63FR1535 National Pollutant Discharge Elimination System--Proposed Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, Part 1/6

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[Federal Register: January 9, 1998 (Volume 63, Number 6)]
[Proposed Rules]
[Page 1535-1584]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ja98-23]

[[Page 1535]]

_______________________________________________________________________

Part II

Environmental Protection Agency

_______________________________________________________________________

40 CFR Parts 122 and 123

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

[[Page 1536]]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122 and 123

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

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

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

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

ADDRESSES: Public Comments. All public comments regarding the proposed
rule shall be submitted by mail to: ``ATTN: Storm Water Proposed Rule
Comment Clerk--W-97-12, Water Docket, Mail Code 4101, EPA; 401 M
Street, SW; Washington, DC 20460.'' All public comments regarding the
proposed amendment to the ICR shall be submitted by mail to: ``ATTN:
Storm Water Proposed Rule ICR Comment Clerk--W-97-15, Water Docket,
Mail Code 4101, EPA; 401 M Street, SW, Washington, DC 20460'' and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th Street, NW, Washington, D.C. 20503, marked
``Attention: Desk Officer for EPA.''
Please submit an original and three copies of your comments and
enclosures (including references). Commenters who want EPA to
acknowledge receipt of their comments should enclose a self-addressed,
stamped envelope. No facsimiles (faxes) will be accepted. Comments may
also be submitted electronically to ow-d...@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.

[[Page 1537]]

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

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

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

FOR FURTHER INFORMATION CONTACT: George Utting, Office of Wastewater
Management, Environmental Protection Agency, Mail Code 4203, 401 M
Street, SW, Washington, DC 20460; (202) 260-5816; s...@epamail.epa.gov.

SUPPLEMENTARY INFORMATION: Entities potentially regulated by this
action include:

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

This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
you are regulated by this action, you should carefully examine the
applicability criteria in Secs. 122.26(b)(15), 122.31, 122.32, and
123.35 of the proposed rule. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Table of Contents

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

[[Page 1538]]

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

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

I. Background

A. Water Quality Concerns/Environmental Impacts

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

[[Page 1539]]

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

[[Page 1540]]

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

[[Page 1541]]

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

[[Page 1542]]

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

B. Statutory Background

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

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

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

[[Page 1543]]

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

C. EPA's Reports to Congress

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

D. EPA Regulations for the NPDES Program for Storm Water

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

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

E. EPA Outreach Efforts

On September 9, 1992, EPA published a notice requesting information
and public comment on how to prepare regulations under section
402(p)(6) (see 57 FR 41344). The notice identified three sets of issues
associated with developing new NPDES storm water regulations: (1) how
should EPA identify unregulated sources of storm water to protect water
quality, (2) what types of control strategies should EPA develop for
these sources, and (3) what are appropriate deadlines for implementing
new requirements.
The September 9, 1992, notice presented a range of alternatives
under each issue in an attempt to illustrate, and obtain input on, the
full range of potential approaches for the regulation of unregulated
sources to protect water quality. The notice recognized that potential
sources for coverage under the section 402(p)(6) regulations would fall
into two main categories: municipal separate storm sewer systems and
individual (commercial and residential) sources. EPA recognized that a
major distinction between most options for identifying sources to be
regulated was either to require targeted municipalities to develop
source controls and management programs for storm water discharges
within their jurisdictions or to require permits for discharges from
facilities on an individual basis.
EPA received more than 130 comments on the September 9, 1992,
notice. Approximately 43 percent of the comments came from
municipalities, 29 percent from trade groups or industries, 24 percent
from State or Federal agencies, and approximately 4 percent from other
miscellaneous sources. No comments were received from environmental
groups. For further discussion of the comments received, see Storm

Water Discharges Potentially Addressed by Phase II of the National

Pollutant Discharge Elimination System: Report to Congress (EPA,
1995a), pp. 1-21 to 1-22, and Appendix J (which provides a detailed
summary of the comments received as they relate to the specific issues
raised in the notice).
In early 1993, the Rensselaerville Institute and EPA held public
and expert meetings to assist in developing and analyzing options for
identifying unregulated sources and possible controls. The report on
the 1993 meetings indicates that the two options most favored by the
various groups participating were:
<bullet> A program in which States would select sources to be
controlled in a manner that was consistent with criteria developed by
EPA. The comprehensive program under section 402(p)(6) would provide
States with flexibility to rely on either NPDES requirements or other
frameworks to control targeted sources.
<bullet> A tiered approach that would provide for EPA selection of
high priority sources for control by NPDES permits and State selection
of other sources for control under a State water quality program other
than the NPDES program.
(Appendix I, ``Report on the EPA Storm Water Management Program
(Rensselaerville Study).'' EPA, 1995a).
EPA also conducted outreach with representatives of small entities
in conjunction with the convening of a Small Business Advocacy Review
Panel under the Small Business Regulatory Enforcement Fairness Act
(SBREFA). EPA, in consultation with the Small Business Administration,
invited 29 small entity representatives and streamlining
representatives to participate in this outreach effort. Many of the
representatives contacted in this outreach had been working closely
with EPA in developing this proposed rule through the FACA Committee
and the Storm Water Phase II FACA Subcommittee. The further discussion
of this process is found at Section VII, Regulatory Flexibility Act.
In May 1997, EPA conducted two telephone conference calls and held
an all-day meeting at EPA headquarters to solicit the advice and
recommendations of representatives. EPA eventually received 12 sets of
written comments from representatives (see Small Business Advocacy
Review Panel (SBREFA). August 7, 1997. Final Report on EPA's Planned
Proposed Rule for the National Pollutant Discharge Elimination System:
Storm Water Phase II.) On June 19, 1997, the Small Business Advocacy
Review Panel was convened to review the proposed rule. The panel
consisted of officials from EPA, the Small Business Administration, and
the Office of Management and Budget. The panel considered
representatives' comments previously submitted to EPA and allowed
representatives to provide additional comments. Based on comments and
its own discussions, the Panel has provided findings regarding the
elements of an IRFA and specific recommendations regarding the proposed
rule to EPA. The recommendations of the panel are discussed in Section
VII.B., Regulatory Flexibility Act, SBREFA Panel Process.

F. The FACA Committee Effort

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

[[Page 1545]]

FACA Committee assisted EPA in developing cost-effective solutions for
controlling the environmental and human health impacts of urban wet
weather flows with a minimum of regulatory burden. The FACA Committee
provided and continues to provide a forum for identifying and
addressing issues associated with water quality impacts from these
sources.
The FACA Committee has two subcommittees: the Storm Water Phase II
FACA Subcommittee (the designation and comprehensive program
requirements under CWA section 402(p)(6) are often referred to as
``Storm Water Phase II'') and the Sanitary Sewer Overflows (SSOs) FACA
Subcommittee. Consistent with the requirements of FACA, the membership
of both the FACA Committee and the subcommittees is balanced among
EPA's various outside stakeholder interests, including representatives
from municipalities, industrial and commercial sectors, agriculture,
environmental and public interest groups, States, Indian Tribes, and
EPA. Members have been selected and appointed for the duration of the
process. A Federal official or EPA employee serves as the Designated
Federal Officer and is present at all meetings. All FACA Committee and
subcommittee meetings are open to the public and announced in advance
in the Federal Register.
The Storm Water Phase II FACA Subcommittee met twelve times between
September 1995 and October 1997. The 32 subcommittee members discussed
the regulatory framework that serves as the basis for today's proposed
rule at these meetings as well as during numerous conference calls. EPA
provided subcommittee members with four successive drafts of the
proposed rule and preamble, outlines of the rule, documents identifying
changes made to each draft, and summaries of the written comments
received on each draft, including how the comments had been addressed.
EPA received extensive written comments from FACA members on a number
of occasions, together with extensive oral feedback at a number of
meetings and conference calls. Although the Storm Water Phase II FACA
Subcommittee has not reached consensus on the details of today's
proposal, they have provided EPA with significant input and insights,
which EPA has tried to balance and address.
Today's proposed regulations respond to President Clinton's
direction on regulatory reform. EPA sought to develop a common sense
regulatory approach to allow EPA, States, and Tribes to ``manage for
results'' and provide for ecosystem protection. EPA believes there is
considerable latitude in CWA section 402(p)(6) in establishing the
scope of coverage (i.e., the designation of sources to be regulated
under the NPDES program for storm water, as well as the comprehensive
program for regulating those sources). EPA has benefitted greatly from
the variety of view points and the lively exchange of ideas through the
FACA Committees and subcommittees. EPA has sought to build upon the
issues raised in proposing the scope, method, and timing of the
comprehensive program to regulate storm water and to more effectively
provide outreach and technical assistance for these new regulations.
The Storm Water Phase II FACA Subcommittee was also instrumental in
discussing lessons learned from implementation of the existing NPDES
program for storm water. Records and iterative draft versions of
today's proposal have been available and continue to be available to
the public at the Office of Wastewater Management's Home Page (see
http://www.epa.gov/owm) or through the Point Source Information
Provision Exchange System (PIPES) Home Page (see 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

[[Page 1546]]

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

H. Watershed-based Approach for Water Quality Programs

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

[[Page 1547]]

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

[[Page 1548]]

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

II. Description of Proposed Program

A. Overview

1. Objectives EPA Seeks to Achieve in Today's Proposal

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

BILLING CODE 6560-55-P

[[Page 1549]]

[GRAPHIC] [TIFF OMITTED] TP09JA98.001

BILLING CODE 6560-55-C

[[Page 1550]]

The framework for the proposal provides a significant degree of
flexibility. The provisions for nationwide designation of construction
and small municipal separate storm sewer systems in urbanized areas
allow for a waiver of applicable requirements based on appropriate
water quality conditions. The proposal would allow a permitting
authority to waive otherwise applicable requirements for a regulated
small municipal separate storm sewer system if the jurisdiction served
by the system includes a population of less than 1,000 persons and
meets additional water quality-based conditions. Water quality-based
conditions would be the basis for a waiver of requirements of
construction activities between 1 and 5 acres, as well. For
construction sources, the rule would provide significant flexibility
for waiving otherwise applicable regulatory requirements where a
permitting authority determines, based on water quality and watershed
considerations, that storm water controls are not needed. Coverage
would extend to municipal and construction sources outside the
nationwide designated classes or categories based on watershed and
case-by-case assessments. For the municipal program, today's proposal
would provide broad discretion to NPDES permitting authorities to
develop and implement criteria for designating small municipal separate
storm sewer systems outside of urbanized areas. Other storm water
discharges from unregulated industrial, commercial, and residential
sources would not be covered unless a permitting authority determines
on a case-by-case, or categorical, basis that controls would be needed
to protect water quality. EPA believes that the flexibility provided in
today's proposed rule would facilitate watershed planning.

2. General Requirements for Regulated Entities Under Today's Proposal

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

[[Page 1551]]

by-case designations and waivers), what the requirements are for
regulated entities (e.g., waiving otherwise applicable provisions where
certain conditions are met and developing a list of regionally
appropriate, field-tested BMPs that it believes to be cost-effective),
and what the allocation of responsibilities is between regulated
entities.
The rule proposes to extend the municipal storm water program to
include the following: small municipal separate storm sewer systems
within urbanized areas (with the exception of tribally-owned systems
that serve less than 1,000 persons and any other system waived from the
requirements by the NPDES permitting authority), small municipal
separate storm sewer systems meeting the criteria (to be established by
the permitting authority) for designation, and any municipal separate
storm sewer system contributing substantially to the storm water
pollutant loadings of a regulated, physically interconnected municipal
separate storm sewer system. Small municipal separate storm sewer
systems include municipal, Tribal, State, and Federal facilities and
other systems located in an urbanized area that fall within the
definition of a municipal separate storm sewer system. These would
include, for example, State departments of transportation,
universities, and military bases.
Today's proposal would require all regulated small municipal
separate storm sewer systems to develop and implement a storm water
management program. Program components would include, at a minimum,
measures to address requirements concerning public education and
outreach, public involvement, illicit discharge detection and
elimination, construction site runoff control, post-construction storm
water management in new development and redevelopment, and pollution
prevention and good housekeeping of municipal operations. These program
components would be implemented through NPDES permits. A municipality
would be required to submit to the NPDES permitting authority, either
in its NOI or individual permit application, the BMPs to be implemented
and the measurable goals for each of the minimum control measures
listed above.
The rule proposes to address all construction site activities
involving clearing, grading and excavating land equal to or greater
than 1 acre and less than 5 acres, unless requirements are otherwise
waived by the NPDES permitting authority. Such sites, including
construction site activities disturbing less than 1 acre of land that
are designated by the permitting authority, would be required to
implement requirements set forth in the NPDES permit, which may
reference the requirements of a qualifying local program, issued to
cover such sites.
The rule also proposes to address certain other sources regulated
under the existing program for storm water. For municipally owned
industrial sources required to be regulated under the existing NPDES
storm water program but exempted from immediate compliance by the
Intermodal Surface Transportation Act of 1991 (ISTEA), the rule
proposes to maintain the existing deadline for seeking coverage under
an NPDES permit (August 7, 2001) (EPA is requesting comment on the
possibility of covering such sources in a single storm water permit for
the municipality as a whole. See section II.I.3. below.) The rule also
proposes to provide relief from NPDES storm water permitting
requirements for industrial and other sources that provide a written
certification of ``no exposure of industrial materials and activities
to storm water.''

3. Integration of Today's Proposal With the Existing Storm Water
Program

In developing today's proposal, members of both the FACA Committee
and the Storm Water Phase II FACA Subcommittee encouraged EPA to seek
opportunities to integrate, where possible, the proposed Phase II
requirements with existing Phase I requirements, thus facilitating a
``seamless,'' unified storm water program. EPA believes that this
objective is met by using the NPDES framework. This framework is
already applied to regulated sources under the existing NPDES storm
water program and would be extended to those sources that would be
designated under today's proposed rule. This approach would facilitate
program consistency, public access to information, and program
oversight.
EPA believes that this proposal provides consistency in terms of
program coverage and requirements for existing and newly proposed
sources. For example, today's proposal would include most of the so-
called donut holes--municipal separate storm sewer systems within
urbanized areas that contain systems covered by the existing NPDES
storm water program, but are not themselves addressed by the storm
water program. In addition, the minimum controls required in today's
proposal for regulated small municipal separate storm sewer systems
would be very similar to a number of the permit requirements for medium
and large municipal separate storm sewer systems under the existing
storm water program. As proposed, permit requirements for all regulated
municipal separate storm sewer systems (i.e., those under the existing
program and those proposed today) would require implementation of BMPs.
Furthermore, with regard to the development of permits to protect water
quality, EPA intends to apply the August 1, 1996, Interim Permitting
Approach for Water Quality-Based Effluent Limitations in Storm Water
Permits (hereinafter, ``Interim Permitting Approach'') (see Section
II.L.1. for further description) to all municipal separate storm sewer
systems covered by the existing and the proposed extension of the
existing NPDES storm water program. EPA requests comment on the
appropriateness of applying this approach to small municipal separate
storm sewer systems regulated under this rule.
EPA is planning to apply similar permit requirements to
construction sites below 5 acres as are applied to those above 5 acres.
A waiver provision applicable to certain circumstances is proposed. In
addition, today's rule proposes to allow compliance with qualifying
local, Tribal, or State erosion and sediment controls to meet the
erosion and sediment control requirements of the general permits for
construction both above and below 5 acres.
4. General Permits
The proposal would recommend using general permits for all
dischargers that would be covered under today's proposal. The use of
general permits instead of individual permits reduces the
administrative burden on permitting authorities, while also limiting
the paperwork burden on regulated parties seeking permit coverage.
Permitting authorities may, of course, require individual permits in
some cases to address specific concerns, including permit
noncompliance.
While general permits are probably most appropriately issued on a
watershed-wide basis for all storm water permittees designated in this
proposal, the Agency strongly recommends that general permits for
municipal sources, in particular, be issued on a watershed basis.
Permit conditions contoured to a specific watershed could reflect an
approved watershed plan, special provisions concerning program
implementation (e.g., allocation of responsibilities among permittees),
applicable water quality standards, including designated uses, and
timing of

[[Page 1552]]

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

[[Page 1553]]

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

[robop...@us.govnews.org]

Archive-Name: gov/us/fed/nara/fed-register/1998/jan/09/63FR1535/part3

Posting-number: Volume 63, Issue 6, Page 1535, Part 1

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

B. Readable Regulations

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

C. Program Framework

EPA interprets CWA section 402(p)(6) to provide broad discretion in
establishing the structural framework for the designation of additional
sources, as well as the program to regulate those sources. The Agency
believes it has the authority to develop the section 402(p)(6) storm
water program either as part of the existing NPDES permit program or as
a stand alone non-NPDES program (i.e., through an ``authorization by
rule'' approach). Under either approach, the Agency would interpret
section 402(p)(6) as directing the Agency to publish regulations that
``regulate'' the remaining unregulated sources, specifically to
establish requirements that are federally enforceable under the CWA. At
the same time that Congress enacted section 402(p), it enacted CWA
section 319. Section 319(b)(2)(B) refers to ``nonregulatory or
regulatory programs for enforcement.'' The Agency interprets this
distinction as relevant for the purposes of interpreting the term
``regulate'' in section 402(p)(6). The Agency has considered many
options for the framework, as discussed in this section. The Agency
also notes that, although input from the Storm Water Phase II FACA
Subcommittee was instrumental in the development of today's proposal,
the subcommittee was unable to reach consensus on the structural
framework for implementation.

1. Today's Approach--The NPDES Program Approach

As discussed in Section II.A, Overview, EPA sought to achieve
certain goals in today's approach. EPA believes the best approach to
meet these goals is through the use of the NPDES program. One of the
specific goals that would be addressed through use of NPDES permits is
equitable treatment of all municipal separate storm sewer systems
within an urbanized area in order to solve the problem of donut holes.
The existence of donut holes creates an equity problem because some
similar discharges remain unregulated even though they cause the same
water quality impacts. EPA believes that covering the unregulated
discharges in these areas through the NPDES framework would provide the
best method, given that this approach would cover urbanized areas under
one single comprehensive and seamless regulatory program for storm
water. For example, today's proposal would allow for a municipality to
join as a co-permittee with a regulated municipality, referencing a
common storm water management program (see Section II.H.3, Municipal
Permit Requirements, for further discussion.) Similarly, construction
activities under the existing storm water program and under today's
proposed program covering 1 to 5 acres of disturbed land would be
subject to essentially the same program requirements. The NPDES program
approach, as proposed, is highly flexible in terms of a number of key
provisions that would facilitate and promote watershed planning and
sensitivity to local conditions. EPA made an intensive effort to
include flexibility in today's proposed rule, and examples abound
throughout the proposal. The following are some of the more significant
examples of the flexible NPDES approach being proposed: using NPDES
general permits for coverage of regulated sources on a watershed basis;
incorporating qualifying local programs in NPDES permit requirements;
selecting regionally appropriate BMPs

[[Page 1554]]

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

[[Page 1555]]

the final rule, EPA would need to determine which, if any, programmatic
requirements of 40 CFR parts 122 et seq. should be applicable to State
non-NPDES programs. EPA believes it would need to address some of the
State program requirements from existing regulations including
conflicts of interest among governing bodies who approve permits
(consistent with CWA section 304(i)(D)), requirements for enforcement
authority and penalty provisions, confidentiality of permit application
information, EPA review of and objection to State permits, public
notice and public hearings for permit issuance, citizens appeal of
final-issued permits, and citizen intervention in enforcement
proceedings. These provisions are particularly important for ensuring
adequate enforcement and public participation, as well as integrity and
public confidence in the program. EPA seeks comment on how these issues
could be addressed in a non-NPDES program.
The Agency is seeking comment on today's proposal, as well as on
the alternatives considered. Comment is further sought on whether a
viable approach would be for EPA to adopt a State alternative approach
for part of today's proposed storm water program. For example, were it
to adopt a non-NPDES approach, EPA would need to determine what parts
of the State's non-NPDES program could be submitted for EPA approval.
It would seem that it is more prudent to specify particular parts of a
storm water program, rather than the program in its entirety, as
eligible for approval for a non-NPDES approach. Thus, a State or Tribe
could propose a non-NPDES framework for the construction component (1
or more and less than 5 acres of disturbed land) of its storm water
program. Likewise, a State or Tribe could propose a non-NPDES framework
for storm water runoff from regulated small municipalities located
outside of urbanized areas. Furthermore, another option could allow
States or Tribes to seek approvability for a non-NPDES approach solely
for sub-parts of the program, such as covering construction sites
between 3 and 5 acres under an NPDES program, while covering between 1
and 3 acres in a non-NPDES program. In the municipal program, a non-
NPDES program could be available for specific minimum control measures.
EPA would like comment on these options for program approvability.

a. State Alternative Non-NPDES Program

State representatives on the Storm Water Phase II FACA Subcommittee
have requested that EPA invite comment on an alternative program
framework to be available to States in addition to the NPDES State
storm water management program requirements in today's proposed rule.
Today's proposal would rely on the NPDES permit program to
establish a comprehensive program to regulate designated sources. EPA
believes, however, that section 402(p)(6) is subject to an
interpretation that would allow for a comprehensive program to regulate
designated sources through a regulatory program other than the NPDES
permit program (e.g., through authorization by rule). For a State to
qualify for a non-NPDES approach, it would probably have to decide to
take such an approach from the start, however.
State representatives have suggested that a process be identified
that would lead to the development of an alternative non-NPDES State
storm water management program under CWA section 402(p)(6) for States
wishing to take a more comprehensive approach than that of today's
proposal. Under the States' proposal, States, Territories, and Tribes
could elect either (1) to regulate the sources designated in today's
proposal under the NPDES permit program according to the provisions of
today's proposal (assuming the State, Territory, or Tribe is authorized
to administer the NPDES program) or (2) to develop an alternate State
storm water management program subject to public review and comment and
Federal approval. The two major features of the alternative program are
that it would be fully integrated into a State comprehensive water
quality management program and it would include specific non-NPDES
mechanisms for controlling storm water discharges. States would also
have the option of employing some combination of the above.
i. Alternative Overview. Similar to today's NPDES proposal, States
under the alternative proposal would need to specifically identify how
urban storm water management activities would be coordinated with other
water quality management activities, such as nonpoint source management
and TMDL development. In addition, as proposed, the State storm water
management program would be developed with involvement of
municipalities, industries, environmental groups, and other
stakeholders, much like the current NPDES process. Also, as with the
NPDES program, the alternative program would focus principally on
environmental results, rather than on the administrative or planning
process itself. States propose more opportunity for citizen involvement
in the initial development and implementation of the overall
alternative program than is currently envisioned by today's NPDES
proposal. In comparison with today's NPDES proposal, the alternative
might allow for less opportunity for citizen involvement in the details
of requirements imposed on dischargers (than is afforded under NPDES
permits).
ii. State-Proposed Program Criteria. In seeking proposal of an
alternative approach, State representatives on the Storm Water Phase II
FACA Subcommittee have suggested criteria for EPA approval of an
alternative State storm water management program. Such a program would
be required:

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

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

[[Page 1556]]

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

[[Page 1557]]

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

D. Federal Role

Today's proposal describes EPA's approach to develop the extension
of the existing storm water program under CWA section 402(p)(6). As in
all other Federal programs, the Federal government plays an integral
role in developing, implementing, overseeing, and enforcing the
program. This section describes EPA's role in the revised storm water
program.

1. Develop Overall Framework of the Program

As discussed previously in the overview section, the storm water
program under CWA section 402(p)(6) would consist of the rule, tool
box, and permits. EPA's primary role would be to ensure timely
development and implementation of all components. Today's proposal is a
refinement of the first step in developing the program. EPA is fully
committed to continuing to work with involved stakeholders on
developing the tool box and issuing permits. As noted in today's
proposal, EPA would be required to assess the municipal storm water
program based on (1) evaluations of data from the NPDES municipal storm
water program, (2) research of water quality impacts on receiving
waters from storm water, and (3) research on BMP effectiveness. EPA
will attempt to seek adequate resources, within annual budgetary
constraints, to ensure that these evaluations, as well as the necessary
research, can be completed. (Section II.H, Municipal Role, provides a
more detailed discussion of this provision.)

2. Encourage Use of a Watershed Approach

EPA is promoting an integrated approach that focuses on public and
private sector efforts to address the highest priority problems within
hydrologically defined geographic areas. Today's proposal offers
flexibility for States and Tribes to use a watershed approach and
should facilitate watershed planning on the part of States and Tribes
implementing the program. Section I.H. discusses the watershed approach
in more depth.
3. Provide Financial Assistance
Another important role for the Federal government would be to
assist financially in developing and implementing the storm water
program under section 402(p)(6). EPA has no independent authority to
establish a funding mechanism. Although Congress did not establish a
fund to fully finance implementation of the proposed extension of the
existing NPDES storm water program under section 402(p)(6), numerous
Federal financing programs (administered by EPA and other Federal
agencies) could provide some financial assistance. These programs
include the CWA section 106 grant program, CWA section 104(b)(3) grant
program, State surface and ground water management programs under the
Safe Drinking Water Act, the environmental quality incentives program,
the conservation reserve program, the wetlands reserve program, and the
estuary management and Federal monitoring programs. Also, the Natural
Resources Conservation Service (NRCS) has some grants available to
assist in projects related to erosion and sediment controls. The Agency
anticipates that some of these programs would provide funds to help
develop and, in limited circumstances, implement the section 402(p)(6)
storm water program. Because some Federal funds are only available for
limited purposes, for example, nonpoint source control programs, and
because section 402(p)(6) describes a program for controlling point
source discharges of storm water, EPA solicits comment on suggestions
on structuring the final rule to maximize opportunities for Federal
financial assistance.

4. Implement the Program for Non-NPDES Authorized States, Tribes, and
Territories

Since today's proposed approach utilizes the NPDES framework, EPA
would be the permitting authority for several States, Tribes, and
Territories. As such, EPA would have the same responsibilities as any
other NPDES permitting authority--issuing permits, designating
additional sources, and taking appropriate enforcement actions--and
would seek to tailor the storm water program to the specific needs of
the State, Tribe, or Territory. EPA would also provide support and
oversight, including outreach, training, and technical assistance to
the regulated communities. See the discussions below related to the
NPDES permitting authority's responsibilities for today's proposed rule
provisions, and note that Section II.G. of today's preamble provides a
separate discussion.
5. Oversee State Programs
Under the NPDES program, EPA plays an oversight role for NPDES-
approved States and Tribes. In this role, EPA and the States or Tribes
work together to implement, enforce, and improve the NPDES program.
Part of this oversight role includes working with States and Tribes to
modify their programs where inadequacies exist. This role would be
vitally important when States and Tribes make adjustments to develop,
implement, and enforce the new section 402(p)(6) proposed extension of
the existing NPDES storm water program. In addition, States maintain a
continuing planning process (CPP) under section 303(e) of the CWA,
which EPA periodically reviews to assess the program's achievements.
In its oversight role, EPA takes action to address States and
Tribes who have voluntarily sought NPDES authorization but are not
fulfilling their obligations under the NPDES program. If an NPDES-
authorized State or Tribe failed to implement an adequate NPDES storm
water program, for example, EPA would enter into extensive discussions
to

[[Page 1558]]

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

E. State Role

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

NPDES Permitting Authority's Role for the CWA section 402(p)(6)

Municipal Program.
In tailoring the proposed extension of the existing NPDES storm
water program to accommodate their needs, States and Tribes should
coordinate and utilize the data collected under several programs,
including water quality management programs, TMDL programs, and water
quality monitoring programs. All States and Tribes have water quality
standards that consist of designated uses, criteria, an antidegradation
policy, and other implementation policies and procedures. Water quality
management programs are geared to achieving these goals and must be
updated every 3 years. In addition, States are required to submit a
prioritized ranking of waters

[[Page 1559]]

requiring TMDLs. (See Sections II.L.1 and II.L.2 for more information
on water quality standards and TMDLs, respectively) States and
interstate agencies monitor for contaminants in ambient water, fish
tissue, and specific point sources. In addition, they conduct intensive
monitoring in watersheds (or at specific sites within a watershed) to
develop efficient control strategies for point and nonpoint sources.
CWA section 305(b) Reports summarize this information and must be
submitted to EPA every 2 years. It is critical that States and Tribes
evaluate existing monitoring programs, revise them as needed to ensure
that meaningful data are being collected, and share information with
the local communities. (See Section II.L.4 for additional information
on monitoring.)

2. Comply With Applicable Requirements as a Discharger

Today's proposal would cover State or Tribally owned or operated
separate storm water systems in a variety of ways. These systems
generally drain areas where people reside, such as a prison, hospital,
or other populated facility. These systems could be included under the
definition of a regulated small municipal separate storm sewer system,
which specifically includes systems operated by State departments of
transportation. Alternatively, they could be included under the section
addressing storm water discharges associated with other activities,
including construction. In any case, discharges from these government-
owned facilities would need to comply with all applicable NPDES
requirements. Failure to comply could result in enforcement actions.
State or Tribal facilities could act as models for municipal and
private sector facilities and implement or test state-of-the-art
management practices and control measures.
3. Communicate With EPA
Under approved NPDES programs, States and Tribes have an ongoing
obligation to share information with EPA on a periodic basis. This
dialogue is particularly important in the section 402(p)(6) storm water
program where these governments continue to develop a great deal of the
guidance and outreach related to water quality. EPA would continue to
use the FACA process in developing materials related to the section
402(p)(6) program and input from States and Tribes throughout this
process would be critical.

F. Tribal Role

1. Background
a. EPA's Indian Policy

EPA is committed to the nine principles outlined in its 1984 Indian
Policy, which include working with Tribes in a government-to-government
relationship, recognizing Tribal sovereignty, and dealing with the
Tribal government as the primary party for decisionmaking and
management of environmental issues on the Indian reservations,
consistent with EPA standards and regulations (U.S. Environmental
Protection Agency, American Indian Environmental Office. 1996. Working
Effectively With Tribal Governments. Participant Manual, Interim Final,
U.S. EPA Training Seminar). EPA has affirmed and carried forward its
commitment to the 1984 Indian Policy in many ways. In this regard, on
March 14, 1994, EPA established the American Indian Environmental
Office and Tribal Operations Committee. EPA believes that the approach
in today's proposal is consistent with the principles of the policy.
Further, today's proposal has been developed with the participation of
the EPA Indian Office, noted above.
In addition to storm water, the 1987 CWA amendments specifically
focus on ``Indian Tribes.'' Under section 518, EPA may treat Indian
Tribes in the same manner as States for the purposes of certain
provisions of the CWA, including section 402 (National Pollutant
Discharge Elimination System) and section 303 (water quality standards
and implementation plans). Section 518(e) establishes a number of
criteria for the treatment of an Indian Tribe in the same manner as a
State. These criteria are discussed in a Federal regulation regarding
Tribal eligibility for administering NPDES and State sludge management
programs (see 58 FR 67966, December 22, 1993; see also 59 FR 64339,
December 14, 1994). Upon meeting the criteria, a Tribe seeking
authorization to administer one of the CWA water quality programs would
acquire Treatment in the Same Manner as a State status for that
program. Under EPA's final regulation, the Tribe's water quality or
sludge management program authority could extend to lands within a
``Federal Indian reservation.'' The CWA section 518(h)(1) uses the term
``Federal Indian reservation'' to define the territorial limits for
Tribal authority for CWA purposes. The preambles to EPA regulations,
including NPDES program regulations, more fully explain the term
Federal Indian reservation. Most notably, EPA has clarified that it
considers ``trust lands,'' which were validly set apart for the use of
Indians, to be ``within a reservation'' for purposes of the CWA (e.g.,
58 FR 67970).
Once authorized as the permitting/program authority, a Tribe
(instead of EPA) may operate the NPDES and sludge management programs
on its reservations. Otherwise, EPA is generally the permitting/program
authority within Indian country. In any case, the Tribe may also seek
authority to operate a CWA section 303 water quality standards program.
Tribes with approval to operate a CWA section 303 water quality
standards program may also issue certifications under CWA section 401.

b. Existing NPDES Regulations for Storm Water

The existing NPDES regulations for storm water discharges
associated with industrial activities extend coverage to private,
State, and federally owned industrial facilities located on Indian
reservations. Further, the NPDES regulations cover industrial
facilities owned or operated by a Tribe with a population of more than
100,000 people within the reservation and cover all Tribally owned or
operated airports, power plants, and uncontrolled sanitary landfills.
The NPDES regulations for storm water associated with industrial
activity established October 1, 1992, as the deadline to apply for
NPDES permit coverage. EPA issued baseline NPDES storm water general
permits covering industrial and construction activities in September
1992 and a multisector NPDES storm water general permit covering a
number of industrial categories in September 1995, as revised. Many
industrial facilities covered under the NPDES regulations for
industrial activities, including construction, and located on Indian
reservations are included in the applicability sections of these
general permits and can seek general permit coverage for satisfying
program requirements.
Existing storm water permit application regulations address storm
water discharges from large and medium municipal separate storm sewer
systems (Sec. 122.26(a)(1)). Regulations at Sec. 122.2 define the term
``municipality'' to include ``an Indian Tribe or an authorized Indian
Tribal organization.'' Consequently, the criteria used by the NPDES
permitting authority for coverage of municipal dischargers extends to
separate storm sewer systems that are Tribally owned or operated. At
this time, no Indian reservations are covered under the existing
municipal

[[Page 1560]]

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

[[Page 1561]]

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

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

As noted previously, the NPDES permitting authority can be EPA or
an authorized State or an authorized Tribe. For clarity, the following
discussion describes the role of the NPDES permitting authority under
today's proposal.

1. Comply With Other Requirements

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

[robop...@us.govnews.org]

Archive-Name: gov/us/fed/nara/fed-register/1998/jan/09/63FR1535/part4

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[[Page 1562]]

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

[[Page 1563]]

located in the place or county as regulated small municipal separate
storm sewer systems under the NPDES storm water program within 3 years
and 90 days of publication of the final rule. Alternatively, the NPDES
authority could designate within 5 years from the date of final
regulation if the designation criteria are applied on a watershed basis
where a comprehensive watershed plan exists (a comprehensive watershed
plan is one that includes the equivalents of TMDLs) (see proposed
Sec. 123.35(b)(3)). The Agency seeks to provide incentives for
watershed-based designations.
The timeframe of 3 years and 90 days would allow States and Tribes
up to 2 years to make any necessary statutory changes and receive
program approval from EPA, an additional year to develop their general
permit and designation criteria, and then 90 days for a regulated
entity to submit its individual application or Notice of Intent (NOI)
under a general permit. Assuming a March 1, 1999, final rule, the
resulting deadline would be May 31, 2002. EPA believes this would be an
adequate timeframe and would provide significant guidance to NPDES
permitting authorities on the responsibilities to be completed during
this period. If an NPDES-authorized State or Tribe does not develop and
apply designation criteria, then EPA might do so.
EPA believes it has adequate authority to apply a State's
designation criteria (or to develop and apply designation criteria) to
designate sources in an authorized NPDES State. Such authority would
derive from the text of section 402(p)(6), which provides for the
designation of sources other than those already regulated under section
402(p)(2). EPA does not believe that section 402(c)(1), which requires
EPA to suspend issuance of Federal NPDES permits in an authorized
State, would preclude EPA designation of particular small municipal
separate storm sewer systems (based on subsequently-developed criteria
applicable in a particular State) after promulgation of today's
proposed rule because designation of sources is independent of (and
precedes) the issuance of permits. In addition, as discussed later in
Section II.I.4. entitled, Residual Designation Authority, EPA believes
that section 402(p)(6) provides the Agency with authority to
subsequently designate individual sources under today's proposed rule.
Today's approach for designation by EPA, even in authorized NPDES
States, would also be consistent with the authority currently available
to the Agency under the existing storm water regulations at 40 CFR
122.26(a)(1)(v). Similarly, the third party petition process for small
municipal separate storm sewer systems (including expeditious deadlines
for acting on such petitions) is consistent with the existing storm
water regulations at 40 CFR 122.26(f) (4) & (5). EPA solicits comment
on the proposed designation approach.
It is important to note that NPDES permitting authorities could
designate any owner or operator of a municipal separate storm sewer
system, including one below 10,000 in population and 1,000 in density.
EPA established the 10,000/1,000 threshold primarily for prioritization
purposes based on the likelihood of adverse water quality impacts at
these population and population density levels. In addition, the 1,000
persons per square mile threshold is consistent with both the Bureau of
the Census definition of an ``urbanized area'' (see Section II.H.2.
below) and a Storm Water Phase II FACA Subcommittee work group's
discussion concerning the definition of a regulated small municipal
separate storm sewer system.
EPA has considered the request from some Storm Water Phase II FACA
Subcommittee members that interim deadlines be established for
development of designation criteria and believes that the designation
deadline identified in today's proposed rule at Sec. 123.35(b)(3)
provides States and Tribes with a flexibility that allows them to
develop and apply the criteria locally in a timely fashion, while at
the same time establishing an expeditious deadline.

c. Designate Physically Interconnected Municipal Separate Storm Sewer
Systems

In addition to applying criteria on a local basis for potential
designation, the NPDES permitting authority would be required to
designate any owner or operator of a municipal separate storm sewer
system that contributes substantially to the storm water pollutant
loadings of a physically interconnected municipal separate storm sewer
system that is regulated by the NPDES storm water program (see proposed
Sec. 123.35(b)(4)). To be ``physically interconnected,'' the municipal
separate storm sewer system, including roads with drainage systems and
municipal streets, of one entity would be physically connected directly
to the municipal separate storm sewer system of another entity. This
provision would apply to all municipal separate storm sewer systems
located outside of an urbanized area. EPA added this section in
recognition of the concerns of local government representatives on the
Storm Water Phase II FACA Subcommittee that a local government should
not have to shoulder total responsibility for a storm water program
when storm water discharges from another municipality are also
contributing pollutants or adversely affecting water quality. This
provision would also help to provide some consistency among
municipalities and facilitate watershed planning in the implementation
of the NPDES storm water program. EPA recommended physical
interconnectedness in the existing NPDES storm water regulations as a
factor for consideration in the designation of additional sources. The
municipal caucus raised an additional concern relating to sheet runoff
from one adjoining jurisdiction to another, thereby contributing to the
discharges of a neighboring municipal separate storm sewer system. EPA
would like comment on the extent to which this problem may exist and
ways in which it could be addressed. EPA also welcomes comment on this
proposed designation provision.
Today's proposal does not include interim deadlines for identifying
physically interconnected municipal separate storm sewer systems. EPA
believes that this determination would occur on a case-by-case basis
where deadlines would only work to limit the permitting authority's
ability to identify such systems. However, in accordance with the
deadlines identified in Sec. 123.35(b)(3) of today's proposal, EPA
encourages the permitting authority to make that determination within 3
years from the date of publication of the final rule or within 5 years
if the permitting authority is implementing a comprehensive watershed
plan. Alternatively, the affected jurisdiction could use the petition
process under 40 CFR 122.26(f) in seeking to have the permitting
authority designate the contributing jurisdiction.

d. Address Public Petition for Designation

Today's proposal would recognize the existing opportunity for the
public to petition the permitting authority for designation of a point
source to be regulated to protect water quality, as contained in
existing NPDES regulations (see 40 CFR 122.26(f)). Any person may
petition the permitting authority to require an NPDES permit for a
discharge composed entirely of storm water that contributes to a
violation of a water quality standard or is a significant contributor
of pollutants to the waters of the United States (see proposed
Sec. 123.35(c)). NPDES permitting authorities would have to make a
final

[[Page 1564]]

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

[[Page 1565]]

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

[[Page 1566]]

BMPs. The issuance of the menu of BMPs would be critical to assure
protection of water quality since it triggers the permittee's
requirement to meet narrative performance standards.

5. Support and Oversee the Local Programs

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

H. Municipal Role

1. Scope of Today's Proposal

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

Regulatory Language in Today's Proposal

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

[[Page 1567]]

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

Definitions of Key Terms and Phrases

The Bureau of the Census definition of ``incorporated place,''
adopted by EPA for purposes of today's proposal, is any place reported
to the Bureau as legally in existence under the laws of the respective
State as a city, borough, town, or village, with certain exceptions.
(U.S. Department of Commerce, Bureau of the Census. 1994. Geographic
Areas Reference Manual.) Because these Bureau of the Census exceptions
would be included within the term ``county'' (see definition below),
they would not impact the application of today's definition of a
regulated small municipal separate storm sewer system in any way.
The Bureau of the Census definition of ``county,'' adopted by EPA
for the purposes of today's proposal, is ``the primary legal
subdivision of every State except Alaska and Louisiana.'' (USDC, 1994)
For the purposes of today's proposed rule, the term ``county'' also
includes Louisiana's county equivalent known as a parish and Alaska's
county equivalent, which is an organized borough. A county's
unincorporated territory includes all minor civil divisions and census-
designated places but excludes all incorporated places. Therefore, any
area that is not an incorporated place would be included within the
definition of ``county,'' with the exception of Tribal or Territorial
areas.
The phrase ``place under the jurisdiction of a governmental
entity'' includes, but is not limited to, places within the
jurisdiction of Tribes and Territorial governments. EPA is proposing
this language in order to include governmental entities that are
located within an urbanized area but whose government structure may not
include incorporated places or counties. For example, Federal Indian
reservations are neither incorporated places nor counties, but are
sovereign entities, and Puerto Rico has ``municipios'' as their primary
local government. The term ``Tribes'' includes any Indian Tribe, band,

group, or community recognized by the Secretary of the Interior and

exercising governmental authority over a Federal Indian reservation (40
CFR 122.2). ``Territorial governments'' include the following U.S.
territories: the District of Columbia, the Commonwealth of Puerto Rico,
American Samoa, Guam, the Virgin Islands of the United States, and the
Commonwealth of the Northern Mariana Islands. ``Municipio'' means a
Puerto Rico division which has legally established boundaries and
constitutes a governmental unit. ``Pueblo'' or ``ciudad'' means the
barrio or group of barrios which are considered the municipio center of
government.
``Federal Indian reservation'' means all land within the limits of
any Indian reservation or rancheria under the jurisdiction of the U.S.
Government, notwithstanding the issuance of any patent, and including
rights-of-way running through the reservation (40 CFR 122.2; see also
Section II.F. of today's preamble and section 518 of the CWA).

Urbanized Areas Definition

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

[[Page 1568]]

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

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

(55 FR 42592, October 22, 1990)

The full definition of an ``urbanized area'' has been included
primarily for informational purposes. Because the Bureau of the Census
determines urbanized areas based on the latest decennial census, the
owner or operator of a municipal separate storm sewer system does not
need to make any calculations to determine eligibility as a regulated
small municipal separate storm sewer system. The Bureau of the Census
provides detailed maps and comprehensive listings of all political
entities within a given urbanized area. For a more detailed description
of the treatment of urbanized areas for purposes of today's proposal,
see the following discussion entitled, Nationwide Designation. Also,
see Appendix 3 for a listing of urbanized areas of the United States
and Puerto Rico.

a. Nationwide (``Automatic'') Designation

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

[[Page 1569]]

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

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[[Page 1570]]

within the urbanized area. All owners or operators of municipal
separate sewer systems located in the urbanized portions of Harry and
Georgetown counties and in the two incorporated places would be
included under the NPDES storm water program as regulated small
municipal separate storm sewer systems, resulting in blanket coverage
by the storm water program with no unregulated ``donut holes.''
iii. Rationale for Using Urbanized Areas. EPA proposes using
urbanized areas to automatically designate regulated small municipal
separate storm sewer systems on a nationwide basis for several reasons:
(1) studies and data show a high correlation between degree of
development/urbanization and adverse impacts on receiving waters due to
storm water (U.S. EPA, 1983; Driver et al., 1985; Pitt, R.E. 1991.
``Biological Effects of Urban Runoff Discharges.'' Presented at the
Engineering Foundation Conference: Urban Runoff and Receiving Systems;
An Interdisciplinary Analysis of Impact, Monitoring and Management,
August 1991. Mt. Crested Butte, CO. American Society of Civil
Engineers, New York. 1992.; Pitt, R.E. 1995. ``Biological Effects of
Urban Runoff Discharges,'' in Storm water Runoff and Receiving Systems:
Impact, Monitoring, and Assessment. Lewis Publishers, New York.; Galli,
J. 1990. Thermal Impacts Associated with Urbanization and Storm water
Management Best Management Practices. Prepared for the Sediment and
Storm water Administration of the Maryland Department of the
Environment.; Klein, 1979), (2) this approach would target present and
future growth areas as a preventative measure to help ensure water
quality protection, (3) the determination of urbanized areas by the
Bureau of the Census allows owners or operators of small municipal
separate storm sewer systems to quickly determine whether they are
included in the NPDES storm water program as a regulated small
municipal separate storm sewer system, and (4) the blanket coverage
within the urbanized area encourages the watershed approach and
addresses the problem of ``donut-holes,'' where unregulated areas are
surrounded by regulated areas. (Donut hole areas present a problem due
to their contributing uncontrolled impacts on neighboring regulated
communities and local waters.)
One drawback to the proposed approach is that it would divide some
counties into regulated areas and nonregulated areas. Such ``split''
counties could have difficulty focusing efforts, such as public
education and the maintenance and management of infrastructure on just
the regulated areas. One commenter suggested that in the case of a
``split'' county, only the incorporated areas within the urbanized
portion of the county should be regulated, not the entire urbanized
portion of the county. EPA would prefer, however, to create a seamless
program that does not create donut holes as this suggestion would do,
but rather includes all of the municipal separate storm sewer systems
within the urbanized area. EPA is attempting to eliminate the existence
of donut hole areas because municipal separate storm sewer system
discharge sources within them could contribute to water quality
impairment and could adversely affect the storm water management
efforts of the neighboring regulated communities. Furthermore, as noted
previously, including the entire urbanized portion of a county would
promote partnerships in watershed efforts to improve local water
quality.

b. Municipal Designation by the Permitting Authority

Today's proposed rule would also allow NPDES permitting authorities
to designate areas that should be included in the storm water program
as regulated small municipal separate storm sewer systems but do not
qualify under the regulatory ``urbanized areas'' definition. The
proposed rule requires, at a minimum, that a set of designation
criteria be applied to all small municipal separate storm sewer systems
within a jurisdiction that includes a population of at least 10,000 and
a population density of at least 1,000. Appendix 7 to this preamble

provides a list of incorporated places and counties proposed to be

potentially designated as part of today's proposed rule. In addition,
the owner or operator of any small municipal separate storm sewer
system may be the subject of a petition to the NPDES permitting
authority for designation. See Section II.G, NPDES Permitting
Authority's Role for the CWA section 402(p)(6) Municipal Program, for
more details on the designation and petition processes. EPA believes
that the approach of combining nationwide and local designation to
determine municipal coverage in today's proposed rule balances the
potential for significant impacts on water quality with local watershed
protection and planning efforts. The Agency solicits comments on this
approach and possible alternatives.

c. Waiving the Requirements for Regulated Small Municipal Separate
Storm Sewer Systems

Today's proposed rule would include some flexibility in the
nationwide coverage of all small municipal separate storm sewer systems
located in urbanized areas by providing the NPDES permitting authority
with the discretion to waive the otherwise applicable requirements of a
regulated small municipal separate storm sewer system serving less than
1,000 people where assessments of local conditions and watersheds
warrant such a waiver. Note that even if a regulated small municipal
separate storm sewer system had requirements waived, it could
subsequently be brought back into the program if circumstances change.
See Section II.G, NPDES Permitting Authority's Role for the CWA section

402(p)(6) Municipal Program, for more details on this process.

i. Combined Sewer Systems. The definition of ``municipal separate
storm sewer systems'' does not include combined sewer systems. A
combined sewer system is a wastewater collection system that conveys
sanitary wastewater and storm water through a single set of pipes to a
publicly-owned treatment works (POTW) for treatment before discharging
to a receiving waterbody. During wet weather events when the capacity
of the combined sewer system is exceeded, the system is designed to
discharge, prior to the POTW, directly into a receiving waterbody. Such
an overflow is a combined sewer overflow, or CSO. Combined sewer
systems are not subject to existing regulations for storm water, nor
will they be subject to today's proposed regulations. EPA addresses
combined sewer systems and CSOs in its National Combined Sewer Overflow
(CSO) Control Policy that was issued on April 19, 1994 (59 FR 18688).
The CSO Control Policy contains provisions for developing appropriate,
site-specific NPDES permit requirements for combined sewer systems. CSO
discharges are subject to BAT/BCT limits; municipal separate storm
sewer systems are subject to MEP.
Some municipalities are served by both separate storm sewer systems
and combined sewer systems. If such a municipality is located within an
urbanized area, only the separate storm sewer system within that
municipality would be included in the NPDES storm water program and
subject to today's proposed rule. If the municipality is not located in
an urbanized area, then the NPDES permitting authority would have
discretion as to whether the separate storm sewer system is subject to
today's

[[Page 1571]]

proposed rule. Under today's proposed rule, the NPDES permitting
authority would use the same process to designate for coverage a
municipal separate storm sewer system where the municipality is also
served by a combined sewer system, as it would for municipalities that
are served only by a separate storm sewer system. The Agency recognizes
that municipalities that have both combined and separate storm sewer
systems may wish to find ways to develop a unified program to meet all
wet weather requirements more efficiently. EPA seeks comment on ways to
achieve such a unified program.

d. Designation Alternatives Considered--Preliminary Options

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

[[Page 1572]]

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

[[Page 1573]]

role of the owner or operator in coordinating local storm water
activities and describe the resources available to accomplish the plan.
EPA believes that this approach would support the goal of an
integrated and coordinated national storm water program. Regulated
small system owners or operators could take advantage of existing
programs to ease the burden of creating their own from scratch. The
proposal would allow them to conduct activities that are coordinated on
a regional basis. For medium and large system owners or operators, this
approach would promote the use of regional and watershed-based planning
as an implementation framework for the storm water program and would
create opportunities for sharing the resource and cost burden of the
program with participating entities. EPA is particularly interested in
comments regarding the actual implementation of this application
provision. For instance, whether the provision contains the appropriate
subsections of Sec. 122.26(d) and whether the process as set forth
creates an incentive to use this alternative for permit coverage.
In today's notice, EPA is proposing certain minimum control
measures for all NPDES permits issued to regulated small municipal
separate storm sewer systems, with the exception of joint co-
permittees, as noted previously, to ensure equity and consistency among
owners or operators. Any NPDES permit issued under this program would,
at a minimum, require the owner or operator to develop, implement, and
enforce a storm water management program designed to reduce the
discharge of pollutants from a regulated system to the maximum extent
practicable (MEP) and protect water quality (see MEP discussion in the
following section). Narrative effluent limitations requiring
implementation of BMPs would generally be considered the most
appropriate form of effluent limitations when designed to satisfy
technology requirements, including reductions of pollutants to the
maximum extent practicable, and water quality-based requirements of the
CWA. Examples of narrative effluent limitations include no floatables
in storm water discharges and no visible sheen on waterbodies.
In the first two to three rounds of permit issuance, EPA envisions
that implementation of the minimum measures and BMP-based program would
be the extent of the storm water permit requirements for the large
majority of regulated small municipal separate storm sewer systems. EPA
assumes that a regulated small municipal separate storm sewer system
implementing BMPs to satisfy the six minimum control measures would
meet applicable water quality standards, because, though uncontrolled
urban storm water continues to present a significant water quality
problem, the six measures represent a significant level of control if
properly implemented. EPA believes that the implementation of any
controls, but particularly the six minimum measures identified in
today's proposal, should significantly reduce pollutants in urban storm
water compared to existing levels. If after implementing the six
minimum control measures there is still a water quality problem
associated with discharges from the municipal separate storm sewer
system, the municipality would need to expand or better tailor its BMPs
within the scope of the six minimum control measures for each
subsequent permit. EPA envisions that this process would take two to
three permit terms. During this time, EPA would revisit the regulations
for the municipal storm water program. If additional specific measures
to protect water quality were imposed, they would likely be the result
of an assessment based on TMDLs, or the equivalent of TMDLs, where the
proper allocations would be made to all contributing sources. EPA
believes that the municipality's additional requirements, if any,
should be guided by its equitable share based on a variety of
considerations, such as cost effectiveness, proportionate contribution
of pollutants, and ability to reasonably assume wasteload reductions.
Narrative effluent limitations requiring implementation of BMPs are
generally the most appropriate form of effluent limitations when
designed to satisfy technology requirements, including reductions of
pollutants to the maximum extent practicable, and water quality-based
requirements of the Clean Water Act. See Section II.L, Water Quality
Issues, for further discussion of this approach to permitting,
consistent with EPA's interim permitting guidance.
The municipal caucus was concerned that a requirement to meet water
quality standards would be interpreted by a permitting authority as a
requirement to include water quality-based numeric limitations in
municipal storm water permits. Municipal representatives believe that
in many cases it would not be possible to develop a storm water program
that would result in the attainment of numeric limitations, except at
considerable cost. Today's proposal addresses this concern, as
discussed above.
As part of this program, the owner or operator would be required to
identify and submit to the NPDES permitting authority, either in an NOI
to be covered under a general permit or in an individual permit

application, the BMPs to be implemented and the measurable goals for

each of the minimum control measures discussed in Section II.H.3.a.,
Program Requirements--Minimum Control Measures.
The term ``measurable goals'' is derived from negotiations among
FACA representatives. Section 402(p)(6) of the CWA states that the
program to regulate additional storm water discharges may include

performance standards, guidelines, guidance, and management practices

as appropriate. Discussions among FACA representatives resulted in the
use of the term ``measurable goals.'' On the one hand, environmental
representatives wanted to include performance standards as conditions
of NPDES permits as a means of providing for specific, tangible
activities to be undertaken within the municipal storm water management
program. On the other hand, municipal representatives opposed the
inclusion of performance standards, asserting that they were counter
productive because they could encourage an owner or operator of a
municipal separate storm sewer system to avoid risks associated with
setting any standard that it felt it could not achieve with certainty.
Out of this discussion, a compromise was reached in the use of the term
``measurable goals'' and the process embodied in the proposed rule.
This process sets the issuance of a menu of regionally-appropriate BMPs
as the conditions precedent to ``measurable goals'' becoming permit
conditions. Some storm water management plans developed to meet
requirements of the existing storm water program include provisions
similar to the concept of ``measurable goals'' proposed today.
Specifically, some municipal storm water management plans include, for
example, inspection of or cleaning of a fixed number of storm drain
inlets per year and a survey of all municipal right-of-ways to identify
illicit connections to the municipal separate storm sewer system.
Currently, existing permit application regulations for municipal
separate storm sewer systems require identification and implementation
of BMPS and not necessarily measurable goals, much less performance
standards.
Qualifying State, Tribal, or local programs that meet the
requirements of one or more of the minimum control measures could be
incorporated by

[[Page 1574]]

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

Maximum Extent Practicable

Maximum extent practicable (MEP) is a technology-based control
standard currently used in the existing municipal storm water program
against which permit writers and permittees assess whether or not an
adequate level of control has been proposed in the storm water
management program. The Urban Wet Weather Flows Federal Advisory
Committee recommended to EPA that MEP be applied to all permits issued
to municipal separate storm sewer systems, including those proposed to
be regulated today, to achieve greater cooperation and consistency,
reduce conflicts and confusion, and improve economies of scale in the
efforts of municipalities to manage storm water pollution.
In today's proposal, NPDES permits issued for regulated small
municipal separate storm sewer systems, whether in the form of general
or individual permits, would require the owner or operator to develop,
implement, and enforce a storm water management program designed to
reduce the discharge of pollutants to the maximum extent practicable.
The permittee would be expected to reduce the pollutants to the MEP
through implementation of the following minimum control measures:
Public education and outreach on storm water impacts, public

involvement/participation, illicit discharge detection and elimination,
construction site storm water runoff control, post-construction storm
water management in new development and redevelopment, and pollution
prevention/good housekeeping for municipal operations.

Under today's proposed approach, MEP would be determined through a
series of steps associated with identification and implementation of
the minimum control measures. In issuing the general permit, for
example, the NPDES permitting authority would establish requirements
for each of the minimum control measures and require municipalities to
identify the BMPs to be performed and measurable goals to be achieved.
Permittees would then be required to identify the BMPs and associated
measurable goals for addressing each of the minimum control measures in
their NOIs.
Upon receipt of the NOI from a municipality, the NPDES permitting
authority would then have the opportunity to review the NOI to verify
that the identified BMPs and measurable goals would meet the MEP
requirement and, if necessary, could ask the permittee to revise the
mix of BMPs to better reflect the requirement. A similar procedure
could be established for a small municipal separate storm sewer system
that is a co-permittee with a municipal separate storm sewer system
that is already regulated in an individual NPDES permit. This process
would be followed by actual program implementation by the municipality.
Under the proposed approach, implementation of BMPs consistent with
storm water management program requirements at Sec. 122.34 and permit
provisions at Sec. 122.33 would constitute compliance with the standard
of ``reducing pollutants to the maximum extent practicable.''
The pollutant reductions that represent MEP may be different for
each municipality, given the unique storm water concerns that may exist
and the differing possible remedies. Therefore, each permittee would
determine the specific details in each of the six minimum control
measures that represent MEP through an evaluative process. In this
process, permittees and permit writers would evaluate the proposed
storm water management controls to determine whether reduction of
pollutants to the MEP could be achieved with the identified BMPs. EPA
envisions that this evaluative process would consider such factors as
conditions of receiving waters, specific local concerns, and other
aspects included in a comprehensive watershed plan. The FACA Committee
is currently working to identify evaluative MEP criteria. Suggestions
have included: (1) The effectiveness to address the pollutant(s) of
concern, (2) public acceptance, (3) cost, (4) technical feasibility,
and (5) compliance with Federal, State and local laws and regulations.
Prior to permit issuance, EPA plans to develop additional policy
and technical guidance on the process of evaluating MEP for municipal
separate storm sewer system permits based upon the recommendations
received from the FACA Committee. This guidance would be applicable to
both medium and large systems (addressed by existing requirements), as
well as those addressed by today's proposal. It is important to note
that States implementing their own NPDES programs may develop more
stringent requirements than those proposed in today's rule. In any
event, additional elaboration of the MEP determination process is not
necessary prior to issuance of the final rule, because MEP is
determined on a permit-by-permit basis.

a. Program Requirements--Minimum Control Measures

i. Public Education and Outreach on Storm Water Impacts. EPA is
proposing that any NPDES permit issued to regulated small municipal
separate storm sewer systems would require the owner or operator to
implement a public education program to distribute educational
materials to the community (or conduct equivalent outreach activities)
about the impacts of storm water discharges on waterbodies and the
steps to reduce storm water pollution. The State, EPA, environmental
organizations or other public interest or trade organizations could
provide materials, subject to the approval of the owner or operator of
the municipal system. The materials or outreach programs should inform
individuals and households about steps that can be taken to reduce
storm water pollution, such as ensuring proper septic system
maintenance, limiting the use and runoff of garden chemicals to
appropriate amounts, properly disposing of used motor oil or household
hazardous wastes, and becoming involved in local stream restoration
activities. EPA would encourage individuals to participate in
activities coordinated by youth service organizations, conservation
corps, or other citizen groups. Other possible outreach materials could
encourage citizens to participate in the municipal program by
performing such services as roadside litter pickup and storm drain
stenciling or highlight the potential public health risks to children
if exposed to pollution when playing near storm drains. In addition,
some of the materials or outreach programs should be directed toward
targeted groups of commercial, industrial, and institutional entities
likely to have significant storm water impacts to explain their impacts
on storm water pollution (e.g., information to restaurants on the
impact of grease clogging storm drains and to garages on the impacts of
used oil discharges). The owner or operator is encouraged to tailor the
outreach program to address the viewpoints and concerns of all
communities, particularly minority and disadvantaged communities, as
well as children.
EPA believes that as the public gains a greater understanding of
the municipally developed program, the municipality is likely to gain
more support for the program (including funding initiatives). In
addition, compliance with the program would probably be greater if the
public

[[Page 1575]]

understands the personal responsibilities expected of them and others.
Well-informed citizens could even act as formal or informal educators
to further disseminate information and gather support for the program,
thus easing the burden on the municipalities to perform all educational
activities. The public outreach provision has been tailored to respond
to specific concerns raised in the course of the FACA process. For
example, municipal representatives advocated the inclusion of language
that would clarify that use of educational materials from outside
groups, such as trade associations and environmental groups, would be
subject to the approval of the municipality. Also, the above-referenced
language addressing environmental justice concerns was in response to
input from Storm Water Phase II FACA Subcommittee members.
Municipalities would be encouraged to enter into partnerships with
their States in fulfilling the public education requirement. It may be
much more cost-effective to utilize a State education program instead
of numerous municipalities developing their own. Municipalities would
also be encouraged to work with other organizations (e.g.,
environmental and nonprofit groups and industry) that might be able to
assist in fulfilling this requirement. Many of these kinds of
organizations already have educational materials, and the groups could
work together to educate the public.
EPA requests comment on the appropriateness of the specified
requirements for public education and outreach.
ii. Public Involvement/Participation. Public involvement is an
integral part of the municipal storm water program. The Agency believes
that the public can provide valuable input and assistance to the
municipality's storm water program. The Agency, therefore, is proposing
that the public play an active role in the development and
implementation of the municipality's storm water management program.
The municipal storm water management program would need to include
a public participation program that complies with applicable State and
local public notice requirements. The public should participate as a
partner in developing, implementing, and reviewing the storm water
management program. Opportunities for members of the public to
participate in program development and implementation could include
serving as citizen representatives on a local storm water management
panel, attending public hearings, working as citizen volunteers to
educate other individuals about the program, assisting in program
coordination with other pre-existing programs, or participating in
volunteer monitoring efforts. The public participation process should
engage all economic and ethnic groups.
Early and frequent public involvement can shorten implementation
schedules and broaden public support for a program. One challenge
associated with public involvement is addressing conflicting
viewpoints. Another challenge is in engaging the public in the public
meeting and program design process. Nevertheless, EPA strongly believes
that the overall benefits of an aggressive and inclusive program,
including involvement of low-income and minority communities, is an
essential component of a State, Tribal, Federal, and municipal storm
water management program.
Public participation ensures a more successful storm water program
by providing valuable expertise and a conduit to other programs and
governments, which would be of primary importance if the municipal
storm water program is to be implemented on a watershed basis. The
public could act as volunteers in all aspects of the program, thus
saving municipal resources. Another recognized benefit is that members
of the public are less likely to raise legal challenges to a
municipality's storm water program if they have been involved in the
decisionmaking process and program development and, therefore, are
partially responsible for the program themselves. Section II.K.
provides further discussion on public involvement.
EPA requests comment on the appropriateness of the specified
requirements for public involvement/participation.
iii. Illicit Discharge Detection and Elimination. Discharges from
storm water drainage systems often include wastes and wastewater from
non-storm water sources. EPA's Nationwide Urban Runoff Program (NURP)
indicated that many storm water outfalls still discharge during
substantial dry periods. Pollutant levels in these dry weather flows

were shown to be high enough to significantly degrade receiving water

quality. Results from a 1987 study conducted in Sacramento, California,
revealed that slightly less than one-half of the water discharged from
a municipal separate storm sewer system was not directly attributable
to precipitation runoff (U.S. Environmental Protection Agency, Office
of Research and Development. 1993. Investigation of Inappropriate
Pollutant Entries Into Storm Drainage Systems--A User's Guide.
Washington, D.C. EPA 600/R-92/238.) A significant portion of these dry
weather flows results from illicit and/or inappropriate discharges and
connections to the municipal separate storm sewer system. Illicit
discharges enter the system through either direct connections (e.g.,
wastewater piping either mistakenly or deliberately connected to the
storm drains) or indirect connections (e.g., infiltration into the
storm drain system or spills collected by drain inlets). Under the
existing NPDES program for storm water, permits for large and medium
municipal separate storm sewer systems are to include an effective
prohibition against non-storm water discharges into their storm sewers
(see CWA section 402(p)(3)(B)(ii)). Further, EPA believes that in
implementing municipal storm water management plans under these
permits, large and medium municipalities generally found their illicit
discharge detection and elimination programs to be cost-effective.
In today's proposal, any NPDES permit issued to an owner or
operator of a regulated small municipal separate storm sewer system
would, at a minimum, require that owner or operator to develop and
implement an illicit discharge detection and elimination program.
Inclusion of this measure for municipal storm water programs for
regulated small municipalities would be consistent with the ``effective
prohibition'' requirement for large and medium municipal separate storm
sewer systems. Under such a program, the owner or operator would be
required to demonstrate awareness of the system using maps or other
existing documents. The owner or operator would also be required to
develop (if not already completed) a storm sewer system map (or
equivalent) showing the location of major pipes, outfalls, and
topography. The map should identify areas of concentrated activities
likely to be a source of storm water pollution, if the data already
exist. To ensure the effectiveness of this measure, the owner or
operator would be required to effectively prohibit through ordinance,
order, or similar means (for nongovernmental owners or operators of
municipal separate storm sewer systems), to the extent allowable under
State or Tribal law, illicit discharges into the separate storm sewer
system and implement appropriate enforcement procedures and actions as
needed. This measure would also require the owner or operator to
develop

[[Page 1576]]

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

[[Page 1577]]

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

v. Post-Construction Storm Water Management in New Development and

Redevelopment. The Nationwide Urban Runoff Program study and more
recent investigations indicate that prior planning and designing for
the minimization of pollutants in storm water discharges is the most
cost-effective approach to storm water quality management. Reducing the
discharge of pollutants after the discharge enters a storm sewer system
is often more expensive and less efficient than preventing or reducing
the discharge of pollutants at the source.

[robop...@us.govnews.org]

Archive-Name: gov/us/fed/nara/fed-register/1998/jan/09/63FR1535/part6

Posting-number: Volume 63, Issue 6, Page 1535, Part 1

[[Page 1578]]

Increased human activity associated with development often results in
increased discharges of pollutants. In addition, sediment and debris
transport and deposition can directly impair aquatic life. If the
involved parties consider water quality impacts from the beginning
stages of projects, new development and possibly redevelopment allow
opportunities for more water quality sensitive projects. For example,
minimization of impervious areas, maintenance or restoration of natural
infiltration, wetland protection, use of vegetated drainage ways, and
use of riparian buffers have been shown to reduce pollutant loadings in
storm water runoff from developed areas. EPA encourages local
governments to identify specific problem areas within their
jurisdictions and initiate innovative solutions and designs to focus
attention on those areas through local planning.
In today's rule, EPA is proposing that owners or operators of
regulated small municipal separate storm sewer systems develop,
implement, and enforce a program that includes a plan to address storm
water runoff from new development and redevelopment projects to their
municipal separate storm sewer systems using site-appropriate and cost-
effective structural and non-structural BMPs, as appropriate. The
program would need to ensure that controls are in place that would
prevent or minimize water quality impacts. The program should ensure
adequate long-term operation and maintenance of BMPs. EPA would address
questions regarding responsibility for long-term BMP operation and
maintenance in guidance materials. EPA intends the term
``redevelopment'' to refer to alterations of a property that change the
``footprint'' of a site or building in such a way that results in the
disturbance of equal to or greater than 1 acre of land. The term is not
intended to include such activities as exterior remodeling, which would
not be expected to cause adverse storm water quality impacts and offer
no new opportunity for storm water controls.
EPA intends to provide guidance to owners or operators of municipal
systems and permitting authorities on appropriate planning
considerations, structural and non-structural controls, and post-
construction operation and maintenance of BMPs. Guidance materials
would also address questions regarding responsibility for long-term
operation and maintenance of storm water controls. EPA also intends to
present a broad menu of options as guidance allowing for flexibility to
accommodate local conditions. EPA proposes to recommend that
municipalities establish requirements for the use of cost-effective
BMPs that minimize water quality impacts and attempt to maintain pre-
development runoff conditions. In other words, post-development
conditions should not be different from pre-development conditions in a
way that adversely affects water quality. The municipal program should
include structural and/or non-structural BMPs. EPA encourages locally-
based watershed planning and the use of preventative measures,
including non-structural BMPs, which are generally lower in cost than
structural BMPs, to minimize water quality impacts. Non-structural BMPs
are preventative actions that involve management and source controls.
Examples of non-structural BMPs include policies and ordinances that
result in protection of natural resources and prevention of runoff.
These include requirements to limit growth to identified areas, protect
sensitive areas such as wetlands and riparian areas, minimize
imperviousness, maintain open space, and minimize disturbance of soils
and vegetation.
Examples of structural BMPs include storage practices (wet ponds
and extended-detention outlet structures), filtration practices
(grassed swales, sand filters and filter strips), and infiltration
practices (infiltration basins, infiltration trenches, and porous
pavement). System owners or operators have significant flexibility both
to develop this measure as appropriate to address local concerns and to
apply new control technologies as they become available. Since storm
water technologies are constantly being improved, EPA recommends that
municipal requirements be responsive to these changes.

EPA requests comment on the appropriateness of the specified

requirements for post-construction storm water management in new
development and redevelopment.

vi. Pollution Prevention/Good Housekeeping for Municipal

Operations. In today's proposal, any NPDES permit issued to an owner or
operator of a regulated small municipal separate storm sewer system
must, at a minimum, require the owner or operator to develop and
implement a cost-effective operation and maintenance/training program
with the ultimate goal of preventing or reducing pollutant runoff from
municipal operations. EPA would encourage the owner or operator to
consider the following in developing such a program: (1) Maintenance
activities, maintenance schedules, and long-term inspection procedures
for structural and other storm water controls to reduce floatables and
other pollutants discharged from the separate storm sewers; (2)
controls for reducing or eliminating the discharge of pollutants from
streets, roads, highways, municipal parking lots, maintenance and
storage yards, and waste transfer stations--including programs that
promote recycling and pesticide use minimization; (3) procedures for
the proper disposal of waste removed from the separate storm sewer
systems and areas listed above in (2), including dredge spoil,
accumulated sediments, floatables, and other debris; and (4) ways to
ensure that new flood management projects assess the impacts on water
quality and examine existing projects for incorporation of additional
water quality protection devices or practices. In general, the
requirement to develop and implement an operation and maintenance
program, including local government employee training, is meant to
ensure that municipal activities are performed in the most appropriate
way to minimize contamination of storm water discharges, rather than
requiring the municipality to undertake new activities.
Proper operation and maintenance of the municipal separate storm
sewer system and the storm water pollution control structures is
essential to the success of the management program overall. The
effective performance of this program measure would hinge on the proper
maintenance of the BMPs utilized. Without proper maintenance, BMP
performance declines significantly over time, with rates of decline
varying by BMP type and site conditions. Additionally, BMP neglect may
produce health and safety threats, such as structural failure leading
to flooding, undesirable animal and insect breeding, and odors.
Maintenance of structural BMPs could include activities to restore the
integrity of infiltration control BMPs such as replacing upper levels
of gravel; dredging of detention ponds; and repair of outlet structure
integrity. Non-structural BMPs could also require maintenance over
time. For example, educational materials might need to be updated
periodically.
EPA intends that controls for discharges from maintenance and
storage yards listed above include controls for discharges from salt/
sand storage locations and snow disposal areas operated by the
municipality. EPA encourages coordination with flood control managers
for the purpose of identifying and addressing the environmental impacts
of existing and proposed flood management activities.

[[Page 1579]]

Using existing storm water pollution prevention training materials
that could be available from the NPDES authorities or from other
organizations whose materials are approved by the local government, the
program would need to include local government employee training
addressing these prevention measures in government operations (such as
park, golf course and open space maintenance; fleet maintenance;
planning, building oversight and storm water system maintenance). In
developing this minimum program element, the Agency sought to identify
existing practices and training as a means to avoid duplication of
efforts and reduce overall costs. EPA also sought to emphasize those
practices or programs designed and undertaken by municipalities to
address non-storm water problems but also that have storm water
pollution prevention benefits. In addition, EPA designed this municipal
program measure intending to create a streamlined version of the permit
application requirements for medium and large municipal separate storm
sewer systems described at 40 CFR 122.26(d)(2)(iv). The streamlined
approach is intended to provide more flexibility for these smaller
municipalities. Today's proposed requirements provide for a consistent
approach to control pollutants from operation and maintenance among
medium, large, and regulated small municipal separate storm sewer
systems.
By implementing a cost-effective operation and maintenance program,
the municipal storm system owner or operator would serve as a model for
the regulated community. Furthermore, the establishment of a long-term
training and maintenance program could result in cost savings for the
owner or operator by minimizing possible damage to the system from
floatables and other debris and, consequently, reducing the need for
repairs.
The proposed minimum measure, which originated with members of the
Storm Water Phase II FACA Subcommittee, is similar to the requirements
of the existing storm water program. EPA requests comment on the
appropriateness of the specified requirements for pollution prevention/
good housekeeping for municipal operations.
vii. Satisfaction of Minimum Measure Obligations. Today's proposal
would allow regulated small system owners or operators to satisfy their
NPDES permit obligations for a minimum control measure by having
another governmental or other entity perform the measure under the
following circumstances: The other entity is implementing the control
measure; the particular control measure (or component thereof) is at
least as stringent as the corresponding NPDES permit requirements; and
the owner or operator has requested, and the other entity has agreed to
accept responsibility for, implementation of a particular control
measure (or measures) on behalf of, and to satisfy, the owner or
operator's municipal permit obligations. The owner or operator would
need to specify in the Sec. 122.34(f)(3) reports submitted to the NPDES
permitting authority when the owner or operator relies on another
person to satisfy the permit obligations. The owner or operator would
remain responsible for compliance with the permit obligations if the
entity fails to implement the control measure (or component thereof).
Therefore, EPA would encourage the owner or operator to enter into a
legally binding agreement with that entity to minimize any uncertainty
regarding compliance with the NPDES permit.
In addition to the permittee-coordinated arrangement, today's
proposal also includes a provision that would allow the NPDES
permitting authority to recognize existing responsibilities among
governmental entities for the control measures in an NPDES permit. For
example, a State may have an existing erosion and sediment control
program that adequately addresses construction site discharges to
regulated small municipal separate storm sewer systems. The NPDES
permitting authority in that State could draft the NPDES permit
conditions such that the State is responsible for the construction site
storm water discharge control minimum measure. Assuming that no other
existing programs meet the requirements of the other minimum control
measures, the municipality would be responsible for implementing those
remaining minimum measures. Where the NPDES permitting authority
recognizes existing responsibilities for one or more of the minimum
control measures in an NPDES permit, these responsibilities would be
waived from a regulated small system's storm water management plan and
would remain waived as long as the other governmental entity implements
the measure consistent with the proposed municipal program permit
requirements at Sec. 122.34(b). When the NPDES permitting authority
recognizes an existing responsibility in an NPDES permit, the permittee
would not be obligated to notify the other governmental entity about
the arrangement. Instead, EPA anticipates it would be the
responsibility of the NPDES permitting authority to do so.

b. Application Requirements, Including Notice of Intent

As part of the municipal program, the owner or operator of a
regulated small municipal separate storm sewer system would be required

to identify and submit to the NPDES permitting authority, either in a

notice of intent (NOI) to be covered under a general permit or in an
individual permit application, the BMPs that the owner or operator
would implement and the measurable goals for the minimum control
measures discussed previously. In reviewing NOIs submitted by the
owners or operators of municipal systems, the NPDES permitting
authority would need to pay particular attention to the BMPs and
measurable goals identified for municipal separate storm sewer systems
that are located in impaired watersheds. Where specific measurable
goals to satisfy minimum control measures in paragraphs (b)(3) through
(b)(6) of Sec. 122.34 (illicit discharges detection and elimination,

construction site storm water runoff control, post-construction storm

water management in new development and redevelopment, pollution
prevention/good housekeeping for municipal operations) are identified
in an NOI, these goals would not constitute a condition of the NPDES
permit, unless EPA or the State has provided or issued a menu of

regionally appropriate, field-tested BMPs that it believes to be cost-

effective. EPA has limited this provision to only four of the minimum
control measures because the Agency does not believe that
municipalities need the kind of technical assistance in developing
measurable goals for public education and outreach or public
involvement that might be essential in determining measurable goals for
the other four minimum control measures. Measurable goals for the two
minimum control measures of public education and outreach and public
involvement would be required and would be enforceable permit
conditions even without the issuance of the menu of BMPs. In the
general permit NOI or individual permit application, the owner or
operator would also be required to identify the month and year in which
the owner or operator would start and would aim to complete each of the
minimum control measures or indicate the frequency of the action.
The NPDES permitting authority would specify a time period (of up
to five years) for the owner or operator to

[[Page 1580]]

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

[[Page 1581]]

established by the end of the initial term. Information contained in
these reports could be used to respond to public inquiries.
The report would need to include (1) the status of compliance with
permit conditions, an assessment of the appropriateness of identified
BMPs and progress toward achieving measurable goals for each of the
minimum control measures, (2) results of information collected and
analyzed, including monitoring data, if any, during the reporting
period, (3) a summary of what storm water activities the permittee
plans to undertake during the next reporting cycle, and (4) a change in
any identified measurable goal or goals that apply to the program
elements.
The NPDES permitting authority would be encouraged to use a brief

(e.g., two-page) reporting format to facilitate compiling and analyzing

the data from submitted reports. The permitting authority would use the
reports in evaluating compliance with permit conditions and, where
necessary, would modify the permit conditions to address changed
conditions. EPA requests comment on the appropriate content of the
reports and the timing of the submittal.
iii. Permit-As-A-Shield. Section 122.36 describes the NPDES
``permit-as-a-shield'' coverage offered by section 402(k) of the CWA.
Section 402(k) provides that compliance with an NPDES permit would be
deemed compliance, for purposes of enforcement under CWA sections 309
and 505, with CWA sections 301, 302, 306, 307, and 403, except for any
standard imposed under section 307 for toxic pollutants injurious to
human health.
EPA's Policy Statement on Scope of Discharge Authorization and
Shield Associated with NPDES Permits, issued on July 1, 1994, and
revised by EPA's policy memorandum on the same subject issued on April
11,1995, provides additional information on this matter.

d. Other Applicable NPDES Requirements

Any NPDES permit issued to an owner or operator of a regulated
small municipal separate storm sewer system would also need to include
other applicable NPDES permit requirements and standard conditions,
specifically those requirements and conditions at 40 CFR 122.41 through
122.49 (EPA recognizes that reporting requirements for regulated small
municipal separate storm sewer systems would be governed by proposed
Sec. 122.34 and not the existing requirements for medium and large
municipal separate storm sewer systems at Sec. 122.42(c)). In addition,
the NPDES permitting authority is encouraged to consult the Interim
Permitting Approach, issued on August 1, 1996. The discussion on the
Interim Permitting Approach in Section II.L.1, Water Quality Standards,
provides more information. Members of the municipal caucus expressed
considerable concern that imposing these conditions would, in effect,
undermine the intent of the program developed in consultation with the
Storm Water Phase II FACA Subcommittee--to develop a program with a
simplified set of permit requirements based on the implementation of
BMPs. EPA does not believe that this is a concern. The provisions of
Secs. 122.41 through 122.49 establish permit conditions and limitations
that are broadly applicable to the entire range of NPDES permits. These
provisions should be interpreted in a manner that is consistent with
provisions that address specific classes or categories of discharges.
For example, Sec. 122.44(d) is a general requirement that each NPDES
permit shall include conditions to meet water quality standards. This
requirement would be met by the specific approach outlined in today's
proposal for the implementation of BMPs as the most appropriate form of
effluent limitations to satisfy technology requirements and water
quality-based requirements (see the introduction to Section II.H.3,
Municipal Permit Requirements, Section II.H.3.g, Reevaluation of Rule,
and the discussion of the Interim Permitting Policy in Section
II.L.1.a. below).
e. Enforceability
NPDES permits are federally enforceable. Violators may be subject
to the enforcement actions and penalties described in CWA sections 309,
504, and 505 or under appropriate State or local law. Compliance with a
permit issued pursuant to section 402 of the Clean Water Act would be
deemed compliance, for purposes of sections 309 and 505, with sections
301, 302, 306, 307, and 403 (except any standard imposed under section
307 for toxic pollutants injurious to human health).
f. Deadlines
Under Sec. 122.32(a)(1) of today's proposed rule, which
automatically designates all small municipal separate storm sewers
located in an ``urbanized area,'' owners or operators of regulated
small municipal separate storm sewer systems would need to seek
coverage under an NPDES permit within 3 years and 90 days from the date
of publication of the final rule. Assuming a March 1, 1999, final rule,
the resulting deadline would be May 31, 2002--this allows 90 days after
the issuance of a general permit to submit the NOI. Owners or operators
of regulated small municipal separate storm sewer systems that choose
to be a co-permittee with an adjoining municipality or other
governmental entity with an existing NPDES storm water permit would
need to apply for a modification of that permit by May 31, 2002--
allowing for 90 days as well. EPA recognizes that the use of the
``latest'' Decennial Census by the Bureau of the Census as a basis for
nationwide designation raises an issue regarding applicable deadlines
for municipalities brought into the program due to 2000 Census
calculations. EPA proposes that small municipal separate storm sewer
systems that are automatically designated as of the 2000 Census would
need to seek coverage under an NPDES permit within 3 years and 90 days
from the date of publication of the final rule. Since the official
Bureau of the Census urbanized area calculation for the 2000 Census is
expected to be published by August 2001, this proposed deadline would
allow the affected municipalities to have approximately 9 months notice
to prepare for compliance under the applicable permit. EPA invites
comment on this proposed deadline for municipalities affected by the
2000 Census. EPA also seeks comment on the appropriateness of the range
of time allowed for regulated small municipal separate storm sewer
systems to prepare an NOI or permit application, which varies from 3
years and 90 days (if automatically designated by the 1990 Census) to
60 days (if designated by the NPDES permitting authority under proposed
Sec. 122.32(a)(2)), with 9 months in between (if automatically
designated by the 2000 Census).
As stated above, owners or operators of regulated small municipal
separate storm sewer systems designated by the NPDES permitting
authority on a local basis under Sec. 122.32(a)(2) would need to seek
coverage under an NPDES permit within 60 days of notice, unless the
NPDES permitting authority specifies a later date. EPA seeks comment
specifically on whether 60 days provides adequate time for the
preparation of an NOI or permit application or if a 90 day time period
would be more appropriate.
g. Reevaluation of Rule
The municipal caucus of the Storm Water Phase II FACA Subcommittee
asked EPA to demonstrate its commitment to revisit today's proposed
rule as it applies to municipal separate

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

I. Other Designated Storm Water Discharges

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

[[Page 1583]]

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

[[Page 1584]]

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

A-RKLSCP

where A is the average soil erosion rate in tons per acre per year.
This waiver provision would be applicable on a case-by-case basis where
the annual soil loss rate for the period of construction for a site
would be less than 2 tons/acre/year. The annual soil loss rate of less
than 2 tons/acre/year would be calculated through the use of the
equation, assuming the constants of no ground cover and no runoff
controls in place. For the purposes of today's proposal, RUSLE would be
used to predict where storm water discharges associated with
construction activity (i.e., soil disturbance through clearing,
grading, and excavating would not be expected to adversely affect water
quality.)
The third waiver would be available where the State (or EPA) has
completed either wasteload allocations that are part of TMDLs that
address the pollutants of concern or a comprehensive watershed plan,
implemented for the water body, in which the equivalents of TMDLs have
been done as part of the watershed plan addressing the pollutants of
concern from construction activities. The permitting authority would
need to reflect relevant components of the comprehensive watershed plan
or TMDLs in NPDES permits. The watershed plan, or TMDLs, would need to

demonstrate with reasonable assurance that load reductions take place

pursuant to CWA section 303(d) and that such discharge does not cause
or have a potential to cause water quality impacts. In determining this
waiver, EPA (if the NPDES permitting authority) might rely on a State's
wasteload allocations that are part of TMDLs or a State's comprehensive
watershed plan in which the equivalents of TMDLs has been done as part
of the watershed plan. To qualify for this waiver option, the owner or
operator would need to certify that the construction activity will take
place, and storm water discharges will occur, within an area covered
either by the TMDLs or comprehensive watershed plan. By using the term
``comprehensive watershed plan,'' EPA recognizes that TMDLs address
``impaired waters'' and that there may be TMDL-like activities on
waters that are not found to be ``impaired.'' It is expected that when
TMDLs are done there may be a determination, in some cases, that
certain classes of sources such as small construction sites would not
have to control their contribution of pollutants of concern to the
waterbody in order for it to be in attainment (i.e., these sources are
not assigned wasteload allocations) and, therefore, implementation of
storm water controls would not be necessary under today's proposed
storm water program.
EPA is continuing to review technical information to determine
whether the waiver thresholds for rainfall erosivity and annual soil
loss are the appropriate thresholds. The agency is also interested in
comment regarding the feasibility of these waiver provisions. For
example, concerns have been raised that application of the second
waiver (case-by-case basis where the annual soil loss rate for the
period of construction for a site would be less than 2 tons/acre/year)
might not sufficiently protect sensitive ecosystems or species. Impacts
from fine sediment could be heightened for coral reef systems or for
extremely oligotrophic systems, such as Lake Tahoe in Nevada or Crater
Lake in Oregon (see the general discussion of construction impacts in
Section I.A.1., Construction Site Runoff). In addition, concerns have
been raised that the second waiver provision would be too complicated
and, thus, misapplied because the variables and assumptions in the
RUSLE would be misinterpreted or misrepresented. EPA encourages the
submission of data and other information that could ensure a waiver
process that is fair and easily applied while providing sufficient
protection for sensitive ecosystems.
Preliminary comments on the proposed waiver provisions also raised
a process issue regarding how a permittee would qualify for a waiver.
Today's proposal includes a certification process whereby the

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