnee Tribe of                                                      
                     Indians of Oklahoma, Citizen Potawatomi                                                    
                     Nation, Oklahoma.                                                                          
OK................  Cherokee TJSA 9 (pt.), Cherokee Nation of      Ft. Smith, AR-OK; Tulsa, OK (Phase I).       
                     Oklahoma, United Keetoowah Band of Cherokee                                                
                     Indians of Oklahoma.                                                                       
OK................  Cheyenne-Arapaho TJSA (pt.), Cheyenne-Arapaho  Oklahoma City, OK (Phase I).                 
                     Tribes of Oklahoma.                                                                        
OK................  Choctaw TJSA (pt.), Choctaw Nation of          Ft. Smith, AR-OK (Phase I).                  
                     Oklahoma.                                                                                  
OK................  Creek TJSA (pt.), Alabama-Quassarte Tribal     Tulsa, OK (Phase I).                         
                     Town of the Creek Nation of Oklahoma,                                                      
                     Kialegee Tribal Town of the Creek Indian                                                   
                     Nation of Oklahoma, Muscogee (Creek) Nation                                                
                     of Oklahoma, Thlopthlocco Tribal Town of the                                               
                     Creek Nation of Oklahoma.                                                                  
OK................  Kiowa-Comanche-Apache-Ft. Sill Apache, Apache  Lawton, OK.                                  
                     Tribe of Oklahoma, Comanche Indian Tribe,                                                  
                     Oklahoma, Fort Sill Apache Tribe of                                                        
                     Oklahoma, Kiowa Indian Tribe of Oklahoma.                                                  
TX................  Ysleta del Sur Reservation, Ysleta Del Sur     El Paso, TX-NM (Phase I).                    
                     Pueblo of Texas.                                                                           
WA................  Muckleshoot Reservation and Trust Lands        Seattle, WA (Phase I).                       
                     (pt.), Muckleshoot Indian Tribe of the                                                     
                     Muckleshoot Reservation.                                                                   
WA................  Puyallup Reservation and Trust Lands (pt.),    Tacoma, WA (Phase I).                        
                     Puyallup Tribe of the Puyallup Reservation,                                                
                     WA.                                                                                        
WA................  Yakima Reservation (pt.), Confederated Tribes  Yakima, WA.                                  
                     and Bands of the Yakama Indian Nation of the                                               
                     Yakama Reservation, WA.                                                                    
WI................  Oneida (West) (pt.), Oneida Tribe of           Green Bay, WI.                               
                     Wisconsin.                                                                                 
----------------------------------------------------------------------------------------------------------------
Please Note:                                                                                                    
``(pt.)'' indicates that the American Indian Area (AIA) listed is only partially located within the referenced  
  urbanized area.                                                                                               
``(Phase I)'' indicates that the urbanized area includes a medium or large MS4 currently regulated under the    
  existing NPDES storm water program (i.e. Phase I).                                                            
The first line under ``American Indian Area'' is the name of the reservation/colony/rancheria as it appears in  
  the Bureau of the Census data. Under this first line, the names of the tribes included in the AIA are listed  
  as they appear on the Bureau of Indian Affairs' list of Federally Recognized Indian Tribes. [Federal Register:
  Nov. 13, 1996, Vol. 66, No. 220, pgs. 58211-58216]                                                            
Information for Tribal Jurisdiction Statistical Areas (TSJAs) in Oklahoma was also included in the table. These 
  areas are defined in conjunction with the Federally-recognized tribes in Oklahoma who have definite land areas
  under their jurisdiction, but do not have reservation status.                                                 
Sources: Mike Radcliffe, Geography Division, Bureau of the Census.                                              
  1990 Census of Population and Housing, Summary Population and Housing Characteristics, United States. Tables 9
  & 10. [1990 CPH-1-1].                                                                                         
  Federal Register: Nov. 13, 1996, Vol. 66, No. 220, pgs. 58211-58216.                                          


BILLING CODE 6560-55-P

[[Page 1609]]

[GRAPHIC] [TIFF OMITTED] TP09JA98.000



BILLING CODE 6560-50-C

[[Page 1610]]

Appendix 3 to Preamble--Urbanized Areas of the United States and Puerto 
Rico (based on 1990 Census data)

Alabama

Anniston
Auburn--Opelika
Birmingham
Columbus, GA--AL
Decatur
Dothan
Florence
Gadsden
Huntsville
Mobile
Montgomery
Tuscaloosa

Alaska

Anchorage

Arizona

Phoenix
Tucson
Yuma, AZ--CA

Arkansas

Fayetteville-Springdale
Fort Smith, AR--OK
Little Rock--North Little Rock
Memphis, TN--AR--MS
Pine Bluff
Texarkana, AR--TX

California

Antioch--Pittsburgh
Bakersfield
Chico
Davis
Fairfield
Fresno
Hemet--San Jacinto
Hesperia--Apple Valley--Victorville
Indio--Coachella
Lancaster--Palmdale
Lodi
Lompoc
Los Angeles
Merced
Modesto
Napa
Oxnard--Ventura
Palm Springs
Redding
Riverside--San Bernardino
Sacramento
Salinas
San Diego
San Francisco--Oakland
San Jose
San Luis Obispo
Santa Barbara
Santa Cruz
Santa Maria
Santa Rosa
Seaside--Monterey
Simi Valley
Stockton
Vacaville
Visalia
Watsonville
Yuba City
Yuma

Colorado

Boulder
Colorado Springs
Denver
Fort Collins
Grand Junction
Greeley
Longmont
Pueblo

Connecticut

Bridgeport--Milford
Bristol
Danbury, CT--NY
Hartford--Middletown
New Britain
New Haven--Meriden
New London--Norwich
Norwalk
Springfield, MA--CT
Stamford, CT--NY
Waterbury
Worcester, MA--CT

Delaware

Dover
Wilmington, DE--NJ--MD--PA

District of Columbia

Washington, DC--MD--VA

Florida

Daytona Beach
Deltona
Fort Lauderdale--Hollywood--Pompano Beach
Fort Myers--Cape Coral
Fort Pierce
Fort Walton Beach
Gainesville
Jacksonville
Kissimmee
Lakeland
Melbourne--Palm Bay
Miami--Hialeah
Naples
Ocala
Orlando
Panama City
Pensacola
Punta Gorda
Sarasota--Bradenton
Spring Hill
Stuart
Tallahassee
Tampa--St. Petersburg--Clearwater
Titusville
Vero Beach
West Palm Beach--Boca Raton--Delray Beach
Winter Haven

Georgia

Albany
Athens
Atlanta
Augusta
Brunswick
Chattanooga
Columbus
Macon
Rome
Savannah
Warner Robins

Hawaii

Honolulu
Kailua

Idaho

Boise City
Idaho Falls
Pocatello

Illinois

Alton
Aurora
Beloit, WI--IL
Bloomington--Normal
Champaign--Urbana
Chicago, IL--Northwestern IN
Crystal Lake
Davenport--Rock Island--Moline, IA--IL
Decatur
Dubuque
Elgin
Joliet
Kankakee
Peoria
Rockford
Round Lake Beach--McHenry, IL--WI
St. Louis, MO--IL
Springfield

Indiana

Anderson
Bloomington
Chicago, IL--Northwestern IN
Elkhart--Goshen
Evansville, IN--KY
Fort Wayne
Indianapolis
Kokomo
Lafayette--West Lafayette
Louisville, KY--IN
Muncie
South Bend--Mishawaka, IN--MI
Terre Haute

Iowa

Cedar Rapids
Davenport--Rock Island--Moline, IA--IL
Des Moines
Dubuque, IA--IL--WI
Iowa City
Omaha, NE--IA
Sioux City, IA--NE--SD
Waterloo--Cedar Falls

Kansas

Kansas City, MO--KS
Lawrence
St. Joseph, MO--KS
Topeka
Wichita

Kentucky

Cincinnati, OH--KY
Clarksville, TN--KY
Evansville, IN--KY
Huntington--Ashland, WV--KY--OH
Lexington-Fayette
Louisville, KY-IN
Owensboro

Louisiana

Alexandria
Baton Rouge
Houma
Lafayette
Lake Charles
Monroe
New Orleans
Shreveport
Slidell

Maine

Bangor

[[Page 1611]]

Lewiston--Auburn
Portland
Portsmouth--Dover--Rochester, NH--ME

Maryland

Annapolis
Baltimore
Cumberland
Frederick
Hagerstown, MD--PA--WV
Washington, DC--MD--VA
Wilmington, DE--NJ--MD--PA

Massachusetts

Boston
Brockton
Fall River, MA--RI
Fitchburg--Leominster
Hyannis
Lawrence--Haverhill, MA--NH
Lowell, MA--NH
New Bedford
Pittsfield
Providence--Pawtucket, RI--MA
Springfield, MA--CT
Taunton
Worcester, MA--CT

Michigan

Ann Arbor
Battle Creek
Bay City
Benton Harbor
Detroit
Flint
Grand Rapids
Holland
Jackson
Kalamazoo
Lansing--East Lansing
Muskegon
Port Huron
Saginaw
South Bend--Mishawaka, IN--MI
Toledo, OH-MI

Minnesota

Duluth, MN--WI
Fargo--Moorhead, ND--MN
Grand Forks, ND--MN
La Crosse, WI--MN
Minneapolis--St.Paul
Rochester
St. Cloud

Mississippi

Biloxi--Gulfport
Hattiesburg
Jackson
Memphis, TN--AR--MS
Pascagoula

Missouri

Columbia
Joplin
Kansas City, MO--KS
St. Joseph, MO--KS
St. Louis, MO--IL
Springfield

Montana

Billings
Great Falls
Missoula

Nebraska

Lincoln
Omaha, NE--IA
Sioux City, IA--NE--SD

Nevada

Las Vegas
Reno

New Hampshire

Lawrence--Haverhill, MA--NH
Lowell, MA--NH
Manchester
Nashua
Portsmouth--Dover--Rochester, NH--ME

New Jersey

Allentown--Bethlehem--Easton, PA--NJ
Atlantic City
New York, NY--Northeastern NJ
Philadelphia, PA-NJ
Trenton, NJ--PA
Vineland--Millville
Wilmington, DE--NJ--MD--PA

New Mexico

Albuquerque
El Paso
Las Cruces
Santa Fe

New York

Albany--Schenectady--Troy
Binghamton
Buffalo--Niagara Falls
Danbury, CT--NY
Elmira
Glens Falls
Ithaca
Newburgh
New York, NY--Northeastern NJ
Poughkeepsie
Rochester
Stamford, CT--NY
Syracuse
Utica--Rome

North Carolina

Asheville
Burlington
Charlotte
Durham
Fayetteville
Gastonia
Goldsboro
Greensboro
Greenville
Hickory
High Point
Jacksonville
Kannapolis
Raleigh
Rocky Mount
Wilmington
Winston-Salem

North Dakota

Bismark
Fargo--Moorhead, ND--MN
Grand Forks, ND-MN

Ohio

Akron
Canton
Cincinnati, OH--KY
Cleveland
Columbus
Dayton
Hamilton
Huntington--Ashland, WV--KY--OH
Lima
Lorain--Elyria
Mansfield
Middletown
Newark
Parkersburg, WV--OH
Sharon, PA--OH
Springfield
Steubenville--Weirton, OH--WV--PA
Toledo, OH-MI
Wheeling, WV-OH
Youngstown--Warren

Oklahoma

Fort Smith, AR--OK
Lawton
Oklahoma City
Tulsa

Oregon

Eugene--Springfield
Longview
Medford
Portland--Vancouver, OR--WA
Salem

Pennsylvania

Allentown--Bethlehem--Easton, PA--NJ
Altoona
Erie
Hagerstown, MD--PA--WV
Harrisburg
Johnstown
Lancaster
Monessen
Philadelphia, PA--NJ
Pittsburgh
Pottstown
Reading
Scranton--Wilkes-Barre
Sharon, PA--OH
State College
Steubenville--Weirton, OH--WV--PA
Trenton, NJ--PA
Williamsport
Wilmington, DE--NJ--MD--PA
York

Rhode Island

Fall River, MA--RI
Newport, RI
Providence--Pawtucket, RI--MA

South Carolina

Anderson
Augusta, GA--SC
Charleston
Columbia
Florence
Greenville
Myrtle Beach
Rock Hill
Spartanburg
Sumter

South Dakota

Rapid City
Sioux City, IA--NE--SD
Sioux Falls

Tennessee

Bristol, TN--Bristol, VA
Chattanooga, TN--GA
Clarksville, TN--KY
Jackson
Johnson City

[[Page 1612]]

Kingsport, TN--VA
Knoxville
Memphis, TN--AR--MS
Nashville

Texas

Abilene
Amarillo
Austin
Beaumont
Brownsville
Bryan--College Station
Corpus Christi
Dallas--Fort Worth
Denton
El Paso, TX--NM
Galveston
Harlingen
Houston
Killeen
Laredo
Lewisville
Longview
Lubbock
McAllen--Edinburg--Mission
Midland
Odessa
Port Arthur
San Angelo
San Antonio
Sherman--Denison
Temple
Texarkana, TX--Texarkana, AR
Texas City
Tyler
Victoria
Waco
Wichita Falls

Utah

Logan
Ogden
Provo--Orem
Salt Lake City

Vermont

Burlington

Virginia

Bristol, TN--Bristol, VA
Charlottesville
Danville
Fredericksburg
Kingsport, TN--VA
Lynchburg
Norfolk--Virginia Beach--Newport News
Petersburg
Richmond
Roanoke
Washington, DC--MD--VA

Washington

Bellingham
Bremerton
Longview, WA--OR
Olympia
Portland--Vancouver, OR--WA
Richland--Kennewick--Pasco
Seattle
Spokane
Tacoma
Yakima

West Virginia

Charleston
Cumberland, MD--WV
Hagerstown, MD--PA--WV
Huntington--Ashland, WV--KY--OH
Parkersburg, WV--OH
Steubenville--Weirton, OH--WV--PA
Wheeling, WV--OH

Wisconsin

Appleton--Neenah
Beloit, WI--IL
Duluth, MN--WI
Eau Claire
Green Bay
Janesville
Kenosha
La Crosse, WI--MN
Madison
Milwaukee
Oshkosh
Racine
Round Lake Beach--McHenry, IL--WI
Sheboygan
Wausau

Wyoming

Casper
Cheyenne

Puerto Rico

Aquadilla
Arecibo
Caguas
Cayey
Humacao
Mayaguez
Ponce
San Juan
Vega Baja--Manati

Appendix 4 to Preamble

Checklist for No-Exposure Certification for NPDES Storm Water 
Permitting

Instructions--EPA Form XXX-X

Who May File a No-Exposure Certification

    In accordance with the Clean Water Act, all industrial 
facilities that discharge storm water meeting the definition of 
storm water associated with industrial activity must apply for 
coverage under a National Pollutant Discharge Elimination System 
(NPDES) permit. However, permit coverage is not required at 
facilities that can certify a ``no-exposure'' condition exists. This 
document may be used to certify that at the facility described 
herein, a condition of no-exposure exists. This certification is 
under the auspices of the EPA only and must be made at least once 
every five years. Should the industrial activity change such that a 
condition of no-exposure no longer exists, this certification is no 
longer valid and coverage under an NPDES storm water permit must be 
sought.

Definition of No-Exposure

    No-exposure exists at an industrial facility when all industrial 
materials or activities, including, but not limited to, material 
handling equipment, industrial machinery, raw materials, 
intermediate products, by-products or waste products, however 
packaged, are protected by a storm-resistant shelter so as not to be 
exposed to rain, snow, snowmelt, or runoff. Adequately maintained 
mobile equipment (trucks, automobiles, trailers or other such 
general purpose vehicles found at the industrial site which 
themselves are not industrial machinery or material handling 
equipment and which are not leaking contaminants or are not 
otherwise a source of industrial pollutants) may be exposed to 
precipitation or runoff.

Completing the Form

    You must type or print in the spaces provided only. One form 
must be completed for each facility or site for which you are 
seeking to certify no-exposure.

Section I. Facility Operator Information

    Provide the legal name (no colloquial names) of the person, 
firm, public organization, or any other entity that operates the 
facility or site described in this certification. The name of the 
operator may or may not be the same as the name of the facility. The 
operator is the legal entity that controls the facility's operation, 
rather than the plant or site manager. Enter the complete address 
(P.O. Box numbers OK) and telephone number of the operator.

Section II. Facility/Site Location Information

    Enter the facility's or site's official or legal name and 
complete street address (directional address OK if no street address 
exists). Do not provide a P.O. Box number as the street address. In 
addition, provide the latitude and longitude of the facility to the 
nearest 15 seconds of the approximate center of the site (if you do 
not know your site's latitude and longitude, call 1-800-USA-MAPS).

Section III. Exposure Checklist

    Circle ``Yes'' or ``No'' as appropriate to describe conditions 
at your facility. For the purposes of this document, ``material'' is 
defined as any raw material, intermediate product, finished product, 
by-product or waste product, however packaged. ``Material handling 
activities'', by definition, include storage, loading and/or 
unloading, transportation or conveyance of a raw material, 
intermediate product, finished product, by-product or waste product.

Interpretation of Results

    If you answer ``Yes'' to ANY of questions a. through r. in 
Section III, a potential for exposure exists at your site and you 
cannot certify a no-exposure condition exists. You must obtain (or 
already have) coverage under an NPDES Storm Water permit. After 
obtaining permit coverage, you can institute modifications to 
eliminate the potential for a discharge of storm water exposed to 
industrial activity, and then claim no-exposure and terminate 
coverage under the existing permit.

Section IV. Certification

    Federal statutes provide for severe penalties for submitting 
false information on this application form. Federal regulations 
require this application to be signed as follows:
    For a corporation: by a responsible corporate officer, which 
means: (i) president, secretary, treasurer, or vice-president of the 
corporation in charge of a principal business function, or any other 
person who performs similar policy or decision making functions, or 
(ii) the manager of one or more manufacturing, production, or 
operating

[[Page 1613]]

facilities employing more than 250 persons or having gross annual 
sales or expenditures exceeding $25 million (in second-quarter 1980 
dollars) if authority to sign documents has been assigned or 
delegated to the manager in accordance with corporate procedures 
[note, wording subject to change as a result of NPDES streamlining, 
rnd. II];
    For a partnership or sole proprietorship: by a general partner 
or the proprietor; or
    For a municipality, State, Federal, or other public facility: by 
either a principal executive officer or ranking elected official.

Where To File This Form

    Mail the completed form to:

XXXXXXXXXXXXXXX
XXXXXXXXXXXXXXX
U.S. Environmental Protection Agency (4203)
401 M St. SW
Washington, DC 20460

BILLING CODE 6560-50-P

[[Page 1614]]

[GRAPHIC] [TIFF OMITTED] TP09JA98.002



[[Page 1615]]

[GRAPHIC] [TIFF OMITTED] TP09JA98.003



BILLING CODE 6560-50-C

Appendix 5 to Preamble--Regulatory Flexibility for Small Entities

A. Regulatory Flexibility for Municipal Storm Sewer Systems (MS4s)

Different Compliance, Reporting, or Timetables That Are Responsive to 
Resources of Small Entities

    NPDES permitting authority would issue general permits instead 
of requiring individual permits. This flexibility would avoid the 
high application costs and administrative burden associated with 
individual permits.
    NPDES permitting authority could specify a time period of up to 
five years for small MS4s to fully develop and implement their 
program.
    Analytic monitoring would not be required.
    After the first permit term and subsequent permit terms, 
submittal of a summary report would only be required in years two 
and four. Phase I municipalities are currently required to submit a 
detailed report each year.
    Brief reporting format encouraged to facilitate compiling and 
analyzing data from submitted reports. EPA would develop a model 
form for this purpose.

Clarifying, Consolidating, or Simplifying Compliance and Reporting 
Requirements

    The proposed rule would avoid duplication in permit requirements 
by allowing the NPDES permitting authority to incorporate by 
reference State, Tribal, or local programs under a NPDES general 
permit. Compliance with these programs would be considered 
compliance with the NPDES general permit.
    The proposed rule would allow the NPDES permitting authority to 
recognize existing responsibilities among different municipal 
entities to satisfy obligations for the minimum control measures. 
For example, a State program may address construction site storm 
water runoff. Municipalities would be relieved of that obligation 
and would only be responsible for the remaining minimum control 
measures.
    The proposed rule would allow a small MS4 to satisfy its NPDES 
permit obligations if another governmental entity is already 
implementing a minimum control measure in the jurisdiction of the 
small MS4. The following conditions would need to be met:
    1. The particular control measure (or component thereof) is 
equivalent to what the NPDES permit requires,
    2. The other entity is implementing the control measure, and
    3. The small MS4 has requested, and the other entity has agreed 
to accept responsibility for implementation of the control measure 
on your behalf and to satisfy your permit obligation.
    The proposed rule would allow a covered small MS4 to ``piggy-
back'' on to the storm water management program of an adjoining 
Phase I MS4. A small MS4 would be waived from the application 
requirements of Sec. 122.26(d)(1)(iii), (iv) and (d)(2)(iii) 
[discharge characterization] and may satisfy the requirements of 
Sec. 122.26(d)(1)(v) and (d)(2)(iv) [identifying a management plan] 
by referencing the adjoining Phase I MS4's storm water management 
plan.
    The proposed rule would accommodate the use of the watershed 
approach through NPDES general permits that could be issued on a 
watershed basis. A municipality could develop measures that are 
tailored to meet their watershed requirements. Municipalities' storm 
water management program could tie into watershed-wide plans.

Performance Rather Than Design Standards for Small Entities

    Small governmental jurisdictions whose MS4s are covered by this 
proposed rule would be allowed to choose the best management 
practices (BMPs) to be implemented and the measurable goals for each 
of the minimum control measures:
    1. Public education and outreach on storm water impacts.
    2. Public Involvement/Participation.
    3. Illicit discharge detection and elimination.

[[Page 1616]]

    4. Construction site storm water runoff control for sites of one 
or more acre.
    5. Post-construction storm water management in new development 
and redevelopment for sites of one or more acre.
    6. Pollution prevention/good housekeeping for municipal 
operations.
    EPA would provide guidance and would recommend, but not mandate, 
certain BMPs for some of the minimum control measures listed above.
    Small governmental jurisdictions would identify the measurable 
goals for each of the minimum control measures listed above. In 
their reports to the NPDES permitting authority, the small MS4s 
would need to evaluate their progress towards achievement of their 
identified measurable goals.

Waivers for Small Entities From Coverage

    The proposed rule would waiver from coverage Indian Tribes 
located within an urbanized area and whose population is less than 
or equal to 1,000 people.
    The proposed rule would allow the permitting authority to waive 
from coverage MS4s owned or operated by small governmental 
jurisdictions located within an urbanized area and serving a 
population less than or equal to 1,000 people where the permitting 
authority determines:
    1. Implementation of a TMDL that addresses the pollutants of 
concern, or
    2. Implementation of a comprehensive watershed plan for the 
water body.

B. Regulatory Flexibility for Construction Activities

Different Compliance, Reporting, or Timetables That Are Responsive to 
Resources of Small Entities

    The proposed rule would give the relevant Director of the NPDES 
permitting program discretion not to require the submittal of a 
notice of intent (NOI) for coverage under a NPDES general permit, 
thereby reducing administrative and financial burden. Currently, all 
construction sites disturbing greater than 5 acres must submit an 
NOI.

Clarifying, Consolidating, or Simplifying Compliance and Reporting 
Requirements

    The proposed rule would avoid duplication by allowing the NPDES 
permitting authority to incorporate by reference State, Tribal, or 
local programs under a NPDES general permit. Compliance with these 
programs would be considered compliance with the NPDES general 
permit.

Performance Rather Than Design Standards for Small Entities

    The operator of a covered construction activity would select and 
implement the BMPs most appropriate for the construction site based 
on the operator's storm water pollution prevention plan.

Waivers for Small Entities From Coverage

    Waivers could be granted based on the use of the revised 
Universal Soil Loss Equation. Universal Soil Loss Equation (USLE)
    (A) Default/Low-Risk Exemption: When rainfall energy factor (R 
from Universal Soil Loss Equation) is less than 2 during periods of 
construction activity, a permit would not be required.
    (B) Case-by-Case Determination: A permit would not be required 
for sites having an annual soil loss less than 2 tons/acre/year.
    The NPDES permitting authority could waive from coverage 
construction activities disturbing from 1 acre up to 5 acres of land 
where the permitting authority determines that storm water controls 
are not needed based on:
    1. Implementation of a TMDL that addresses the pollutants of 
concern, or
    2. Implementation of a comprehensive watershed plan for the 
water body.

C. Regulatory Flexibility for Industrial/Commercial Facilities

Waivers for Small Entities From Coverage

    The proposed rule would provide a ``no-exposure'' waiver 
provision for Phase I industrial/commercial facilities. Those 
facilities seeking this provision would simply need to complete a 
self-certification form.

Appendix 6 of Preamble--Incorporated Places and Counties Proposed To Be 
Automatically Designated Under the Storm Water Phase II Proposed Rule 
(From the 1990 Census of Population and Housing--U.S. Census Bureau)

(This List May Change With the Decennial Census)

AL  Anniston
AL  Attalla
AL  Auburn
AL  Autauga County
AL  Blue Mountain
AL  Calhoun County
AL  Colbert County
AL  Dale County
AL  Decatur
AL  Dothan
AL  Etowah County
AL  Flint City
AL  Florence
AL  Gadsden
AL  Glencoe
AL  Grimes
AL  Hartselle
AL  Hobson City
AL  Hokes Bluff
AL  Houston County
AL  Kinsey
AL  Lauderdale County
AL  Lee County
AL  Madison County
AL  Midland City
AL  Montgomery County
AL  Morgan County
AL  Muscle Shoals
AL  Napier Field
AL  Northport
AL  Opelika
AL  Oxford
AL  Phenix City
AL  Prattville
AL  Priceville
AL  Rainbow City
AL  Russell County
AL  Sheffield
AL  Southside
AL  Sylvan Springs
AL  Talladega County
AL  Tuscaloosa
AL  Tuscaloosa County
AL  Tuscumbia
AL  Weaver

AZ  Apache Junction
AZ  Chandler
AZ  El Mirage
AZ  Gilbert
AZ  Guadalupe
AZ  Maricopa County
AZ  Oro Valley
AZ  Paradise Valley
AZ  Peoria
AZ  Pinal County
AZ  South Tucson
AZ  Surprise
AZ  Tolleson
AZ  Youngtown
AZ  Yuma
AZ  Yuma County

AR  Alexander
AR  Barling
AR  Benton County
AR  Cammack Village
AR  Crawford County
AR  Crittenden County
AR  Farmington
AR  Fayetteville
AR  Fort Smith
AR  Greenland
AR  Jacksonville
AR  Jefferson County
AR  Johnson
AR  Marion
AR  Miller County
AR  North Little Rock
AR  Pine Bluff
AR  Pulaski County
AR  Saline County
AR  Shannon Hills
AR  Sherwood
AR  Springdale
AR  Sunset
AR  Texarkana
AR  Van Buren
AR  Washington County
AR  West Memphis
AR  White Hall

CA  Apple Valley
CA  Belvedere
CA  Benicia
CA  Brentwood
CA  Butte County
CA  Capitola
CA  Carmel-by-the-Sea
CA  Carpinteria
CA  Ceres
CA  Chico
CA  Compton
CA  Corte Madera
CA  Cotati
CA  Davis
CA  Del Rey Oaks
CA  Fairfax
CA  Hesperia
CA  Imperial County
CA  Lakewood
CA  Lancaster
CA  Larkspur
CA  Lodi
CA  Lompoc
CA  Marin County
CA  Marina
CA  Marysville
CA  Merced
CA  Merced County
CA  Mill Valley
CA  Monterey
CA  Monterey County
CA  Morgan Hill

[[Page 1617]]

CA  Napa
CA  Napa County
CA  Novato
CA  Pacific Grove
CA  Palm Desert
CA  Palmdale
CA  Piedmont
CA  Redding
CA  Rocklin
CA  Rohnert Park
CA  Roseville
CA  Ross
CA  San Anselmo
CA  San Buenaventura (Ventura)
CA  San Francisco
CA  San Joaquin County
CA  San Luis Obispo
CA  San Luis Obispo County
CA  San Rafael
CA  Sand City
CA  Santa Barbara
CA  Santa Barbara County
CA  Santa Cruz
CA  Santa Cruz County
CA  Santa Maria
CA  Sausalito
CA  Scotts Valley
CA  Seaside
CA  Shasta County
CA  Solano County
CA  Sonoma County
CA  Stanislaus County
CA  Sutter County
CA  Tiburon
CA  Tulare County
CA  Vacaville
CA  Victorville
CA  Villa Park
CA  Visalia
CA  Watsonville
CA  West Sacramento
CA  Yolo County
CA  Yuba City
CA  Yuba County

CO  Adams County
CO  Arvada
CO  Boulder
CO  Boulder County
CO  Bow Mar
CO  Broomfield
CO  Cherry Hills Village
CO  Columbine Valley
CO  Commerce City
CO  Douglas County
CO  Edgewater
CO  El Paso County
CO  Englewood
CO  Evans
CO  Federal Heights
CO  Fort Collins
CO  Fountain
CO  Garden City
CO  Glendale
CO  Golden
CO  Grand Junction
CO  Greeley
CO  Greenwood Village
CO  Jefferson County
CO  La Salle
CO  Lakeside
CO  Larimer County
CO  Littleton
CO  Longmont
CO  Manitou Springs
CO  Mesa County
CO  Mountain View
CO  Northglenn
CO  Pueblo
CO  Pueblo County
CO  Sheridan
CO  Thornton
CO  Weld County
CO  Westminster
CO  Wheat Ridge

CT  Ansonia
CT  Bridgeport
CT  Bristol
CT  Danbury
CT  Derby
CT  Fairfield County
CT  Groton
CT  Hartford
CT  Hartford County
CT  Litchfield County
CT  Meriden
CT  Middlesex County
CT  Middletown
CT  Milford
CT  Naugatuck
CT  New Britain
CT  New Haven
CT  New Haven County
CT  New London
CT  New London County
CT  Norwalk
CT  Norwich
CT  Shelton
CT  Tolland County
CT  Waterbury
CT  West Haven
CT  Windham County
CT  Woodmont

DE  Camden
DE  Dover
DE  Kent County
DE  Newark
DE  Wyoming

FL  Alachua County
FL  Baldwin
FL  Bay County
FL  Belleair Shore
FL  Biscayne Park
FL  Brevard County
FL  Callaway
FL  Cape Canaveral
FL  Cedar Grove
FL  Charlotte County
FL  Cinco Bayou
FL  Clay County
FL  Cocoa
FL  Cocoa Beach
FL  Collier County
FL  Daytona Beach
FL  Daytona Beach Shores
FL  Destin
FL  Edgewater
FL  El Portal
FL  FLorida City
FL  Fort Pierce
FL  Fort Walton Beach
FL  Gainesville
FL  Gulf Breeze
FL  Hernando County
FL  Hillsboro Beach
FL  Holly Hill
FL  Indialantic
FL  Indian Harbour Beach
FL  Indian River County
FL  Indian River Shores
FL  Indian Shores
FL  Kissimmee
FL  Lazy Lake
FL  Lynn Haven
FL  Malabar
FL  Marion County
FL  Martin County
FL  Mary Esther
FL  Melbourne
FL  Melbourne Beach
FL  Melbourne Village
FL  Naples
FL  New Smyrna Beach
FL  Niceville
FL  Ocala
FL  Ocean Breeze Park
FL  Okaloosa County
FL  Orange Park
FL  Ormond Beach
FL  Osceola County
FL  Palm Bay
FL  Panama City
FL  Parker
FL  Ponce Inlet
FL  Port Orange
FL  Port St. Lucie
FL  Punta Gorda
FL  Rockledge
FL  Santa Rosa County
FL  Satellite Beach
FL  Sewall's Point
FL  Shalimar
FL  South Daytona
FL  Springfield
FL  St. Johns County
FL  St. Lucie
FL  St. Lucie County
FL  Stuart
FL  Sweetwater
FL  Titusville
FL  Valparaiso
FL  Vero Beach
FL  Virginia Gardens
FL  Volusia County
FL  Walton County
FL  Weeki Wachee
FL  West Melbourne
FL  Windermere

GA  Albany
GA  Athens
GA  Bartow County
GA  Bibb City
GA  Brunswick
GA  Catoosa County
GA  Centerville
GA  Chattahoochee County
GA  Cherokee County
GA  Chickamauga
GA  Clarke County
GA  Columbia County
GA  Columbus
GA  Conyers
GA  Dade County
GA  Dougherty County
GA  Douglas County
GA  Douglasville
GA  Fayette County
GA  Floyd County
GA  Fort Oglethorpe
GA  Glynn County
GA  Grovetown
GA  Henry County
GA  Houston County
GA  Jones County
GA  Lee County
GA  Lookout Mountain
GA  Mountain Park
GA  Oconee County

[[Page 1618]]

GA  Payne
GA  Rockdale County
GA  Rome
GA  Rossville
GA  Stockbridge
GA  Vernonburg
GA  Walker County
GA  Warner Robins
GA  Winterville
GA  Woodstock

ID  Ada County
ID  Ammon
ID  Bannock County
ID  Bonneville County
ID  Chubbuck
ID  Garden City
ID  IDaho Falls
ID  Iona
ID  Pocatello
IL  Addison
IL  Algonquin
IL  Alorton
IL  Alsip
IL  Alton
IL  Antioch
IL  Arlington Heights
IL  Aroma Park
IL  Aurora
IL  Bannockburn
IL  Barrington
IL  Bartlett
IL  Bartonville
IL  Batavia
IL  Beach Park
IL  Bedford Park
IL  Belleville
IL  Bellevue
IL  Bellwood
IL  Bensenville
IL  Berkeley
IL  Berwyn
IL  Bethalto
IL  Bloomingdale
IL  Bloomington
IL  Blue Island
IL  Bolingbrook
IL  Bourbonnais
IL  Bradley
IL  Bridgeview
IL  Broadview
IL  Brookfield
IL  Brooklyn
IL  Buffalo Grove
IL  Burbank
IL  Burnham
IL  Burr Ridge
IL  Cahokia
IL  Calumet City
IL  Calumet Park
IL  Carbon Cliff
IL  Carol Stream
IL  Carpentersville
IL  Cary
IL  Caseyville
IL  Centreville
IL  Champaign
IL  Champaign County
IL  Cherry Valley
IL  Chicago
IL  Chicago Heights
IL  Chicago Ridge
IL  Cicero
IL  Clarendon Hills
IL  Coal Valley
IL  Collinsville
IL  Colona
IL  Columbia
IL  Cook County
IL  Country Club Hills
IL  Countryside
IL  Crest Hill
IL  Crestwood
IL  Crete
IL  Creve Coeur
IL  Crystal Lake
IL  Darien
IL  Decatur
IL  Deer Park
IL  Deerfield
IL  Des Plaines
IL  Dixmoor
IL  Dolton
IL  Downers Grove
IL  Dupo
IL  DuPage County
IL  East Alton
IL  East Dubuque
IL  East Dundee
IL  East Hazel Crest
IL  East Moline
IL  East Peoria
IL  East St. Louis
IL  Edwardsville
IL  Elgin
IL  Elk Grove Village
IL  Elmhurst
IL  Elmwood Park
IL  Evanston
IL  Evergreen Park
IL  Fairmont City
IL  Fairview Heights
IL  Flossmoor
IL  Ford Heights
IL  Forest Park
IL  Forest View
IL  Forsyth
IL  Fox Lake
IL  Fox River Grove
IL  Frankfort
IL  Franklin Park
IL  Geneva
IL  Gilberts
IL  Glen Carbon
IL  Glen Ellyn
IL  Glencoe
IL  Glendale Heights
IL  Glenview
IL  Glenwood
IL  Golf
IL  Grandview
IL  Granite City
IL  Grayslake
IL  Green Oaks
IL  Green Rock
IL  Gurnee
IL  Hainesville
IL  Hampton
IL  Hanover Park
IL  Harristown
IL  Hartford
IL  Harvey
IL  Harwood Heights
IL  Hawthorn Woods
IL  Hazel Crest
IL  Henry County
IL  Hickory Hills
IL  Highland Park
IL  Highwood
IL  Hillside
IL  Hinsdale
IL  Hodgkins
IL  Hoffman Estates
IL  Hometown
IL  Homewood
IL  Indian Creek
IL  Indian Head Park
IL  Inverness
IL  Itasca
IL  Jerome
IL  Jo Daviess County
IL  Joliet
IL  Justice
IL  Kane County
IL  Kankakee
IL  Kankakee County
IL  Kendall County
IL  Kenilworth
IL  Kildeer
IL  La Grange
IL  La Grange Park
IL  Lake in the Hills
IL  Lake Barrington
IL  Lake Bluff
IL  Lake County
IL  Lake Forest
IL  Lake Villa
IL  Lake Zurich
IL  Lakemoor
IL  Lakewood
IL  Lansing
IL  Leland Grove
IL  Libertyville
IL  Lincolnshire
IL  Lincolnwood
IL  Lindenhurst
IL  Lisle
IL  Lockport
IL  Lombard
IL  Long Grove
IL  Loves Park
IL  Lynwood
IL  Lyons
IL  Machesney Park
IL  Macon County
IL  Madison
IL  Madison County
IL  Markham
IL  Marquette Heights
IL  Maryville
IL  Matteson
IL  Maywood
IL  McCook
IL  McCullom Lake
IL  McHenry
IL  McHenry County
IL  McLean County
IL  Melrose Park
IL  Merrionette Park
IL  Midlothian
IL  Milan
IL  Moline
IL  Monroe County
IL  Montgomery
IL  Morton
IL  Morton Grove
IL  Mount Prospect
IL  Mount Zion
IL  Mundelein
IL  Naperville
IL  National City
IL  New Lenox
IL  New Millford
IL  Niles
IL  Normal
IL  Norridge
IL  North Aurora
IL  North Barrington
IL  North Chicago

[[Page 1619]]

IL  North Pekin
IL  North Riverside
IL  Northbrook
IL  Northfield
IL  Northlake
IL  Norwood
IL  O'Fallon
IL  Oak Brook
IL  Oak Forest
IL  Oak Grove
IL  Oak Lawn
IL  Oak Park
IL  Oakbrook Terrace
IL  Oakwood Hills
IL  Olympia Fields
IL  Orland Hills
IL  Orland Park
IL  Oswego
IL  Palatine
IL  Palos Heights
IL  Palos Hills
IL  Palos Park
IL  Park City
IL  Park Forest
IL  Park Ridge
IL  Pekin
IL  Peoria
IL  Peoria County
IL  Peoria Heights
IL  Phoenix
IL  Plainfield
IL  Pontoon Beach
IL  Posen
IL  Prospect Heights
IL  Richton Park
IL  River Forest
IL  River Grove
IL  Riverdale
IL  Riverside
IL  Riverwoods
IL  Robbins
IL  Rock Island
IL  Rock Island County
IL  Rockdale
IL  Rockton
IL  Rolling Meadows
IL  Romeoville
IL  Roscoe
IL  Roselle
IL  Rosemont
IL  Round Lake
IL  Round Lake Beach
IL  Round Lake Heights
IL  Round Lake Park
IL  Roxana
IL  Sangamon County
IL  Sauget
IL  Sauk Village
IL  Savoy
IL  Schaumburg
IL  Schiller Park
IL  Shiloh
IL  Shorewood
IL  Silvis
IL  Skokie
IL  Sleepy Hollow
IL  South Beloit
IL  South Chicago Heights
IL  South Elgin
IL  South Holland
IL  South Roxana
IL  Southern View
IL  Springfield
IL  St. Charles
IL  St. Clair County
IL  Steger
IL  Stickney
IL  Stone Park
IL  Streamwood
IL  Summit
IL  Sunnyside
IL  Swansea
IL  Tazewell County
IL  Thornton
IL  Tinley Park
IL  Tower Lakes
IL  Troy
IL  University Park
IL  Urbana
IL  Venice
IL  Vernon Hills
IL  Villa Park
IL  Warrenville
IL  Washington
IL  Washington Park
IL  Waukegan
IL  West Chicago
IL  West Dundee
IL  Westchester
IL  Western Springs
IL  Westmont
IL  Wheaton
IL  Wheeling
IL  Will County
IL  Willow Springs
IL  Willowbrook
IL  Wilmette
IL  Winfield
IL  Winnebago County
IL  Winnetka
IL  Winthrop Harbor
IL  Wood Dale
IL  Wood River
IL  Woodridge
IL  Worth
IL  Zion

IN  Allen County
IN  Anderson
IN  Beech Grove
IN  Bloomington
IN  Boone County
IN  Carmel
IN  Castleton
IN  Chesterfield
IN  Chesterton
IN  Clark County
IN  Clarksville
IN  Clermont
IN  Country Club Heights
IN  Crown Point
IN  Crows Nest
IN  Cumberland
IN  Daleville
IN  Delaware County
IN  Dyer
IN  East Chicago
IN  Edgewood
IN  Elkhart
IN  Elkhart County
IN  Evansville
IN  Fishers
IN  Floyd County
IN  Gary
IN  Goshen
IN  Greenwood
IN  Griffith
IN  Hamilton County
IN  Hammond
IN  Hancock County
IN  Hendricks County
IN  Highland
IN  Hobart
IN  Homecroft
IN  Howard County
IN  Indian Village
IN  Jeffersonville
IN  Johnson County
IN  Kokomo
IN  Lafayette
IN  Lake County
IN  Lake Station
IN  Lawrence
IN  Madison County
IN  Meridian Hills
IN  Merrillville
IN  Mishawaka
IN  Monroe County
IN  Muncie
IN  Munster
IN  New Albany
IN  New Chicago
IN  New Haven
IN  New Whiteland
IN  Newburgh
IN  North Crows Nest
IN  Ogden Dunes
IN  Osceola
IN  Portage
IN  Porter
IN  Porter County
IN  River Forest
IN  Rocky Ripple
IN  Roseland
IN  Schererville
IN  Seelyville
IN  Sellersburg
IN  Selma
IN  South Bend
IN  Southport
IN  Speedway
IN  Spring Hill
IN  St. John
IN  St. Joseph County
IN  Terre Haute
IN  Tippecanoe County
IN  Vanderburgh County
IN  Vigo County
IN  Warren Park
IN  Warrick County
IN  West Lafayette
IN  West Terre Haute
IN  Westfield
IN  Whiteland
IN  Whiting
IN  Williams Creek
IN  Woodlawn Heights
IN  Wynnedale
IN  Yorktown
IN  Zionsville

IA  Altoona
IA  Asbury
IA  Bettendorf
IA  Black Hawk County
IA  Buffalo
IA  Carter Lake
IA  Cedar Falls
IA  Clive
IA  Coralville
IA  Council Bluffs
IA  Dubuque
IA  Dubuque County
IA  Elk Run Heights
IA  Evansdale
IA  Hiawatha
IA  Iowa City
IA  Johnson County
IA  Johnston
IA  Le Claire

[[Page 1620]]

IA  Linn County
IA  Marion
IA  Norwalk
IA  Panorama Park
IA  Pleasant Hill
IA  Polk County
IA  Pottawattamie County
IA  Raymond
IA  Riverdale
IA  Robins
IA  Scott County
IA  Sergeant Bluff
IA  Sioux City
IA  University Heights
IA  Urbandale
IA  Warren County
IA  Waterloo
IA  West Des Moines
IA  Windsor Heights

KS  Bel Aire
KS  Countryside
KS  Doniphan County
KS  Douglas County
KS  Eastborough
KS  Elwood
KS  Fairway
KS  Haysville
KS  Johnson County
KS  Kechi
KS  Lake Quivira
KS  Lawrence
KS  Leawood
KS  Lenexa
KS  Merriam
KS  Mission
KS  Mission Hills
KS  Mission Woods
KS  Olathe
KS  Park City
KS  Prairie Village
KS  Roeland Park
KS  Sedgwick County
KS  Shawnee
KS  Shawnee County
KS  Westwood
KS  Westwood Hills

KY  Alexandria
KY  Anchorage
KY  Ashland
KY  Audubon Park
KY  Bancroft
KY  Barbourmeade
KY  Beechwood Village
KY  Bellefonte
KY  Bellemeade
KY  Bellevue
KY  Bellewood
KY  Blue Ridge Manor
KY  Boone County
KY  Boyd County
KY  Briarwood
KY  Broad Fields
KY  Broeck Pointe
KY  Bromley
KY  Brownsboro Farm
KY  Brownsboro Village
KY  Bullitt County
KY  Cambridge
KY  Campbell County
KY  Catlettsburg
KY  Cherrywood Village
KY  Christian County
KY  Cold Spring
KY  Covington
KY  Creekside
KY  Crescent Park
KY  Crescent Springs
KY  Crestview
KY  Crestview Hills
KY  Crossgate
KY  Daviess County
KY  Dayton
KY  Douglass Hills
KY  Druid Hills
KY  Edgewood
KY  Elsmere
KY  Erlanger
KY  Fairmeade
KY  Fairview
KY  Flatwoods
KY  Florence
KY  Forest Hills
KY  Fort Mitchell
KY  Fort Thomas
KY  Fort Wright
KY  Fox Chase
KY  Glenview
KY  Glenview Hills
KY  Glenview Manor
KY  Goose Creek
KY  Graymoor-Devondale
KY  Green Spring
KY  Greenup County
KY  Hebron Estates
KY  Henderson
KY  Henderson County
KY  Hickory Hill
KY  Highland Heights
KY  Hills and Dales
KY  Hillview
KY  Hollow Creek
KY  Hollyvilla
KY  Houston Acres
KY  Hunters Hollow
KY  Hurstbourne
KY  Hurstbourne Acres
KY  Independence
KY  Indian Hills
KY  Indian Hills Cherokee Section
KY  Jeffersontown
KY  Jessamine County
KY  Keeneland
KY  Kenton County
KY  Kenton Vale
KY  Kingsley
KY  Lakeside Park
KY  Langdon Place
KY  Latonia Lakes
KY  Lincolnshire
KY  Ludlow
KY  Lyndon
KY  Lynnview
KY  Manor Creek
KY  Maryhill Estates
KY  Meadow Vale
KY  Meadowbrook Farm
KY  Meadowview Estates
KY  Melbourne
KY  Middletown
KY  Minor Lane Heights
KY  Mockingbird Valley
KY  Moorland
KY  Murray Hill
KY  Newport
KY  Norbourne Estates
KY  Northfield
KY  Norwood
KY  Oak Grove
KY  Old Brownsboro Place
KY  Owensboro
KY  Park Hills
KY  Parkway Village
KY  Pioneer Village
KY  Plantation
KY  Plymouth Village
KY  Poplar Hills
KY  Prospect
KY  Raceland
KY  Richlawn
KY  Riverwood
KY  Robinswood
KY  Rolling Fields
KY  Rolling Hills
KY  Russell
KY  Seneca Gardens
KY  Shively
KY  Silver Grove
KY  South Park View
KY  Southgate
KY  Spring Mill
KY  Spring Valley
KY  Springlee
KY  St. Matthews
KY  St. Regis Park
KY  Strathmoor Gardens
KY  Strathmoor Manor
KY  Strathmoor Village
KY  Sycamore
KY  Taylor Mill
KY  Ten Broeck
KY  Thornhill
KY  Villa Hills
KY  Watterson Park
KY  Wellington
KY  West Buechel
KY  Westwood
KY  Whipps Millgate
KY  Wilder
KY  Wildwood
KY  Winding Falls
KY  Windy Hills
KY  Woodland Hills
KY  Woodlawn
KY  Woodlawn Park
KY  Worthington
KY  Wurtland

LA  Alexandria
LA  Baker
LA  Ball
LA  Bossier City
LA  Bossier Parish
LA  Broussard
LA  Caddo Parish
LA  Calcasieu Parish
LA  Carencro
LA  Denham Springs
LA  East Baton Rouge Parish
LA  Houma
LA  Lafayette
LA  Lafayette Parish
LA  Lafourche Parish
LA  Lake Charles
LA  Livingston Parish
LA  Monroe
LA  Ouachita Parish
LA  Pineville
LA  Plaquemines Parish
LA  Port Allen
LA  Rapides Parish
LA  Richwood
LA  Scott
LA  Slidell
LA  St. Bernard Parish
LA  St. Charles Parish
LA  St. Tammany Parish
LA  Sulphur
LA  Terrebonne Parish
LA  West Baton Rouge Parish

[[Page 1621]]

LA  West Monroe
LA  Westlake
LA  Zachary

ME  Androscoggin County
ME  Auburn
ME  Bangor
ME  Brewer
ME  Cumberland County
ME  Lewiston
ME  Old Town
ME  Penobscot County
ME  Portland
ME  South Portland
ME  Westbrook
ME  York County

MD  Allegany County
MD  Annapolis
MD  Bel Air
MD  Berwyn Heights
MD  Bladensburg
MD  Bowie
MD  Brentwood
MD  Brookeville
MD  Capitol Heights
MD  Cecil County
MD  Cheverly
MD  Chevy Chase
MD  Chevy Chase Section Five
MD  Chevy Chase Section Three
MD  Chevy Chase Village
MD  College Park
MD  Colmar Manor
MD  Cottage City
MD  Cumberland
MD  District Heights
MD  Edmonston
MD  Elkton
MD  Fairmount Heights
MD  Forest Heights
MD  Frederick
MD  Frostburg
MD  Funkstown
MD  Gaithersburg
MD  Garrett Park
MD  Glen Echo
MD  Glenarden
MD  Greenbelt
MD  Hagerstown
MD  Highland Beach
MD  Hyattsville
MD  Kensington
MD  Landover Hills
MD  Laurel
MD  Martin's Additions
MD  Morningside
MD  Mount Rainier
MD  New Carrollton
MD  North Brentwood
MD  Riverdale
MD  Rockville
MD  Seat Pleasant
MD  Smithsburg
MD  Somerset
MD  Takoma Park
MD  University Park
MD  Walkersville
MD  Washington Grove
MD  Williamsport

MA  Attleboro
MA  Barnstable County
MA  Berkshire County
MA  Beverly
MA  Bristol County
MA  Brockton
MA  Cambridge
MA  Chelsea
MA  Chicopee
MA  Essex County
MA  Everett
MA  Fall River
MA  Fitchburg
MA  Gloucester
MA  Hampden County
MA  Hampshire County
MA  Haverhill
MA  Holyoke
MA  Lawrence
MA  Leominster
MA  Lowell
MA  Lynn
MA  Malden
MA  Marlborough
MA  Medford
MA  Melrose
MA  Middlesex County
MA  New Bedford
MA  Newton
MA  Norfolk County
MA  Northampton
MA  Peabody
MA  Pittsfield
MA  Plymouth County
MA  Quincy
MA  Revere
MA  Salem
MA  Somerville
MA  Springfield
MA  Suffolk County
MA  Taunton
MA  Waltham
MA  Westfield
MA  Woburn
MA  Worcester County

MI  Allegan County
MI  Allen Park
MI  Auburn Hills
MI  Battle Creek
MI  Bay City
MI  Bay County
MI  Belleville
MI  Benton Harbor
MI  Berkley
MI  Berrien County
MI  Beverly Hills
MI  Bingham Farms
MI  Birmingham
MI  Bloomfield Hills
MI  Burton
MI  Calhoun County
MI  Cass County
MI  Center Line
MI  Clarkston
MI  Clawson
MI  Clinton County
MI  Clio
MI  Davison
MI  Dearborn
MI  Dearborn Heights
MI  Detroit
MI  East Detroit
MI  East Grand Rapids
MI  East Lansing
MI  Eaton County
MI  Ecorse
MI  Essexville
MI  Farmington
MI  Farmington Hills
MI  Ferndale
MI  Flat Rock
MI  Flushing
MI  Franklin
MI  Fraser
MI  Garden City
MI  Genesee County
MI  Gibraltar
MI  Grand Blanc
MI  Grandville
MI  Grosse Pointe
MI  Grosse Pointe Farms
MI  Grosse Pointe Park
MI  Grosse Pointe Shores
MI  Grosse Pointe Woods
MI  Hamtramck
MI  Harper Woods
MI  Hazel Park
MI  Highland Park
MI  Holland
MI  Hudsonville
MI  Huntington Woods
MI  Ingham County
MI  Inkster
MI  Jackson
MI  Jackson County
MI  Kalamazoo
MI  Kalamazoo County
MI  Keego Harbor
MI  Kent County
MI  Kentwood
MI  Lake Angelus
MI  Lansing
MI  Lathrup Village
MI  Lincoln Park
MI  Livonia
MI  Macomb County
MI  Madison Heights
MI  Marysville
MI  Melvindale
MI  Monroe County
MI  Mount Clemens
MI  Mount Morris
MI  Muskegon
MI  Muskegon County
MI  Muskegon Heights
MI  New Baltimore
MI  Niles
MI  North Muskegon
MI  Northville
MI  Norton Shores
MI  Novi
MI  Oak Park
MI  Oakland County
MI  Orchard Lake Village
MI  Ottawa County
MI  Parchment
MI  Pleasant Ridge
MI  Plymouth
MI  Pontiac
MI  Port Huron
MI  Portage
MI  River Rouge
MI  Riverview
MI  Rochester
MI  Rochester Hills
MI  Rockwood
MI  Romulus
MI  Roosevelt Park
MI  Roseville
MI  Royal Oak
MI  Saginaw
MI  Saginaw County
MI  Shoreham
MI  South Rockwood
MI  Southfield
MI  Southgate
MI  Springfield
MI  St. Clair
MI  St. Clair County

[[Page 1622]]

MI  St. Clair Shores
MI  St. Joseph
MI  Stevensville
MI  Swartz Creek
MI  Sylvan Lake
MI  Taylor
MI  Trenton
MI  Troy
MI  Utica
MI  Walker
MI  Walled Lake
MI  Washtenaw County
MI  Wayne
MI  Wayne County
MI  Westland
MI  Wixom
MI  Wolverine Lake
MI  Woodhaven
MI  Wyandotte
MI  Wyoming
MI  Ypsilanti
MI  Zeeland
MI  Zilwaukee

MN  Andover
MN  Anoka
MN  Apple Valley
MN  Arden Hills
MN  Benton County
MN  Birchwood Village
MN  Blaine
MN  Bloomington
MN  Brooklyn Center
MN  Brooklyn Park
MN  Burnsville
MN  Champlin
MN  Chanhassen
MN  Circle Pines
MN  Clay County
MN  Coon Rapids
MN  Cottage Grove
MN  Crystal
MN  Dayton
MN  Deephaven
MN  Dilworth
MN  Duluth
MN  Eagan
MN  East Grand Forks
MN  Eden Prairie
MN  Excelsior
MN  Falcon Heights
MN  Farmington
MN  Fridley
MN  Gem Lake
MN  Golden Valley
MN  Greenwood
MN  Ham Lake
MN  Hennepin County
MN  Hermantown
MN  Hilltop
MN  Hopkins
MN  Houston County
MN  Inver Grove Heights
MN  La Crescent
MN  Lake Elmo
MN  Lakeville
MN  Landfall
MN  Lauderdale
MN  Lexington
MN  Lilydale
MN  Lino Lakes
MN  Little Canada
MN  Long Lake
MN  Loretto
MN  Mahtomedi
MN  Maple Grove
MN  Maple Plain
MN  Maplewood
MN  Medicine Lake
MN  Medina
MN  Mendota
MN  Mendota Heights
MN  Minnetonka
MN  Minnetonka Beach
MN  Minnetrista
MN  Moorhead
MN  Mound
MN  Mounds View
MN  New Brighton
MN  New Hope
MN  Newport
MN  North Oaks
MN  North St. Paul
MN  Oakdale
MN  Olmsted County
MN  Orono
MN  Osseo
MN  Plymouth
MN  Prior Lake
MN  Proctor
MN  Ramsey
MN  Ramsey County
MN  Robbinsdale
MN  Rochester
MN  Rosemount
MN  Roseville
MN  Sartell
MN  Sauk Rapids
MN  Savage
MN  Scott County
MN  Sherburne County
MN  Shoreview
MN  Shorewood
MN  South St. Paul
MN  Spring Lake Park
MN  Spring Park
MN  St. Anthony
MN  St. Cloud
MN  St. Louis County
MN  St. Paul Park
MN  Stearns County
MN  Sunfish Lake
MN  Tonka Bay
MN  Vadnais Heights
MN  Victoria
MN  Waite Park
MN  WA County
MN  Wayzata
MN  West St. Paul
MN  White Bear Lake
MN  Willernie
MN  Woodbury
MN  Woodland

MS  Bay St. Louis
MS  Biloxi
MS  Brandon
MS  Clinton
MS  D'Iberville
MS  DeSoto County
MS  Flowood
MS  Forrest County
MS  Gautier
MS  Gulfport
MS  Hancock County
MS  Harrison County
MS  Hattiesburg
MS  Hinds County
MS  Horn Lake
MS  Jackson County
MS  Lamar County
MS  Long Beach
MS  Madison
MS  Madison County
MS  Moss Point
MS  Ocean Springs
MS  Pascagoula
MS  Pass Christian
MS  Pearl
MS  Petal
MS  Rankin County
MS  Richland
MS  Ridgeland
MS  Southaven
MS  Waveland

MO  Airport Drive
MO  Andrew County
MO  Arnold
MO  Avondale
MO  Ballwin
MO  Battlefield
MO  Bel-Nor
MO  Bel-Ridge
MO  Bella Villa
MO  Bellefontaine Neighbors
MO  Bellerive
MO  Belton
MO  Berkeley
MO  Beverly Hills
MO  Birmingham
MO  Black Jack
MO  Blue Springs
MO  Boone County
MO  Breckenridge Hills
MO  Brentwood
MO  Bridgeton
MO  Buchanan County
MO  Calverton Park
MO  Carl Junction
MO  Carterville
MO  Cass County
MO  Charlack
MO  Chesterfield
MO  Clarkson Valley
MO  Claycomo
MO  Clayton
MO  Cliff Village
MO  Columbia
MO  Cool Valley
MO  Cottleville
MO  Country Club
MO  Country Club Hills
MO  Country Life Acres      
MO  Crestwood
MO  Creve Coeur
MO  Crystal Lake Park
MO  Dellwood
MO  Dennis Acres
MO  Des Peres
MO  Duquesne
MO  Edmundson
MO  Ellisville
MO  Fenton
MO  Ferguson
MO  Flordell Hills
MO  Florissant
MO  Frontenac
MO  Gladstone
MO  Glen Echo Park
MO  Glenaire
MO  Glendale
MO  Grandview
MO  Grantwood Village
MO  Greendale
MO  Greene County
MO  Hanley Hills
MO  Hazelwood
MO  Hillsdale
MO  Houston Lake
MO  Huntleigh

[[Page 1623]]

MO  Iron Gates
MO  Jackson County
MO  Jasper County
MO  Jefferson County
MO  Jennings
MO  Joplin
MO  Kimmswick
MO  Kinloch
MO  Kirkwood
MO  Ladue
MO  Lake St.Louis
MO  Lake Tapawingo
MO  Lake Waukomis
MO  Lakeshire
MO  Leawood
MO  Lee's Summit
MO  Liberty
MO  Mac Kenzie
MO  Manchester
MO  Maplewood
MO  Marlborough
MO  Maryland Heights
MO  Moline Acres
MO  Normandy
MO  North KS City
MO  Northmoor
MO  Northwoods
MO  Norwood Court
MO  O'Fallon
MO  Oakland
MO  Oakland Park
MO  Oaks
MO  Oakview
MO  Oakwood
MO  Oakwood Park
MO  Olivette
MO  Overland
MO  Pagedale
MO  Parkdale
MO  Parkville
MO  Pasadena Hills
MO  Pasadena Park
MO  Pine Lawn
MO  Platte County
MO  Platte Woods
MO  Pleasant Valley
MO  Randolph
MO  Raymore
MO  Raytown
MO  Redings Mill
MO  Richmond Heights
MO  Riverside
MO  Riverview
MO  Rock Hill
MO  Saginaw
MO  Shoal Creek Drive
MO  Shrewsbury
MO  Silver Creek
MO  St. Ann
MO  St. Charles
MO  St. Charles County
MO  St. George
MO  St. John
MO  St. Joseph
MO  St. Louis
MO  St. Louis County
MO  St. Peters
MO  Sugar Creek
MO  Sunset Hills
MO  Sycamore Hills
MO  Town and Country
MO  Twin Oaks
MO  Unity Village
MO  University City
MO  Uplands Park
MO  Valley Park
MO  Velda Village
MO  Velda Village Hills
MO  Vinita Park
MO  Vinita Terrace
MO  Warson Woods
MO  Weatherby Lake
MO  Webb City
MO  Webster Groves
MO  Wellston
MO  Westwood
MO  Wilbur Park
MO  Winchester
MO  Woodson Terrace

MT  Billings
MT  Cascade County
MT  Great Falls
MT  Missoula
MT  Missoula County
MT  Yellowstone County

NE  Bellevue
NE  Boys Town
NE  Dakota County
NE  Douglas County
NE  La Vista
NE  Lancaster County
NE  Papillion
NE  Ralston
NE  Sarpy County
NE  South Sioux City

NH  Dover
NH  Hillsborough County
NH  Manchester
NH  Merrimack County
NH  Nashua
NH  Portsmouth
NH  Rochester
NH  Rockingham County
NH  Somersworth
NH  Strafford County

NJ  Absecon
NJ  Allendale
NJ  Allenhurst
NJ  Alpha
NJ  Alpine
NJ  Asbury Park
NJ  Atlantic City
NJ  Atlantic County
NJ  Atlantic Highlands
NJ  Audubon
NJ  Audubon Park
NJ  Avon-by-the-Sea
NJ  Barrington
NJ  Bay Head
NJ  Bayonne
NJ  Beachwood
NJ  Bellmawr
NJ  Belmar
NJ  Bergen County
NJ  Bergenfield
NJ  Berlin
NJ  Bernardsville
NJ  Beverly
NJ  Bloomingdale
NJ  Bogota
NJ  Boonton
NJ  Bordentown
NJ  Bound Brook
NJ  Bradley Beach
NJ  Brielle
NJ  Brigantine
NJ  Brooklawn
NJ  Buena
NJ  Burlington
NJ  Burlington County
NJ  Butler
NJ  Camden
NJ  Camden County
NJ  Cape May County
NJ  Carlstadt
NJ  Carteret
NJ  Chatham
NJ  Chesilhurst
NJ  Clayton
NJ  Clementon
NJ  Cliffside Park
NJ  Clifton
NJ  Closter
NJ  Collingswood
NJ  Cresskill
NJ  Cumberland County
NJ  Deal
NJ  Demarest
NJ  Dover
NJ  Dumont
NJ  Dunellen
NJ  East Newark
NJ  East Orange
NJ  East Rutherford
NJ  Eatontown
NJ  Edgewater
NJ  Elizabeth
NJ  Elmwood Park
NJ  Emerson
NJ  Englewood
NJ  Englewood Cliffs
NJ  Englishtown
NJ  Essex County
NJ  Fair Haven
NJ  Fair Lawn
NJ  Fairview
NJ  Fanwood
NJ  Fieldsboro
NJ  Florham Park
NJ  Fort Lee
NJ  Franklin Lakes
NJ  Freehold
NJ  Garfield
NJ  Garwood
NJ  Gibbsboro
NJ  Glassboro
NJ  Glen Rock
NJ  Gloucester City
NJ  Gloucester County
NJ  Guttenberg
NJ  Hackensack
NJ  Haddon Heights
NJ  Haddonfield
NJ  Haledon
NJ  Harrington Park
NJ  Harrison
NJ  Hasbrouck Heights
NJ  Haworth
NJ  Hawthorne
NJ  Helmetta
NJ  Hi-Nella
NJ  Highland Park
NJ  Highlands
NJ  Hillsdale
NJ  Ho-Ho-Kus
NJ  Hoboken
NJ  Hopatcong
NJ  Hudson County
NJ  Hunterdon County
NJ  Interlaken
NJ  Island Heights
NJ  Jamesburg
NJ  Jersey City
NJ  Keansburg
NJ  Kearny
NJ  Kenilworth
NJ  Keyport

[[Page 1624]]

NJ  Kinnelon
NJ  Lakehurst
NJ  Laurel Springs
NJ  Lavallette
NJ  Lawnside
NJ  Leonia
NJ  Lincoln Park
NJ  Linden
NJ  Lindenwold
NJ  Linwood
NJ  Little Ferry
NJ  Little Silver
NJ  Loch Arbour
NJ  Lodi
NJ  Long Branch
NJ  Longport
NJ  Madison
NJ  Magnolia
NJ  Manasquan
NJ  Mantoloking
NJ  Manville
NJ  Margate City
NJ  Matawan
NJ  Maywood
NJ  Medford Lakes
NJ  Mendham
NJ  Mercer County
NJ  Merchantville
NJ  Metuchen
NJ  Middlesex
NJ  Middlesex County
NJ  Midland Park
NJ  Millstone
NJ  Milltown
NJ  Millville
NJ  Monmouth Beach
NJ  Monmouth County
NJ  Montvale
NJ  Moonachie
NJ  Morris County
NJ  Morris Plains
NJ  Morristown
NJ  Mount Arlington
NJ  Mount Ephraim
NJ  Mountain Lakes
NJ  Mountainside
NJ  National Park
NJ  Neptune City
NJ  Netcong
NJ  New Brunswick
NJ  New Milford
NJ  New Providence
NJ  Newark
NJ  Newfield
NJ  North Arlington
NJ  North Haledon
NJ  North Plainfield
NJ  Northfield
NJ  Northvale
NJ  Norwood
NJ  Oakland
NJ  Oaklyn
NJ  Ocean City
NJ  Ocean County
NJ  Ocean Gate
NJ  Oceanport
NJ  Old Tappan
NJ  Oradell
NJ  Palisades Park
NJ  Palmyra
NJ  Paramus
NJ  Park Ridge
NJ  Passaic
NJ  Passaic County
NJ  Paterson
NJ  Paulsboro
NJ  Pennington
NJ  Penns Grove
NJ  Perth Amboy
NJ  Phillipsburg
NJ  Pine Beach
NJ  Pine Hill
NJ  Pine Valley
NJ  Pitman
NJ  Plainfield
NJ  Pleasantville
NJ  Point Pleasant
NJ  Point Pleasant Beach
NJ  Pompton Lakes
NJ  Prospect Park
NJ  Rahway
NJ  Ramsey
NJ  Raritan
NJ  Red Bank
NJ  Ridgefield
NJ  Ridgefield Park
NJ  Ridgewood
NJ  Ringwood
NJ  River Edge
NJ  Riverdale
NJ  Riverton
NJ  Rockaway
NJ  Rockleigh
NJ  Roseland
NJ  Roselle
NJ  Roselle Park
NJ  Rumson
NJ  Runnemede
NJ  Rutherford
NJ  Saddle River
NJ  Salem County
NJ  Sayreville
NJ  Sea Bright
NJ  Sea Girt
NJ  Seaside Heights
NJ  Seaside Park
NJ  Secaucus
NJ  Shrewsbury
NJ  Somerdale
NJ  Somers Point
NJ  Somerset County
NJ  Somerville
NJ  South Amboy
NJ  South Belmar
NJ  South Bound Brook
NJ  South Plainfield
NJ  South River
NJ  South Toms River
NJ  Spotswood
NJ  Spring Lake
NJ  Spring Lake Heights
NJ  Stanhope
NJ  Stratford
NJ  Summit
NJ  Sussex County
NJ  Tavistock
NJ  Tenafly
NJ  Teterboro
NJ  Tinton Falls
NJ  Totowa
NJ  Trenton
NJ  Union Beach
NJ  Union City
NJ  Union County
NJ  Upper Saddle River
NJ  Ventnor City
NJ  Victory Gardens
NJ  Vineland
NJ  Waldwick
NJ  Wallington
NJ  Wanaque
NJ  Warren County
NJ  Watchung
NJ  Wenonah
NJ  West Long Branch
NJ  West NY
NJ  West Paterson
NJ  Westfield
NJ  Westville
NJ  Westwood
NJ  Wharton
NJ  Wood-Ridge
NJ  Woodbury
NJ  Woodbury Heights
NJ  Woodcliff Lake
NJ  Woodlynne

NM  Bernalillo County
NM  Corrales
NM  Dona Ana County
NM  Las Cruces
NM  Los Ranchos de Albuquerque
NM  Mesilla
NM  Rio Rancho
NM  Santa Fe
NM  Santa Fe County
NM  Sunland Park

NY  Albany
NY  Albany County
NY  Amityville
NY  Ardsley
NY  Atlantic Beach
NY  Babylon
NY  Baldwinsville
NY  Baxter Estates
NY  Bayville
NY  Beacon
NY  Belle Terre
NY  Bellerose
NY  Bellport
NY  Binghamton
NY  Blasdell
NY  Briarcliff Manor
NY  Brightwaters
NY  Bronxville
NY  Brookville
NY  Broome County
NY  Buchanan
NY  Buffalo
NY  Camillus
NY  Cayuga Heights
NY  Cedarhurst
NY  Chemung County
NY  Chestnut Ridge
NY  Clayville
NY  Clinton
NY  Cohoes
NY  Colonie
NY  Cornwall on Hudson
NY  Croton-on-Hudson
NY  Depew
NY  Dobbs Ferry
NY  Dutchess County
NY  East Hills
NY  East Rochester
NY  East Rockaway
NY  East Syracuse
NY  East Williston
NY  Elmira
NY  Elmira Heights
NY  Elmsford
NY  Endicott
NY  Erie County
NY  Fairport
NY  Farmingdale
NY  Fayetteville
NY  Fishkill
NY  Floral Park
NY  Flower Hill

[[Page 1625]]

NY  Fort Edward
NY  Freeport
NY  Garden City
NY  Glen Cove
NY  Glens Falls
NY  Grand View-on-Hudson
NY  Great Neck
NY  Great Neck Estates
NY  Great Neck Plaza
NY  Green Island
NY  Hamburg
NY  Harrison
NY  Hastings-on-Hudson
NY  Haverstraw
NY  Hempstead
NY  Herkimer County
NY  Hewlett Bay Park
NY  Hewlett Harbor
NY  Hewlett Neck
NY  Hillburn
NY  Horseheads
NY  Hudson Falls
NY  Huntington Bay
NY  Irvington
NY  Island Park
NY  Islandia
NY  Ithaca
NY  Johnson City
NY  Kenmore
NY  Kensington
NY  Kings Point
NY  Lackawanna
NY  Lake Grove
NY  Lake Success
NY  Lancaster
NY  Lansing
NY  Larchmont
NY  Lattingtown
NY  Lawrence
NY  Lewiston
NY  Lindenhurst
NY  Liverpool
NY  Lloyd Harbor
NY  Long Beach
NY  Lynbrook
NY  Malverne
NY  Mamaroneck
NY  Manlius
NY  Manorhaven
NY  Massapequa Park
NY  Matinecock
NY  Menands
NY  Mill Neck
NY  Mineola
NY  Minoa
NY  Monroe County
NY  Montebello
NY  Mount Kisco
NY  Mount Vernon
NY  Munsey Park
NY  Muttontown
NY  Nassau County
NY  New Hartford
NY  New Hempstead
NY  New Hyde Park
NY  New Rochelle
NY  New Square
NY  NY Mills
NY  Newburgh
NY  Niagara County
NY  Niagara Falls
NY  North Hills
NY  North Syracuse
NY  North Tarrytown
NY  North Tonawanda
NY  Northport
NY  Nyack
NY  Old Brookville
NY  Old Westbury
NY  Oneida County
NY  Onondaga County
NY  Orange County
NY  Orchard Park
NY  Oriskany
NY  Ossining
NY  Oswego County
NY  Patchogue
NY  Peekskill
NY  Pelham
NY  Pelham Manor
NY  Phoenix
NY  Piermont
NY  Pittsford
NY  Plandome
NY  Plandome Heights
NY  Plandome Manor
NY  Pleasantville
NY  Pomona
NY  Poquott
NY  Port Chester
NY  Port Dickinson
NY  Port Jefferson
NY  Port WA North
NY  Poughkeepsie
NY  Putnam County
NY  Rensselaer
NY  Rensselaer County
NY  Rochester
NY  Rockland County
NY  Rockville Centre
NY  Rome
NY  Roslyn
NY  Roslyn Estates
NY  Roslyn Harbor
NY  Russell Gardens
NY  Rye
NY  Rye Brook
NY  Saddle Rock
NY  Sands Point
NY  Saratoga County
NY  Scarsdale
NY  Schenectady
NY  Schenectady County
NY  Scotia
NY  Sea Cliff
NY  Shoreham
NY  Sloan
NY  Sloatsburg
NY  Solvay
NY  South Floral Park
NY  South Glens Falls
NY  South Nyack
NY  Spencerport
NY  Spring Valley
NY  Stewart Manor
NY  Suffern
NY  Suffolk County
NY  Syracuse
NY  Tarrytown
NY  Thomaston
NY  Tioga County
NY  Tompkins County
NY  Tonawanda
NY  Troy
NY  Tuckahoe
NY  Ulster County
NY  Upper Brookville
NY  Upper Nyack
NY  Utica
NY  Valley Stream
NY  Village of the Branch
NY  Wappingers Falls
NY  Warren County
NY  Washington County
NY  Waterford
NY  Watervliet
NY  Webster
NY  Wesley Hills
NY  West Haverstraw
NY  Westbury
NY  Westchester County
NY  White Plains
NY  Whitesboro
NY  Williamsville
NY  Williston Park
NY  Woodsburgh
NY  Yonkers
NY  Yorkville

NC  Alamance County
NC  Apex
NC  Archdale
NC  Asheville
NC  Belmont
NC  Belville
NC  Bessemer City
NC  Biltmore Forest
NC  Black Mountain
NC  Brookford
NC  Brunswick County
NC  Buncombe County
NC  Burke County
NC  Burlington
NC  Cabarrus County
NC  Carrboro
NC  Cary
NC  Catawba County
NC  Chapel Hill
NC  China Grove
NC  Clemmons
NC  Concord
NC  Conover
NC  Cramerton
NC  Dallas
NC  Davidson County
NC  Durham County
NC  Edgecombe County
NC  Elon College
NC  Fletcher
NC  Forsyth County
NC  Garner
NC  Gaston County
NC  Gastonia
NC  Gibsonville
NC  Goldsboro
NC  Graham
NC  Greenville
NC  Guilford County
NC  Harnett County
NC  Haw River
NC  Hickory
NC  High Point
NC  Hildebran
NC  Hope Mills
NC  Indian Trail
NC  Jacksonville
NC  Jamestown
NC  Kannapolis
NC  Landis
NC  Leland
NC  Long View
NC  Lowell
NC  Matthews
NC  McAdenville
NC  Mebane
NC  Mecklenburg County
NC  Mint Hill
NC  Montreat
NC  Mount Holly

[[Page 1626]]

NC  Nash County
NC  New Hanover County
NC  Newton
NC  Onslow County
NC  Orange County
NC  Pineville
NC  Pitt County
NC  Randolph County
NC  Ranlo
NC  Rocky Mount
NC  Rowan County
NC  Rural Hall
NC  Spring Lake
NC  Stallings
NC  Thomasville
NC  Union County
NC  Wake County
NC  Walkertown
NC  Wayne County
NC  Weaverville
NC  Wilmington
NC  Winterville
NC  Woodfin
NC  Wrightsville Beach

ND  Bismarck
ND  Burleigh County
ND  Cass County
ND  Fargo
ND  Grand Forks
ND  Grand Forks County
ND  Lincoln
ND  Mandan
ND  Morton County
ND  West Fargo

OH  Addyston
OH  Allen County
OH  Amberley
OH  Amelia
OH  Amherst
OH  Arlington Heights
OH  Auglaize County
OH  Aurora
OH  Avon
OH  Avon Lake
OH  Barberton
OH  Bay Village
OH  Beachwood
OH  Beavercreek
OH  Bedford
OH  Bedford Heights
OH  Bellaire
OH  Bellbrook
OH  Belmont County
OH  Belpre
OH  Bentleyville
OH  Berea
OH  Bexley
OH  Blue Ash
OH  Brady Lake
OH  Bratenahl
OH  Brecksville
OH  Brice
OH  Bridgeport
OH  Brilliant
OH  Broadview Heights
OH  Brook Park
OH  Brooklyn
OH  Brooklyn Heights
OH  Brookside
OH  Brunswick
OH  Butler County
OH  Campbell
OH  Canfield
OH  Canton
OH  Carlisle
OH  Centerville
OH  Chagrin Falls
OH  Chesapeake
OH  Cheviot
OH  Cincinnati
OH  Clark County
OH  Clermont County
OH  Cleveland
OH  Cleveland Heights
OH  Cleves
OH  Coal Grove
OH  Cridersville
OH  Cuyahoga County
OH  Cuyahoga Falls
OH  Cuyahoga Heights
OH  Deer Park
OH  Delaware County
OH  Doylestown
OH  Dublin
OH  East Cleveland
OH  Eastlake
OH  Elmwood Place
OH  Elyria
OH  Englewood
OH  Erie County
OH  Euclid
OH  Evendale
OH  Fairborn
OH  Fairfax
OH  Fairfield
OH  Fairfield County
OH  Fairlawn
OH  Fairport Harbor
OH  Fairview Park
OH  Forest Park
OH  Fort Shawnee
OH  Franklin
OH  Franklin County
OH  Gahanna
OH  Garfield Heights
OH  Geauga County
OH  Girard
OH  Glendale
OH  Glenwillow
OH  Golf Manor
OH  Grand River
OH  Grandview Heights
OH  Green
OH  Greene County
OH  Greenhills
OH  Grove City
OH  Groveport
OH  Hamilton
OH  Hamilton County
OH  Hanging Rock
OH  Harbor View
OH  Hartville
OH  Heath
OH  Highland Heights
OH  Hilliard
OH  Hills and Dales
OH  Holland
OH  Hubbard
OH  Huber Heights
OH  Hudson
OH  Independence
OH  Ironton
OH  Jefferson County
OH  Kent
OH  Kettering
OH  Kirtland
OH  Lake County
OH  Lakeline
OH  Lakemore
OH  Lakewood
OH  Lawrence County
OH  Lexington
OH  Licking County
OH  Lima
OH  Lincoln Heights
OH  Linndale
OH  Lockland
OH  Lorain
OH  Lorain County
OH  Louisville
OH  Loveland
OH  Lowellville
OH  Lucas County
OH  Lyndhurst
OH  Macedonia
OH  Madeira
OH  Mahoning County
OH  Maineville
OH  Mansfield
OH  Maple Heights
OH  Marble Cliff
OH  Mariemont
OH  Martins Ferry
OH  Mason
OH  Massillon
OH  Maumee
OH  Mayfield
OH  Mayfield Heights
OH  McDonald
OH  Medina County
OH  Mentor
OH  Mentor-on-the-Lake
OH  Meyers Lake
OH  Miami County
OH  Miamisburg
OH  Middleburg Heights
OH  Middletown
OH  Milford
OH  Millbury
OH  Millville
OH  Minerva Park
OH  Mingo Junction
OH  Mogadore
OH  Monroe
OH  Montgomery
OH  Montgomery County
OH  Moraine
OH  Moreland Hills
OH  Mount Healthy
OH  Munroe Falls
OH  New Miami
OH  New Middletown
OH  New Rome
OH  Newark
OH  Newburgh Heights
OH  Newtown
OH  Niles
OH  North Bend
OH  North Canton
OH  North College Hill
OH  North Olmsted
OH  North Randall
OH  North Ridgeville
OH  North Royalton
OH  Northfield
OH  Northwood
OH  Norton
OH  Norwood
OH  Oakwood
OH  Oakwood
OH  Obetz
OH  Olmsted Falls
OH  Ontario
OH  Orange
OH  Oregon
OH  Ottawa County
OH  Ottawa Hills
OH  Painesville

[[Page 1627]]

OH  Parma
OH  Parma Heights
OH  Pepper Pike
OH  Perrysburg
OH  Poland
OH  Portage County
OH  Powell
OH  Proctorville
OH  Ravenna
OH  Reading
OH  Reminderville
OH  Reynoldsburg
OH  Richfield
OH  Richland County
OH  Richmond Heights
OH  Riverlea
OH  Riverside
OH  Rocky River
OH  Rossford
OH  Seven Hills
OH  Shadyside
OH  Shaker Heights
OH  Sharonville
OH  Shawnee Hills
OH  Sheffield
OH  Sheffield Lake
OH  Silver Lake
OH  Silverton
OH  Solon
OH  South Amherst
OH  South Euclid
OH  South Point
OH  South Russell
OH  Springboro
OH  Springdale
OH  Springfield
OH  St. Bernard
OH  Stark County
OH  Steubenville
OH  Stow
OH  Strongsville
OH  Struthers
OH  Sugar Bush Knolls
OH  Summit County
OH  Sylvania
OH  Tallmadge
OH  Terrace Park
OH  The Village of Indian Hill
OH  Timberlake
OH  Trenton
OH  Trotwood
OH  Trumbull County
OH  Twinsburg
OH  Union
OH  University Heights
OH  Upper Arlington
OH  Urbancrest
OH  Valley View
OH  Valleyview
OH  Vandalia
OH  Vermilion
OH  Wadsworth
OH  Waite Hill
OH  Walbridge
OH  Walton Hills
OH  Warren
OH  Warren County
OH  Warrensville Heights
OH  Washington County
OH  Wayne County
OH  West Carrollton City
OH  West Milton
OH  Westerville
OH  Westlake
OH  Whitehall
OH  Wickliffe
OH  Willoughby
OH  Willoughby Hills
OH  Willowick
OH  Wintersville
OH  Wood County
OH  Woodlawn
OH  Woodmere
OH  Worthington
OH  Wyoming
OH  Youngstown

OK  Arkoma
OK  Bethany
OK  Bixby
OK  Broken Arrow
OK  Canadian County
OK  Catoosa
OK  Choctaw
OK  Cleveland County
OK  Comanche County
OK  Creek County
OK  Del City
OK  Edmond
OK  Forest Park
OK  Hall Park
OK  Harrah
OK  Jenks
OK  Jones
OK  Lake Aluma
OK  Lawton
OK  Logan County
OK  Midwest City
OK  Moffett
OK  Moore
OK  Mustang
OK  Nichols Hills
OK  Nicoma Park
OK  Norman
OK  Oklahoma County
OK  Rogers County
OK  Sand Springs
OK  Sequoyah County
OK  Smith Village
OK  Spencer
OK  The Village
OK  Tulsa County
OK  Valley Brook
OK  Wagoner County
OK  Warr Acres
OK  Woodlawn Park
OK  Yukon

OR  Central Point
OR  Columbia County
OR  Durham
OR  Jackson County
OR  Keizer
OR  King City
OR  Lane County
OR  Marion County
OR  Maywood Park
OR  Medford
OR  Phoenix
OR  Polk County
OR  Rainier
OR  Springfield
OR  Troutdale
OR  Wood Village

PA  Adamsburg
PA  Alburtis
PA  Aldan
PA  Aliquippa
PA  Allegheny County
PA  Allenport
PA  Altoona
PA  Ambler
PA  Ambridge
PA  Archbald
PA  Arnold
PA  Ashley
PA  Aspinwall
PA  Avalon
PA  Avoca
PA  Baden
PA  Baldwin
PA  Beaver
PA  Beaver County
PA  Beaver Falls
PA  Bell Acres
PA  Belle Vernon
PA  Bellevue
PA  Ben Avon
PA  Ben Avon Heights
PA  Berks County
PA  Bethel Park
PA  Bethlehem
PA  Big Beaver
PA  Birdsboro
PA  Blair County
PA  Blakely
PA  Blawnox
PA  Boyertown
PA  Brackenridge
PA  Braddock
PA  Braddock Hills
PA  Bradfordwoods
PA  Brentwood
PA  Bridgeport
PA  Bridgeville
PA  Bridgewater
PA  Bristol
PA  Brookhaven
PA  Brownstown
PA  Brownsville
PA  Bryn Athyn
PA  Bucks County
PA  California
PA  Cambria County
PA  Camp Hill
PA  Canonsburg
PA  Carbondale
PA  Carnegie
PA  Castle Shannon
PA  Catasauqua
PA  Centre County
PA  Chalfant
PA  Chalfont
PA  Charleroi
PA  Chester
PA  Chester County
PA  Chester Heights
PA  Cheswick
PA  Churchill
PA  Clairton
PA  Clarks Green
PA  Clarks Summit
PA  Clifton Heights
PA  Coal Center
PA  Coatesville
PA  Collegeville
PA  Collingdale
PA  Columbia
PA  Colwyn
PA  Conshohocken
PA  Conway
PA  Coplay
PA  Coraopolis
PA  Courtdale
PA  Crafton
PA  Cumberland County
PA  Daisytown
PA  Dale
PA  Dallas

[[Page 1628]]

PA  Dallastown
PA  Darby
PA  Dauphin County
PA  Delaware County
PA  Delmont
PA  Dickson City
PA  Donora
PA  Dormont
PA  Dover
PA  Downingtown
PA  Doylestown
PA  Dravosburg
PA  Duboistown
PA  Duncansville
PA  Dunlevy
PA  Dunmore
PA  Dupont
PA  Duquesne
PA  Duryea
PA  East Conemaugh
PA  East Lansdowne
PA  East McKeesport
PA  East Petersburg
PA  East Pittsburgh
PA  East Rochester
PA  East Washington
PA  Easton
PA  Eastvale
PA  Economy
PA  Eddystone
PA  Edgewood
PA  Edgeworth
PA  Edwardsville
PA  Elco
PA  Elizabeth
PA  Ellport
PA  Ellwood City
PA  Emmaus
PA  Emsworth
PA  Erie
PA  Erie County
PA  Etna
PA  Exeter
PA  Export
PA  Fallston
PA  Farrell
PA  Fayette City
PA  Fayette County
PA  Ferndale
PA  Finleyville
PA  Folcroft
PA  Forest Hills
PA  Forty Fort
PA  Fountain Hill
PA  Fox Chapel
PA  Franklin
PA  Franklin County
PA  Franklin Park
PA  Freedom
PA  Freemansburg
PA  Geistown
PA  Glassport
PA  Glendon
PA  Glenfield
PA  Glenolden
PA  Green Tree
PA  Greensburg
PA  Hallam
PA  Harrisburg
PA  Harveys Lake
PA  Hatboro
PA  Hatfield
PA  Haysville
PA  Heidelberg
PA  Hellertown
PA  Hermitage
PA  Highspire
PA  Hollidaysburg
PA  Homestead
PA  Homewood
PA  Houston
PA  Hughestown
PA  Hulmeville
PA  Hummelstown
PA  Hunker
PA  Ingram
PA  Irwin
PA  Ivyland
PA  Jacobus
PA  Jeannette
PA  Jefferson
PA  Jenkintown
PA  Jermyn
PA  Jessup
PA  Johnstown
PA  Kenhorst
PA  Kingston
PA  Koppel
PA  Lackawanna County
PA  Laflin
PA  Lancaster
PA  Lancaster County
PA  Langhorne
PA  Langhorne Manor
PA  Lansdale
PA  Lansdowne
PA  Larksville
PA  Laurel Run
PA  Laureldale
PA  Lawrence County
PA  Lebanon County
PA  Leesport
PA  Leetsdale
PA  Lehigh County
PA  Lemoyne
PA  Liberty
PA  Lincoln
PA  Lititz
PA  Loganville
PA  Lorain
PA  Lower Burrell
PA  Luzerne
PA  Luzerne County
PA  Lycoming County
PA  Macungie
PA  Madison
PA  Malvern
PA  Manor
PA  Marcus Hook
PA  Marysville
PA  Mayfield
PA  McKees Rocks
PA  McKeesport
PA  Mechanicsburg
PA  Media
PA  Mercer County
PA  Middletown
PA  Millbourne
PA  Millersville
PA  Millvale
PA  Modena
PA  Mohnton
PA  Monaca
PA  Monessen
PA  Monongahela
PA  Montgomery County
PA  Montoursville
PA  Moosic
PA  Morrisville
PA  Morton
PA  Mount Oliver
PA  Mount Penn
PA  Mountville
PA  Munhall
PA  Municipality of Monroeville
PA  Municipality of Murrysville
PA  Nanticoke
PA  Narberth
PA  New Brighton
PA  New Britain
PA  New Cumberland
PA  New Eagle
PA  New Galilee
PA  New Kensington
PA  New Stanton
PA  Newell
PA  Newtown
PA  Norristown
PA  North Belle Vernon
PA  North Braddock
PA  North Catasauqua
PA  North Charleroi
PA  North Irwin
PA  North Wales
PA  North York
PA  Northampton
PA  Northampton County
PA  Norwood
PA  Oakmont
PA  Old Forge
PA  Olyphant
PA  Osborne
PA  Paint
PA  Palmyra
PA  Parkside
PA  Patterson Heights
PA  Paxtang
PA  Penbrook
PA  Penn
PA  Penndel
PA  Pennsbury Village
PA  Phoenixville
PA  Pitcairn
PA  Pittsburgh
PA  Pittston
PA  Pleasant Hills
PA  Plum
PA  Plymouth
PA  Port Vue
PA  Pottstown
PA  Pringle
PA  Prospect Park
PA  Rankin
PA  Reading
PA  Red Lion
PA  Ridley Park
PA  Rochester
PA  Rockledge
PA  Roscoe
PA  Rose Valley
PA  Rosslyn Farms
PA  Royalton
PA  Royersford
PA  Rutledge
PA  Scalp Level
PA  Schwenksville
PA  Scranton
PA  Sewickley
PA  Sewickley Heights
PA  Sewickley Hills
PA  Sharon
PA  Sharon Hill
PA  Sharpsburg
PA  Sharpsville
PA  Shillington
PA  Shiremanstown
PA  Sinking Spring
PA  Somerset County

[[Page 1629]]

PA  Souderton
PA  South Coatesville
PA  South Greensburg
PA  South Heights
PA  South Williamsport
PA  Southmont
PA  Southwest Greensburg
PA  Speers
PA  Spring City
PA  Springdale
PA  St. Lawrence
PA  State College
PA  Steelton
PA  Stockdale
PA  Sugar Notch
PA  Swarthmore
PA  Swissvale
PA  Swoyersville
PA  Tarentum
PA  Taylor
PA  Telford
PA  Temple
PA  Thornburg
PA  Throop
PA  Trafford
PA  Trainer
PA  Trappe
PA  Tullytown
PA  Turtle Creek
PA  Upland
PA  Verona
PA  Versailles
PA  Wall
PA  Warrior Run
PA  Washington
PA  Washington County
PA  Wernersville
PA  Wesleyville
PA  West Brownsville
PA  West Chester
PA  West Conshohocken
PA  West Easton
PA  West Elizabeth
PA  West Fairview
PA  West Homestead
PA  West Lawn
PA  West Mayfield
PA  West Middlesex
PA  West Mifflin
PA  West Newton
PA  West Pittston
PA  West Reading
PA  West View
PA  West Wyoming
PA  West York
PA  Westmont
PA  Westmoreland County
PA  Wheatland
PA  Whitaker
PA  White Oak
PA  Wilkes-Barre
PA  Wilkinsburg
PA  Williamsport
PA  Wilmerding
PA  Wilson
PA  Windber
PA  Windsor
PA  Wormleysburg
PA  Wrightsville
PA  Wyoming
PA  Wyomissing
PA  Wyomissing Hills
PA  Yardley
PA  Yatesville
PA  Yeadon
PA  Yoe
PA  York
PA  York County
PA  Youngwood

PR  Aguada Municipio
PR  Aguadilla Municipio
PR  Aguas Buenas Municipio
PR  Aibonito Municipio
PR  Anasco Municipio
PR  Arecibo Municipio
PR  Bayamon Municipio
PR  Cabo Rojo Municipio
PR  Caguas Municipio
PR  Camuy Municipio
PR  Canovanas Municipio
PR  Carolina Municipio
PR  Catano Municipio
PR  Cayey Municipio
PR  Cidra Municipio
PR  Dorado Municipio
PR  Guaynabo Municipio
PR  Gurabo Municipio
PR  Hatillo Municipio
PR  Hormigueros Municipio
PR  Humacao Municipio
PR  Juncos Municipio
PR  Las Piedras Municipio
PR  Loiza Municipio
PR  Manati Municipio
PR  Mayaguez Municipio
PR  Moca Municipio
PR  Naguabo Municipio
PR  Naranjito Municipio
PR  Penuelas Municipio
PR  Ponce Municipio
PR  Rio Grande Municipio
PR  San German Municipio
PR  San Juan Municipio
PR  San Lorenzo Municipio
PR  Toa Alta Municipio
PR  Toa Baja Municipio
PR  Trujillo Alto Municipio
PR  Vega Alta Municipio
PR  Vega Baja Municipio
PR  Yabucoa Municipio

RI  Bristol County
RI  Central Falls
RI  Cranston
RI  East Providence
RI  Kent County
RI  Newport
RI  Newport County
RI  Pawtucket
RI  Providence
RI  Providence County
RI  Warwick
RI  Washington County
RI  Woonsocket

SC  Aiken
SC  Aiken County
SC  Anderson
SC  Anderson County
SC  Arcadia Lakes
SC  Berkeley County
SC  Burnettown
SC  Cayce
SC  Charleston
SC  Charleston County
SC  Columbia
SC  Cowpens
SC  Darlington County
SC  Dorchester County
SC  Florence
SC  Florence County
SC  Folly Beach
SC  Forest Acres
SC  Fort Mill
SC  Georgetown County
SC  Goose Creek
SC  Hanahan
SC  Horry County
SC  Irmo
SC  Isle of Palms
SC  Lexington County
SC  Lincolnville
SC  Mount Pleasant
SC  Myrtle Beach
SC  North Augusta
SC  North Charleston
SC  Pickens County
SC  Pineridge
SC  Quinby
SC  Rock Hill
SC  South Congaree
SC  Spartanburg
SC  Spartanburg County
SC  Springdale
SC  Sullivan's Island
SC  Summerville
SC  Sumter
SC  Sumter County
SC  Surfside Beach
SC  West Columbia
SC  York County

SD  Minnehaha County
SD  North Sioux City
SD  Pennington County
SD  Rapid City

TN  Alcoa
TN  Anderson County
TN  Bartlett
TN  Blount County
TN  Brentwood
TN  Bristol
TN  Carter County
TN  Church Hill
TN  Clarksville
TN  Collegedale
TN  East Ridge
TN  Elizabethton
TN  Farragut
TN  Germantown
TN  Hamilton County
TN  Hawkins County
TN  Hendersonville
TN  Jackson
TN  Johnson City
TN  Jonesborough
TN  Kingsport
TN  Knox County
TN  Lakesite
TN  Lookout Mountain
TN  Loudon County
TN  Madison County
TN  Maryville
TN  Montgomery County
TN  Mount Carmel
TN  Mount Juliet
TN  Red Bank
TN  Ridgeside
TN  Rockford
TN  Shelby County
TN  Signal Mountain
TN  Soddy-Daisy
TN  Sullivan County
TN  Sumner County
TN  Washington County
TN  Wilson County

TX  Addison
TX  Alamo
TX  Alamo Heights

[[Page 1630]]

TX  Allen
TX  Azle
TX  Balch Springs
TX  Balcones Heights
TX  Bayou Vista
TX  Baytown
TX  Bedford
TX  Bell County
TX  Bellaire
TX  Bellmead
TX  Belton
TX  Benbrook
TX  Beverly Hills
TX  Bexar County
TX  Blue Mound
TX  Bowie County
TX  Brazoria County
TX  Brazos County
TX  Brookside Village
TX  Brownsville
TX  Bryan
TX  Buckingham
TX  Bunker Hill Village
TX  Cameron County
TX  Carrollton
TX  Castle Hills
TX  Cedar Hill
TX  Cedar Park
TX  Cibolo
TX  Clear Lake Shores
TX  Clint
TX  Cockrell Hill
TX  College Station
TX  Colleyville
TX  Collin County
TX  Combes
TX  Converse
TX  Copperas Cove
TX  Corinth
TX  Coryell County
TX  Crowley
TX  Dallas County
TX  Dalworthington Gardens
TX  Deer Park
TX  Denison
TX  Denton
TX  Denton County
TX  DeSoto
TX  Dickinson
TX  Donna
TX  Double Oak
TX  Duncanville
TX  Ector County
TX  Edgecliff
TX  Edinburg
TX  El Lago
TX  El Paso County
TX  Euless
TX  Everman
TX  Farmers Branch
TX  Flower Mound
TX  Forest Hill
TX  Fort Bend County
TX  Friendswood
TX  Galena Park
TX  Galveston
TX  Galveston County
TX  Grand Prairie
TX  Grapevine
TX  Grayson County
TX  Gregg County
TX  Groves
TX  Guadalupe County
TX  Haltom City
TX  Hardin County
TX  Harker Heights
TX  Harlingen
TX  Hedwig Village
TX  Hewitt
TX  Hickory Creek
TX  Hidalgo County
TX  Highland Park
TX  Highland Village
TX  Hill Country Village
TX  Hilshire Village
TX  Hitchcock
TX  Hollywood Park
TX  Howe
TX  Humble
TX  Hunters Creek Village
TX  Hurst
TX  Hutchins
TX  Impact
TX  Jacinto City
TX  Jefferson County
TX  Jersey Village
TX  Katy
TX  Keller
TX  Kemah
TX  Kennedale
TX  Killeen
TX  Kirby
TX  La Marque
TX  La Porte
TX  Lacy-Lakeview
TX  Lake Dallas
TX  Lake Worth
TX  Lakeside
TX  Lakeside City
TX  Lancaster
TX  League City
TX  Leander
TX  Leon Valley
TX  Lewisville
TX  Live Oak
TX  Longview
TX  Lubbock County
TX  Lumberton
TX  McAllen
TX  McLennan County
TX  Meadows
TX  Midland
TX  Midland County
TX  Mission
TX  Missouri City
TX  Montgomery County
TX  Morgan's Point
TX  Nash
TX  Nassau Bay
TX  Nederland
TX  Nolanville
TX  North Richland Hills
TX  Northcrest
TX  Nueces County
TX  Odessa
TX  Olmos Park
TX  Palm Valley
TX  Palmview
TX  Pantego
TX  Pearland
TX  Pflugerville
TX  Pharr
TX  Piney Point Village
TX  Port Arthur
TX  Port Neches
TX  Portland
TX  Potter County
TX  Primera
TX  Randall County
TX  Richardson
TX  Richland Hills
TX  River Oaks
TX  Robinson
TX  Rockwall
TX  Rockwall County
TX  Rollingwood
TX  Rose Hill Acres
TX  Rowlett
TX  Sachse
TX  Saginaw
TX  San Angelo
TX  San Benito
TX  San Juan
TX  San Patricio County
TX  Sansom Park
TX  Santa Fe
TX  Schertz
TX  Seabrook
TX  Seagoville
TX  Selma
TX  Shavano Park
TX  Sherman
TX  Shoreacres
TX  Smith County
TX  Socorro
TX  South Houston
TX  Southside Place
TX  Spring Valley
TX  Stafford
TX  Sugar Land
TX  Sunset Valley
TX  Tarrant County
TX  Taylor County
TX  Taylor Lake Village
TX  Temple
TX  Terrell Hills
TX  Texarkana
TX  Texas City
TX  Tom Green County
TX  Travis County
TX  Tye
TX  Tyler
TX  Universal City
TX  University Park
TX  Victoria
TX  Victoria County
TX  Wake Village
TX  Watauga
TX  Webb County
TX  Webster
TX  Weslaco
TX  West Lake Hills
TX  West University Place
TX  Westover Hills
TX  Westworth
TX  White Oak
TX  White Settlement
TX  Wichita County
TX  Wichita Falls
TX  Williamson County
TX  Wilmer
TX  Windcrest
TX  Woodway

UT  American Fork
UT  Bluffdale
UT  Bountiful
UT  Cache County
UT  Cedar Hills
UT  Centerville
UT  Clearfield
UT  Clinton
UT  Davis County
UT  Draper
UT  Farmington
UT  Farr West
UT  Fruit Heights
UT  Harrisville
UT  Highland

[[Page 1631]]

UT  Hyde Park
UT  Kaysville
UT  Layton
UT  Lehi
UT  Lindon
UT  Logan
UT  Mapleton
UT  Midvale
UT  Millville
UT  Murray
UT  North Logan
UT  North Ogden
UT  North Salt Lake
UT  Ogden
UT  Orem
UT  Pleasant Grove
UT  Pleasant View
UT  Providence
UT  Provo
UT  River Heights
UT  Riverdale
UT  Riverton
UT  Roy
UT  Sandy
UT  Smithfield
UT  South Jordan
UT  South Ogden
UT  South Salt Lake
UT  South Weber
UT  Springville
UT  Sunset
UT  Syracuse
UT  Uintah
UT  Utah County
UT  Washington Terrace
UT  Weber County
UT  West Bountiful
UT  West Jordan
UT  West Point
UT  West Valley City
UT  Woods Cross

VT  Burlington
VT  Chittenden County
VT  Essex Junction
VT  South Burlington
VT  Winooski

VA  Albemarle County
VA  Alexandria
VA  Amherst County
VA  Bedford County
VA  Botetourt County
VA  Bristol
VA  Campbell County
VA  Charlottesville
VA  Colonial Heights
VA  Danville
VA  Dinwiddie County
VA  Fairfax
VA  Falls Church
VA  Fredericksburg
VA  Gate City
VA  Gloucester County
VA  Hanover County
VA  Herndon
VA  Hopewell
VA  James City County
VA  Loudoun County
VA  Lynchburg
VA  Manassas
VA  Manassas Park
VA  Occoquan
VA  Petersburg
VA  Pittsylvania County
VA  Poquoson
VA  Prince George County
VA  Richmond
VA  Roanoke
VA  Roanoke County
VA  Salem
VA  Scott County
VA  Spotsylvania County
VA  Stafford County
VA  Suffolk
VA  Vienna
VA  Vinton
VA  Washington County
VA  Weber City
VA  Williamsburg
VA  York County

WA  Algona
WA  Auburn
WA  Beaux Arts Village
WA  Bellevue
WA  Bellingham
WA  Benton County
WA  Bonney Lake
WA  Bothell
WA  Bremerton
WA  Brier
WA  Clyde Hill
WA  Cowlitz County
WA  Des Moines
WA  DuPont
WA  Edmonds
WA  Everett
WA  Fife
WA  Fircrest
WA  Franklin County
WA  Gig Harbor
WA  Hunts Point
WA  Issaquah
WA  Kelso
WA  Kennewick
WA  Kent
WA  Kirkland
WA  Kitsap County
WA  Lacey
WA  Lake Forest Park
WA  Longview
WA  Lynnwood
WA  Marysville
WA  Medina
WA  Mercer Island
WA  Mill Creek
WA  Millwood
WA  Milton
WA  Mountlake Terrace
WA  Mukilteo
WA  Normandy Park
WA  Olympia
WA  Pacific
WA  Pasco
WA  Port Orchard
WA  Puyallup
WA  Redmond
WA  Renton
WA  Richland
WA  Ruston
WA  Selah
WA  Spokane
WA  Spokane County
WA  Steilacoom
WA  Sumner
WA  Thurston County
WA  Tukwila
WA  Tumwater
WA  Union Gap
WA  Vancouver
WA  West Richland
WA  Whatcom County
WA  Woodway
WA  Yakima
WA  Yakima County
WA  Yarrow Point

WV  Bancroft
WV  Barboursville
WV  Belle
WV  Benwood
WV  Berkeley County
WV  Bethlehem
WV  Brooke County
WV  Cabell County
WV  Cedar Grove
WV  Ceredo
WV  Charleston
WV  Chesapeake
WV  Clearview
WV  Dunbar
WV  East Bank
WV  Follansbee
WV  Glasgow
WV  Glen Dale
WV  Hancock County
WV  Huntington
WV  Hurricane
WV  Kanawha County
WV  Kenova
WV  Marmet
WV  Marshall County
WV  McMechen
WV  Mineral County
WV  Moundsville
WV  Nitro
WV  North Hills
WV  Ohio County
WV  Parkersburg
WV  Poca
WV  Putnam County
WV  Ridgeley
WV  South Charleston
WV  St. Albans
WV  Triadelphia
WV  Vienna
WV  Wayne County
WV  Weirton
WV  Wheeling
WV  Wood County

WI  Allouez
WI  Altoona
WI  Appleton
WI  Ashwaubenon
WI  Bayside
WI  Beloit
WI  Big Bend
WI  Brookfield
WI  Brown County
WI  Brown Deer
WI  Butler
WI  Calumet County
WI  Cedarburg
WI  Chippewa County
WI  Chippewa Falls
WI  Combined Locks
WI  Cudahy
WI  Dane County
WI  De Pere
WI  Eau Claire
WI  Eau Claire County
WI  Elm Grove
WI  Elmwood Park
WI  Fitchburg
WI  Fox Point
WI  Franklin
WI  Germantown
WI  Glendale
WI  Grafton
WI  Green Bay
WI  Greendale

[[Page 1632]]

WI  Greenfield
WI  Hales Corners
WI  Holmen
WI  Howard
WI  Janesville
WI  Kaukauna
WI  Kenosha
WI  Kenosha County
WI  Kimberly
WI  Kohler
WI  La Crosse
WI  La Crosse County
WI  Lannon
WI  Little Chute
WI  Maple Bluff
WI  Marathon County
WI  McFarland
WI  Menasha
WI  Menomonee Falls
WI  Mequon
WI  Middleton
WI  Monona
WI  Muskego
WI  Neenah
WI  New Berlin
WI  North Bay
WI  Oak Creek
WI  Onalaska
WI  Oshkosh
WI  Outagamie County
WI  Ozaukee County
WI  Pewaukee
WI  Pleasant Prairie
WI  Racine
WI  Racine County
WI  River Hills
WI  Rock County
WI  Rothschild
WI  Schofield
WI  Sheboygan
WI  Sheboygan County
WI  Sheboygan Falls
WI  Shorewood
WI  Shorewood Hills
WI  South Milwaukee
WI  St. Francis
WI  Sturtevant
WI  Superior
WI  Superior
WI  Sussex
WI  Thiensville
WI  Washington County
WI  Waukesha
WI  Waukesha County
WI  Wausau
WI  Wauwatosa
WI  West Allis
WI  West Milwaukee
WI  Whitefish Bay
WI  Wind Point
WI  Winnebago County

WY  Casper
WY  Cheyenne
WY  Evansville
WY  Laramie County
WY  Mills
WY  Natrona County

Appendix 7 of Preamble--Incorporated Places and Counties Potentially 
Designated (Outside Urbanized Areas)\1\ Under the Storm Water Phase II 
Proposed Rule

[Proposed to be Examined by the Permitting Authority Under 
Sec. 123.35(b)(2)]

(From the 1990 Census of Population and Housing--U.S. Census Bureau)
---------------------------------------------------------------------------

    \1\ Listed incorporated places have at least 10,000 population 
and 1,000 population density. Please note that no counties meet the 
10,000/1,000 threshold.
---------------------------------------------------------------------------

(This List May Change With the Decennial Census)

AL  Jacksonville
AL  Selma

AZ  Douglas

AK  Arkadelphia
AK  Benton
AK  Blytheville
AK  Conway
AK  El Dorado
AK  Hot Springs
AK  Magnolia
AK  Rogers
AK  Searcy
AK  Stuttgart

CA  Arcata
CA  Arroyo Grande
CA  Atwater
CA  Auburn
CA  Brawley
CA  Calexico
CA  Clearlake
CA  Corcoran
CA  Delano
CA  Dinuba
CA  Dixon
CA  El Centro
CA  El Paso De Robles
CA  Eureka
CA  Gilroy
CA  Grover City
CA  Hanford
CA  Hollister
CA  Lemoore
CA  Los Banos
CA  Madera
CA  Manteca
CA  Oakdale
CA  Oroville
CA  Paradise
CA  Petaluma
CA  Porterville
CA  Red Bluff
CA  Reedley
CA  Ridgecrest
CA  Sanger
CA  Selma
CA  Tracy
CA  Tulare
CA  Turlock
CA  Ukiah
CA  Wasco
CA  Woodland

CO  Canon City
CO  Durango
CO  Lafayette
CO  Louisville
CO  Loveland
CO  Sterling

FL  De Land
FL  Eustis
FL  Key West
FL  Leesburg
FL  Palatka
FL  St. Augustine
FL  St. Cloud

GA  Americus
GA  Carrollton
GA  Cordele
GA  Dalton
GA  Dublin
GA  Griffin
GA  Hinesville
GA  Moultrie
GA  Newnan
GA  Statesboro
GA  Thomasville
GA  Tifton
GA  Valdosta
GA  Waycross

ID  Caldwell
ID  Coeur D'alene
ID  Lewiston
ID  Moscow
ID  Nampa
ID  Rexburg
ID  Twin Falls

IL  Belvidere
IL  Canton
IL  Carbondale
IL  Centralia
IL  Charleston
IL  Danville
IL  De Kalb
IL  Dixon
IL  Effingham
IL  Freeport
IL  Galesburg
IL  Herrin
IL  Jacksonville
IL  Kewanee
IL  Lincoln
IL  Macomb
IL  Marion
IL  Mattoon
IL  Morris
IL  Mount Vernon
IL  Ottawa
IL  Pontiac
IL  Quincy
IL  Rantoul
IL  Sterling
IL  Streator
IL  Taylorville
IL  Woodstock

IN  Bedford
IN  Columbus
IN  Connersville
IN  Crawfordsville
IN  Frankfort
IN  Franklin
IN  Greenfield
IN  Huntington
IN  Jasper
IN  La Porte
IN  Lebanon
IN  Logansport
IN  Madison
IN  Marion
IN  Martinsville
IN  Michigan City
IN  New Castle
IN  Noblesville
IN  Peru
IN  Plainfield

[[Page 1633]]

IN  Richmond
IN  Seymour
IN  Shelbyville
IN  Valparaiso
IN  Vincennes
IN  Wabash
IN  Warsaw
IN  Washington

IA  Ames
IA  Ankeny
IA  Boone
IA  Burlington
IA  Fort Dodge
IA  Fort Madison
IA  Indianola
IA  Keokuk
IA  Marshalltown
IA  Mason City
IA  Muscatine
IA  Newton
IA  Oskaloosa
IA  Ottumwa
IA  Spencer

KS  Arkansas City
KS  Atchison
KS  Coffeyville
KS  Derby
KS  Dodge City
KS  El Dorado
KS  Emporia
KS  Garden City
KS  Great Bend
KS  Hays
KS  Hutchinson
KS  Junction City
KS  Leavenworth
KS  Liberal
KS  Manhattan
KS  Mcpherson
KS  Newton
KS  Ottawa
KS  Parsons
KS  Pittsburg
KS  Salina
KS  Winfield

KY  Bowling Green
KY  Danville
KY  Frankfort
KY  Georgetown
KY  Glasgow
KY  Hopkinsville
KY  Madisonville
KY  Middlesborough
KY  Murray
KY  Nicholasville
KY  Paducah
KY  Radcliff
KY  Richmond
KY  Somerset
KY  Winchester

LA  Abbeville
LA  Bastrop
LA  Bogalusa
LA  Crowley
LA  Eunice
LA  Hammond
LA  Jennings
LA  Minden
LA  Morgan City
LA  Natchitoches
LA  New Iberia
LA  Opelousas
LA  Ruston
LA  Thibodaux

ME  Waterville

MD  Aberdeen
MD  Cambridge
MD  Salisbury
MD  Westminster

MA  Newburyport

MI  Adrian
MI  Albion
MI  Alpena
MI  Big Rapids
MI  Cadillac
MI  Escanaba
MI  Grand Haven
MI  Marquette
MI  Midland
MI  Monroe
MI  Mount Pleasant
MI  Owosso
MI  Sturgis
MI  Traverse City

MN  Albert Lea
MN  Austin
MN  Bemidji
MN  Brainerd
MN  Faribault
MN  Fergus Falls
MN  Hastings
MN  Hutchinson
MN  Mankato
MN  Marshall
MN  New Ulm
MN  North Mankato
MN  Northfield
MN  Owatonna
MN  Stillwater
MN  Willmar
MN  Winona

MS  Brookhaven
MS  Canton
MS  Clarksdale
MS  Cleveland
MS  Columbus
MS  Greenville
MS  Greenwood
MS  Grenada
MS  Indianola
MS  Laurel
MS  Mccomb
MS  Meridian
MS  Natchez
MS  Starkville
MS  Vicksburg
MS  Yazoo City

MO  Cape Girardeau
MO  Carthage
MO  Excelsior Springs
MO  Farmington
MO  Hannibal
MO  Jefferson City
MO  Kennett
MO  Kirksville
MO  Marshall
MO  Maryville
MO  Mexico
MO  Moberly
MO  Poplar Bluff
MO  Rolla
MO  Sedalia
MO  Sikeston
MO  Warrensburg
MO  Washington

MT  Bozeman
MT  Havre
MT  Helena
MT  Kalispell

NE  Beatrice
NE  Columbus
NE  Fremont
NE  Grand Island
NE  Hastings
NE  Kearney
NE  Norfolk
NE  North Platte
NE  Scottsbluff

NV  Elko

NJ  Bridgeton
NJ  Princeton Borough

NM  Alamogordo
NM  Artesia
NM  Clovis
NM  Deming
NM  Farmington
NM  Gallup
NM  Hobbs
NM  Las Vegas
NM  Portales
NM  Roswell
NM  Silver City

NY  Amsterdam
NY  Auburn
NY  Batavia
NY  Canandaigua
NY  Corning
NY  Cortland
NY  Dunkirk
NY  Fredonia
NY  Fulton
NY  Geneva
NY  Gloversville
NY  Jamestown
NY  Kingston
NY  Lockport
NY  Massena
NY  Middletown
NY  Ogdensburg
NY  Olean
NY  Oneonta
NY  Oswego
NY  Plattsburgh
NY  Potsdam
NY  Watertown

NC  Albemarle
NC  Asheboro
NC  Boone
NC  Eden
NC  Elizabeth City
NC  Havelock
NC  Henderson
NC  Kernersville
NC  Kinston
NC  Laurinburg
NC  Lenoir
NC  Lexington
NC  Lumberton
NC  Monroe
NC  New Bern
NC  Reidsville
NC  Roanoke Rapids
NC  Salisbury
NC  Sanford
NC  Shelby
NC  Statesville
NC  Tarboro
NC  Wilson

ND  Dickinson
ND  Jamestown
ND  Minot
ND  Williston

OH  Alliance

[[Page 1634]]

OH  Ashland
OH  Ashtabula
OH  Athens
OH  Bellefontaine
OH  Bowling Green
OH  Bucyrus
OH  Cambridge
OH  Chillicothe
OH  Circleville
OH  Coshocton
OH  Defiance
OH  Delaware
OH  Dover
OH  East Liverpool
OH  Findlay
OH  Fostoria
OH  Fremont
OH  Galion
OH  Greenville
OH  Lancaster
OH  Lebanon
OH  Marietta
OH  Marion
OH  Medina
OH  Mount Vernon
OH  New Philadelphia
OH  Norwalk
OH  Oxford
OH  Piqua
OH  Portsmouth
OH  Salem
OH  Sandusky
OH  Sidney
OH  Tiffin
OH  Troy
OH  Urbana
OH  Van Wert
OH  Washington
OH  Wilmington
OH  Wooster
OH  Xenia
OH  Zanesville

OK  Ada
OK  Altus
OK  Bartlesville
OK  Chickasha
OK  Claremore
OK  Mcalester
OK  Miami
OK  Muskogee
OK  Okmulgee
OK  Owasso
OK  Ponca City
OK  Stillwater
OK  Tahlequah
OK  Weatherford

OR  Albany
OR  Ashland
OR  Astoria
OR  Bend
OR  City of the Dalles
OR  Coos Bay
OR  Corvallis
OR  Grants Pass
OR  Hermiston
OR  Klamath Falls
OR  La Grande
OR  Lebanon
OR  Mcminnville
OR  Newberg
OR  Pendleton
OR  Roseburg
OR  Woodburn

PA  Berwick Borough
PA  Bloomsburg
PA  Butler
PA  Carlisle Borough
PA  Chambersburg Borough
PA  Ephrata Borough
PA  Hazleton
PA  Indiana Borough
PA  Lebanon
PA  Meadville
PA  New Castle
PA  Oil City
PA  Pottsville
PA  Sunbury
PA  Uniontown
PA  Warren

SC  Clemson
SC  Easley
SC  Gaffney
SC  Greenwood
SC  Newberry
SC  Orangeburg

SD  Aberdeen
SD  Brookings
SD  Huron
SD  Mitchell
SD  Vermillion
SD  Watertown
SD  Yankton

TN  Brownsville
TN  Cleveland
TN  Collierville
TN  Cookeville
TN  Dyersburg
TN  Greeneville
TN  Lawrenceburg
TN  Mcminnville
TN  Millington
TN  Morristown
TN  Murfreesboro
TN  Shelbyville
TN  Springfield
TN  Union City

TX  Alice
TX  Alvin
TX  Andrews
TX  Angleton
TX  Bay City
TX  Beeville
TX  Big Spring
TX  Borger
TX  Brenham
TX  Brownwood
TX  Burkburnett
TX  Canyon
TX  Cleburne
TX  Conroe
TX  Coppell
TX  Corsicana
TX  Del Rio
TX  Dumas
TX  Eagle Pass
TX  El Campo
TX  Gainesville
TX  Gatesville
TX  Georgetown
TX  Henderson
TX  Hereford
TX  Huntsville
TX  Jacksonville
TX  Kerrville
TX  Kingsville
TX  Lake Jackson
TX  Lamesa
TX  Levelland
TX  Lufkin
TX  Mercedes
TX  Mount Pleasant
TX  Nacogdoches
TX  New Braunfels
TX  Palestine
TX  Pampa
TX  Pecos
TX  Plainview
TX  Port Lavaca
TX  Robstown
TX  Rosenberg
TX  Round Rock
TX  San Marcos
TX  Seguin
TX  Snyder
TX  Stephenville
TX  Sweetwater
TX  Taylor
TX  The Colony
TX  Uvalde
TX  Vernon
TX  Vidor

UT  Brigham City
UT  Cedar City
UT  Spanish Fork
UT  Tooele

VT  Rutland

VA  Blacksburg
VA  Christiansburg
VA  Front Royal
VA  Harrisonburg
VA  Leesburg
VA  Martinsville
VA  Radford
VA  Staunton
VA  Waynesboro
VA  Winchester

WA  Aberdeen
WA  Anacortes
WA  Centralia
WA  Ellensburg
WA  Moses Lake
WA  Mount Vernon
WA  Oak Harbor
WA  Port Angeles
WA  Pullman
WA  Sunnyside
WA  Walla Walla
WA  Wenatchee

WV  Beckley
WV  Bluefield
WV  Clarksburg
WV  Fairmont
WV  Martinsburg
WV  Morgantown

WI  Beaver Dam
WI  Fond du Lac
WI  Fort Atkinson
WI  Manitowoc
WI  Marinette
WI  Marshfield
WI  Menomonie
WI  Monroe
WI  Oconomowoc
WI  River Falls
WI  Stevens Point
WI  Sun Prairie
WI  Two Rivers
WI  Watertown
WI  West Bend
WI  Whitewater
WI  Wisconsin Rapids

WY  Evanston
WY  Gillette
WY  Green River

[[Page 1635]]

WY  Laramie
WY  Rock Springs
WY  Sheridan

    For the reasons set forth in the preamble, chapter I of title 40 of 
the Code of Federal Regulations is proposed to be amended 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. In Sec. 122.26, revise paragraphs (a)(9), (b)(4)(i), (b)(7)(i), 
(b)(8)(i), (b)(14) introductory text, (b)(14)(xi); redesignate 
paragraph (b)(15) as paragraph (b)(17) and add new paragraphs (b)(15) 
and (b)(16); revise paragraph (c) heading, paragraphs (c)(1) 
introductory text first sentence, (c)(1)(i) introductory text, 
(c)(1)(i)(C) first sentence, (c)(1)(i)(E) introductory text, (c)(1)(ii) 
first sentence of introductory text, (e)(1)(ii); add paragraph 
(e)(1)(iii); revise paragraphs (f)(4), (f)(5), and (g) to read as 
follows:


Sec. 122.26  Storm water discharges (applicable to State NPDES 
programs, see Sec. 123.25).

    (a) * * *
    (9)(i) On and after October 1, 1994, for discharges composed 
entirely of storm water, that are not otherwise already required by 
paragraph (a)(1) of this section to obtain a permit, owners or 
operators shall be required to obtain a NPDES permit if:
    (A) The discharge is from a small municipal separate storm sewer 
system required to be regulated pursuant to Sec. 122.32;
    (B) The discharge is a storm water discharge associated with other 
activity pursuant to paragraph (b)(15) of this section;
    (C) The Director determines that storm water controls are needed 
for the discharge based on:
    (1) Wasteload allocations that are part of ``total maximum daily 
loads'' (TMDLs) that address the pollutants of concern; or
    (2) A comprehensive watershed plan, implemented for the waterbody, 
that includes the equivalents of TMDLs, and addresses the pollutants of 
concern; or
    (D) The Director determines that the discharge contributes to a 
violation of a water quality standard or is a significant contributor 
of pollutants to waters of the United States.
    (ii) Owners or operators of municipal separate storm sewer systems 
designated pursuant to paragraphs (a)(9)(i)(A), (a)(9)(i)(C), and 
(a)(9)(i)(D) of this section, shall seek coverage under an NPDES permit 
in accordance with Secs. 122.33 through 122.35. Owners or operators of 
non-municipal sources designated pursuant to paragraphs (a)(9)(i)(B), 
(a)(9)(i)(C), and (a)(9)(i)(D) of this section, shall seek coverage 
under an NPDES permit in accordance with paragraph (c)(1) of this 
section.
    (iii) Owners or operators of storm water discharges designated 
pursuant to paragraphs (a)(9)(i)(C) and (a)(9)(i)(D) of this section, 
shall apply to the Director for a permit within 180 days of receipt of 
notice, unless permission for a later date is granted by the Director 
(see Sec. 124.52(c) of this chapter).
* * * * *
    (b) * * *
    (4) * * *
    (i) Located in an incorporated place with a population of 250,000 
or more as determined by the 1990 Decennial Census by the Bureau of the 
Census (appendix F of this part); or
* * * * *
    (7) * * *
    (i) Located in an incorporated place with a population of 100,000 
or more but less than 250,000, as determined by the 1990 Decennial 
Census by the Bureau of the Census (appendix G of this part); or
* * * * *
    (8) * * *
    (i) Owned or operated by the United States, a State, city, town, 
borough, county, parish, district, association, or other public body 
(created by or pursuant to State law) having jurisdiction over disposal 
of sewage, industrial wastes, storm water, or other wastes, including 
special districts under State law such as a sewer district, flood 
control district or drainage district, or similar entity, or an Indian 
tribe or an authorized Indian tribal organization, or a designated and 
approved management agency under section 208 of the CWA that discharges 
to waters of the United States;
* * * * *
    (14) For the categories of industries identified in this section, 
the term includes, but is not limited to, storm water discharges from 
industrial plant yards; immediate access roads and rail lines used or 
traveled by carriers of raw materials, manufactured products, waste 
material, or by-products used or created by the facility; material 
handling sites; refuse sites; sites used for the application or 
disposal of process waste waters (as defined at 40 CFR part 401); sites 
used for the storage and maintenance of material handling equipment; 
sites used for residual treatment, storage, or disposal; shipping and 
receiving areas; manufacturing buildings; storage areas (including tank 
farms) for raw materials, and intermediate and finished products; and 
areas where industrial activity has taken place in the past and 
significant materials remain and are exposed to storm water. The term 
excludes areas located on plant lands separate from the plant's 
industrial activities, such as office buildings and accompanying 
parking lots as long as the drainage from the excluded areas is not 
mixed with storm water drained from the above described areas.
* * * * *
    (xi) Facilities under Standard Industrial Classifications 20, 21, 
22, 23, 2434, 25, 265, 267, 27, 283, 285, 30, 31 (except 311), 323, 34 
(except 3441), 35, 36, 37 (except 373), 38, 39, 4221-25;
* * * * *
    (15) Storm water discharges associated with other activity means 
the discharge from any conveyance used for collecting and conveying 
storm water that needs to be regulated to protect water quality. For 
the categories of facilities identified in this paragraph, the term 
includes the entire facility except areas located at the facility 
separated from the plant's operational activities. Such separated areas 
may include office buildings and accompanying parking lots, as long as 
the drainage from the separated areas is not mixed with storm water 
drained from the plant's operational activities. The following types of 
facilities or activities are sources of ``storm water discharges 
associated with other activity'' for the purposes of this paragraph:
    (i) Construction activities. (A) Construction activities including 
clearing, grading, and excavating activities that result in land 
disturbance of equal to or greater than one acre and less than five 
acres. Sites disturbing less than one acre are included if they are 
part of a larger common plan of development or sale with a planned 
disturbance of equal to or greater than one and less than five acres. 
The NPDES permitting authority may waive the otherwise applicable 
requirements for a storm water discharge from construction activities 
that disturb less than five acres where:
    (1) The rainfall erosivity factor (``R'' in the Revised Universal 
Soil Loss Equation) is less than two during the period of construction 
activity. The owner/operator must certify that construction activity 
will take place during the period when the rainfall erosivity factor is 
less than two;

[[Page 1636]]

    (2) On a case-by-case basis the annual soil loss for a site will be 
less than two tons/acre/year. The owner or operator must certify that 
the annual soil loss for their site will be less than two tons/acre/
year through the use of the Revised Universal Soil Loss Equation, 
assuming the constants of no ground cover and no runoff controls in 
place; or
    (3) Storm water controls are not needed based on:
    (i) Wasteload allocations that are part of ``total maximum daily 
loads'' (TMDLs) that address the pollutants of concern. The owner or 
operator must certify that the construction activity will take place, 
and storm water discharges will occur, within an area covered by the 
TMDLs; or
    (ii) A comprehensive watershed plan, implemented for the waterbody, 
that includes the equivalents of TMDLs, and addresses the pollutants of 
concern. The owner or operator must certify that the construction 
activity will take place, and storm water discharges will occur, within 
an area covered by the watershed plan.
    (B) Any other construction activity designated by the NPDES 
permitting authority based on the potential for contribution to a 
violation of a water quality standard or for significant contribution 
of pollutants to waters of the United States.
    (ii) Any other discharges, except municipal separate storm sewer 
systems, designated by the NPDES permitting authority pursuant to 
paragraph (a)(9) of this section.

 Exhibit 1 to Sec.  122.26(b)(15).--Summary of Coverage of ``Storm Water
Discharges Associated With Other Activity''* Under the NPDES Storm Water
                                 Program                                
                [*See definition in Sec.  122.26(b)(15)]                
------------------------------------------------------------------------
                                                                        
------------------------------------------------------------------------
Automatic Designation:                                                  
    Required Nationwide        Construction activities that result in a 
     Coverage.                  land disturbance of equal to or greater 
                                than one acre and less than five acres. 
                                Sites disturbing less than one acre are 
                                included if part of a larger common plan
                                of development or sale. (see Sec.       
                                122.26(b)(15)(i)(A)).                   
Potential Designation:                                                  
    Optional Evaluation and    (1) Construction activities that result  
     Designation by the         in a land disturbance of less than one  
     Permitting Authority.      acre based on the potential for adverse 
                                impact on water quality or for          
                                significant contribution of pollutants. 
                                (see Sec.  122.26(b)(15)(i)(B)).        
                               (2) Any other non-municipal storm water  
                                discharges. (see Sec.                   
                                122.26(b)(15)(ii)).                     
Automatic Designation:                                                  
    Required nationwide        Construction activities that result in a 
     Coverage.                  land disturbance of equal to or greater 
                                than one acre and less than five acres. 
                                Sites disturbing less than one acre are 
                                included if part of a larger common plan
                                of development or sale. (see Sec.       
                                122.26(b)(15)(i)(A)).                   
Potential Waiver:                                                       
    Waiver from Requirements   Any automatically designated construction
     as Determined by the       activity where the owner/operator       
     Permitting Authority.      certifies:                              
                               (1) A rainfall erosivity factor of less  
                                than two, or                            
                               (2) An annual soil loss of less than two 
                                tons/acre/year, or                      
                               (3) That the activity will occur within  
                                an area where controls are not needed   
                                based on ``waste load allocations'' that
                                are part of total maximum daily loads   
                                (TMDLs), or a comprehensive watershed   
                                plan. (see Sec.  122.26(b)(15)(i)(A)).  
------------------------------------------------------------------------

    (16) Small municipal separate storm sewer system means all 
municipal separate storm sewer systems that are not designated as 
``large'' or ``medium'' municipal separate storm sewer systems pursuant 
to paragraphs (b)(4) and (b)(7) of this section; or designated under 
paragraph (a)(1)(v) of this section.
* * * * *
    (c) Application requirements for storm water discharges associated 
with industrial activity or storm water discharges associated with 
other activity--
    (1) Individual application. Dischargers of storm water associated 
with industrial or other activity are required to apply for an 
individual permit, apply for a permit through a group application, or 
seek coverage under a promulgated storm water general permit. * * *
    (i) Except as provided in Sec. 122.26(c)(1)(ii) through (c)(1)(iv), 
the operator of a storm water discharge associated with industrial or 
other activity subject to this section shall provide:
* * * * *
    (C) A certification that all outfalls that should contain storm 
water discharges associated with industrial or other activity have been 
tested or evaluated for the presence of non-storm water discharges 
which are not covered by a NPDES permit; tests for such non-storm water 
discharges may include smoke tests, fluorometric dye tests, analysis of 
accurate schematics, as well as other appropriate tests. * * *
* * * * *
    (E) Quantitative data based on samples collected during storm 
events and collected in accordance with Sec. 122.21 from all outfalls 
containing a storm water discharge associated with industrial or other 
activity for the following parameters:
* * * * *
    (ii) The operator of an existing or new storm water discharge that 
is associated with industrial activity solely under paragraph 
(b)(14)(x) of this section or is associated with other activity solely 
under paragraph (b)(15)(i) of this section, is exempt from the 
requirements of Sec. 122.21(g) and paragraph (c)(1)(i) of this section. 
* * *
* * * * *
    (e) * * *
    (1) * * *
    (ii) For any storm water discharge associated with industrial 
activity from a facility that is owned or operated by a municipality 
with a population of less than 100,000 that is not authorized by a 
general or individual permit, the permit application must be submitted 
to the Director by August 7, 2001.
    (iii) For any storm water discharge associated with other activity 
identified in paragraph (b)(15) of this section that is not authorized 
by a general or individual permit, the permit application made under 
paragraph (c) of this section must be submitted to the Director by 
{insert date 3 years and 90 days from date of publication of final rule 
in the Federal Register}.
* * * * *
    (f) * * *

[[Page 1637]]

    (4) Any person may petition the Director for the designation of a 
large, medium, or small municipal separate sewer system as defined by 
paragraphs (b)(4)(iv), (b)(7)(iv), or (b)(16) of this section.
    (5) The Director shall make a final determination on any petition 
received under this section within 90 days after receiving the petition 
with the exception of petitions to designate a small municipal separate 
storm sewer system in which case the Director shall make a final 
determination on the petition within 180 days after its receipt.
    (g) Conditional exemption for ``no exposure'' of industrial 
activities and materials to storm water. Discharges composed entirely 
of storm water do not require an NPDES permit if the owner or operator 
of the facility satisfies the conditions of this paragraph concerning 
``no exposure.'' For purposes of this section, ``no exposure'' means 
all industrial materials or activities are protected by a storm 
resistant shelter so that they are not exposed to rain, snow, snowmelt, 
or runoff. Industrial materials or activities include, but are not 
limited to, material handling equipment, industrial machinery, raw 
materials, intermediate products, by-products, or waste products, 
however packaged. This exemption does not apply to storm water 
discharges from facilities identified in paragraphs (b)(14)(x) and 
(b)(15)(i) of this section and sources individually designated under 
paragraphs (a)(1)(v), (a)(9)(i)(B),(C)&(D) and (g)(3) of this section. 
Actions taken to qualify for this provision shall not interfere with 
the attainment or maintenance of water quality standards, including 
designated uses. To establish that the facility meets the definition of 
no exposure described in this paragraph, an owner or operator must 
submit a written certification to the NPDES permitting authority once 
every five years.
    (1) Any owner or operator claiming the no exposure exemption must:
    (i) Notify the NPDES permitting authority at the beginning of each 
permit term or prior to commencing discharges during a permit term;
    (ii) Allow the permitting authority, or the municipality where the 
facility discharges into a municipal separate storm sewer system, to 
inspect the facility and allow the permitting authority or the 
municipality to make such inspection reports publicly available upon 
request;
    (iii) Upon request, also submit a copy of the certification to the 
municipality in which the facility is located; and
    (iv) Sign and certify the certification in accordance with 
Sec. 122.22.
    (2) If there is a change in circumstances which causes exposure of 
industrial activities or materials to storm water, the owner or 
operator must comply immediately with all the requirements of the storm 
water program including applying for and obtaining coverage under an 
NPDES permit.
    (3) Even if an owner or operator certifies to no exposure under 
paragraph (g)(1) of this section, the NPDES permitting authority still 
retains the authority to require the owner or operator of a facility to 
apply for an individual or general permit if the permitting authority 
has determined that the discharge:
    (i) Is, or may reasonably be, causing or contributing to the 
violation of a water quality standard; or
    (ii) Is, or may reasonably be, interfering with the attainment or 
maintenance of water quality standards, including designated uses.
    3. Revise Sec. 122.28(b)(2)(v) to read as follows:


Sec. 122.28  General permits (applicable to State NPDES programs, see 
Sec. 123.25).

* * * * *
    (b) * * *
    (2) * * *
    (v) Discharges other than discharges from publicly owned treatment 
works, combined sewer overflows, municipal separate storm sewer 
systems, primary industrial facilities, and storm water discharges 
associated with industrial activity, may, at the discretion of the 
Director, be authorized to discharge under a general permit without 
submitting a notice of intent where the Director finds that a notice of 
intent requirement would be inappropriate.
* * * * *
    4. Add undesignated centerheadings and Secs. 122.30 through 122.37 
to subpart B to read as follows:
General Purpose of the CWA Section 402(p)(6) Storm Water Program


Sec. 122.30  What is the purpose of the CWA section 402(p)(6) storm 
water regulations?

    (a) Under the statutory mandate in section 402(p)(6) of the Clean 
Water Act, the purpose of this portion of the storm water program is to 
designate additional sources that need to be regulated to protect water 
quality and to establish a comprehensive storm water program to 
regulate these sources. (Since the storm water program is part of the 
National Pollutant Discharge Elimination System (NPDES) Program, you 
should also refer to Sec. 122.1 which addresses the broader purpose of 
the NPDES program.)
    (b) Storm water runoff continues to harm the nation's waters. 
Runoff from lands modified by human activities can harm surface water 
resources in two ways: by changing natural hydrologic patterns and by 
elevating pollutant concentrations and loadings. Storm water runoff may 
contain or mobilize high levels of contaminants, such as sediment, 
suspended solids, nutrients, heavy metals, pathogens, toxins, oxygen-
demanding substances, and floatables.
    (c) EPA strongly encourages partnerships and the watershed approach 
as the management framework for efficiently, effectively, and 
consistently protecting and restoring aquatic ecosystems and protecting 
public health.
Tribal Role for the CWA Section 402(p)(6) Storm Water Program


Sec. 122.31  As a Tribe, what is my role under the CWA section 
402(p)(6) storm water program?

    As a Tribe you may:
    (a) Be authorized to operate the NPDES program including the storm 
water program, after EPA determines that you are eligible for treatment 
in the same manner as a State under Secs. 123.31 through 123.34 of this 
chapter. (If you do not have an authorized NPDES program, EPA generally 
will implement the program on your reservation as well as other Indian 
country.);
    (b) Be classified as an owner or operator of a regulated small 
municipal separate storm sewer system, as defined in Sec. 122.32, to 
the extent the population within the urbanized area of the reservation 
is greater than or equal to 1,000 persons. (Designation of your Tribe 
as an owner or operator of a small municipal separate storm sewer 
system for purposes of this part is an approach that is consistent with 
EPA's 1984 Indian Policy of operating on a government-to-government 
basis with EPA looking to Tribes as the lead governmental authorities 
to address environmental issues on their reservations as appropriate. 
If you operate a separate storm sewer system that meets the definition 
of a regulated small municipal separate storm sewer system, your 
reservation would be subject to the requirements under Secs. 122.33 
through 122.35. If you are not designated as a regulated small 
municipal separate storm sewer system, you may ask EPA to designate you 
as such for the purposes of this part. Being regulated as a small 
municipal separate storm sewer system and having coverage under an 
NPDES permit may benefit you by enhancing your ability to establish and 
enforce certain

[[Page 1638]]

requirements for facilities that discharge storm water into your 
separate storm sewer system.); or
    (c) Be a discharger of storm water associated with industrial or 
other activity under Secs. 122.26(b)(14) or (b)(15), in which case you 
must meet the applicable requirements. Within Indian country, the NPDES 
permitting authority generally would be EPA, unless you are authorized 
to administer the NPDES program.
Municipal Role for the CWA Section 402(p)(6) Storm Water Program

Exhibit 1 to Subpart B.--Summary of Coverage of Small Municipal Separate
        Storm Sewer Systems* Under the NPDES Storm Water Program        
                [*See definition at Sec.  122.26(b)(16)]                
------------------------------------------------------------------------
                                                                        
------------------------------------------------------------------------
               Who is Designated/Covered Under This Part?               
------------------------------------------------------------------------
Automatic Designation                                                   
    Required Nationwide        All owners or operators of small         
     Coverage.                  municipal separate storm sewer systems  
                                (MS4s) located within an ``urbanized    
                                area.'' (see Sec.  122.32(a)(1)).       
Potential Designation:                                                  
    Required Evaluation by     All owners or operators of small MS4s    
     the Permitting Authority   located outside of an ``urbanized area''
     for Coverage.              with a population of at least 10,000 and
                                a population density of at least 1,000. 
                                (see Secs.  122.32(a)(2) and            
                                123.35(b)(2)).                          
                               All owners or operators of small MS4s    
                                that contribute substantially to the    
                                storm water pollutant loadings of a     
                                physically interconnected MS4 that is   
                                regulated by the NPDES storm water      
                                program. (see Secs.  122.32(a)(2) and   
                                123.35(b)(4)).                          
Potential Designation:                                                  
    Optional Evaluation by     Owners and operators of small MS4s       
     the Permitting Authority   located outside of an ``urbanized area''
     for Coverage.              with a population of less than 10,000 or
                                a density of less than 1,000. (see Secs.
                                122.32(a)(2) and 123.35(b)(3)).         
------------------------------------------------------------------------
 Who is Eligible for a Waiver or an Exemption From the Small MS4 Permit 
                              Requirements?                             
------------------------------------------------------------------------
Potential Waiver:                                                       
    Locally-Based Waiver from  Owners or operators of small MS4s,       
     Requirements as            located within an ``urbanized area,''   
     Determined by the          with a jurisdiction of less than 1,000  
     Permitting Authority.      persons and a system that is not        
                                contributing substantially to the       
                                pollutant loadings of a physically      
                                interconnected MS4 may certify that     
                                storm water controls are not needed     
                                based on:                               
                               (1) Waste load allocations that are part 
                                of ``total maximum daily loads'' (TMDLs)
                                that address the pollutants of concern; 
                                or                                      
                               (2) A comprehensive watershed plan,      
                                implemented for the waterbody, that     
                                includes the equivalents of TMDLs, and  
                                addresses the pollutants of concern.    
Exemption:                                                              
    Not Defined as a           Federal Indian reservations where the    
     Regulated Small MS4.       population within the ``urbanized area''
                                portion of the reservation is less than 
                                1,000 persons.                          
------------------------------------------------------------------------

Sec. 122.32  As an owner or operator of a small municipal separate 
storm sewer system, am I regulated under the CWA section 402(p)(6) 
municipal storm water program?

    (a) You are a regulated small municipal separate storm sewer system 
if you are the owner or operator of a small municipal separate storm 
sewer system, including but not limited to systems owned or operated by 
local governments, State departments of transportation, and State, 
Tribal, and Federal facilities; and you meet the following definition. 
Regulated small municipal separate storm sewer systems are defined as 
all small municipal separate storm sewer systems that are located in:
    (1) An incorporated place, county (only the portion located in an 
urbanized area), or other place under the jurisdiction of a 
governmental entity, including but not limited to Tribal or Territorial 
governments, located in an urbanized area as determined by the latest 
Decennial Census by the Bureau of the Census, except for Federal Indian 
reservations where the population within the urbanized area of the 
reservation is under 1,000 persons;
    (2) An incorporated place, county, or other place under the 
jurisdiction of a governmental entity other than those described in 
paragraph (a)(1) of this section that is designated by the NPDES 
permitting authority, including where the designation is pursuant to 
Secs. 123.35(b)(2) and (b)(4) of this chapter, or is based upon a 
petition under Sec. 122.26(f).
    (b) You may be the subject of a petition, by any person, to the 
NPDES permitting authority to require an NPDES permit for a discharge 
which is composed entirely of storm water which contributes to a 
violation of a water quality standard or is a significant contributor 
of pollutants to waters of the United States. Upon a final 
determination by the NPDES permitting authority, you would be required 
to comply with Secs. 122.33 through 122.35.
    (c) If you receive a waiver under Sec. 122.33(b), you may 
subsequently be designated back into the municipal storm water program 
by the NPDES permitting authority if circumstances change. (See also 
Sec. 123.35(b) of this chapter.)


Sec. 122.33  If I am an owner or operator of a regulated small 
municipal separate storm sewer system, must I apply for an NPDES 
permit? If so, by when do I have to seek coverage under an NPDES 
permit? If so, who is my NPDES permitting authority?

    (a) If you are the owner or operator of a regulated small municipal 
separate storm sewer system under Sec. 122.32, you must seek coverage 
under a general or individual NPDES permit, unless waived under 
paragraph (b) of this section, as follows:
    (1) If you are seeking coverage under a general permit, you must 
submit a Notice of Intent (NOI). The general permit will explain the 
steps necessary to attain coverage.
    (2) If you are seeking coverage under an individual permit, you 
must submit an individual application to your NPDES permitting 
authority that includes the information required under Sec. 122.21(f) 
and the following information:

[[Page 1639]]

    (i) Estimate of square mileage served by your separate storm sewer 
system, and
    (ii) Any additional information that your NPDES permitting 
authority requests.
    (3) If there is an adjoining municipality or other governmental 
entity with an issued NPDES storm water permit that is willing to have 
you participate in its storm water program, you may jointly with that 
adjoining municipality or other governmental entity seek a permit 
modification to include your municipality or other governmental entity 
in the relevant portions of that NPDES permit. If you choose this 
option you will need to comply with the permit application requirements 
of Sec. 122.26, in lieu of the requirements of Sec. 122.34. You do not 
need to comply with the specific application requirements of 
Sec. 122.26(d)(1)(iii) and (iv) and (d)(2)(iii) (discharge 
characterization). You may satisfy the requirements in Sec. 122.26 
(d)(1)(v) and (d)(2)(iv) (identifying a management plan) by referring 
to the adjoining municipality's storm water management plan. (In 
referencing an adjoining municipality's storm water management plan, 
you should briefly describe how the existing plan will address 
discharges from your municipal separate storm sewer system or would 
need to be supplemented in order to adequately address your discharges, 
explain the role you will play in coordinating storm water activities 
in your jurisdiction, and detail the resources available to you to 
accomplish the plan.)
    (b) The NPDES permitting authority may waive the requirements 
otherwise applicable to you if you are an owner or operator of a 
regulated small municipal separate storm sewer system, as defined in 
Sec. 122.32(a)(1), the jurisdiction served by your system includes a 
population of less than 1,000 ersons, your system is not contributing 
substantially to the storm water pollutant loadings of a physically 
interconnected regulated municipal separate storm sewer system (see 
Sec. 123.35(b)(4) of this chapter), and you have certified that storm 
water controls are not needed based on:
    (1) Wasteload allocations that are part of ``total maximum daily 
loads'' (TMDLs) that address the pollutants of concern; or
    (2) A comprehensive watershed plan, implemented for the waterbody, 
that includes the equivalents of TMDLs, and addresses the pollutants of 
concern.
    (c) If you are an owner or operator of a regulated small municipal 
separate storm sewer system:
    (1) Designated under Sec. 122.32(a)(1), you must apply for coverage 
under an NPDES permit, or apply for a modification of an existing NPDES 
permit under paragraph (a)(3) of this section, by {insert date 3 years 
and 90 days from date of publication of final rule}.
    (2) Designated under Sec. 122.32(a)(2), you must apply for coverage 
under an NPDES permit, or apply for a modification of an existing NPDES 
permit under paragraph (a)(3) of this section, within 60 days of 
notice, unless the NPDES permitting authority grants a later date.
    (d) If you are located in an NPDES authorized State, Tribe, or 
Territory, then that State, Tribe, or Territory is your NPDES 
permitting authority. Otherwise, your NPDES permitting authority is the 
EPA Regional Office. (You should call your EPA Regional Office to find 
out who your NPDES permitting authority is.)


Sec. 122.34  As an owner or operator of a regulated small municipal 
separate storm sewer system, what will my NPDES municipal storm water 
permit require?

    (a) Your NPDES municipal storm water permit will, at a minimum, 
require you to develop, implement, and enforce a storm water management 
program designed to reduce the discharge of pollutants from your 
municipal separate storm sewer system to the maximum extent practicable 
(MEP) and protect water quality. Your storm water management program 
must include the minimum control measures described in paragraph (b) of 
this section. For purposes of this section, narrative effluent 
limitations requiring implementation of best management practices 
(BMPs), are generally the most appropriate form of effluent limitations 
when designed to satisfy technology requirements, including reductions 
of pollutants to the maximum extent practicable, and water quality-
based requirements of the Clean Water Act. Implementation of the 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 Sec. 122.33 will constitute 
compliance with the standard of ``reducing pollutants to the maximum 
extent practicable.'' Your NPDES permitting authority will specify a 
time period of up to 5 years from the date of permit issuance for you 
to develop and implement your program.
    (b) Minimum control measures. (1) Public education and outreach on 
storm water impacts. You must implement 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 can be taken to reduce storm water 
pollution. (You may use storm water educational materials provided by 
your State, Tribe, EPA, or, subject to the approval of the local 
government, environmental or other public interest or trade 
organizations. The materials or outreach programs should inform 
individuals and households about the steps they can take, such as 
ensuring proper septic system maintenance, limiting the use and runoff 
of garden chemicals, becoming involved in local stream restoration 
activities that are coordinated by youth service and conservation corps 
and other citizen groups, and participating in storm drain stenciling, 
to reduce storm water pollution. In addition, some of the materials or 
outreach programs should be directed toward targeted groups of 
commercial, industrial, and institutional entities likely to have 
significant storm water impacts. For example, information to 
restaurants on the impact of grease clogging storm drains and to 
garages on the impact of oil discharges. You are encouraged to tailor 
your outreach program to address the viewpoints and concerns of all 
communities, particularly minority and disadvantaged communities, as 
well as children.)
    (2) Public involvement/participation. You must comply with State, 
Tribal and local public notice requirements. (You should include the 
public in developing, implementing, and reviewing your storm water 
management program. The public participation process should make 
efforts to reach out and engage all economic and ethnic groups. You may 
consider impanelling a group of citizens to participate in your 
decision-making process, hold public hearings, or work with 
volunteers.)
    (3) Illicit discharge detection and elimination. You must:
    (i) Develop, if not already completed, a storm sewer system map, or 
equivalent, showing the location of major pipes, outfalls, and 
topography. In addition, if data already exist, show areas of 
concentrated activities likely to be a source of storm water pollution;
    (ii) To the extent allowable under State or Tribal law, effectively 
prohibit, through ordinance, order, or similar means, illicit 
discharges into your storm sewer system and implement appropriate 
enforcement procedures and actions;

[[Page 1640]]

    (iii) Implement a plan to detect and address illicit discharges, 
including illegal dumping, to your system; and
    (iv) Inform public employees, businesses, and the general public of 
hazards associated with illegal discharges and improper disposal of 
waste. (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. You must develop, 
implement, and enforce a program to reduce pollutants in storm water 
runoff to your municipal separate storm sewer system from construction 
activities that result in land disturbance of greater than or equal to 
one acre. You must use an ordinance or other regulatory mechanism that 
controls erosion and sediment to the maximum extent practicable and 
allowable under State or Tribal law. Your program must control other 
waste at the construction site that may adversely impact water quality, 
such as discarded building materials, concrete truck washout, and 
sanitary waste. Your program also must include, at a minimum, 
requirements for construction site owners or operators to implement 
appropriate BMPs, provisions for pre-construction review of site 
management plans, procedures for receipt and consideration of 
information submitted by the public, regular inspections during 
construction, and penalties to ensure compliance. (See Sec. 122.44(s))
    (5) Post-construction storm water management in new development and 
redevelopment. You must develop, implement, and enforce a program to 
address storm water runoff from new development and redevelopment 
projects that result in land disturbance of greater than or equal to 
one acre and that discharge into your municipal separate storm sewer 
system. Your program must include a plan to implement site-appropriate 
and cost-effective structural and non-structural best management 
practices (BMPs) and ensure adequate long-term operation and 
maintenance of such BMPs. Your program must ensure that controls are in 
place that would prevent or minimize water quality impacts. (If the 
involved parties consider water quality impacts from the beginning 
stages of projects, new development and potentially redevelopment allow 
opportunities for water quality sensitive projects. EPA recommends that 
municipalities establish requirements for the use of cost-effective 
BMPs that minimize water quality impacts and attempt to maintain pre-
development runoff conditions. In other words, post-development 
conditions should not be different from pre-development conditions in a 
way that adversely affects water quality. The municipal program should 
include structural and/or non-structural BMPs. EPA encourages locally-
based watershed planning and the use of preventative measures, 
including non-structural BMPs, which are generally lower in cost than 
structural BMPs, to minimize water quality impacts. Non-structural BMPs 
are preventative actions that involve management and source controls. 
Examples of non-structural BMPs include policies and ordinances that 
result in protection of natural resources and prevention of runoff. 
These include requirements to limit growth to identified areas, protect 
sensitive areas such as wetlands and riparian areas, minimize 
imperviousness, maintain open space, and minimize disturbance of soils 
and vegetation. Examples of structural BMPs include storage practices 
(wet ponds and extended-detention outlet structures), filtration 
practices (grassed swales, sand filters and filter strips), and 
infiltration practices (infiltration basins, infiltration trenches, and 
porous pavement). Storm water technologies are constantly being 
improved, and EPA recommends that municipal requirements be responsive 
to these changes.)
    (6) Pollution prevention/good housekeeping for municipal 
operations. You must develop and implement a cost-effective operation 
and maintenance program with the ultimate goal of preventing or 
reducing pollutant runoff from municipal operations. Using training 
materials that are available from EPA, your State, or Tribe, or from 
other organizations whose materials are approved by the local 
government, your program must include local government employee 
training to prevent and reduce storm water pollution from government 
operations, such as park and open space maintenance, fleet maintenance, 
planning, building oversight, and storm water system maintenance. (EPA 
recommends that, at a minimum, you consider the following in developing 
your program: maintenance activities, maintenance schedules, and long-
term inspection procedures for structural and other storm water 
controls to reduce floatables and other pollutants discharged from your 
separate storm sewers; controls for reducing or eliminating the 
discharge of pollutants from streets, roads, highways, municipal 
parking lots, maintenance and storage yards, and waste transfer 
stations; procedures for properly disposing of waste removed from the 
separate storm sewer systems and areas listed above (such as dredge 
spoil, accumulated sediments, floatables, and other debris); and ways 
to ensure that new flood management projects assess the impacts on 
water quality and examine existing projects for incorporating 
additional water quality protection devices or practices. In general, 
the requirement to develop and implement an operation and maintenance 
program, including local government employee training, is meant to 
ensure that municipal activities are performed in the most appropriate 
way to minimize contamination of storm water discharges, rather than 
requiring the municipality to undertake new activities.)
    (c) The NPDES permitting authority may include permit provisions in 
your NPDES permit that incorporate by reference qualifying local, State 
or Tribal municipal storm water management program requirements that 
address one or more of the minimum controls of Sec. 122.34(b). 
Qualifying local, State or Tribal program requirements must impose, at 
a minimum, the relevant requirements of paragraph (b) of this section.
    (d) You must identify and submit to your NPDES permitting authority 
either in your notice of intent or in your permit application (see 
Sec. 122.33) the following information: best management practices 
(BMPs) to be implemented and the measurable goals for each of the storm 
water minimum control measures at paragraphs (b)(1) through (b)(6) of 
this section, the month and year in which you will start and aim to 
complete each of the measures or indicate the frequency of the action, 
and the person or persons responsible for implementing or coordinating 
your storm water management program. Measurable goals to satisfy 
minimum control measures in paragraphs (b)(3) through (b)(6) of this 
section identified in a notice of intent will not constitute a 
condition of the permit, unless EPA or your State or Tribe has provided 
or issued a menu of regionally appropriate and field-tested BMPs that 
EPA or your State or Tribe believes to be cost-effective. (EPA will 
provide guidance on developing BMPs and measurable goals and modify, 
update, and supplement such guidance based on the assessments of the 
NPDES municipal storm water program and research conducted by (date 13 
years from effective date of final rule).
    (e) You must comply with other applicable NPDES permit 
requirements, standards and conditions established in the individual or 
general permit, developed consistent with the

[[Page 1641]]

provisions of Secs. 122.41 through 122.49, as appropriate.
    (f) Evaluation and assessment. (1) Evaluation. You must evaluate 
program compliance, the appropriateness of your identified best 
management practices, and progress towards achieving your identified 
measurable goals. (The NPDES permitting authority may determine 
monitoring requirements for you in accordance with State/Tribal 
monitoring plans appropriate to your watershed. Participation in a 
group monitoring program is encouraged.)
    (2) Record keeping. You must keep records required by the NPDES 
permit for at least 3 years. You must submit your records to the NPDES 
permitting authority only when specifically asked to do so. You must 
make your records, including your storm water management program, 
available to the public at reasonable times during regular business 
hours (see Sec. 122.7 for confidentiality provision). (You may assess a 
reasonable charge for copying. You may require a member of the public 
to provide advance notice, not to exceed two working days.)
    (3) Reporting. You must submit annual reports to the NPDES 
permitting authority for your first permit term. For subsequent permit 
terms, you must submit reports in year two and four unless the NPDES 
permitting authority requires more frequent reports. Your report must 
include:
    (i) The status of compliance with permit conditions, an assessment 
of the appropriateness of your identified best management practices and 
progress towards achieving your identified measurable goals for each of 
the minimum control measures;
    (ii) Results of information collected and analyzed, including 
monitoring data, if any, during the reporting period;
    (iii) A summary of the storm water activities you plan to undertake 
during the next reporting cycle; and
    (iv) A change in any identified measurable goals that apply to the 
program elements.


Sec. 122.35  As an owner or operator of a regulated small municipal 
separate storm sewer system, what if another governmental or other 
entity is already implementing a minimum control measure in my 
jurisdiction?

    (a) You may rely on another entity to satisfy your NPDES permit 
obligations to implement a minimum control measure if: the other entity 
is implementing the control measure; the particular control measure, or 
component thereof, is at least as stringent as the corresponding NPDES 
permit requirement; and you have requested, and the other entity has 
agreed to accept responsibility for implementation of the control 
measure on your behalf to satisfy your permit obligation. You must note 
in your Sec. 122.34(f)(3) reports when you are relying on another 
entity to satisfy your permit obligations. You remain responsible for 
compliance with your permit obligations if the other entity fails to 
implement the control measure (or component thereof). Therefore, EPA 
encourages you to enter into a legally binding agreement with that 
entity if you want to minimize any uncertainty about compliance with 
your permit.
    (b) Where appropriate, the NPDES permitting authority may recognize 
existing responsibilities among governmental entities for the minimum 
control measures in your NPDES permit. (For example, a State or Tribe 
may be responsible for addressing construction site runoff and 
municipalities may be responsible for the remaining minimum control 
measures. You are not required to provide notice to the other 
governmental entity when your NPDES permit recognizes the entity and 
its existing responsibilities.) Where the permitting authority 
recognizes an existing responsibility for one or more of the minimum 
control measures in your permit, your responsibility to include such 
minimum control measure, or measures, in your storm water management 
program is waived so long as the other governmental entity implements 
the measure consistent with the requirements of Sec. 122.34(b).


Sec. 122.36  As an owner or operator of a regulated small municipal 
separate storm sewer system, what happens if I don't comply with the 
application or permit requirements in Secs. 122.33 through 122.35?

    NPDES permits are federally enforceable. Violators may be subject 
to the enforcement actions and penalties described in Clean Water Act 
sections 309 (b), (c), and (g) and 505, or under applicable State or 
local law. Compliance with a permit issued pursuant to section 402 of 
the Clean Water Act would be deemed compliance, for purposes of 
sections 309 and 505, with sections 301, 302, 306, 307, and 403, except 
any standard imposed under section 307 for toxic pollutants injurious 
to human health.


Sec. 122.37  Will the municipal storm water program regulations at 
Secs. 122.32 through 122.36 and Sec. 123.35 of this chapter change in 
the future?

    EPA will evaluate the municipal storm water regulations at 
Secs. 122.32 through 122.36 and Sec. 123.35 of this chapter after 
{insert date 13 years from date of publication of final rule in the 
Federal Register} and make any necessary revisions. (EPA will conduct 
an enhanced research effort and compile a comprehensive evaluation of 
the NPDES municipal storm water program. EPA strongly recommends that 
no additional requirements beyond the minimum control measures be 
imposed on regulated small municipal separate storm sewer systems 
without the agreement of the owner or operator of the affected 
municipal separate storm sewer system, except where adequate 
information exists in approved TMDLs or equivalents of TMDLs to develop 
more specific measures to protect water quality, or until EPA's 
comprehensive evaluation is completed. EPA will evaluate the 
regulations based on data from the NPDES municipal storm water program, 
from research on receiving water impacts from storm water, and the 
effectiveness of best management practices (BMPs).)
    5. Add Sec. 122.44(s) to read as follows:


Sec. 122.44  Establishing limitations, standards, and other permit 
conditions (applicable to State NPDES programs, see Sec. 123.25)

* * * * *
    (s)(1) For storm water discharges from construction sites 
identified in Sec. 122.26(b)(15)(i), the Director may include permit 
provisions that incorporate by reference qualifying State, Tribal, or 
local sediment and erosion control program requirements. A qualifying 
State, Tribal, or local sediment and erosion control program is one 
that meets the requirements of a municipal NPDES separate storm sewer 
permit or a program otherwise approved by the Director. For the 
Director to approve such programs, the program must meet the minimum 
program requirements established under Sec. 122.34(b)(4).
    (2) For storm water discharges identified in Sec. 122.26(b)(14)(x), 
the Director may include by reference State, Tribal or local 
requirements that meet the standard of ``best available technology'' 
(BAT) as defined, for example, in the storm water general permit.

PART 123--STATE PROGRAM REQUIREMENTS

    1. The authority citation for part 123 continues to read as 
follows:

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

    2. Section 123.25 is amended by adding paragraphs (a)(39) through 
(a)(46) to read as follows:


Sec. 123.25  Requirements for permitting.

    (a) * * *

[[Page 1642]]

    (39) Sec. 122.30 (What is the purpose of the CWA section 402(p)(6) 
storm water regulations?);
    (40) Sec. 122.31 (For Indian Tribes only) (As a Tribe, what is my 
role under the CWA section 402(p)(6) storm water program?)
    (41) Sec. 122.32 (As an owner or operator of a small municipal 
separate storm sewer system, am I regulated under the CWA section 
402(p)(6) municipal storm water program?);
    (42) Sec. 122.33 (If I am an owner or operator of a regulated small 
municipal separate storm sewer system, must I apply for an NPDES 
permit? If so, by when do I have to seek coverage under an NPDES 
permit? If so, who is my NPDES permitting authority?);
    (43) Sec. 122.34 (As an owner or operator of a regulated small 
municipal separate storm sewer system, what will my NPDES municipal 
storm water permit require?);
    (44) Sec. 122.35 (As an owner or operator of a regulated small 
municipal separate storm sewer system, what if another governmental or 
other entity is already implementing a minimum control measure in my 
jurisdiction?);
    (45) Sec. 122.36 (As an owner or operator of a regulated small 
municipal separate storm sewer system, what happens if I don't comply 
with the application or permit requirements in Secs. 122.33 through 
122.35?);
    (46) Sec. 122.37 (Will the municipal storm water program 
regulations at Secs.  122.32 through 122.36 and Sec. 123.35 of this 
chapter change in the future?);
* * * * *
    3. Add an undesignated centerheading and Sec. 123.35 to subpart B 
to read as follows:
    NPDES Permitting Authority Role for the CWA section 402(p)(6) 
Municipal Program


Sec. 123.35  As the NPDES Permitting Authority for regulated small 
municipal separate storm sewer systems, what is my role?

    (a) You must comply with the requirements for all NPDES permitting 
authorities under parts 122, 123, 124, and 125 of this chapter. (This 
section is meant only to supplement those requirements and discuss 
specific issues related to the small municipal storm water program.)
    (b) You must develop a process, as well as criteria, to designate 
incorporated places, counties, or other places under the jurisdiction 
of a governmental entity, other than those described in 
Sec. 122.32(a)(1) of this chapter, as regulated small municipal 
separate storm sewer systems to be covered under the CWA section 
402(p)(6) program. This process must include the authority to designate 
a small municipal separate storm sewer system waived under paragraph 
(d) of this section if circumstances change. EPA may make designations 
under this section if a State or Tribe fails to comply with the 
requirements listed in this paragraph. In making your designations, you 
must:
    (1) Develop criteria to evaluate whether a storm water discharge 
results in or has the potential to result in exceedances of water 
quality standards, including impairment of designated uses, or other 
significant water quality impacts, including habitat and biological 
impacts. (EPA recommends as guidance for determining other significant 
water quality impacts a balanced consideration of the following 
designation criteria on a watershed or other local basis: discharge to 
sensitive waters, high growth or growth potential, high population 
density, contiguity to an urbanized area, significant contributor of 
pollutants to waters of the United States, and ineffective control of 
water quality concerns by other programs.);
    (2) Apply such criteria, at a minimum, to any incorporated place, 
county, or other place under the jurisdiction of a governmental entity 
located outside of an urbanized area that has a population density of 
at least 1,000 people per square mile and a population of at least 
10,000;
    (3) Designate any incorporated place, county or other place under 
the jurisdiction of a governmental entity that meets the selected 
criteria by {insert date three years and 90 days from date of 
publication of final rule in the FEDERAL REGISTER}. You may have until 
{insert date five years from date of publication of final rule in the 
FEDERAL REGISTER} to apply the designation criteria on a watershed 
basis where there is a comprehensive watershed plan. You may apply 
these criteria to make additional designations at any time, as 
appropriate; and
    (4) Designate any incorporated place, county, or other place under 
the jurisdiction of a governmental entity that contributes 
substantially to the storm water pollutant loadings of a physically 
interconnected municipal separate storm sewer system that is regulated 
by the NPDES storm water program.
    (c) You must make a final determination within 180 days from 
receiving a petition under Sec. 122.32(b) of this chapter (or analogous 
State or Tribal law). If a State or Tribe fails to do so, EPA may make 
a determination on the petition.
    (d) You must issue permits consistent with Secs. 122.32 through 
122.35 of this chapter to all regulated small municipal separate storm 
sewer systems. You may waive the requirements otherwise applicable to 
regulated small municipal separate storm sewer systems, as defined in 
Sec. 122.32(a)(1) of this chapter, if the jurisdiction of the regulated 
small municipal separate storm sewer system includes a population of 
less than 1,000 persons, its discharges are not contributing 
substantially to the storm water pollutant loadings of a physically 
interconnected regulated municipal separate storm sewer system (see 
paragraph (b)(4) of this section), and the owner or operator of the 
regulated small municipal separate storm sewer system has certified 
that storm water controls are not needed based on:
    (1) Wasteload allocations that are part of ``total maximum daily 
loads'' (TMDLs) that address the pollutants of concern; or
    (2) A comprehensive watershed plan, implemented for the waterbody, 
that includes the equivalents of TMDLs, and addresses the pollutants of 
concern.
    (e) You must specify a time period of up to 5 years from the date 
of permit issuance for owners or operators of small municipal separate 
storm sewer systems to fully develop and implement their storm water 
program.
    (f) You must include the requirements in Sec. 122.34 of this 
chapter including as modified in accordance with Secs. 122.33(a)(3), 
122.34(c), or 122.35(b) of this chapter, in any permit issued for 
regulated small municipal separate storm sewer systems. (You may 
include permit provisions in a regulated small municipal separate storm 
sewer system NPDES permit that incorporates by reference qualifying 
local, State or Tribal municipal storm water management program 
requirements that address one or more of the minimum controls of 
Sec. 122.34(b) of this chapter (see Sec. 122.34(c) of this chapter). 
Qualifying local, State or Tribal program requirements must impose, at 
a minimum, the relevant requirements of Sec. 122.34(b) of this 
chapter.)
    (g) If you plan to issue a general permit to authorize storm water 
discharges from small municipal separate storm sewer systems, you must 
provide or issue by {insert 2 years from date of publication of final 
rule in the Federal Register} a menu of regionally appropriate and 
field-tested BMPs that you believe to be cost-effective from which 
regulated small municipal separate storm sewer systems can select. 
Failure to issue the menu of BMPs would not affect the legal status of 
the general permit. If a State or Tribe fails

[[Page 1643]]

to provide or issue the menu, EPA may do so.
    (h) You must incorporate additional measures necessary to ensure 
effective implementation of your State storm water program for 
regulated small municipal separate storm sewer systems. (EPA recommends 
consideration of the following:
    (1) You are encouraged to use a general permit for regulated small 
municipal separate storm sewer systems;
    (2) To the extent that there is a dedicated funding source, you 
should play an active role in providing financial assistance to owners 
and operators of regulated small municipal separate storm sewer 
systems;
    (3) You should support local programs by providing technical and 
programmatic assistance, conducting research projects, performing 
watershed monitoring, and providing adequate legal authority at the 
local level;
    (4) You are encouraged to coordinate and utilize the data collected 
under several programs including water quality management programs, 
TMDL programs, and water quality monitoring programs;
    (5) Where appropriate, you may recognize existing responsibilities 
among governmental entities for the control measures in an NPDES small 
municipal storm water permit (see Sec. 122.35(b) of this chapter); and
    (6) You are encouraged to use a brief (e.g., two page) reporting 
format to facilitate compiling and analyzing data from submitted 
reports under Sec. 122.34(f)(3) of this chapter. EPA will develop a 
model form for this purpose.)

[FR Doc. 98-180 Filed 1-8-98; 8:45 am]
BILLING CODE 6560-50-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>