1536 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 selfaddressed, stamped envelope. No

facsimiles (faxes) will be accepted.

Comments may also be submitted

electronically to owdocket@epamail.epa.gov. 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.
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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; sw2@epamail.epa.gov.

SUPPLEMENTARY INFORMATION: Entities

potentially regulated by this action

include:

Category Examples of regulated

entities

Federal Government.Owners or operators of

municipal separate

storm sewer systems.

Category Examples of regulated

entities

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 §§ 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
1538 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 CostEffective 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.
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 SurveyStorm 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 waterquality 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
1540 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 SuspendedSediment 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 SuspendedSediment 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)
1542 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 NPDESauthorized 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 technologybased 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 waterquality 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
1544 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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:

• 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.

• 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 http://www.epa.gov/owmitnet/

pipes/pipes.htm).

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
1546 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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

• 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.

• Related activities within a basin or

watershed must be coordinated to

achieve the greatest environmental

benefit and most effective level of

stakeholder involvement.

• Actions relating to restoration and

protection of surface water, ground

water, and habitat within a basin should

be based upon an integrated decisionmaking process, a common information

base, and a common understanding of

the roles, priorities, and responsibilities

of all stakeholders within a basin.

• Staff and financial resources are

limited and must be allocated to address

environmental priorities as effectively

and efficiently as possible.

• Program requirements that interfere

or conflict with environmental priorities

should be identified and revised to the

extent possible.

• Accurate information and high

quality data are necessary for decisionmaking 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
1548 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

management decisions, an emphasis on

local decisionmaking, greater

consistency and responsiveness,

increased opportunities to use marketbased 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 socalled ‘‘light’’ industrial activities not

exposed to storm water (see discussion

of ‘‘no exposure’’ below). EPA is also

seeking to address the problem of socalled ‘‘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, watershedbased 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
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BILLING CODE 6560–55–C
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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 caseby-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 ‘‘nonNPDES’’ 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 costeffective 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-
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 costeffective), 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
1552 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 nonstructural 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:

strassler.eric@epamail.epa.gov.

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.
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1553

EXHIBIT 2.—TODAY’S PROPOSED RULE DEADLINES

Activity Deadline date

Proposed Rule Becomes Final ................................................................................................... 3/1/99.

NPDES-Authorized States Modify NPDES Program .................................................................. 3/1/00.

NPDES-Authorized States Modify NPDES Program if Statutory Change is Required .............. 3/1/01.

Permitting Authority Issues A Menu of BMPs for Regulated Small Municipal Separate Storm

Sewer Systems (MS4s).

3/1/01.

ISTEA Sources Submit Permit Application ................................................................................. 8/7/01.

Permitting Authority Issues General Permit(s) (if this type of permit coverage is selected) ..... 3/1/02.

Regulated Small MS4s Submit Permit Application: a. 5/31/02.

a. If designated under § 122.32(a)(1) with 1990 Census as ‘‘latest’’ Census .................... b. 5/31/02.

b. If designated under § 122.32(a)(1) with 2000 Census as ‘‘latest’’ Census (2000 Census calculations to be completed approximately by August 2001).c. Within 60 days of notice.

c. If designated under § 122.32(a)(2) ..................................................................................

d. If designated under §§ 122.26(a)(9)(i) (C) or (D) ............................................................

d. Within 180 days of notice.

Storm Water Discharges Associated With Other Activity Submit Permit Application ................ 5/31/02.

Permitting Authority Designates Small MS4s under § 123.35(b)(2) ........................................... 5/31/02 or 3/1/04 (if a watershed plan is in place).

Regulated Small MS4s’ Program Developed and Implemented ................................................ 2007.

Reevaluation of the Proposed Rule by EPA .............................................................................. 3/1/12.

Permitting Authority Determination on a Petition ....................................................................... Within 180 days.

Non-Municipal Sources Designated Under § 122.26(a)(9)(i) (C) or (D) Submit Permit Application.Within 180 days of notice.

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
1554 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 nonpermit 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), nonpermit 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
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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 nonNPDES 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 nonNPDES 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 nonNPDES approach, EPA would need to

determine what parts of the State’s nonNPDES 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 nonNPDES 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
1556 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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
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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 selfimplementing rules or ‘‘permits-byrule.’’

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 selfimplementing 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 NonNPDES 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
1558 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 § 123.62.

Under § 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 § 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 § 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 governmentowned 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 (§ 122.26(a)(1)).

Regulations at § 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
1560 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 NPDESauthorized 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 § 123.35 (and Section

II.G. of today’s preamble) and existing

§ 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

§ 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 Censusdesignated 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:

• Augustine Band of Cahuilla Mission

of Indians of the Augustine Reservation,

CA.

• Cabazon Band of Cahuilla Mission

of Indians of the Cabazon Reservation,

CA.

• Redding Rancheria of California.

• Seminole Tribe of Florida, Dania,

Big Cypress and Brighton Reservations.

• Penobscot Tribe of Maine.

• Shakopee Mdewakanton Sioux

Community of Minnesota (Prior Lake).

• Las Vegas Tribe of Paiute Indians of

the Las Vegas Indian Colony, NV.

• Reno-Sparks Indian Colony, NV.

• 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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, nonauthorized 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 § 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 § 123.35(b) addresses the

requirements for the NPDES permitting

authority to designate sources of storm

water discharges to be regulated under

§§ 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 § 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 § 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 locallyfocused 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.

• 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
1562 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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.

• 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.

• 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.

• 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 § 123.35(b)(4).

• 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.

• 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-bycase 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 § 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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

§ 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 subsequentlydeveloped 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

§ 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 § 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

§ 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

§ 123.35(c)). NPDES permitting

authorities would have to make a final
1564 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

determination on any petition within

180 days after receiving the petition (see

proposed § 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

§ 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 § 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 selfcertification 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
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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 §§ 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

§ 122.32 of today’s proposed rule, unless

waived under § 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, § 123.35(f), that requires

NPDES permitting authorities to include

the requirements in proposed § 122.34

including as modified in accordance

with §§ 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

§ 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

§ 122.34(b). For a local, Tribal, or State

program to ‘‘qualify,’’ it would need to

impose, at a minimum, the relevant

requirements of § 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 § 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 § 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 § 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 EPAsponsored 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
1566 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 § 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 § 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-bycase basis sources that ‘‘contribute

substantially to the storm water

pollutant loadings of a physicallyinterconnected [regulated] municipal

separate storm sewer system.’’ Finally,

the approach would designate on a caseby-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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 §§ 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

§§ 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
1568 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 builtup 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 censusdesignated 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1569

larger sense, the urbanized area

determination is not based on political

boundaries for counties or Federal

Indian reservations but is for ‘‘places.’’

• 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.)

• 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.

• 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.

• 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
1570 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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

• 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.

• 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
1572 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 § 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 § 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

§ 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 copermittee arrangement, the owner or

operator of the regulated small system

would need to comply with the

applicable requirements of § 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 § 122.34 of today’s

proposal or with the application

requirements of § 122.26(d)(1)(iii) (Part

1 source identification), § 122.26

(d)(1)(iv) (Part 1 discharge

characterization), and § 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 § 122.26(d)(1)(v)

(Part 1 management programs) and

§ 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 § 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 copermittees, 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 regionallyappropriate 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 rightof-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
1574 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 § 122.34 and permit

provisions at § 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 costeffective 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
1576 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 § 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 § 122.44(s) which would allow the

NPDES permit issued to regulated

construction sites (described under

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

§ 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 § 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

§ 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

§ 122.34(b)(4) requirements. EPA

intends to facilitate the broadest

application of the § 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 costeffective 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.
1578 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 siteappropriate 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, postdevelopment 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 costeffective 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. Nonstructural 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.
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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

§ 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 permitteecoordinated 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 § 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 § 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, fieldtested BMPs that it believes to be costeffective. 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
1580 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 costeffective 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 ‘‘endof-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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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-asa-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 § 122.34 and not the

existing requirements for medium and

large municipal separate storm sewer

systems at § 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 §§ 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,

§ 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 § 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 § 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 § 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
1582 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 § 122.37 to

commit the Agency to revisit the

regulations for the municipal storm

water program, at §§ 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 consensusbased 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 reevaluate 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 § 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 § 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) (§ 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 § 122.26(a)(9)(i)(D) and

§ 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
1584 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 timesensitive 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), covermanagement 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 (caseby-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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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

§ 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 § 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

§ 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 § 122.28 to address

the storm water discharges from

construction activities proposed to be

regulated at § 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

§ 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 § 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

§ 122.26 accordingly. For any discharges

of storm water associated with other

activity identified in § 122.26(b)(15) that

are not authorized by a general permit,

a permit application made pursuant to

§ 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
1586 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 § 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-bycase 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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-bycase 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
1588 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 caseby-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 caseby-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 threepronged 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 crossreference 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 §§ 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 § 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

§§ 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 TMDLbased 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
1590 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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-bycase 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 ‘‘nonexposed’’ 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 noexposure 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

§ 122.26(b)(14)(xi) and adding a new

section—§ 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

§ 122.26(b)(14), except construction

defined under existing § 122.26(b)(14)(x)

and proposed § 122.26(b)(15)(i) and

sources individually designated under

§§ 122.26(a)(1)(v), 122.26(a)(9)(i)(B),(C),

& (D) and 122.26(g)(3). Thus, proposed

§ 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 nonindustrial 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 noexposure 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
1592 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 noexposure 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 § 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 § 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-bycase 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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
1594 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 § 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 technologybased approach with a water qualitybased 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,
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 bettertailored 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

§ 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
1596 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 ‘‘antibacksliding’’ 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 selfassessment 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]

Activity

Projected

respondents

per year

Estimated

burden hours

per

respondent

Projected annual burden

(Hrs)1

Projected annual cost ($)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 Cost3 ......................................................... .................... ...................... 146,775 3,835,222

Average Annual Program Total4 .............................................................. .................... ...................... 1,701,135 55,050,112

1Totals 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).

3Average 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. 4Burden 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
1598 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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

§ 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

§ 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 of

phase II

sources

August 7, 1995,

final rule Plan B

September 30,

1996 draft proposed rule

February 13,

1997 draft proposed rule

Proposed

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

Measure

Percent of

municipalities expected to

incur costs

(percent)

Low end of

range of per

capita costs

High end of

range of per

capita 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
1600 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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

Benefits category

Scenario 1

annual

value

Scenario 2

annual

value

Scenario 3

annual

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
1602 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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)
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 costeffective, 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 § 402(p)(6),

as well as sections 301, 308, 402, and

501. (33 U.S.C. §§ 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 watershedbased 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
1604 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 costeffective 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.
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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
1606 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

5The 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).

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.

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 singlefamily 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 singlefamily 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 § 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
1608 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 Yacqui Tribe of Arizona ............................................... Tuscon, AZ (Phase I).

AZ ............ Salt River Reservation (pt.), Salt River Pima-Maricopa Indian Community of the Salt River Reservation, California.Phoenix, AZ (Phase I).

AZ ............ San Xavier Reservation (pt.), Tohono O’odham Nation of Arizona (formerly known as the

Papago Tribe of the Sells, Gila Bend & San Xavier Reservation).

Tucson, AZ (Phase I).

CA ............ Augustine Reservation, Augustine Band of Cahuilla Mission of Indians of the Augustine Reservation, CA.Indio-Coachella, CA (Phase I).

CA ............ Cabazon Reservation, Cabazon Band of Cahuilla Mission Indians of the Cabazon Reservation,

CA.

Indio-Coachella, CA (Phase I).

CA ............ Fort Yuma (Quechan) (pt.), Quechan Tribe of the Fort Yuma Indian Reservation, California and

Arizona.

Yuma, AZ–CA.

CA ............ Redding Rancheria, Redding Rancheria of California .................................................................... Redding, CA.

FL ............ Hollywood Reservation, Seminole Tribe ......................................................................................... Fort Lauderdale, FL (Phase I).

FL ............ Seminole Trust Lands, Seminole Tribe of Florida, Dania, Big Cypress and Brighton Reservations.Fort Lauderdale, FL (Phase I).

ID ............. Fort Hall Reservation and Trust Lands, Shosone-Bannock Tribes of the Fort Hall Reservation of

Idaho.

Pocatello, ID.

ME ........... Penobscot Reservation and Trust Lands (pt.), Penobscot Tribe of Maine ..................................... Bangor, ME.

MN ........... Shakopee Community, Shakopee Mdewakanton Sioux Community of Minnesota (Prior Lake) .... Minneapolis-St. Paul, MN (Phase

I).

NM ........... Sandia Pueblo (pt.), Pueblo of Sandia, New Mexico ...................................................................... Albuquerque, NM (Phase I).

NV ............ Las Vegas Colony, Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada Las Vegas, NV (Phase I).

NV ............ Reno-Sparks Colony, Reno-Sparks Indian Colony, Nevada .......................................................... Reno, NV (Phase I).

OK ........... Osage Reservation (pt.), Osage Nation of Oklahoma .................................................................... Tulsa, OK (Phase I).

OK ........... Absentee Shawnee-CitizensBand of Potawatomi TJSA (pt.), Absentee-Shawnee Tribe of Indians of Oklahoma, Citizen Potawatomi Nation, Oklahoma.Oklahoma City, OK (Phase I).

OK ........... Cherokee TJSA 9 (pt.), Cherokee Nation of Oklahoma, United Keetoowah Band of Cherokee

Indians of Oklahoma.

Ft. Smith, AR–OK; Tulsa, OK

(Phase I).

OK ........... Cheyenne-Arapaho TJSA (pt.), Cheyenne-Arapaho Tribes of Oklahoma ...................................... Oklahoma City, OK (Phase I).

OK ........... Choctaw TJSA (pt.), Choctaw Nation of Oklahoma ........................................................................ Ft. Smith, AR–OK (Phase I).

OK ........... Creek TJSA (pt.), Alabama-Quassarte Tribal 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.

Tulsa, OK (Phase I).

OK ........... Kiowa-Comanche-Apache-Ft. Sill Apache, Apache Tribe of Oklahoma, Comanche Indian Tribe,

Oklahoma, Fort Sill Apache Tribe of Oklahoma, Kiowa Indian Tribe of Oklahoma.

Lawton, OK.

TX ............ Ysleta del Sur Reservation, Ysleta Del Sur Pueblo of Texas ......................................................... El Paso, TX–NM (Phase I).

WA ........... Muckleshoot Reservation and Trust Lands (pt.), Muckleshoot Indian Tribe of the Muckleshoot

Reservation.

Seattle, WA (Phase I).

WA ........... Puyallup Reservation and Trust Lands (pt.), Puyallup Tribe of the Puyallup Reservation, WA .... Tacoma, WA (Phase I).

WA ........... Yakima Reservation (pt.), Confederated Tribes and Bands of the Yakama Indian Nation of the

Yakama Reservation, WA.

Yakima, WA.

WI ............ Oneida (West) (pt.), Oneida Tribe of Wisconsin ............................................................................. Green Bay, WI.

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.

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BILLING CODE 6560–50–C
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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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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
1612 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 ‘‘noexposure’’ 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, byproducts 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 noexposure 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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

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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

§ 122.26(d)(1)(iii), (iv) and (d)(2)(iii)

[discharge characterization] and may satisfy

the requirements of § 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.
1616 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 ‘‘noexposure’’ 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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
1618 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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
1620 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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
1622 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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
1624 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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
1626 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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
1628 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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
1630 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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
1632 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

1Listed 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.

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 § 123.35(b)(2)]

(From the 1990 Census of Population and

Housing—U.S. Census Bureau)

(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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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
1634 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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

§ 122.26 Storm water discharges

(applicable to State NPDES programs, see

§ 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

§ 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

§§ 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

§ 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;
1636 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

(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 § 122.26(b)(15).—SUMMARY OF COVERAGE OF ‘‘STORM WATER DISCHARGES ASSOCIATED WITH OTHER

ACTIVITY’’* UNDER THE NPDES STORM WATER PROGRAM

[*See definition in § 122.26(b)(15)]

Automatic Designation:

Required Nationwide Coverage ................... Construction activities that result in a 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 § 122.26(b)(15)(i)(A)).

Potential Designation:

Optional Evaluation and Designation by the

Permitting Authority.

(1) Construction activities that result in a land disturbance of less than one acre based on the

potential for adverse impact on water quality or for significant contribution of pollutants. (see

§ 122.26(b)(15)(i)(B)).

(2) Any other non-municipal storm water discharges. (see § 122.26(b)(15)(ii)).

Automatic Designation:

Required nationwide Coverage ................... Construction activities that result in a 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 § 122.26(b)(15)(i)(A)).

Potential Waiver:

Waiver from Requirements as Determined

by the Permitting Authority.

Any automatically designated construction activity where the owner/operator 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 § 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

§ 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

§ 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 § 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) * * *
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 § 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 § 122.28(b)(2)(v) to read as

follows:

§ 122.28 General permits (applicable to

State NPDES programs, see § 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 §§ 122.30 through 122.37 to subpart

B to read as follows:

General Purpose of the CWA Section

402(p)(6) Storm Water Program

§ 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 § 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

§ 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 §§ 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 § 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

§§ 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
1638 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

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 §§ 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 § 122.26(b)(16)]

Who is Designated/Covered Under This Part?

Automatic Designation

Required Nationwide Coverage ................... All owners or operators of small municipal separate storm sewer systems (MS4s) located within an ‘‘urbanized area.’’ (see § 122.32(a)(1)).

Potential Designation:

Required Evaluation by the Permitting Authority for Coverage.All owners or operators of small MS4s located outside of an ‘‘urbanized area’’ with a population of at least 10,000 and a population density of at least 1,000. (see §§ 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 §§ 122.32(a)(2) and 123.35(b)(4)).

Potential Designation:

Optional Evaluation by the Permitting Authority for Coverage.Owners and operators of small MS4s located outside of an ‘‘urbanized area’’ with a population

of less than 10,000 or a density of less than 1,000. (see §§ 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 Requirements

as Determined by the Permitting Authority.

Owners or operators of small MS4s, located within an ‘‘urbanized area,’’ with a jurisdiction of

less than 1,000 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 Regulated Small MS4 ..... Federal Indian reservations where the population within the ‘‘urbanized area’’ portion of the

reservation is less than 1,000 persons.

§ 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

§§ 123.35(b)(2) and (b)(4) of this chapter,

or is based upon a petition under

§ 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 §§ 122.33 through 122.35.

(c) If you receive a waiver under

§ 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 § 123.35(b) of this

chapter.)

§ 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 § 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

§ 122.21(f) and the following

information:
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 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 § 122.26, in lieu of the

requirements of § 122.34. You do not

need to comply with the specific

application requirements of

§ 122.26(d)(1)(iii) and (iv) and (d)(2)(iii)

(discharge characterization). You may

satisfy the requirements in § 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 § 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 § 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 § 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 § 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.)

§ 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 § 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;
1640 Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules

(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 § 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 costeffective 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 nonstructural BMPs, which are generally

lower in cost than structural BMPs, to

minimize water quality impacts. Nonstructural 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 § 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 § 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
Federal Register / Vol. 63, No. 6 / Friday, January 9, 1998 / Proposed Rules 1641

provisions of §§ 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 § 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.

§ 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

§ 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 § 122.34(b).

§ 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 §§ 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.

§ 122.37 Will the municipal storm water

program regulations at §§ 122.32 through

122.36 and § 123.35 of this chapter change

in the future?

EPA will evaluate the municipal

storm water regulations at §§ 122.32

through 122.36 and § 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 § 122.44(s) to read as follows:

§ 122.44 Establishing limitations,

standards, and other permit conditions

(applicable to State NPDES programs, see

§ 123.25)

* * * * *

(s)(1) For storm water discharges from

construction sites identified in

§ 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

§ 122.34(b)(4).

(2) For storm water discharges

identified in § 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:

§ 123.25 Requirements for permitting.

(a) * * *
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(39) § 122.30 (What is the purpose of

the CWA section 402(p)(6) storm water

regulations?);

(40) § 122.31 (For Indian Tribes only)

(As a Tribe, what is my role under the

CWA section 402(p)(6) storm water

program?)

(41) § 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) § 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) § 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) § 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) § 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 §§ 122.33

through 122.35?);

(46) § 122.37 (Will the municipal

storm water program regulations at §§

122.32 through 122.36 and § 123.35 of

this chapter change in the future?);

* * * * *

3. Add an undesignated

centerheading and § 123.35 to subpart B

to read as follows:

NPDES Permitting Authority Role for

the CWA section 402(p)(6) Municipal

Program

§ 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 § 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 § 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 §§ 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 § 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 § 122.34 of this chapter including as

modified in accordance with

§§ 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 § 122.34(b) of this chapter

(see § 122.34(c) of this chapter).

Qualifying local, State or Tribal program

requirements must impose, at a

minimum, the relevant requirements of

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

§ 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

§ 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