[Federal Register Volume 66, Number 246 (Friday, December 21, 2001)]
[Notices]
[Pages 65957-65961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31492]



[[Page 65957]]

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

ENVIRONMENTAL PROTECTION AGENCY

[FRL-7121-6]


Notice of Availability and Request for Public Comment: Proposed 
National Pollutant Discharge Elimination System (NPDES) General Permit 
for Discharges of Storm Water Discharges From Construction Activities 
in Indian Country Within the State of Wisconsin

AGENCY: Environmental Protection Agency, Region 5 (EPA).

ACTION: Notice and request for public comment.

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

SUMMARY: Today's notice announces EPA's intention to issue a National 
Pollutant Discharge Elimination System (NPDES) general permit for storm 
water discharges from construction activities in Indian country within 
the State of Wisconsin. The general permit is proposed to cover 
discharges within Indian country, including the following areas: Bad 
River Indian Reservation, Forest County Potawatomi Indian Reservation, 
Ho-Chunk Nation Indian Reservation, Lac Courte Oreilles Indian 
Reservation, Lac Du Flambeau Indian Reservation, Menominee Indian 
Reservation, Oneida Indian Reservation, Red Cliff Indian Reservation, 
Sokaogon (Mole Lake) Indian Reservation, St. Croix Indian Reservation, 
and the Stockbridge-Munsee Indian Reservation.
    Section 402(p)(2)(B) of the 1987 Clean Water Act requires NPDES 
permits for storm water discharges associated with industrial activity. 
Sources regulated include discharges from municipal separate storm 
sewer systems with populations of generally 100,000 or more and 11 
categories of industrial activity. EPA has defined storm water 
discharges associated with industrial activity to include storm water 
discharges from construction sites which disturb 5 or more acres (see 
40 CFR 122.26(b)(14)(x)). This formed the basis of Phase I of the 
national storm water regulations.
    On December 8, 1999, EPA published Phase II of the national storm 
water regulations. Phase II regulates storm water discharges from small 
municipal separate storm sewer systems and discharges associated with 
small construction activity, including construction sites which disturb 
between 1 and 5 acres (40 CFR 122.26(b)(15)(i)). The proposed permit 
will address construction sites regulated under both the Phase I and 
Phase II Rules. However, the requirements for small construction sites 
will not be effective until March 10, 2003, the date by which these 
sources are to comply with the Phase II storm water regulations. The 
Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991 
postponed the Phase I permitting deadline for any storm water discharge 
associated with industrial activity (which includes construction 
activity) that is owned or operated by any municipality with 
populations less than 100,000, except for a discharge from an airport, 
powerplant, or uncontrolled sanitary landfill. Originally, EPA codified 
the ISTEA amendments by ``reserving'' permit application requirements. 
In the Phase II rules, however, EPA established that deadline as March 
10, 2003. Construction storm water discharges that are owned or 
operated by Indian tribes are included in the ISTEA exemption because 
CWA section 502(4) defines ``municipality'' to include ``an Indian 
tribe or an authorized Indian tribal organization.'' Thus, Tribes are 
not required to apply for permits for their construction activities 
until the March 10, 2003 deadline.
    EPA invites public comment on the provisions of the draft permit 
within the public notice period established by this notice. In 
addition, EPA will hold several public meetings and a public hearing to 
discuss the proposed permit. The dates and locations are listed below:

    Date: January 9, 2002.
    Location: University of Wisconsin, Director's Room 4151, Grainger 
Hall, 975 University Avenue, Madison, WI 53706.
    Time: 1:00 p.m. to 3:00 p.m.

    Date: January 17, 2002.
    Location: Bay Beach Wildlife Sanctuary, Auditorium, 1660 East Shore 
Drive, Green Bay, WI.
    Time: 5:00 p.m. to 7:00 p.m.
    Date: January 29, 2002.
    Location: Marathon County Public Library, Wausau Room, 300 First 
Street, Wausau, WI 54403.
    Time: Public Meeting 3:00 p.m. to 5:00 p.m.; Public Hearing 6:00 
p.m. to 8:00 p.m.
    If the library is closed due to bad weather, the public meeting and 
public hearing will be rescheduled for February 5, 2002, at the same 
times as listed above.
    These meetings will also be posted on the Region 5 Storm Water 
Website (www.epa.gov/r5water/npdestek/npdstma.htm) and in one or more 
newspapers of general circulation within the state. Copies of the draft 
general permit and an accompanying fact sheet may be obtained by 
contacting EPA at the following telephone number or mailing address: 
Brian Bell, (312) 886-0981, NPDES Programs Branch (WN-16J), U.S. 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, IL 60604. Electronic copies of the draft permit and fact sheet 
may be viewed at the Region 5 Public Notice Page (www.epa.gov/r5water/npdestek/npdcfrp.htm) or the NPDES Page (www.epa.gov/r5water/npdestek/npdnpda.htm). Users with appropriate software capabilities may also 
download electronic versions of these documents.

DATES: Comments on the draft permit must be received by February 5, 
2002. EPA will accept comments submitted in writing or transmitted 
electronically.

ADDRESSES: Comments on the draft permit may be sent to: Brian Bell, 
NPDES Programs Branch (WN-16J), U.S. Environmental Protection Agency, 
Region 5, 77 West Jackson Boulevard, Chicago, IL 60604. Comments may 
also be transmitted electronically to <a href="/cdn-cgi/l/email-protection#0163646d6d2f637368606f62416471602f666e77"><span class="__cf_email__" data-cfemail="a7c5c2cbcb89c5d5cec6c9c4e7c2d7c689c0c8d1">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Brian Bell, at the above address or, 
via telephone at 312-886-0981.

SUPPLEMENTARY INFORMATION:

I. Background

    The State of Wisconsin has previously been authorized by EPA to 
issue NPDES permits outside of Indian country, and has issued general 
permits to regulate the vast majority of construction site storm water 
discharges outside Indian country within the State of Wisconsin. USEPA 
retains the authority to issue NPDES permits within Indian country 
within the State of Wisconsin. Indian country means (a) All land within 
the limits of any Indian reservation under the jurisdiction of the 
United States Government, notwithstanding the issuance of any patent, 
and, including rights-of-way running through the reservation, (b) all 
dependent Indian communities within the borders of the United States 
whether within the original or subsequently acquired territory thereof, 
and whether within or without the limits of the State, and (c) all 
Indian allotments, the Indian titles to which have not been 
extinguished, including rights-of-way running through the same. See 18 
U.S.C. 1151.

II. National Historic Preservation Act

    The National Historic Preservation Act (NHPA), 16 U.S.C. 470a et 
seq., generally requires, among other things, that Federal agencies 
take into account the effects of their undertakings on historic 
properties. Section 106 of NHPA seeks to accommodate historic 
preservation concerns with the needs of Federal undertakings through

[[Page 65958]]

consultation among the agency official and other parties with an 
interest in the effects of the undertaking on historic properties. The 
goal of this consultation process is to identify historic properties 
potentially affected by the undertaking, assess its effects and seek 
ways to avoid, minimize or mitigate any adverse effects on historic 
properties. See 65 FR 77698, 77725 (December 12, 2000).
    Under Section 106, EPA must complete the consultation process 
``prior to the issuance of any license.'' See 36 CFR 800.1(c). EPA has 
interpreted this language to apply this requirement to the issuance of 
today's proposed general NPDES permit for Indian country in Wisconsin. 
EPA is, therefore, conducting a Section 106 consultation regarding 
issuance of the proposed general permit.
    Several parties have consultative roles in the Section 106 process 
that EPA is conducting for this proposed permit for Indian country in 
Wisconsin. These include (1) The Tribal historic preservation officer 
(THPO), for a tribe that has assumed such responsibilities under 
section 101(d)(2) of the NHPA, 16 U.S.C. 470a(d)(2); (2) the State 
historic preservation officer (SHPO); (3) designated representative(s) 
of an Indian tribe where a tribe has not assumed responsibilities of a 
SHPO.
    In the process of preparing the proposed permit for Indian country 
in Wisconsin, EPA considered several possible options for meeting 
Section 106 of the NHPA. EPA conducted a series of consultations with 
the Wisconsin tribes (including THPOs and designated tribal government 
officials) and the Wisconsin SHPO. The consultation was conducted in a 
series of telephone conference calls held on February 13, February 22, 
March 13, and March 29, 2001.
    During the consultation process, participants raised several 
concerns. These concerns included (1) The need for an understanding of 
technical and operational aspects of NPDES general permits; (2) the 
need for timely notice in advance of planned development projects; (3) 
the need for sufficient time and resources to complete historic 
property surveys; (4) the need to define the role of the SHPO, Tribe or 
THPO in the process for addressing effects on historic properties as 
applicants seek coverage under this NPDES general permit; (5) the need 
for a defined process to address potential effects on historic 
properties in the event of inadvertent discovery of historic properties 
after construction of a particular project covered under this general 
permit has begun; (6) the need for a consistent process to document how 
effects on historic properties have been addressed; (7) the need to 
streamline the coordination process for addressing effects on historic 
properties consultation across multiple, similar projects and similar 
geographic locations.
    During the consultation, EPA explained the technical and 
operational requirements of the general permit, and stated that EPA is 
seeking information to develop a systematic process that would allow 
for comprehensive screening for historic properties, but also that 
would be sensitive to the different processes used by the THPOs, Tribal 
officials, and the SHPO.
    Participants were concerned about an initial option proposed by EPA 
which would have included in the proposed general permit a precondition 
for coverage against discharges impacting historic sites, but without a 
requirement that the permit applicant seek a certification from the 
THPO or SHPO.
    Participants were also concerned about a second option proposed by 
EPA which would have included in the proposed general permit a 
precondition for coverage against discharges impacting historic sites, 
but including a certification from the THPO, Tribe or SHPO. The 
concerns focused on the lack of a defined process and whether there 
would be sufficient time and resources to conduct site surveys to 
identify historic properties.
    Participants also reviewed a third option proposed by EPA, which 
would provide a choice of means to provide certification, similar to 
the approach used in EPA's Region 4 general permit. See 63 FR 15622 
(March 31, 1998). Concerns raised by participants on this approach 
focused on how the different options for meeting historic property 
review eligibility requirements could be most clearly defined so that 
permit applicants would be able to easily understand and meet these 
requirements.
    As a result of the concerns raised during the consultation process, 
EPA proposed that the general permit include a performance-based 
standard that the applicant would not be eligible to apply for permit 
coverage until the applicant had coordinated with the appropriate 
official(s) (THPO, SHPO and/or tribes) to identify historic properties 
and to assess and attempt to resolve any adverse effects. This pre-
certification provision was designed to address the THPO, SHPO, and 
tribes' concerns that they generally lacked sufficient notice of a 
proposed development project to conduct the necessary review and 
coordination on impacts to historic properties. Concerns were also 
raised during consultation that applicants be informed of the 
appropriate procedures that would apply to coordinating the review of 
effects on historic properties in this option. In response to these 
concerns, EPA proposed that the general permit would include specific 
references to relevant provisions of the Section 106 regulations (36 
CFR 800.4-800.6, 800.13) to ensure that the regulated community was 
specifically informed of the pre-certification procedures they would 
need to meet in order to be eligible for coverage under the general 
permit. Under this option, the relevant procedures in the referenced 
provisions regarding coordination with local officials would guide 
applicants in coordinating with the THPO, SHPO and/or tribes to 
identify historic properties and to assess and attempt to resolve any 
adverse effects on such properties. The proposed permit would authorize 
such activities so long as the proper pre-certification procedures had 
been followed by the applicant.
    In this option, which is the option included in today's proposed 
general permit, in order to be eligible for coverage under the general 
permit, applicants would need to certify that they had coordinated with 
the appropriate THPO, SHPO and/or tribal official consistent with the 
relevant procedures of the Section 106 regulations. The proposed permit 
would require that the applicant provide evidence of prior screening 
for the presence of historic properties and develop a mitigation plan, 
as needed, in coordination with the appropriate officials consistent 
with the relevant provisions of the Section 106 regulations. Finally, 
in the event of an inadvertent discovery of an historic property on the 
site during construction, the permittee would be required to 
immediately stop construction activity and coordinate with the 
appropriate THPO, SHPO and/or tribal official consistent with 36 CFR 
800.13.
    As part of its Section 106 consultation process on this proposed 
general permit, EPA invites all interested parties to comment on this 
option. Information regarding EPA's consultation process and the other 
options generally described above, is available on request from the 
address at the beginning of this notice.

III. Coastal Zone Management Act (CZMA)

    The Coastal Zone Management Act (CZMA), 16 U.S.C. 1451 et seq., 
establishes a scheme whereby states develop a Coastal Zone Management 
Plan to protect coastal areas within their jurisdiction. Section 307(c) 
of the CZMA

[[Page 65959]]

requires that Federal agencies determine that various Federal 
activities are ``consistent with the enforceable policies of approved 
State management programs'' to the maximum extent possible. See 16 
U.S.C. 1456(c)(1)(A).
    The CZMA and its implementing regulations distinguish between 
different kinds of Federal activities. Section 307(c)(3) of the CZMA 
requires a consistency determination for a Federal ``license or 
permit.'' See 16 U.S.C. 1456(c)(3). The CZMA implementing regulations 
promulgated on December 8, 2000 (65 FR 77124), provide that a general 
permit program, which does not involve case-by-case approval by the 
Federal agency, can be addressed as a ``federal activity'' under 
Section 307(c)(3) of the CZMA. See 15 CFR 930.31(d).
    Pursuant to these regulations, ``When proposing a general permit 
program, a Federal agency shall provide a consistency determination to 
the relevant management programs and request that the State agency(ies) 
provide the Federal agency with conditions that would permit the State 
agency (defined at 15 CFR 930.18) to concur with the Federal agency's 
consistency determination. State concurrence shall remove the need for 
the State agency to review future case-by-case uses of the general 
permit for consistency with the enforceable policies of management 
programs.'' See 15 CFR 930.31(d).
    The regulations further provide that should the State object to the 
general permit or should the general permit not incorporate State 
conditions to the maximum extent practicable, the Federal agency shall 
notify potential users of the general permit that the general permit is 
not authorized for that State unless the State agency concurs that the 
activity is consistent with the State's management program. In that 
case, applicants would provide the State agency with their own 
consistency certification under the CZMA. See 15 CFR.930.31(d).
    According to NOAA regulations and Wisconsin's Coastal Management 
Program, lands held in trust by the United States are excluded from the 
coastal zone area. See 16 U.S.C. 1453(l); 15 CFR 923.33(a); Wisconsin 
Department of Administration, Wisconsin Coastal Management Program: 
Strategic Vision for the Great Lakes, [WCMP], June 1999, Section C, 
Federal Consistency. Issuance of NPDES permits currently is not 
included in Wisconsin's list of federal permits requiring consistency 
certification. See WCMP, Section E. However, the regulations provide 
that a consistency determination is still required when any 
``spillover'' impacts may affect the coastal zone.
    EPA believes that today's proposed permit is unlikely to have 
spillover impacts that may affect the coastal zone as defined in the 
WCMP. See WCMP at Section C.1(a). Permittees would be required to 
follow their storm water management plan, which includes erosion and 
sediment control best management practices and perimeter controls 
tailored for the particular construction site. These controls are 
supposed to bring discharges into compliance with applicable water 
quality standards within Indian country and state water quality 
standards when discharges leave Indian country. The proposed general 
permit is consistent with the technical and operational standards of 
the State's WPDES permit program. Based on EPA's analysis of the WPDES 
permit requirements, and the WCMP, EPA believes that the proposed 
permit would be ``consistent to the maximum extent practicable with the 
enforceable policies of approved State management programs'' as 
specified in Section 307(c)(1) of the CZMA. See also 15 CFR 
930.32(a)(1).
    Under 15 CFR 930.41, the State agency has 60 days from today's 
notice to inform EPA of its agreement or disagreement with this 
consistency determination. EPA invites comments on its application of 
the CZMA to today's proposed permit.

IV. Economic Impact (Executive Order 12866)

    Under Executive Order 12866 (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 have an annual effect 
on the economy of $100 million 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; create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency; materially 
alter the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or raise 
novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order. EPA has determined that the issuance of this general permit is 
not a ``significant regulatory action'' under the terms of Executive 
Order 12866 and is therefore not subject to formal OMB review prior to 
proposal.

V. Executive Order 13175 (Consultation and Coordination with Indian 
Tribal Governments)

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' The term ``policies that have 
tribal implications'' is defined in the Executive Order to include 
Agency actions that have ``substantial direct effects on one or more 
Indian tribes, on the relationship between the Federal government and 
the Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes.''
    EPA has concluded that this proposed general permit may have tribal 
implications within the meaning of Executive Order 13175. EPA believes 
that the proposed general permit, however, does not impose substantial 
direct compliance costs on tribal governments or preempt tribal law. 
Overall, EPA expects that the impact of the proposed general permit on 
tribes will be positive. EPA's current NPDES permitting option for 
Indian country within Wisconsin is to issue individual permits. 
Issuance of this proposed general permit will provide EPA another NPDES 
permitting option for discharges of storm water associated with 
construction activity in Indian country. EPA anticipates that the 
availability of the general permit will promote better compliance with 
NPDES requirements in Indian country, thus improving water quality. 
Moreover, beginning in March of 2003, tribes will be required to comply 
with existing NPDES permit requirements. The proposed general permit 
will, in some situations, allow tribes to obtain a permit for discharge 
of storm water from construction sites more easily and quickly.
    Consistent with EPA policy, EPA consulted with tribal leaders to 
ensure that they had meaningful and timely input into the development 
of this proposed general permit, as well as to provide comments to EPA 
on particular provisions in the proposed draft permit. EPA consulted 
with representatives from tribes located in Wisconsin on December 19, 
2000, February 13, February 22, March 13, and March 29, 2001. During 
the consultation process, participants raised several concerns.

[[Page 65960]]

These concerns included (1) The need for an understanding of technical 
and operational aspects of NPDES general permits; (2) the relationship 
of the proposed general permit with other federal general permits 
issued by EPA; (3) the need for timely notice in advance of planned 
development projects; (4) the need for timely inspections and 
enforcement for potential violations of NPDES permit requirements; (5) 
the need for greater tribal involvement in permit issuance in Indian 
country; (6) the need for sufficient time, resources, and efficient 
process to undertake historic property surveys and otherwise ensure 
that permit applicants would comply with regulations protecting 
historic properties.
    During this consultation, EPA explained the function and provisions 
of the proposed general permit, and explained the relationship between 
the proposed general permit and other federal general permits issued by 
EPA. EPA also explained the technical provisions of the proposed 
permit, including requirements which applicants would need to complete 
prior to filing a Notice of Intent and certification that pre-
application requirements had been met. EPA also considered tribes' 
desire to obtain more timely notice of proposed construction projects 
within Indian country, and included in the draft permit a provision 
that would require permit applicants to send copies of the Notice of 
Intent form to both EPA's Region 5 office as well as the environmental 
department of the relevant tribe, in addition to mailing the notice to 
EPA's national office. EPA also included a recommendation in its fact 
sheet for the proposed permit that encouraged applicants to contact the 
relevant tribal environmental department as early in the planning stage 
as possible, with 90 days being the suggested minimum. EPA also 
addressed tribes' general concerns for greater tribal involvement in 
NPDES permitting by discussing how tribes could apply for and obtain 
federally authorized permitting authorities on their own through the 
``treatment as state'' or tribal eligibility process outlined in 
Section 518 of the Clean Water Act. EPA explained that the proposed 
general federal permit was designed to provide direct implementation of 
the federal NPDES permit program in Indian country until such time as 
each tribe in Wisconsin could obtain a federally authorized permitting 
program of their own, if they so wished. Specific concerns raised by 
tribes regarding how regulations protecting historic properties may 
apply to the proposed general permit, as well as EPA's consultation 
with state and tribal officials on the application of the NHPA to 
today's action, are specifically discussed in this notice in the 
National Historic Preservation Act section.
    EPA specifically solicits additional comment on this proposed 
general permit from tribal officials.

VI. Unfunded Mandates Reform Act

    Section 201 of the Unfunded Mandates Reform Act (UMRA), Pub L. 104-
4, generally requires Federal agencies to assess the effects of their 
``regulatory actions'' on State, local, and tribal government and the 
private sector. UMRA uses the term ``regulatory action'' to refer to 
regulations. (See, e.g., UMRA section 201, ``Each agency shall . . . 
assess the effects of Federal regulatory actions . . . (other than to 
the extent that such regulations incorporate requirements specifically 
set forth in law)'' (emphasis added)). UMRA section 102 defines 
``regulation'' by reference to 2 U.S.C. 658 which in turn defines 
``regulation'' and ``rule'' by reference to section 601(2) of the 
Regulatory Flexibility Act (RFA). That section of the RFA defines 
``rule'' as ``any rule for which the agency publishes a notice of 
proposed rulemaking pursuant to section 553(b) of (the Administrative 
Procedure Act (APA)), or any other law * * *.''
    As discussed in the RFA section of this notice, NPDES general 
permits are not ``rules'' under the APA and thus are not subject to the 
APA requirement to publish a notice of proposed rulemaking. NPDES 
general permits are also not subject to such a requirement under the 
CWA. While EPA publishes a notice to solicit public comment on proposed 
general permits, it does so pursuant to the CWA section 402(a) 
requirement to provide ``an opportunity for a hearing.'' Thus, NPDES 
general permits are not ``rules'' for RFA or UMRA purposes.
    Nevertheless, EPA has considered the proposed general permit in 
light of UMRA's requirements. As noted elsewhere in today's notice, the 
proposed general permit is virtually the same as the NPDES general 
permits for construction that many construction operators have used 
over the past three years. EPA has determined that the proposed permit 
would not contain a Federal requirement that would result in 
expenditures of $100 million or more for State, local and Tribal 
governments, in the aggregate, or the private sector in any one year.
    The Agency also believes that the proposed general permit will not 
significantly nor uniquely affect small governments. For UMRA purposes, 
``small governments'' is defined by reference to the definition of 
``small governmental jurisdiction'' under the RFA. (See UMRA section 
102(1), referencing 2 U.S.C. 658, which references section 601(5) of 
the RFA.) ``Small governmental jurisdiction'' means governments of 
cities, counties, towns, etc., with a population of less than 50,000, 
unless the agency establishes an alternative definition.
    Under existing regulations, a permit application is not required 
until March 10, 2003, for a storm water discharge associated with 
construction activity where the construction site is owned or operated 
by a municipality with a population of less than 100,000. See 64 FR 
68780 (December 8, 1999). In any event, the requirements of the 
proposed general permit would not significantly affect small 
governments because most State laws outside Indian country already 
provide for the control of sedimentation and erosion in a similar 
manner as today's proposed general permit. The proposed general permit 
also will not uniquely affect small governments because compliance with 
the proposed permit conditions affects small governments in the same 
manner as any other entities seeking coverage under the proposed 
permit.

VII. Paperwork Reduction Act

    EPA has reviewed the requirements imposed on regulated facilities 
resulting from the proposed general permit under the Paperwork 
Reduction Act of 1980, 44 U.S.C. 3501 et seq. In a separate Federal 
Register Notice, EPA will propose, a revision to the current 
Information Collection Request (ICR) document (Approved by the Office 
of Management and Budget (OMB) OMB No. 2040-0188, expiration date of 
March 31, 2003) to account for the increased information requirements 
proposed in today's permit. EPA will publish the proposed ICR revisions 
in a separate Federal Register notice and EPA will submit the revisions 
to OMB for approval prior to issuance of the final permit.

VIII. Regulatory Flexibility Act as Amended by the Small Business 
Regulatory Enforcement Fairness Act (SBREFA)

    The Agency has determined that the proposed general permit being 
published today is not subject to the Regulatory Flexibility Act 
(``RFA''), which generally requires an agency to conduct a regulatory 
flexibility analysis of any significant impact the rule will have on a 
substantial number of small entities. By its terms, the RFA only

[[Page 65961]]

applies to rules subject to notice-and-comment rulemaking requirements 
under the Administrative Procedure Act (``APA'') or any other statute. 
Today's proposed general permit is not subject to notice and comment 
requirements under the APA or any other statute because the APA defines 
``rules'' in a manner that excludes permits. See APA section 
551(4),(6), and (8).
    APA section 553 does not require public notice and opportunity for 
comment for interpretative rules or general statements of policy. In 
addition to proposing the new general permit, today's notice repeats an 
interpretation of existing regulations promulgated almost twenty years 
ago. The action would impose no new or additional requirements.
    Nevertheless, the Agency has considered and addressed the potential 
impact of the proposed general permit on small entities in a manner 
that meets the requirements of the FRA. EPA took such action based on 
the likelihood that a large number of small entities may seek coverage 
under the general permit if finalized as proposed. The proposed general 
permit would make available to many small entities, particularly 
operators of construction sites, a streamlined process for obtaining 
authorization to discharge. Of the possible permitting mechanisms 
available to dischargers subject to the CWA, NPDES general permits are 
designed to reduce the reporting and monitoring burden associated with 
NPDES permit authorization, especially for small entities with 
discharges having comparatively less potential for environmental 
degradation than discharges regulated under individual NPDES permits. 
Thus, general permits provide small entities with a permitting 
application option that is much less burdensome than NPDES individual 
permit applications.

IX. Official Signatures

    After review of the facts present in the notice printed above, I 
hereby certify pursuant to the provisions of 5 U.S.C. 605(b) that these 
general permits will not have a significant impact on a substantial 
number of small entities.

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

    Dated: December 14, 2001.
Jo Lynn Traub,
Director, Water Division, Region V.
[FR Doc. 01-31492 Filed 12-20-01; 8:45 am]
BILLING CODE 6560-50-P


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